UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 
FORM 8-K

 
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
 
Date of Report (Date of earliest event reported):  September 28, 2012
 
CNO Financial Group, Inc.
(Exact name of registrant as specified in its charter)
 
Delaware	001-31792	75-3108137	
(State or Other
Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer
Identification No.)	
 
11825 North Pennsylvania Street
Carmel, Indiana 46032
(Address of Principal Executive Offices) (Zip Code)
 
Registrant’s telephone number, including area code: (317) 817-6100
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
 	o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
 	o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
 	o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	
 
 	o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	

 

 
 
Item 1.01                       Entry into a Material Definitive Agreement .
 
New Senior Secured Notes
 
On September 28, 2012, CNO Financial Group, Inc. (the “ Company ”) issued $275.0 million in aggregate principal amount of its 6.375% Senior Secured Notes due 2020 (the “ New Notes ”), pursuant to an Indenture, dated as of September 28, 2012 (the “ Indenture ”), among the Company, the subsidiary guarantors party thereto (the “ Subsidiary Guarantors ”) and Wilmington Trust, National Association, as trustee (the “ Trustee ) and as collateral agent (the “ Collateral Agent ”).
 
The New Notes will mature on October 1, 2020. Interest on the New Notes accrues at a rate of 6.375% per annum and is payable semiannually in arrears on April 1 and October 1 of each year, commencing on April 1, 2013.
 
The New Notes and the guarantees thereof (the “ Guarantees ”) are senior secured obligations of the Company and the Subsidiary Guarantors and rank equally in right of payment with all of the Company’s and the Subsidiary Guarantors’ existing and future senior obligations, and senior to all of Company’s and the Subsidiary Guarantors’ future subordinated indebtedness. The New Notes are secured by a first-priority lien on substantially all of the assets of the Company and the Subsidiary Guarantors, subject to certain exceptions. The New Notes and the Guarantees are pari passu with respect to security and in right of payment with all of the Company’s and the Subsidiary Guarantors’ existing and future secured indebtedness under the New Senior Secured Credit Agreement (as defined below).  The New Notes are structurally subordinated to all of the liabilities and preferred stock of each of the Company’s insurance subsidiaries, which will not guarantee the New Notes.
 
The Company may redeem all or part of the New Notes beginning on October 1, 2015, at the redemption prices set forth in the Indenture. The Company may also redeem all or part of the New Notes at any time and from time to time prior to October 1, 2015, at a price equal to 100% of the aggregate principal amount of the New Notes to be redeemed, plus a “make-whole” premium and accrued and unpaid interest to, but not including, the redemption date. In addition, prior to October 1, 2015, the Company may redeem up to 35% of the aggregate principal amount of the New Notes with the net cash proceeds of certain equity offerings at a price equal to 106.375% of the aggregate principal amount of the New Notes to be redeemed, plus accrued and unpaid interest to, but not including, the redemption date.
 
Upon the occurrence of a Change of Control (as defined in the Indenture), each holder of the New Notes may require the Company to repurchase all or a portion of the New Notes in cash at a price equal to 101% of the aggregate principal amount of the New Notes to be repurchased, plus accrued and unpaid interest, if any, to, but not including, the date of repurchase.
 
The Indenture contains covenants that, among other things, limit (subject to certain exceptions) the Company’s ability and the ability of the Company’s Restricted Subsidiaries (as defined in the Indenture) to:
 
 	●	incur or guarantee additional indebtedness or issue preferred stock;	
 
 	●	pay dividends or make other distributions to shareholders;	
 
 	●	purchase or redeem capital stock or subordinated indebtedness;	
 
 	●	make investments;	

 

 
 	●	create liens;	
 
 	●	incur restrictions on the Company’s ability and the ability of its Restricted Subsidiaries to pay dividends or make other payments to the Company;	
 
 	●	sell assets, including capital stock of the Company’s subsidiaries;	
 
 	●	consolidate or merge with or into other companies or transfer all or substantially all of the Company’s assets; and	
 
 	●	engage in transactions with affiliates.	
 
The Indenture provides for customary events of default (subject in certain cases to customary grace and cure periods), which include nonpayment, breach of covenants in the Indenture, failure to pay at maturity or acceleration of other indebtedness, a failure to pay certain judgments and certain events of bankruptcy and insolvency. Generally, if an event of default occurs, the Trustee or holders of at least 25% in principal amount of the then outstanding New Notes may declare the principal of and accrued but unpaid interest, including any additional interest, on all of the New Notes to be due and payable.
 
In connection with the issuance of the New Notes and execution of the Indenture, the Company and the Subsidiary Guarantors entered into a security agreement, dated as of September 28, 2012 (the “ Security Agreement ”), by and among the Company, the Subsidiary Guarantors and the Collateral Agent, pursuant to which the Company and the Subsidiary Guarantors pledged substantially all of their assets to secure their obligations under the New Notes and the Indenture, subject to certain exceptions as set forth in the Security Agreement.
 
New Senior Secured Credit Agreement
 
On September 28, 2012, the Company entered into a new senior secured credit agreement, providing for (i) a $425.0 million six-year term loan facility, (ii) a $250.0 million four-year term loan facility and (iii) a $50.0 million three-year revolving credit facility, with JPMorgan Chase Bank, N.A., as administrative agent (the “ Agent ”), and the lenders from time to time party thereto (the “ New Senior Secured Credit Agreement ”).  The New Senior Secured Credit Agreement is guaranteed by the Subsidiary Guarantors and secured by a first-priority lien (which ranks pari passu with the liens securing the New Notes) on substantially all of the Company’s and the Subsidiary Guarantors’ assets.  As of September 28, 2012, the Company borrowed in full the amounts available under each of the term loan facilities and no amounts have been borrowed under the revolving credit facility.
 
The revolving credit facility includes an uncommitted subfacility for swingline loans of up to $5.0 million, and up to $5.0 million of the revolving credit facility is available for the issuance of letters of credit. The six-year term loan facility will amortize in quarterly installments in amounts resulting in an annual amortization of 1% and the four-year term loan facility will amortize in quarterly installments resulting in an annual amortization of 20% during the first and second years and 30% during the third and fourth years.  Subject to certain conditions, the Company may incur additional incremental loans under the New Senior Secured Credit Agreement in an amount of up to $250.0 million.
 
Mandatory prepayments of the New Senior Secured Credit Agreement will be required, subject to certain exceptions, in an amount equal to: (i) 100% of the net cash proceeds from certain asset sales or casualty events; (ii) 100% of the net cash proceeds received by the Company or any of its restricted subsidiaries from certain debt issuances; and (iii) 100% of the amount of certain restricted payments made (including any common stock dividends and share repurchases) as defined in the New Senior Secured Credit Agreement provided that if, as of the end of the fiscal quarter immediately preceding such restricted payment, the debt to total capitalization ratio is: (x) equal to or less than 22.5%, but greater than 17.5%, the prepayment requirement shall be reduced to 33.33%; or (y) equal to or less than 17.5%, the prepayment requirement shall not apply.

 

 
Notwithstanding the foregoing, no mandatory prepayments pursuant to item (i) in the preceding paragraph shall be required if: (x) the debt to total capitalization ratio is equal or less than 20% and (y) either (A) the financial strength rating of certain of the Company’s insurance subsidiaries is equal or better than A- (stable) from A.M. Best Company or (B) the New Senior Secured Credit Agreement is rated equal or better than BBB- (stable) from Standard & Poor ’ s Ratings Group and Baa3 (stable) by Moody’s Investor Services, Inc.
 
The interest rates with respect to loans under (i) the six-year term loan facility will be, at the Company’s option, equal to a eurodollar rate, plus 3.75% per annum, or a base rate, plus 2.75% per annum, subject to a eurodollar rate “floor” of 1.25% and a base rate “floor” of 2.25%, (ii) the four-year term loan facility will be, at the Company’s option, equal to a eurodollar rate, plus 3.25% per annum, or a base rate, plus 2.25% per annum, subject to a eurodollar rate “floor” of 1.00% and a base rate “floor” of 2.00% and (iii) the revolving credit facility will be, at the Company’s option, equal to a eurodollar rate, plus 3.50% per annum, or a base rate, plus 2.50% per annum, in each case, with respect to revolving credit facility borrowings only, subject to certain step-downs based on the debt to total capitalization ratio of the Company.
 
The New Senior Credit Agreement contains covenants that limit the Company’s ability to take certain actions and perform certain activities, including (each subject to exceptions as set forth in the New Senior Credit Agreement):
 
 	●	limitations on debt (including, without limitation, guarantees and other contingent obligations);	
 
 	●	limitations on issuances of disqualified capital stock;	
 
 	●	limitations on liens and further negative pledges;	
 
 	●	limitations on sales, transfers and other dispositions of assets;	
 
 	●	limitations on transactions with affiliates;	
 
 	●	limitations on changes in the nature of the Company’s business;	
 
 	●	limitations on mergers, consolidations and acquisitions;	
 
 	●	limitations on dividends and other distributions, stock repurchases and redemptions and other restricted payments;	
 
 	●	limitations on investments and acquisitions;	
 
 	●	limitations on prepayment of certain debt;	
 
 	●	limitations on modifications or waivers of certain debt documents and charter documents;	
 
 	●	investment portfolio requirements for insurance subsidiaries;	

 

 
 	●	limitations on restrictions affecting subsidiaries;	
 
 	●	limitations on holding company activities; and	
 
 	●	limitations on changes in accounting policies.	
 
In addition, the New Senior Secured Credit Agreement requires the Company to maintain (i) a debt to total capitalization ratio of not more than 27.5%, (ii) an interest coverage ratio of not less than 2.50 to 1.00, (iii) an aggregate ratio of total adjusted capital to company action level risk-based capital for the Company’s insurance subsidiaries of not less than 250% and (iv) a combined statutory capital and surplus for the Company’s insurance subsidiaries of at least $1.3 billion.
 
The New Senior Secured Credit Agreement provides for customary events of default (subject in certain cases to customary grace and cure periods), which include nonpayment, incorrectness of any representation or warranty in any material respect, breach of covenants in the New Senior Secured Credit Agreement or other loan documents, cross default to certain other indebtedness, certain events of bankruptcy and insolvency, certain ERISA events, a failure to pay certain judgments, certain material regulatory events, the occurrence of a change of control, and the invalidity of any material provision of any loan document or material lien or guarantee granted under the loan documents. If an event of default under the New Senior Secured Credit Agreement occurs and is continuing, the Agent may accelerate the amounts and terminate all commitments outstanding under the New Senior Secured Credit Agreement and may exercise remedies in respect of the collateral.
 
In connection with the execution of the New Senior Secured Credit Agreement, the Company and the Subsidiary Guarantors entered into a guarantee and security agreement, dated as of September 28, 2012 (the “ Guarantee and Security Agreement ”), by and among the Company, the Subsidiary Guarantors and the Agent, pursuant to which the Subsidiary Guarantors guaranteed all of the obligations of the Company under the New Senior Secured Credit Agreement and the Company and the Subsidiary Guarantors pledged substantially all of their assets to secure the New Senior Secured Credit Agreement, subject to certain exceptions as set forth in the Guarantee and Security Agreement.
 
New Pari Passu Intercreditor Agreement
 
In connection with the issuance of the New Notes and entry into the New Senior Secured Credit Agreement, the Agent and the Collateral Agent, as authorized representative with respect to the New Notes, entered into a Pari Passu Intercreditor Agreement, dated as of September 28, 2012 (the “ Intercreditor Agreement ”), which sets forth agreements with respect to the first-priority liens granted by the Company and the Subsidiary Guarantors pursuant to the Indenture and the New Senior Secured Credit Agreement.
 
Under the Intercreditor Agreement, any actions that may be taken with respect to the collateral that secures the New Notes and the New Senior Secured Credit Agreement, including the ability to cause the commencement of enforcement proceedings against such collateral, to control such proceedings and to approve amendments to releases of such collateral from the lien of, and waive past defaults under, such documents relating to such collateral, will be at the direction of the authorized representative of the lenders under the New Senior Secured Credit Agreement until the earliest of (i) the Company’s obligations under the New Senior Secured Credit Agreement (or refinancings thereof) are discharged, (ii) the earlier of (x) date on which the outstanding principal amount of loans and commitments under the New Senior Secured Credit Agreement is less than $25.0 million and (y) the date on which the outstanding principal amount of another tranche of first-priority indebtedness exceeds the principal amount of loans and commitments under the New Senior Secured Credit Agreement and (iii) 180 days after the occurrence of both an event of default under the Indenture and the authorized representative of the holders of the New Notes making certain representations as described in the Intercreditor Agreement, unless the authorized representative of the lenders under the New Senior Secured Credit Agreement has commenced and is diligently pursuing enforcement action with respect to the collateral or the grantor of the security interest in that collateral (whether the Company or the applicable Subsidiary Guarantor) is then a debtor under or with respect to (or otherwise subject to) any insolvency or liquidation proceeding.

 

 
Supplemental Indenture Relating to Existing Senior Secured Notes
 
As of 5:00 p.m., New York City time, on September 27, 2012, the holders of $273,806,000, or approximately 99.6%, of the Company’s 9.00% Senior Secured Notes due 2018 (the “ Existing Notes ”) had tendered their Existing Notes and consented to proposed amendments to the indenture governing the Existing Notes (the “ Existing Note Indenture ”) in accordance with the Company’s previously announced offer to purchase and solicitation for consents for the Existing Notes.
 
On September 28, 2012 (the “ Initial Payment Date ”), the Company, the Subsidiary Guarantors and Wilmington Trust, National Association (as successor by merger to Wilmington Trust FSB), as trustee, executed a first supplemental indenture to the Existing Note Indenture (the “ Supplemental Indenture ”) that eliminates substantially all of the restrictive covenants contained in the Existing Note Indenture and certain events of default and related provisions.  The Supplemental Indenture became effective upon execution, and the amendments to the Existing Note Indenture became operative on the Initial Payment Date upon acceptance of and payment for the tendered Existing Notes by the Company pursuant to the terms and conditions described in the offer to purchase and consent solicitation statement and the related letter of transmittal.
 
On the Initial Payment Date, the Company paid an aggregate of approximately $326.3 million in order to purchase the Existing Notes tendered prior to the Initial Payment Date (representing, in the aggregate, tender offer consideration of approximately $313.1 million, consent payments of approximately $8.2 million and accrued and unpaid interest to, but not including, the Initial Payment Date of approximately $5.0 million).
 
As described under Item 8.01 of this Current Report on Form 8-K, the Company has called the remaining Existing Notes for redemption and has satisfied and discharged it obligations under the remaining Existing Notes and the Existing Notes Indenture as of September 28, 2012.
 
The foregoing descriptions of each of the Indenture, the form of Notes, the Security Agreement,  the New Senior Secured Credit Agreement, the Guarantee and Security Agreement, the Intercreditor Agreement and the Supplemental Indenture do not purport to be complete and are qualified in their entirety by reference to the full text of each of such documents, which are filed as Exhibits 4.1, 4.2, 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
 
Item 1.02	Termination of a Material Definitive Agreement .	
 
The Company used a portion of the net proceeds from its offering of the Notes, together with borrowings under the New Senior Secured Credit Agreement, to repay all of the outstanding borrowings under its Credit Agreement, dated as of December 21, 2010, by and among the Company, Morgan Stanley Senior Funding, Inc., as administrative agent, and the lenders from time to time party thereto (as amended, the “ Existing Senior Secured Credit Agreement ”).  Upon repayment of all such outstanding borrowings on September 28, 2012, the Company terminated the Existing Senior Secured Credit Agreement (and the collateral and security documents relating thereto) in accordance with their terms.

 

 
The information set forth under Item 8.01 below, as to the satisfaction and discharge of the Existing Notes Indenture, is incorporated by reference into this Item 1.02.
 
Item 2.03.	Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant .	
 
The information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.
 
Item 2.04.	Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement .	
 
The information set forth under Item 8.01 below, in respect to the redemption of the Existing Notes, is incorporated by reference into this Item 2.04.
 
Item 7.01.	Regulation FD Disclosure .	
 
On September 28, 2012, the Company issued a press release announcing the closing of its previously announced comprehensive plan designed to enhance its capital structure and financial flexibility. The press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
 
The information set forth under Item 7.01 of this Current Report on Form 8-K and Exhibit 99.1 hereto are furnished pursuant to Item 7.01. Such information, including Exhibit 99.1 attached hereto, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, nor shall it be deemed incorporated by reference into any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference in such filing.
 
Item 8.01.	Other Events .	
 
Debenture Repurchase Closing
 
On September 28, 2012, the Company closed its previously announced repurchase of approximately $200.0 million in aggregate principal amount of the Company’s 7.0% Convertible Senior Debentures due 2016 (the “ Convertible Debentures ”) in exchange for payment in cash of approximately $355.1 million, pursuant to the Debenture Repurchase Agreement dated September 4, 2012, by and among the Company, Paulson Credit Opportunities Master Ltd. and Paulson Recovery Master Fund Ltd.  The Convertible Debentures repurchased by the Company were cancelled.
 
Redemption of Existing Notes and Discharge of Existing Notes Indenture
 
On September 28, 2012, the Company (i) issued a notice of redemption to holders of the remaining $1,194,000 aggregate principal amount of Existing Notes that were not tendered and remained outstanding following the Company’s initial acceptance of and payments for Existing Notes tendered in the tender offer prior to the Initial Payment Date and (ii) deposited with the trustee of the Existing Notes sufficient funds to satisfy and discharge the Existing Notes Indenture and to fund the make-whole redemption of the remaining outstanding Existing Notes and to pay accrued and unpaid interest on the redeemed notes to, but not including, the October 29, 2012 redemption date.  Upon the satisfaction and discharge of the Existing Notes Indenture, all of the collateral securing the Existing Notes was released and any remaining restrictive covenants and certain additional events of default contained in the Indenture (as amended by the Supplemental Indenture) ceased to have effect.

 

 
The information included in this Current Report on Form 8-K is neither an offer to sell nor a solicitation of an offer to buy any securities of the Company.
 
Item 9.01.	Financial Statements and Exhibits .	
 
(d) Exhibits:
 
 	4.1	Indenture, dated as of September 28, 2012, by and among CNO Financial Group, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee and as collateral agent.	
 
 	4.2	Form of 6.375% Senior Secured Note due 2020 (included in Exhibit 4.1).	
 
 	10.1	Security Agreement, dated as of September 28, 2012, by and among CNO Financial Group, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as collateral agent.	
 
 	10.2	Credit Agreement, dated as of September 28, 2012, by and among CNO Financial Group, Inc., JPMorgan Chase Bank, N.A., as agent, and the lenders from time to time party thereto.	
 
 	10.3	Guarantee and Security Agreement, dated as of September 28, 2012, by and among CNO Financial Group, Inc., the subsidiary guarantors party thereto and JPMorgan Chase Bank, N.A., as agent.	
 
 	10.4	Pari Passu Intercreditor Agreement, dated as of September 28, 2012, among JPMorgan Chase Bank, N.A., as administrative agent for the credit agreement secured parties and Wilmington Trust, National Association, as collateral agent and authorized representative with respect to the 6.375% Senior Secured Notes due 2020.	
 
 	10.5	First Supplemental Indenture, dated as of September 28, 2012, among CNO Financial Group, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee and as collateral agent w ith respect to the 9.00% Senior Secured Notes due 2018.	
 
 	99.1	Press Release of CNO Financial Group, Inc., dated September 28, 2012.	

 

 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
Date: October 1, 2012	By:	/s/ John R. Kline	 	
 	 	John R. Kline	 	
 	 	Senior Vice President and Chief	 	
 	 	            Accounting Officer	 	

 

 
EXHIBIT INDEX
 
Exhibit No .	Description	
 
 	4.1	Indenture, dated as of September 28, 2012, by and among CNO Financial Group, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee and as collateral agent.	
 
 	4.2	Form of 6.375% Senior Secured Note due 2020 (included in Exhibit 4.1).	
 
 	10.1	Security Agreement, dated as of September 28, 2012, by and among CNO Financial Group, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as collateral agent.	
 
 	10.2	Credit Agreement, dated as of September 28, 2012, by and among CNO Financial Group, Inc., JPMorgan Chase Bank, N.A., as agent, and the lenders from time to time party thereto.	
 
 	10.3	Guarantee and Security Agreement, dated as of September 28, 2012, by and among CNO Financial Group, Inc., the subsidiary guarantors party thereto and JPMorgan Chase Bank, N.A., as agent.	
 
 	10.4	Pari Passu Intercreditor Agreement, dated as of September 28, 2012, among JPMorgan Chase Bank, N.A., as administrative agent for the credit agreement secured parties and Wilmington Trust, National Association, as collateral agent and authorized representative with respect to the 6.375% Senior Secured Notes due 2020.	
 
 	10.5	First Supplemental Indenture, dated as of September 28, 2012, among CNO Financial Group, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee and as collateral agent w ith respect to the 9.00% Senior Secured Notes due 2018.	
 
 	99.1	Press Release of CNO Financial Group, Inc., dated September 28, 2012.	

Exhibit 4.1
 
==================================
 
CNO FINANCIAL GROUP, INC.
 
as Issuer
 
THE SUBSIDIARY GUARANTORS PARTIES
HERETO
 
6.375% Senior Secured Notes due 2020
==========
 
INDENTURE
 
Dated as of September 28, 2012
==========
 
WILMINGTON TRUST, NATIONAL ASSOCIATION
 
as Trustee
 
and
 
as Collateral Agent
 
==================================

 

 
TABLE OF CONTENTS
 	 	 	 	
 	 	 	Page	
 	 	 	 	
ARTICLE I	
 	 	 	 	
Definitions and Incorporation by Reference	
 	 	 	 	
SECTION 1.1.	Definitions	 	1	
SECTION 1.2.	Other Definitions	 	44	
SECTION 1.3.	Rules of Construction	 	45	
 	 	 	 	
ARTICLE II	
 	 	 	 	
The Notes	
 	 	 	 	
SECTION 2.1.	Form and Dating	 	46	
SECTION 2.2.	Form of Execution and Authentication	 	48	
SECTION 2.3.	Registrar and Paying Agent	 	49	
SECTION 2.4.	Paying Agent to Hold Money in Trust	 	49	
SECTION 2.5.	Lists of Holders of the Notes	 	49	
SECTION 2.6.	Transfer and Exchange	 	50	
SECTION 2.7.	Replacement Notes	 	60	
SECTION 2.8.	Outstanding Notes	 	60	
SECTION 2.9.	Treasury Notes	 	61	
SECTION 2.10.	Temporary Notes	 	61	
SECTION 2.11.	Cancellation	 	61	
SECTION 2.12.	Payment of Interest; Defaulted Interest	 	61	
SECTION 2.13.	CUSIP and ISIN Numbers	 	62	
 	 	 	 	
ARTICLE III	
 	 	 	 	
Covenants	
 	 	 	 	
SECTION 3.1.	Payment of Notes	 	63	
SECTION 3.2.	Reports	 	63	
SECTION 3.3.	Limitation on Indebtedness	 	64	
SECTION 3.4.	Limitation on Restricted Payments	 	70	
SECTION 3.5.	Limitation on Liens	 	76	
SECTION 3.6.	Limitation on Restrictions on Distributions from Restricted Subsidiaries	 	77	
SECTION 3.7.	Limitation on Sales of Assets and Subsidiary Stock	 	79	
SECTION 3.8.	Limitation on Affiliate Transactions	 	82	
SECTION 3.9.	Change of Control	 	84	
SECTION 3.10.	Future Subsidiary Guarantors	 	86	
SECTION 3.11.	Limitation on Lines of Business	 	87	

-i-

 
SECTION 3.12.	Effectiveness of Covenants	 	87	
SECTION 3.13.	Compliance Certificate	 	88	
SECTION 3.14.	Statement by Officers as to Default	 	88	
 	 	 	 	
ARTICLE IV	
 	 	 	 	
Successor Company and Successor Guarantor	
 	 	 	 	
SECTION 4.1.	When Company May Merge or Otherwise Dispose of Assets	 	88	
SECTION 4.2.	When a Subsidiary Guarantor May Merge or Otherwise Dispose of Assets	 	90	
 	 	 	 	
ARTICLE V	
 	 	 	 	
Redemption of Notes	
 	 	 	 	
SECTION 5.1.	Optional Redemption	 	92	
SECTION 5.2.	Election to Redeem; Notice to Trustee of Optional Redemptions	 	92	
SECTION 5.3.	Selection by Trustee of Notes to Be Redeemed	 	93	
SECTION 5.4.	Notice of Redemption	 	93	
SECTION 5.5.	Deposit of Redemption Price	 	94	
SECTION 5.6.	Notes Payable on Redemption Date	 	95	
SECTION 5.7.	Notes Redeemed in Part	 	95	
 	 	 	 	
ARTICLE VI	
 	 	 	 	
Defaults and Remedies	
 	 	 	 	
SECTION 6.1.	Events of Default	 	95	
SECTION 6.2.	Acceleration	 	98	
SECTION 6.3.	Other Remedies	 	99	
SECTION 6.4.	Waiver of Past Defaults	 	99	
SECTION 6.5.	Control by Majority	 	99	
SECTION 6.6.	Limitation on Suits	 	100	
SECTION 6.7.	Rights of Holders to Receive Payment	 	100	
SECTION 6.8.	Collection Suit by Trustee	 	100	
SECTION 6.9.	Trustee May File Proofs of Claim	 	100	
SECTION 6.10.	Priorities	 	101	
SECTION 6.11.	Undertaking for Costs	 	101	
 	 	 	 	
ARTICLE VII	
 	 	 	 	
Trustee	
 	 	 	 	
SECTION 7.1.	Duties of Trustee	 	102	
SECTION 7.2.	Rights of Trustee and Collateral Agent	 	103	
SECTION 7.3.	Individual Rights of Trustee	 	105	

-ii-

 
SECTION 7.4.	Disclaimer	 	105	
SECTION 7.5.	Notice of Defaults	 	105	
SECTION 7.6.	Compensation and Indemnity	 	105	
SECTION 7.7.	Replacement of Trustee	 	107	
SECTION 7.8.	Successor Trustee by Merger	 	107	
SECTION 7.9.	Eligibility; Disqualification	 	108	
SECTION 7.10.	Limitation on Duty of Trustee and Collateral Agent in Respect of Collateral; Indemnification	 	108	
 	 	 	 	
ARTICLE VIII	
 	 	 	 	
Discharge of Indenture; Defeasance	
 	 	 	 	
SECTION 8.1.	Discharge of Liability on Notes; Defeasance	 	108	
SECTION 8.2.	Conditions to Defeasance	 	110	
SECTION 8.3.	Application of Trust Money	 	111	
SECTION 8.4.	Repayment to Company	 	111	
SECTION 8.5.	Indemnity for U.S. Government Obligations	 	111	
SECTION 8.6.	Reinstatement	 	112	
 	 	 	 	
ARTICLE IX	
 	 	 	 	
Amendments	
 	 	 	 	
SECTION 9.1.	Without Consent of Holders	 	112	
SECTION 9.2.	With Consent of Holders	 	114	
SECTION 9.3.	Effect of Consents and Waivers	 	116	
SECTION 9.4.	Notation on or Exchange of Notes	 	116	
SECTION 9.5.	Trustee and Collateral Agent To Sign Amendments	 	116	
 	 	 	 	
ARTICLE X	
 	 	 	 	
Subsidiary Guarantee	
 	 	 	 	
SECTION 10.1.	Subsidiary Guarantee	 	116	
SECTION 10.2.	Limitation on Liability; Termination, Release and Discharge	 	118	
SECTION 10.3.	Right of Contribution	 	120	
SECTION 10.4.	No Subrogation	 	120	
 	 	 	 	
ARTICLE XI	
 	 	 	 	
Collateral and Security	
 	 	 	 	
SECTION 11.1.	The Collateral	 	120	
SECTION 11.2.	Further Assurances	 	121	
SECTION 11.3.	Release of Liens on the Collateral	 	122	

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SECTION 11.4.	Authorization of Actions to Be Taken by the Trustee or the Collateral Agent Under the Collateral Documents	 	123	
 	 	 	 	
ARTICLE XII	
 	 	 	 	
Miscellaneous	
 	 	 	 	
SECTION 12.1.	Notices	 	126	
SECTION 12.2.	Certificate and Opinion as to Conditions Precedent	 	127	
SECTION 12.3.	Statements Required in Certificate or Opinion	 	128	
SECTION 12.4.	Rules by Trustee, Paying Agent and Registrar	 	128	
SECTION 12.5.	Days Other than Business Days	 	128	
SECTION 12.6.	Governing Law	 	128	
SECTION 12.7.	No Recourse Against Others	 	128	
SECTION 12.8.	Successors	 	129	
SECTION 12.9.	Multiple Originals	 	129	
SECTION 12.10.	Table of Contents; Headings	 	129	
SECTION 12.11.	Direction by Holders to Enter into Collateral Documents and the Intercreditor Agreement	 	129	
SECTION 12.12.	Force Majeure	 	129	
SECTION 12.13.	USA Patriot Act	 	129	
SECTION 12.14.	Communication by Holders of Notes with other Holders of Notes	 	129	
SECTION 12.15.	Subject to Intercreditor	 	129	
 
EXHIBITS	
 	 	 	 	
EXHIBIT A	Form of Note	 	 	
EXHIBIT B	Form of Certificate of Transfer	 	 	
EXHIBIT C	Form of Certificate of Exchange	 	 	
EXHIBIT D	Form of Certificate of Acquiring Institutional Accredited Investor	 	 	
EXHIBIT E	Form of Supplemental Indenture to be Delivered by Subsequent Subsidiary Guarantors	 	 	

 
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INDENTURE, dated as of September 28, 2012 (this “ Indenture ”), among CNO FINANCIAL GROUP, INC., a corporation duly organized and existing under the laws of the State of Delaware (the “ Company ”), certain subsidiaries of the Company from time to time parties hereto (the “ Subsidiary Guarantors ”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (together with its successors and assigns, in such capacity, the “ Trustee ”) and as collateral agent (together with its successors and assigns in such capacity, the “ Collateral Agent ”).
 
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined herein) of the Notes (as defined herein):
 
ARTICLE I
 
Definitions and Incorporation by Reference
 
SECTION 1.1.      Definitions .
 
“ 144A Global Note ” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
 
“ Acquired Indebtedness ” means, with respect to any Person, Indebtedness (1) of a Person or any of its Subsidiaries existing at the time such Person is merged or consolidated with the Company or a Restricted Subsidiary or becomes a Restricted Subsidiary or (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, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary or such acquisition, and Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person is merged or consolidated with the Company or a Restricted Subsidiary or becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets.
 
“ 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, “ control ” 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.
 
“ Agent ” means any Registrar, Paying Agent or co-registrar.
 
“ Aggregate RBC Ratio ” means, with respect to the Insurance Subsidiaries taken as a whole, on any date of determination, one-half of the ratio (expressed as a percentage) of (a) the aggregate “Total Adjusted Capital” (as defined by each relevant Insurance Subsidiary’s Department) for the Insurance Subsidiaries to (b) the aggregate “Authorized Control Level Risk-Based Capital” (as defined by each relevant Insurance Subsidiary’s Department) for the Insurance Subsidiaries.

 

 
“ Annual Statement ” means the annual statutory financial statement of any Insurance Subsidiary required to be filed with the insurance commissioner (or similar authority) of its jurisdiction of incorporation, which statement shall be in the form required by such Insurance Subsidiary’s jurisdiction of incorporation or, if no specific form is so required, in the form of financial statements permitted by such insurance commissioner (or such similar authority) to be used for filing annual statutory financial statements and shall contain the type of information permitted or required by such insurance commissioner (or such similar authority) to be disclosed therein, together with all exhibits or schedules filed therewith.
“ Applicable Authorized Representatives ” shall have the meaning assigned to such term in the Intercreditor Agreement.
 
“ Applicable Premium ” means, as determined by the Company with respect to a Note on any Redemption Date, the greater of:
 
(1)           1.0% of the principal amount of such Note; and
 
(2)           the excess, if any, of (a) the present value as of such Redemption Date of (i) the redemption price of such Note on October 1, 2015 as set forth in Section 5.1(a) , plus (ii) the remaining scheduled interest payments due on such Note through October 1, 2015 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points, over (b) the then outstanding principal amount of such Note.
 
“ Applicable Procedures ” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to such transfer or exchange or for other procedural matters.
 
“ Asset Acquisition ” means (1) an Investment by the Company or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be consolidated or merged with the Company or any Restricted Subsidiary or (2) the acquisition by the Company or any Restricted Subsidiary of assets of any Person.
 
“ Asset Disposition ” means any sale, lease (other than an operating lease entered into in the ordinary course of business), transfer, issuance or other disposition, or a series of related sales, leases, transfers, issuances or dispositions that are part of a common plan, of shares of Capital Stock of a Restricted Subsidiary, including any transaction pursuant to a Reinsurance Agreement (other than directors’ qualifying shares or local ownership shares) (it being understood that the Capital Stock of the Company is not an asset of the Company), property or other assets (each referred to for the purposes of this definition as a “ disposition ”) by the Company or any of its Restricted Subsidiaries, including any disposition by means of a merger, consolidation or similar transaction.

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Notwithstanding the preceding, the following items shall not be deemed to be Asset Dispositions:
 
(1)           a disposition of assets by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary;
 
(2)           the disposition of Cash Equivalents in the ordinary course of business or the voluntary termination of Hedging Obligations;
 
(3)           a disposition of inventory in the ordinary course of business;
 
(4)           a disposition of used, obsolete, worn out, damaged or surplus equipment or equipment or assets that are no longer used or useful in the conduct of the business of the Company and its Restricted Subsidiaries and that is disposed of in each case in the ordinary course of business;
 
(5)           the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to Article IV or any disposition that constitutes a Change of Control;
 
(6)           an issuance of Capital Stock by a Restricted Subsidiary to the Company or to a Restricted Subsidiary;
 
(7)           for purposes of Section 3.7 only, the making of a Permitted Investment or a disposition subject to Section 3.4 ;
 
(8)           dispositions of Capital Stock of a Restricted Subsidiary or property or other assets in a single transaction or a series of related transactions with an aggregate Fair Market Value of less than $10.0 million;
 
(9)           the creation of a Permitted Lien and 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 in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
 
(11)         the licensing or sublicensing of patents, trade secrets, know-how and other intellectual property, know-how or other general intangibles and licenses, leases or subleases of other property which do not materially interfere with the business of the Company and its Restricted Subsidiaries as operated immediately prior to the granting of such license, lease or sublease;
 
(12)         to the extent allowable under Section 1031 of the Code, any exchange of like property for use in a Related Business;
 
(13)         foreclosure on assets or transfers by reason of eminent domain;

-3-

 
(14)         any sale of Capital Stock, Indebtedness or other securities, of an Unrestricted Subsidiary;
 
(15)         a Sale/Leaseback Transaction that is made for cash consideration in an amount not less than the cost of the underlying fixed or capital asset and is consummated within 180 days after the Company or any Restricted Subsidiary acquires or completes the acquisition of such fixed or capital asset;
 
(16)         the receipt by the Company or any Restricted Subsidiary of any cash insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective property or assets;
 
(17)         operating leases in the ordinary course of business;
 
(18)         the surrender or waiver of contract rights or litigation rights or the settlement, release or surrender of tort or other litigation claims of any kind;
 
(19)         the contribution of any real property (including, without limitation, land, buildings and fixtures) by the Company or any of its Restricted Subsidiaries to a pension plan to satisfy funding obligations of the Company or any of its Restricted Subsidiaries under such plan;
 
(20)         the transfer of improvements, additions or alterations in connection with the lease of any property;
 
(21)         Dispositions of Investments by any Insurance Subsidiary (other than any of its Investments in Subsidiaries engaged in insurance lines of business) and Dispositions by the Company of Permitted Portfolio Investments, in each case, in the ordinary course of business consistent with past practices of the Company and its Subsidiaries taken as a whole and the investment policy approved by the board of directors of such Insurance Subsidiary or the Company, as the case may be;
 
(22)         Dispositions by Insurance Subsidiaries pursuant to Reinsurance Agreements so long as such disposition is entered into in the ordinary course of business for the purpose of managing insurance risk consistent with industry practice;
 
(23)         Dispositions of shares of Capital Stock in order to qualify members of the Board of Directors or equivalent governing body of the Company or a Subsidiary Guarantor or such other nominal shares required to be held other than by the Company or a Subsidiary Guarantor, as required by applicable law;
 
(24)         the sale and leaseback of the Company’s headquarters located in Carmel, Indiana, on fair and reasonable terms (as certified to the Trustee in an Officers’ Certificate); and

-4-

 
(25)         the settlement or early termination of any Permitted Bond Hedge and the settlement or early termination of any related Permitted Warrant.
 
“ Attributable Indebtedness ” in respect of a Sale/Leaseback Transaction means, as at the time of determination, (1) if such Sale/Leaseback Transaction does not constitute a Capitalized Lease Obligation, the present value (discounted at the interest rate implicit in the transaction) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been extended), determined in accordance with GAAP or (2) if such Sale/Leaseback Transaction constitutes a Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligations.”
 
“ Authorized Representative ” means (i) in the case of any Credit Agreement Obligations or the Credit Agreement Secured Parties, the administrative agent under the New Senior Secured Credit Agreement, (ii) in the case of the Obligations under the Notes or the Secured Parties, the Trustee and (iii) in the case of any Series of Other First Lien Obligations or Other First Lien Secured Parties that become subject to the Intercreditor Agreement, the Authorized Representative named for such Series of Other First Lien Obligations in the applicable joinder agreement to the Intercreditor Agreement.
 
“ Authentication Order ” has the meaning assigned to such term in Section 2.2 hereof.
 
“ Average Life ” means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the sum of the products of the numbers of years from the date of determination to the dates of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock multiplied by the amount of such payment by (2) the sum of all such payments.
 
“ Board of Directors ” means:
 
(1)           with respect to a corporation, the Board of Directors of the corporation or any committee thereof duly authorized to act on behalf of the Board of Directors with respect to the relevant matter;
 
(2)           with respect to a partnership, the Board of Directors of the general partner of the partnership; and
 
(3)           with respect to any other Person, the board or committee of such Person serving a similar function.
 
“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of a company to have been duly adopted by the Board of Directors of such company and to be in full force and effect on the date of such certification, and delivered to the Trustee.
 
“ Broker-Dealer ” means any broker or dealer registered under the Exchange Act.

-5-

 
“ Business Day ” means each day that is not a Saturday, Sunday or other day on which commercial banking institutions in New York, New York or the place of payment are authorized or required by law to close.
 
“ Capital and Surplus ” means, as to any Insurance Subsidiary, as of any date, the total amount shown on line 38, page 3, column 1 (or such other line on which the equivalent information is provided on any other such Annual Statement) of the Annual Statement of such Insurance Subsidiary as of such date, or an amount determined in a consistent manner for any date other than one as of which an Annual Statement is prepared.
 
“ Capital Stock ” of any Person means (1) with respect to any Person that is a corporation, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Common Stock or Preferred Stock, and (2) with respect to any Person that is not a corporation, any and all partnership, limited liability company, membership or other equity interests of such Person, but in each case excluding any debt securities convertible into any of the foregoing.
 
“ Capitalized Expenditures ” means, for any period, (a) the additions to property, plant and equipment capitalized in accordance with GAAP and other capital expenditures of the Company and its Subsidiaries that are (or would be) set forth in a consolidated statement of cash flows of the Company and its Subsidiaries for such period prepared in accordance with GAAP and (b) any Capitalized Lease Obligations incurred by the Company and its Subsidiaries during such period.
 
“ Capitalized Lease Obligation ” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP, and 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 in accordance with 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 by the lessee without payment of a penalty.
 
“ Cash Equivalents ” means:
 
(1)           U.S. dollars, pounds sterling, euros, the national currency of any member state in the European Union, or in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;
 
(2)           securities issued or directly and fully guaranteed or insured by the United States Government or issued by any agency or instrumentality of the United States ( provided that the full faith and credit of the United States is pledged in support thereof), having maturities of not more than one year from the date of acquisition;
 
(3)           marketable general obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition and, at the time of acquisition, having a credit rating of “A” or better from Standard & Poor’s Ratings Group, Inc. or A2 or better from Moody’s Investors Service, Inc.;

-6-

 
(4)           certificates of deposit, demand deposits, 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 issued by any commercial bank (x) the long-term debt of which is rated at the time of acquisition thereof at least “A” or the equivalent thereof by Standard & Poor’s Ratings Group, Inc., or “A” or the equivalent thereof by Moody’s Investors Service, Inc. or (y) the short term commercial paper of such commercial bank or its parent company is rated at the time of acquisition thereof at least “A-1” or the equivalent thereof by Standard & Poor’s Ratings Group, Inc. or “P-1” or the equivalent thereof by Moody’s Investors Service, Inc., and having combined capital and surplus in excess of $500.0 million;
 
(5)           repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2), (3) and (4) above, entered into with any financial institution meeting the qualifications specified in clause (4) above;
 
(6)           commercial paper rated at the time of acquisition thereof at least “A-2” or the equivalent thereof by Standard & Poor’s Ratings Group, Inc. or “P-2” or the equivalent thereof by Moody’s Investors Service, Inc., or carrying an equivalent rating by a nationally recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings of investments, and in any case maturing within one year after the date of acquisition thereof;
 
(7)           instruments equivalent to those referred to in clauses (1) through (6) above denominated in euros or any foreign currency comparable in credit quality and tenor to those referred to in such clauses and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction;
 
(8)           interests in any investment company or money market fund that invests 95% or more of its assets in instruments of the type specified in clauses (1) through (7) above and clause (11) below;
 
(9)           money market funds that (i) comply with the criteria set forth in Rule 2A-7 of the Investment Company Act of 1940, as amended, (ii) are rated at the time of acquisition thereof “AAA” or the equivalent by Standard & Poor’s Ratings Group, Inc. or “Aaa” or the equivalent thereof by Moody’s Investors Service, Inc. and (iii) have portfolio assets of at least $5.0 billion;
 
(10)         in the case of any Foreign Subsidiary, high quality short-term investments which are customarily used for cash management purposes in any country in which such Foreign Subsidiary operates; and

-7-

 
(11)         securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (4) of this definition.
 
“ CBOs ” means notes or other instruments (other than CMOs) secured by collateral consisting primarily of debt securities and/or other types of debt obligations, including loans
 
“ Change of Control ” means:
 
(1)           any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of a majority of the total voting power of the Voting Stock of the Company (or its successors by merger, consolidation or purchase of all or substantially all of its assets);
 
(2)           the sale, assignment, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) other than a Restricted Subsidiary; or
 
(3)           the adoption by the stockholders of the Company of a plan or proposal for the liquidation or dissolution of the Company.
 
“ Code ” means the Internal Revenue Code of 1986, as amended.
 
“ CMOs ” means Notes or other instruments secured by collateral consisting primarily of mortgages, mortgage-backed securities and/or other types of mortgage-related obligations.
 
“ Collateral ” means all property and assets, whether now owned or hereafter acquired, in which Liens are, from time to time, purported to be granted to secure the Notes and the Subsidiary Guarantees pursuant to the Collateral Documents.
 
“ Collateral Agent ” has the meaning assigned to such term in the preamble to this Indenture.
 
“ Collateral Documents ” means the Security Agreement and any other instruments and documents executed and delivered pursuant to this Indenture or any of the foregoing, as the same may be amended, supplemented or otherwise modified from time to time and pursuant to which Collateral is pledged, assigned or granted to or on behalf of the Collateral Agent for the benefit of the Secured Parties.
 
“ Commodity Agreement ” means any commodity futures contract, commodity option, commodity swap agreement, commodity collar agreement, commodity cap agreement or other similar agreement or arrangement entered into by the Company or any Restricted Subsidiary.

-8-

 
“ Common Stock ” means with respect to any Person, any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.
 
“ Company ” has the meaning assigned to such term in the preamble to this Indenture.
 
“ 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 the following items to the extent deducted in calculating such Consolidated Net Income:
 
(a)           Consolidated Interest Expense; plus
 
(b)           Consolidated Income Taxes; plus
 
(c)           consolidated depreciation expense; plus
 
(d)           consolidated amortization expense or impairment charges recorded in connection with the application of FASB ASC 350 and FASB ASC 360; plus
 
(e)           other non-cash charges reducing Consolidated Net Income, including any write-offs or write-downs (excluding (i) any such non-cash charge to the extent it represents an accrual of or reserve for cash charges in any future period or amortization of a prepaid cash expense that was paid in a prior period not included in the calculation and (ii) the amortization of PVFP); plus
 
(f)           any fees, charges or other expenses made or Incurred in connection with any actual or proposed non-ordinary course Investment, asset sale, acquisition, recapitalization or issuance of Capital Stock or Incurrence of Indebtedness or any amendment or modification of Indebtedness (including as a result of Statement of FASB ASC 805), including such fees, expenses or charges related to the Transactions; plus
 
(g)           the amount of any restructuring charges (including lease termination, severance and relocation expenses), integration costs or other business optimization expenses or non-ordinary course reserves or other non-recurring charges or expenses deducted (and not added back) in such period in computing Consolidated Net Income.

-9-

 
(2)           decreased (without duplication) by non-cash items increasing Consolidated Net Income of such Person for such period (excluding any items which represent the recognition of deferred revenue, the reversal of any accrual of, or reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period and any items for which cash was received in a prior period that did not increase Consolidated EBITDA in any prior period); and
 
(3)           increased or decreased (without duplication) to eliminate the following items to the extent reflected in Consolidated Net Income:
 
(a)           any non-ordinary course net gain or loss resulting in such period from Hedging Obligations and the application of FASB ASC 815;
 
(b)           all unrealized gains and losses relating to financial instruments or liabilities to which fair market value accounting is applied;
 
(c)           any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency exchange risk); and
 
(d)           effects of adjustments (including the effects of such adjustments pushed down to the Company and its Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to any completed acquisition.
 
“ Consolidated Income Taxes ” means, with respect to any Person for any period, taxes imposed upon such Person or other payments required to be made by such Person by any governmental authority which taxes or other payments are calculated by reference to the income or profits or capital of such Person or such Person and its Restricted Subsidiaries (to the extent such income or profits were included in computing Consolidated Net Income for such period), including, without limitation, state, franchise and similar taxes and foreign withholding taxes regardless of whether such taxes or payments are required to be remitted to any governmental authority.
 
“ Consolidated Interest Expense ” means, for any period, the interest expense of the Company and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including but not limited to the portion of any payments or accruals with respect to Capitalized Lease Obligations that are allocable to interest expense, excluding (x) any write-offs of capitalized fees under a Debt Facility and all amendments thereto, (y) all non-cash charges for the amortization of deferred financing fees and debt issuance costs, and (z) any interest on tax reserves to the extent the Company has elected to treat such interest as an interest expense under FASB ASC 450 since its adoption; provided , that any interest expense associated with any Permitted Transaction shall not be included in this definition of Consolidated Interest Expense.
 
“ Consolidated Net Income ” means, for any period, the net income (loss) of the Company and its consolidated Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP (before preferred stock dividends); provided , however , that there will not be included in such Consolidated Net Income:

-10-

 
(1)           any net income (loss) of any Person if such Person is not a Restricted Subsidiary or that is accounted for by the equity method of accounting, except that:
 
  (a)           subject to the limitations contained in clauses (3) through (6) below, 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 actually distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (2) below); and
 
  (b)           the Company’s equity in a net loss of any such Person for such period will be included in determining such Consolidated Net Income to the extent such loss has been funded with cash from the Company or a Restricted Subsidiary during such period;
 
(2)           any net income (but not loss) of any Restricted Subsidiary (other than a Subsidiary Guarantor or an Insurance Subsidiary) if such Restricted Subsidiary is subject to prior government approval or other restrictions due to the operation of its charter or any agreement, instrument, judgment, decree, order, statute, rule or government regulation (which have not been waived), directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Company, except that:
 
  (a)           subject to the limitations contained in clauses (3) through (6) below, 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 aggregate amount of cash that could have been distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause); and
 
  (b)           the Company’s equity in a net loss of any such Restricted Subsidiary for such period will be included in determining such Consolidated Net Income;
 
(3)           any net income (but not loss) of all of the Insurance Subsidiaries determined on a consolidated basis; provided that, notwithstanding the foregoing, (i) there shall be included in Consolidated Net Income an amount equal to the aggregate amount that could be paid by the Insurance Subsidiaries as of the end of such period as a dividend, distribution or return of capital to the Company or any Restricted Subsidiary (other than an Insurance Subsidiary) without causing the Aggregate RBC Ratio of the Insurance Subsidiaries to be less than 225%, determined on a pro forma basis for (x) any dividends, distributions or returns of capital made during the period less any capital contributions made by the Company or a Restricted Subsidiary (other than an Insurance Subsidiary) in the Insurance Subsidiaries during such period, in each case to the extent not otherwise reflected in Consolidated Net Income of the Company and the Restricted Subsidiaries (other than the Insurance Subsidiaries) for such period and (y) any dividends, distributions or returns of capital made by the Insurance Subsidiaries after such period and through the date of determination and any capital contributions made by the Company or a Restricted Subsidiary (other than an Insurance Subsidiary) in the Insurance Subsidiaries after such period and through the date of determination and (ii) the amount referenced in the immediately preceding clause (i) shall in no event exceed the aggregate net income of the Insurance Subsidiaries, determined on a consolidated basis for such period;

-11-

 
(4)           any after-tax effect of gain or loss (less all fees and expenses relating thereto) realized upon sales or other dispositions of any assets of the Company or such Restricted Subsidiary (including pursuant to any Sale/Leaseback Transaction) other than in the ordinary course of business;
 
(5)           any after-tax effect of income (loss) from the early extinguishment of Indebtedness or early termination of Hedging Obligations or other derivative instruments;
 
(6)           the after-tax effect of extraordinary gain or loss;
 
(7)           the after-tax effect of the cumulative effect of a change in accounting principles;
 
(8)           any after-tax effect of non-cash impairment charges recorded in connection with the application of FASB ASC 350 and FASB ASC 360; and
 
(9)           any non-cash compensation expense realized for grants of performance shares, stock options or other rights to officers, directors and employees of the Company or any Restricted Subsidiary.
 
“ Corporate Trust Office ” shall be at the address of the Trustee specified in Section 12.1 or such other address as to which the Trustee may give notice to the Company or Holders pursuant to the procedures set forth in Section 12.1 . 
 
“ Convertible Debentures Repurchase ” means the transactions contemplated by the Debenture Repurchase Agreement by and among the Company and Paulson Credit Opportunities Master Ltd. and Paulson Recovery Master Fund Ltd., dated as of September 4, 2012 as in effect on the Issue Date.
 
“ Credit Agreement Obligations ” means (x) Indebtedness and other Obligations under the New Senior Secured Credit Agreement and (y) Obligations under Swap Contracts entered into by the Company or a Subsidiary Guarantor with a lender or affiliate of a lender (at the time such Swap Contract was entered into) under the New Senior Secured Credit Agreement to hedge interest rate risk of the Company or such Subsidiary Guarantor and Subsidiaries that are not Insurance Subsidiaries.

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“ Credit Agreement Secured Parties ” means the holders of the Credit Agreement Obligations.
 
“ Currency Agreement ” means in respect of a Person any foreign exchange contract, currency swap agreement, futures contract, option contract or other similar agreement as to which such Person is a party or a beneficiary.
 
“ Debt Facility ” or “ Debt Facilities ” means, with respect to the Company or any Subsidiary Guarantor, one or more financing arrangements (including, without limitation, credit facilities, indentures and note purchase agreements and including the New Senior Secured Credit Agreement) providing for revolving credit loans, term loans, letters of credit or other long-term indebtedness or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, supplemented, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original trustee, administrative agent, holders and lenders or another trustee, administrative agent or agents), including, without limitation, any agreement extending the maturity thereof or increasing the amount of available borrowings thereunder pursuant to incremental facilities or adding Subsidiaries of the Company as additional guarantors thereunder, and whether or not increasing the amount of Indebtedness that may be issued thereunder.
 
“ Debt to Total Capitalization Ratio ” means, as of any date, and giving pro forma effect to any Restricted Payment made or Indebtedness Incurred subsequent to such date, as well as any other pro forma adjustments in a manner consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio, the ratio of (a) the principal amount of, and accrued but unpaid interest on, all Indebtedness of the Company outstanding on such date, other than (i) Indebtedness owing to any Subsidiary Guarantor and (ii) the liabilities (if any) of the Company in respect of Swap Contracts as determined by reference to the Swap Termination Value thereof, to (b) Total Capitalization on such date.
 
“ Default ” means any event or condition that is, or after notice or passage of time or both would be, an Event of Default.
 
“ Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.6 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
 
“ Department ” means, with respect to any Insurance Subsidiary, the governmental authority of such Insurance Subsidiary’s state of domicile with which such Insurance Subsidiary is required to file its Annual Statement.

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“ Depositary ” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company.
 
“ Designated Non-cash Consideration ” means any consideration which is not cash or Cash Equivalents received by the Company or its Restricted Subsidiaries in connection with an Asset Disposition that is designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate executed by the Company at the time of such Asset Disposition. Any particular item of Designated Non-cash Consideration will cease to be considered to be outstanding once it has been transferred, sold or otherwise exchanged for or converted into or for cash or Cash Equivalents.
 
“ Disqualified Stock ” means, with respect to any Person, any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:  (1) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;  (2) is convertible into or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Company or a Restricted Subsidiary (it being understood that upon such conversion or exchange it shall be an Incurrence of such Indebtedness or Disqualified Stock)); or (3) is redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the date 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided , however , that only the portion of Capital Stock that 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; provided , further , that 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 Disposition (each defined in a substantially similar manner to the corresponding definitions in this Indenture) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that the Company may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by the Company with Section 3.7 and Section 3.9 and such repurchase or redemption complies with Section 3.4 .
 
“ Equity Offering ” means a public or private issuance for cash by the Company of its Common Stock, perpetual Preferred Stock, or options, warrants or rights with respect to its Common Stock, other than (x) public offerings with respect to the Company’s Common Stock, or options, warrants or rights, registered on Form S-4 or S-8, or (y) an issuance to any Subsidiary.
 
“ Exchange Ac t” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
 
“ Existing Convertible Debentures ” means the Company’s 7.0% Convertible Senior Debentures due 2016.

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“ Existing Senior Secured Notes ” means the Company’s 9.0% Senior Secured Notes due 2018.
 
“ Excluded Property ” has the meaning set forth in the Security Agreement.
 
“ Fair Market Value ” means, with respect to any property, the price that would reasonably be expected to be paid in an arm’s length free market transaction, for cash, between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined, except as otherwise provided, by (x) if such decision involves a determination of Fair Market Value equal or less than $50.0 million, in Good Faith by the Company and (y) if such decision involves the determination of Fair Market Value in excess of $50.0 million, in good faith by the Board of Directors of the Company.
 
“ First Lien Secured Indebtedness ” means (a) the Credit Agreement Obligations, (b) the Obligations under the Notes and (c) any Other First Lien Obligations.
 
“ First Lien Secured Parties ” means (a) the Secured Parties under the New Senior Secured Credit Agreement, (b) the Secured Parties and (c) any Other First Lien Secured Parties.
 
“ Fixed Charge Coverage Ratio ” means, with respect to any Person for any period, the ratio of Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person for such period.
 
In the event that the Company or any of its Restricted Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness (other than in the case of revolving credit borrowings, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the applicable period) or issues, repurchases or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period.
 
For purposes of making the computation referred to above, Investments, Asset Dispositions, Asset Acquisitions and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business, and any operational changes that the Company or any Restricted Subsidiary has determined to make and/or has made during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date shall be calculated on a pro forma basis assuming that all such events (and the change of any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period shall have made any Investment, Asset Disposition, Asset Acquisition or discontinued operation or operational change, in each case with respect to an operating unit of a business, that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such event had occurred at the beginning of the applicable four-quarter period.

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For purposes of this definition, whenever pro forma effect is to be given to any event, the pro forma calculations shall be made in Good Faith by the Company. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Company to reflect operating expense reductions and other operating improvements, synergies or cost savings reasonably expected to result from such relevant pro forma event based on actions already taken and for which the full run-rate effect of such actions is expected to be realized within 12 months of such action. The Company shall have delivered to the Trustee an Officers’ Certificate signed by the Chief Financial Officer setting forth such operating expense reductions and other operating improvements, synergies or cost savings and calculations and information supporting them in reasonable detail.
 
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.
 
For purposes of this definition, any amount in a currency other than U.S. dollars will be converted to U.S. dollars based on the average exchange rate for such currency for the most recent twelve month period immediately prior to the date of determination in a manner consistent with that used in calculating Consolidated EBITDA for the applicable period.
 
“ Fixed Charges ” means, with respect to any Person for any period, the sum, without duplication, of:
 
(1)           Consolidated Interest Expense of such Person for such period, and
 
(2)           all cash dividend payments (excluding items eliminated in consolidation) on any series of Preferred Stock or Disqualified Stock of such Person and its Restricted Subsidiaries.

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“ Foreign Subsidiary ” means any Restricted Subsidiary that is not organized or existing under the laws of the United States of America or any state thereof or the District of Columbia and any Subsidiary of such Restricted Subsidiary.
 
“ GAAP ” means generally accepted accounting principles in the United States of America as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. All ratios and computations based on GAAP contained in this Indenture shall be computed in conformity with GAAP, except that in the event the Company is acquired in a transaction that is accounted for using purchase accounting, the effects of the application of purchase accounting shall be disregarded in the calculation of such ratios and other computations contained in this Indenture.
 
“ Global Note Legend ” means the legend set forth in Section 2.1(b) hereof, which is required to be placed on all Global Notes issued under this Indenture.
 
“ Global Notes ” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A hereto issued in accordance with Section 2.1 or 2.6 hereof.
 
“ Good Faith by the Company ” means the decision in good faith by a responsible financial or accounting officer of the Company.
 
“ Guarantee ” means any obligation, contingent or otherwise, of any Person, directly or indirectly, guaranteeing any Indebtedness or other financial obligations of any other Person and any 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 Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or
 
(2)           entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other financial obligation 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 endorsements for collection or deposit in the ordinary course of business. The term “ Guarantee ” used as a verb has a corresponding meaning.
 
“ Hedging Obligations ” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity Agreement.  For the avoidance of doubt, any Permitted Convertible Indebtedness Call Transaction will not constitute Hedging Obligations.

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“ Holder ” means a Person in whose name a Note is registered on the Registrar’s books.
 
“ IAI Global Note ” means a Global Note bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of the Depositary and registered in the name of the Depositary or its nominee, issued in an initial denomination equal to the outstanding principal amount of the Notes initially sold to Institutional Accredited Investors.
 
“ Immaterial Subsidiary ” means any Subsidiary (other than an Insurance Subsidiary) that (a) has assets with an aggregate fair market value less than $5.0 million as of the end of the most recently ended fiscal quarter of the Company, (b) has aggregate revenues less than $10.0 million for the period of four consecutive fiscal quarters most recently ended, (c) has no Indebtedness (other than Indebtedness existing on the Issue Date and other Indebtedness in an aggregate principal amount not exceeding at any time one-half of the fair market value of the assets of such Subsidiary at such time), (d) is not integral to the business or operations of the Company or its Subsidiaries (other than Immaterial Subsidiaries) and (e) has no Subsidiaries (other than Immaterial Subsidiaries); provided that CNO Management Services Company will not be deemed to be an Immaterial Subsidiary so long as it is the manager of CNO Services, LLC pursuant to the latter’s limited liability company agreement.
 
“ Incur ” means to issue, create, assume, Guarantee, incur 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, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary; and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
 
“ Indebtedness ” means, with respect to any Person on any date of determination (without duplication):
 
(1)           the principal of and premium (if any) in respect of indebtedness of such Person for borrowed money;
 
(2)           the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
 
(3)           the principal component of all obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (including reimbursement obligations with respect thereto, except to the extent such reimbursement obligation relates to a Trade Payable or similar obligation to a trade creditor in each case incurred in the ordinary course of business) other than obligations with respect to letters of credit, bankers’ acceptances or similar instruments securing obligations (other than obligations described in clauses (1) and (2) above and clause (5) below) entered into in the ordinary course of business of such Person to the extent such letters of credit, bankers’ acceptances or similar instruments are not drawn upon or, to the extent drawn upon, such drawing is reimbursed no later than the fifth Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit, bankers’ acceptance or similar instrument;

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(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 six months after the date of placing such property in service or taking delivery and title thereto, except (i) any such balance that constitutes a Trade Payable, accrued liability or similar obligation to a trade creditor, in each case accrued in the ordinary course of business, and (ii) any earn-out obligation until the amount of such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP;
 
(5)           Capitalized Lease Obligations and all Attributable Indebtedness of such Person (whether or not such items would appear on the balance sheet of the guarantor or obligor);
 
(6)           the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any Subsidiary that is not a Subsidiary Guarantor, 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 and (b) the amount of such indebtedness of such other Persons;
 
(8)           the principal component of Indebtedness of other Persons to the extent Guaranteed by such Person (whether or not such items would appear on the balance sheet of the guarantor or obligor); and
 
(9)           to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such time).
 
In no event shall the term “ Indebtedness ” include (i) any indebtedness under any overdraft or cash management facilities so long as any such indebtedness is repaid in full no later than five Business Days following the date on which it was incurred or in the case of such indebtedness in respect of credit or purchase cards, within 60 days of its incurrence, (ii) obligations in respect of performance, appeal or other surety bonds or completion guarantees incurred in the ordinary course of business, (iii) except as provided in clause (5) above, any obligations in respect of a lease properly classified as an operating lease in accordance with GAAP, (iv) any liability for federal, state, local or other taxes not yet delinquent or being contested in good faith and for which adequate reserves have been established to the extent required by GAAP or (v) any customer deposits or advance payments received in the ordinary course of business.

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The amount of Indebtedness of any Person at any date will be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations at such date; provided that (x) contingent obligations arising in the ordinary course of business and not with respect to borrowed money of such Person or other Persons, (y) the obligations of any Person under Reinsurance Agreements shall be deemed not to constitute Indebtedness and (z) for the avoidance of doubt, obligations of any Person under a Permitted Bond Hedge Transaction or a Permitted Warrant Transaction shall be deemed not to constitute Indebtedness. Notwithstanding the foregoing, money borrowed and set aside at the time of the Incurrence of any Indebtedness in order to prefund the payment of interest on such Indebtedness shall not be deemed to be “Indebtedness,” provided that such money is held to secure the payment of such interest.
 
“ Independent Financial Advisor ” means (1) an accounting, appraisal or investment banking firm or (2) a consultant to Persons engaged in a Related Business, in each case of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.
 
“ Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.
 
“ Initial Notes ” means the $275,000,000 in aggregate principal amount of 6.375% Senior Secured Notes due 2020 of the Company issued under this Indenture on the Issue Date.
 
“ Initial Purchasers ” means, with respect to the Initial Notes, Goldman, Sachs & Co., J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Wedbush Securities Inc. and FBR Capital Markets & Co.
 
“ Institutional Accredited Investor ” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
 
“ Insurance Subsidiary ” means any Subsidiary of the Company that is required to be licensed as an insurer or reinsurer.
 
“ Intercreditor Agreement ” means the Intercreditor Agreement dated as of the Issue Date, among the Trustee, the Collateral Agent, on behalf of itself and the Secured Parties and JPMorgan Chase Bank, N.A., as administrative agent under the New Senior Secured Credit Agreement, on behalf of itself and the Credit Agreement Secured Parties, as the same may be amended, supplemented or otherwise modified from time to time.
 
“ Interest Payment Date ” means April 1 and October 1 of each year, commencing on April 1, 2013 and ending at the Stated Maturity of the Notes.

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“ Interest Rate Agreement ” means with respect to any Person any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement as to which such Person is party or a beneficiary.
 
“ Investment ” in any Person means any direct or indirect advance, loan (other than advances or extensions of credit in the ordinary course of business that are in conformity with GAAP recorded as accounts receivable on the balance sheet of the Company or its Restricted Subsidiaries) or other extensions of credit (including by way of Guarantee or similar arrangement, but 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 any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person and all other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP; provided that none of the following will be deemed to be an Investment:
 
(1)           Hedging Obligations entered into in the ordinary course of business and in compliance with this Indenture;
 
(2)           endorsements of negotiable instruments and documents in the ordinary course of business;
 
(3)           an acquisition of assets, Capital Stock or other securities by the Company or a Subsidiary for consideration to the extent such consideration consists of Common Stock of the Company;
 
(4)           a deposit of funds in connection with an acquisition; provided that either such acquisition is consummated by or through a Restricted Subsidiary or such deposit is returned to the Person who made it;
 
(5)           an account receivable arising, or prepaid expenses or deposits made, in the ordinary course of business; and
 
(6)           licensing or transfer of know-how or intellectual property or the providing of services in the ordinary course of business.
 
For purposes of Section 3.4 , (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 assets of such Restricted Subsidiary 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 shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Company’s aggregate “Investment” in such Subsidiary as of the time of such redesignation less (b) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets (as conclusively determined in good faith by the Board of Directors of the Company) of such Subsidiary at the time that such Subsidiary is so redesignated a Restricted Subsidiary;  (2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer, in each case as determined in good faith by the Board of Directors of the Company; and (3) the value of any “Investment” made by an Insurance Subsidiary shall be calculated net of any liabilities of the Insurance Subsidiary that are assumed by the Person in whom the Investment is being made.

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“ Investment Grade Asset ” means any Investment with a fixed maturity that has a rating of (x) at least BBB- by S&P and, if such Investment is rated by Moody’s, at least Ba2 from Moody’s or (y) at least Baa3 by Moody’s and, if such Investment is rated by S&P, at least BB from S&P, or, if such Investment is not rated by either S&P or Moody’s, an NAIC rating of at least Class 2.
 
“ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s Investors Service, Inc. and BBB-(or the equivalent) by Standard & Poor’s Ratings Group, Inc., in each case, with a stable or better outlook; provided that a change in outlook shall not by itself cause the Company to lose its Investment Grade Rating.
 
“ Investment Income ” means the amount of earnings of the Company on Investments, net of expenses actually incurred in connection with such Investments and taking into account realized gains and losses on such Investments.
 
“ Issue Date ” means September 28, 2012.
 
 “ Lien ” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease (or any filing or agreement to give any financing statement in connection therewith) be deemed to constitute a Lien.
 
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
 
“ NAIC ” means the National Association of Insurance Commissioners or any successor thereto, or in the absence of the National Association of Insurance Commissioners or such successor, any other association, agency or other organization performing advisory, coordination or other like functions among insurance departments, insurance commissioners and similar governmental authorities of the various states of the United States toward the promotion of uniformity in the practices of such governmental authorities.

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“ Net Available Cash ” from an Asset Disposition means cash payments received (including any cash payments 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 or other assets 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 Indebtedness 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 brokerage, legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or accrued as a liability under GAAP (after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset Disposition; (2) all payments made on any Indebtedness (other than Pari Passu Lien Indebtedness) that is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or that must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or 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 in Subsidiaries or joint ventures as a result of such Asset Disposition; (4) the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets disposed of in such Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters; (5) any portion of the purchase price from an Asset Disposition placed in escrow (whether as a reserve for adjustment of the purchase price, or for satisfaction of indemnities in respect of such Asset Disposition); and (6) in the case of an Asset Disposition by an Insurance Subsidiary, proceeds that are not permitted to be paid as a dividend or distribution by such Insurance Subsidiary pursuant to regulatory restrictions provided , however , that in the cases of clauses (4) and (5), upon reversal of any such reserve or the termination of any such escrow, Net Available Cash shall be increased by the amount of such reversal or any portion of funds released from escrow to the Company or any Restricted Subsidiary.
 
“ Net Cash Proceeds ” means, with respect to any issuance or sale of Capital Stock of the Company or any Restricted Subsidiary or Indebtedness, 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, charges and expenses actually Incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements).
 
“ Net Excess Cash Flow ” means, for any period, the sum, without duplication, of
 
(1)           dividends paid in cash to the Company by any Subsidiary, net of Investments made in cash by the Company in any Subsidiary; plus
 
(2)           interest paid in cash to the Company by any Subsidiary pursuant to any Indebtedness owing by such Subsidiary to the Company; plus
 
(3)           interest or principal paid in cash to the Company with respect to any Surplus Debenture; plus

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(4)           amounts paid in cash to the Company under the Tax Sharing Agreement; plus
 
(5)           management and other similar fees received by the Company under servicing agreements or otherwise from any Subsidiary; plus
 
(6)           amounts paid in cash to the Company pursuant to a loan made to it by any Subsidiary; plus
 
(7)           the Company’s Investment Income received in cash; minus
 
(8)           cash operating expenses of the Company, which, for the avoidance of doubt, shall exclude the redemption price, repurchase price, premiums, fees, costs and expenses paid in cash incurred in connection with (a) the redemption or repurchase of the Existing Senior Secured Notes, (b) the Convertible Notes Repurchase, (c) any subsequent redemption or repurchase of the Existing Convertible Debentures and (d) any redemption or repurchase of any bonds, debentures or notes, including Permitted Convertible Indebtedness, issued subsequent to the Issue Date; minus
 
(9)           Capitalized Expenditures of the Company made in cash; minus
 
(10)         any amounts paid in cash in respect of the Company’s Fixed Charges, scheduled principal amortization of Indebtedness and mandatory repayments of Indebtedness (other than mandatory repayments of Indebtedness in connection with any Restricted Payment); minus
 
(11)         any amounts paid by the Company in respect of interest on or in repayment of any loan referred to in clause (6) above; minus
 
(12)         any amounts paid in cash by the Company to any Insurance Subsidiary in respect of any overpayment by such Insurance Subsidiary of amounts required to be paid by such Insurance Subsidiary to the Company under the Tax Sharing Agreement, in each case for such period.
 
“ New Senior Secured Credit Agreement ” means the credit agreement, dated as of the Issue Date, among the Company, JPMorgan Chase Bank, N.A. as administrative agent and the lenders from time to time party thereto, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, Notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof ( provided that such increase in borrowings is permitted under Section 3.3 and Section 3.5).
 
 “ Non-Guarantor Subsidiary ” means any Restricted Subsidiary that is not a Subsidiary Guarantor.

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“ Non-Recourse Debt ” means Indebtedness of a Person:
 
(1)           as to which neither the Company nor any Restricted Subsidiary (a) provides any Guarantee or credit support of any kind (including any undertaking, Guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable (as a guarantor or otherwise);
 
(2)           no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of the Company or any Restricted Subsidiary to declare a default under such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity; and
 
(3)           the explicit terms of which provide there is no recourse against any of the assets of the Company or its Restricted Subsidiaries.
 
“ Non-U.S. Person ” means a Person who is not a U.S. Person.
 
“ Notes ” means the Initial Notes and any Additional Notes, treated as a single class of securities.
 
“ Notes Custodian ” means the custodian with respect to the Global Note (as appointed by the Depositary), or any successor Person thereto and shall initially be the Trustee.
 
“ Notes First Lien Percentage ” means, at any time for purposes of Section 3.7 , a fraction (expressed as a percentage), the numerator of which is the outstanding principal amount of the Notes at such time and the denominator of which is the outstanding principal amount of all outstanding Pari Passu Lien Indebtedness (including the Notes) at such time requiring a prepayment from a specified Asset Disposition.
 
“ Obligations ” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foregoing law), penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
 
“ Offering Circular ” means the offering circular, dated as of September 20, 2012, relating to the offering of the Notes.
 
“ Officer ” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Business Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Company or, in the event that a Person is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by the general partner, managers, members or a similar body to act on behalf of such Person. Officer of any Subsidiary Guarantor has a correlative meaning.

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“ Officers’ Certificate ” means a certificate signed by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company.
 
“ Opinion of Counsel ” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or a Subsidiary Guarantor.
 
“ Original Lien Grantor ” means the Company or any Subsidiary Guarantor that grants a Lien on any of its assets hereunder on the Issue Date.
 
“ Other First Lien Obligations ” shall have the meaning assigned to such term in the Intercreditor Agreement.
 
“ Other First Lien Secured Party ” means the holders of any Other First Lien Obligations and any Authorized Representative with respect thereto.
 
“ Pari Passu Lien Indebtedness ” means Indebtedness that is secured by a Lien permitted by clause (1), (33) or (35) of the definition of “Permitted Liens.”
 
“ Participant ” means, with respect to the Depositary, a Person who has an account with the Depositary.
 
“ Paying Agent ” means initially, the Trustee and thereafter, a replacement agent chosen by the Company in accordance with this Indenture.
 
“ Permitted Bond Hedge ” means any call or capped call option (or substantively equivalent derivative transaction) on the Company’s Common Stock purchased by the Company in connection with the issuance of any Permitted Convertible Indebtedness; provided that the purchase price for such Permitted Bond Hedge, less the proceeds received by the Company from the sale of any related Permitted Warrant, does not exceed the net proceeds received by the Company from the sale of such Permitted Convertible Indebtedness issued in connection with the Permitted Bond Hedge.
 
“ Permitted Convertible Indebtedness ” means Indebtedness of the Company permitted to be incurred under the terms of this Indenture that is either (a) convertible into Common Stock of the Company (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such Common Stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for Common Stock of the Company and/or cash (in an amount determined by reference to the price of such Common Stock). For the avoidance of doubt, the Existing Convertible Debentures shall be Permitted Convertible Indebtedness.
 
“ Permitted Convertible Indebtedness Call Transaction ” means any Permitted Bond Hedge and any Permitted Warrant.

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“ Permitted Investment ” means an Investment by the Company or any Restricted Subsidiary in:
 
(1)           the Company or a Restricted Subsidiary, including through the purchase of Capital Stock of a Restricted Subsidiary;
 
(2)           any Investment by the Company or any of its Restricted Subsidiaries in a Person that is engaged in a Related Business if as a result of such Investment:
 
 (a)           such Person becomes a Restricted Subsidiary; or
 
 (b)           such Person, in one transaction or a series of related transactions, is merged or consolidated with or into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary,
 
and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;
 
(3)           cash and Cash Equivalents or Investments that constituted Cash Equivalents at the time made;
 
(4)           receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided , however , that such trade terms may include such concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable under the circumstances;
 
(5)           commission, relocation, entertainment, 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;
 
(6)           loans or advances to, or guarantees of third party loans to, employees, officers or directors of the Company or any Subsidiary in the ordinary course of business in an aggregate amount outstanding at any time not in excess of $5.0 million with respect to all loans or advances or guarantees made since the Issue Date (without giving effect to the forgiveness of any such loan);
 
(7)           any Investment acquired by the Company or any of its Restricted Subsidiaries:
 
 (a)           in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary in connection with or as a result of a judgment, bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable;

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 (b)           as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; or
 
 (c)           in the form of notes payable, or stock or other securities issued by account debtors to the Company or any Restricted Subsidiary pursuant to negotiated agreements with respect to the settlement of such account debtor’s accounts, and other Investments arising in connection with the compromise, settlement or collection of accounts receivable, in each case in the ordinary course of business;
 
(8)           Investments made as a result of the receipt of non-cash consideration (including Designated Non-cash Consideration) from an Asset Disposition that was made pursuant to and in compliance with Section 3.7 or any other disposition of assets not constituting an Asset Disposition;
 
(9)           Investments in existence on the Issue Date and Investments committed to be made as of the Issue Date, and any extension, modification or renewal of any such Investments, or Investments purchased or received in exchange for such Investments, existing on the Issue Date, but only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investment as in effect on the Issue Date);
 
(10)         any Person to the extent such Investments consist of Currency Agreements, Interest Rate Agreements, Commodity Agreements and related Hedging Obligations, which transactions or obligations are Incurred in compliance with Section 3.3 ;
 
(11)         Guarantees of Indebtedness issued in accordance with Section 3.3 ;
 
(12)         Investments made in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan, including, without limitation, split-dollar insurance policies, in an amount not to exceed the amount of compensation expense recognized by the Company and its Restricted Subsidiaries in connection with such plans;
 
(13)         Investments received in settlement of debts created in the ordinary course of business and owing to the Company or any Restricted Subsidiary or in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of a debtor;
 
(14)         any Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility, unemployment insurance, workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Company or any Restricted Subsidiary;

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(15)         prepayments and other credits to suppliers made in the ordinary course of business;
 
(16)         endorsements of negotiable instruments and documents in the ordinary course of business;
 
(17)         loans or advances or similar transactions with customers, distributors, clients, developers, suppliers or purchasers of goods or services in the ordinary course of business;
 
(18)         Investments by any Insurance Subsidiary (including by any Subsidiary of such Insurance Subsidiary that is not itself an Insurance Subsidiary) in the ordinary course of business and consistent with the investment policy approved by the Board of Directors of such Insurance Subsidiary;
 
(19)         Permitted Bond Hedges which constitute Investments;
 
(20)         Permitted Portfolio Investments; and
 
(21)         Investments by the Company or any of its Restricted Subsidiaries, together with all other Investments pursuant to this clause (21), in an aggregate amount at the time of such Investment not to exceed $125.0 million outstanding at any one time (with the Fair Market Value of such Investment being measured at the time made and without giving effect to subsequent changes in value).
 
“ Permitted Junior Lien Intercreditor Agreement ” means an intercreditor agreement between the Collateral Agent and the trustee or agent for the holders of any obligations secured by Liens that are subordinated to the Liens securing the Notes and any other First Lien Secured Indebtedness (the “ Junior Liens ”), on terms determined by the Company to be customary lien subordination terms for junior lien debt securities; provided that such intercreditor agreement shall provide:
 
(1)           notwithstanding the time, order or method of grant, creation, attachment or perfection of any Liens securing the Notes or any other First Lien Secured Indebtedness and such Junior Liens, the Liens securing the Notes and any such other First Lien Secured Indebtedness shall rank senior to any Junior Liens on the Collateral.
 
(2)           no holder of any obligation secured by any Junior Liens shall contest the validity or enforceability of the Liens securing the Notes or any other First Lien Secured Indebtedness.
 
(3)           until the payment and discharge in full of all obligations under this Indenture and any other First Lien Secured Indebtedness, the Applicable Authorized Representative (or, if there is no Applicable Authorized Representative at such time, the Collateral Agent) will have the sole power to exercise remedies against the Collateral (subject to the right of the holders of obligations secured by Junior Liens to take protective measures with respect to the Junior Liens that the Company determines are customarily provided to junior lien creditors) and to foreclose upon and dispose of the Collateral. Upon any private or public sale of Collateral taken in connection with the exercise of remedies by the Applicable Authorized Representative (or, if there is no Applicable Authorized Representative at such time, the Collateral Agent) which results in the release of the Liens securing the Notes and any other First Lien Secured Indebtedness, the Junior Liens on such item of Collateral will be automatically released.

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(4)           in connection with any enforcement action with respect to the Collateral or any insolvency or liquidation proceeding involving the Company or any Subsidiary Guarantor, all proceeds of Collateral will first be applied to the repayment of all obligations under the Notes and any other First Lien Secured Indebtedness prior to being applied to the obligations secured by such Junior Liens. If any holder of an obligation secured by Junior Liens receives any proceeds of Collateral in contravention of the foregoing, such proceeds will be turned over to the Applicable Authorized Representative (or, if there is no Applicable Authorized Representative at such time, the Collateral Agent).
 
(5)           in connection with any insolvency or liquidation proceeding of the Company or any Subsidiary Guarantor, the Applicable Authorized Representative (or, if there is no Applicable Authorized Representative at such time, the Collateral Agent) may consent to debtor-in-possession financings secured by a Lien on the Collateral ranking prior to or pari passu with the Lien on such Collateral securing the Notes and any other First Lien Secured Indebtedness or to the use of cash collateral constituting proceeds of the Collateral without the consent of any holder of obligations secured by Junior Liens, and no holder of obligations secured by such Junior Liens shall be entitled to object to such use of cash collateral or debtor-in-possession financing or to seek “adequate protection” in connection therewith (other than in the form of a junior lien on any additional items of collateral for the Notes and any other First Lien Secured Indebtedness which are granted in connection with such debtor-in-possession financing or use of cash collateral);
 
(6)           no holder of any obligation secured by Junior Liens may, without the consent of the Applicable Authorized Representative (or, if there is no Applicable Authorized Representative at such time, the Collateral Agent) (x) seek relief from the automatic stay with respect to any Collateral, (y) object to any sale of any Collateral in any insolvency or liquidation proceeding which has been consented to by the Applicable Authorized Representative (provided that the Junior Liens attach to the proceeds of such sale with the priority set forth in the Permitted Junior Lien Intercreditor Agreement) or (z) object to any claim of any Holder of Notes to post-petition interest, fees or expenses on account of the Liens securing the First Lien Secured Indebtedness. and
 
(7)           no holder of obligations secured by Junior Liens shall support any plan or reorganization in connection with any insolvency or liquidation proceeding that is in contravention of the Permitted Junior Lien Intercreditor Agreement without the consent of the Applicable Authorized Representative (or, if there is no Applicable Authorized Representative at such time, the Collateral Agent).

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“ Permitted Liens ” means, with respect to any Person:
 
(1)           Liens on the Collateral securing Indebtedness Incurred pursuant to Section 3.3(b)(i) ;
 
(2)           (x) pledges or deposits by such Person under workers’ compensation laws, unemployment, general insurance and other insurance laws and old age pensions and other social security or retirement benefits or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory or regulatory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or good faith deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case Incurred in the ordinary course of business and (y) collateral consisting of Cash Equivalents securing letters of credit issued in respect of obligations to insurers in an aggregate amount not to exceed $20.0 million at any time outstanding;
 
(3)           Liens imposed by law and carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens, in each case Incurred in the ordinary course of business;
 
(4)            Liens for taxes, assessments or other governmental charges or levies not yet subject to penalties for non-payment or that are being contested in good faith by appropriate proceedings provided appropriate reserves required pursuant to GAAP have been made in respect thereof;
 
(5)           Liens in favor of issuers of surety, appeal or performance bonds or letters of credit or bankers’ acceptances or similar obligations issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
 
(6)           minor survey exceptions, encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, 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 such Person or to the ownership of its properties that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
 
(7)           Liens securing Hedging Obligations relating to Indebtedness so long as the related Indebtedness is, and is permitted to be under this Indenture, secured by a Lien on the same property securing such Hedging Obligation;
 
(8)           leases, licenses, subleases and sublicenses of assets (including, without limitation, real property and intellectual property rights) that do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;

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(9)           judgment Liens not giving rise to an Event of Default, and Liens securing appeal or surety bonds related to such judgment, so long as any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;
 
(10)         Liens for the purpose of securing the payment of all or a part of the purchase price of, or Capitalized Lease Obligations, mortgage financings, Purchase Money Indebtedness or other payments Incurred to finance assets or property (other than Capital Stock or other Investments) acquired, constructed, improved or leased in the ordinary course of business; provided that, in the case of this subclause (10):
 
 (a)           the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be incurred under this Indenture and does not exceed the cost of the assets or property so acquired, constructed or improved, plus reasonable fees and expenses of such Person incurred in connection therewith; and
 
 (b)           such Liens are created within 180 days of construction, acquisition or improvement of such assets or property and do not encumber any other assets or property of the Company or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto and the proceeds thereof;
 
(11)         Liens that constitute banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a bank, depositary or other financial institution, whether arising by operation of law or pursuant to contract;
 
(12)         Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;
 
(13)         Liens existing on the Issue Date (other than Liens permitted under clause (1) above or (35)(A) below);
 
(14)         Liens on property or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary; provided , however , that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such other Person becoming a Restricted Subsidiary; provided further , however , that any such Lien may not extend to any other property owned by the Company or any Restricted Subsidiary;
 
(15)         Liens on property at the time the Company or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary; provided , however , that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such acquisition; provided further , however , that such Liens may not extend to any other property owned by the Company or any Restricted Subsidiary;

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(16)         Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary;
 
(17)         Liens on Capital Stock of Unrestricted Subsidiaries and Liens on property of an Unrestricted Subsidiary at the time that it is designated as a Restricted Subsidiary; provided that such Liens were not incurred in connection with or in contemplation of such designation;
 
(18)         good faith deposits as security for contested taxes or contested import to customs duties;
 
(19)         Liens securing Refinancing Indebtedness Incurred to refinance, refund, replace, amend, extend or modify, as a whole or in part, Indebtedness that was previously so secured pursuant to clauses (10), (13), (14), (15) and (19) of this definition; provided that any such Lien is limited 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 the security for a Permitted Lien hereunder;
 
(20)         any interest or title of a lessor under any operating lease;
 
(21)         Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
 
(22)         Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with importation of goods;
 
(23)         Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
 
(24)         Liens on funds of the Company or any Subsidiary held in deposit accounts with third party providers of payment services securing credit card charge-back reimbursement and similar cash management obligations of the Company or the Subsidiaries;
 
(25)         Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon;
 
(26)         Liens arising by operation of law or contract on insurance policies and the proceeds thereof to secure premiums thereunder;

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(27)         Liens on insurance policies and proceeds of insurance policies (including rebates of premiums) securing Indebtedness incurred pursuant to Section 3.3(b)(xii) to finance the payment of premiums on the insurance policies subject to such Liens;
 
(28)         statutory, common law or contractual Liens of landlords;
 
(29)         customary Liens granted in favor of a trustee to secure fees and other amounts owing to such trustee under an indenture or other agreement pursuant to which Indebtedness permitted under Section 3.3 is Incurred;
 
(30)         Liens on any cash earnest money deposit made by the Company or any Restricted Subsidiary in connection with any letter of intent or acquisition agreement that is not prohibited by this Indenture;
 
(31)         Liens in favor of credit card processors granted in the ordinary course of business;
 
(32)         Liens arising in connection with Cash Equivalents described in clause (5) of the definition of Cash Equivalents;
 
(33)         Liens securing other obligations in an amount not to exceed $75.0 million at any time outstanding;
 
(34)         Liens securing cash management obligations incurred in the ordinary course of business;
 
(35)         Liens securing (x)(A) Obligations with respect to Indebtedness Incurred pursuant to Section 3.3(b)(ii)  , (B) Hedging Obligations and cash management obligations that are secured ratably (other than with respect to cash collateral for letters of credit) with Indebtedness outstanding pursuant to Section 3.3(b)(ii) and (C) Liens on cash or deposits granted to the collateral agent with respect to Indebtedness Incurred pursuant to Section 3.3(b)(ii) in respect of letters of credit issued and outstanding thereunder and (y) additional Pari Passu Lien Indebtedness in excess of the maximum amount permitted by clause (x)(A) above to the extent that after giving pro forma effect to the Incurrence of Indebtedness secured pursuant to this clause (y) and the application of the proceeds therefrom on such date, the Priority Leverage Ratio of the Company and the Restricted Subsidiaries would not exceed 1.25 to 1.00; provided that such Liens are subject to the terms of the Intercreditor Agreement; provided , further , that for all purposes of this clause (35)(y) only, Indebtedness under a revolving credit facility shall be deemed to be Incurred on the date on which commitments are provided with respect thereto and shall be deemed to have remained outstanding at all times until such commitments have been terminated;
 
(36)         Liens in connection with Permitted Transactions;

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(37)         Liens securing Indebtedness incurred pursuant to Section 3.3(b)(xiii) in an aggregate amount not to exceed $10.0 million and customary set-off rights in favor of depositary banks; and
 
(38)         collateral consisting of Cash Equivalents securing Permitted Swap Obligations in an aggregate amount not to exceed, at any time, $60.0 million; provided that, for purposes of this clause (38), in the case of Cash Equivalents described in clauses (2), (3), (4) and (11) of the definition thereof, the one year maturity limitation set forth in such clauses shall be disregarded.
 
“ Permitted Portfolio Investments ” means Investments by the Company or the Company’s Insurance Subsidiaries; provided that (a) in the case of an Investment in assets that are not Investment Grade Assets, after giving effect thereto, not more than 12% of the aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries, taken as a whole, may be comprised of Investments in assets that are not Investment Grade Assets (exclusive of the Investments referred to in paragraphs (b), (c), and (d) below and contract loans as specified on page 2, line 6 of the Company’s Annual Statements), (b) in the case of an Investment that is not NAIC rated, after giving effect thereto, not more than 6.0% of the aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries, taken as a whole, may be comprised of Investments that are not NAIC rated (exclusive of the Investments referred to in paragraphs (a), (c) and (d) hereof and contract loans as specified on page 2, line 6 of the Company’s Annual Statement), (c) in the case of an Investment in real property mortgage loans classified on Schedule B-Part 1 of the Annual Statement, after giving effect thereto, not more than 12.0% of the aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries, taken as a whole, may be comprised of Investments in assets that are Investments in real property mortgage loans classified on Schedule B-Part 1 of the Annual Statement (exclusive of Investments referred to in paragraphs (a), (b) and (d) hereof) and (d) in the case of an Investment in Capital Stock, after giving effect thereto, not more than 5.0% of the aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries, taken as a whole, may be comprised of Investments involving Capital Stock.
 
“ Permitted Swap Obligations ” means all obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under Swap Contracts, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments or assets held by such Person, or changes in the value of securities issued by such Person in conjunction with a securities repurchase program not otherwise prohibited under this Indenture, and not for purposes of speculation or taking a “market view.”

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“ Permitted Transactions ” means (a) mortgage-backed security transactions in which an investor sells mortgage collateral, such as securities issued by the Government National Mortgage Association and the Federal Home Loan Mortgage Corporation, for delivery in the current month while simultaneously contracting to repurchase “substantially the same” (as determined by the Public Securities Association and GAAP) collateral for a later settlement, (b) transactions in which an investor lends cash to a primary dealer and the primary dealer collateralizes the borrowing of the cash with certain securities, (c) transactions in which an investor lends securities to a primary dealer and the primary dealer collateralizes the borrowing of the securities with cash collateral, (d) transactions in which an investor makes loans of securities to a Broker-Dealer under an agreement requiring such loans to be continuously secured by cash collateral or United States government securities, (e) transactions structured as, and submitted to the NAIC Security Valuation Office for approval as, Replication (Synthetic Asset) Transactions (RSAT) ( provided that, to the extent that such approval is not granted in respect of any such transaction, such transaction shall cease to constitute a Permitted Transaction 30 days following the date of such rejection, denial or non-approval) and (f) transactions in which a federal home loan mortgage bank (a “FHLMB”) makes loans to an Insurance Subsidiary, that are sufficiently secured by appropriate assets of such Insurance Subsidiary consisting of government agency mortgage-backed securities in accordance with the rules, regulations and guidelines of such FHLMB for its loan programs.
 
“ Permitted Warrant ” means any call option on, warrant or right to purchase (or substantively equivalent derivative transaction) the Company’s Common Stock sold by the Company substantially concurrently with any purchase by the Company of a related Permitted Bond Hedge.
 
“ Person ” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
 
“ Preferred Stock ” means, as applied to the Capital Stock of any corporation, Capital Stock of any class or classes (however designated) that 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.
 
“ Priority Leverage Ratio ” means, at any date, the ratio of
 
                 (i)   the aggregate principal amount of Pari Passu Lien Indebtedness of the Company and its Restricted Subsidiaries as of such date of calculation (determined on a consolidated basis in accordance with GAAP); provided that for purposes of calculating the Priority Leverage Ratio, Indebtedness under a revolving credit facility shall be deemed to be Incurred on the date on which commitments are provided with respect thereto and shall be deemed to have remained outstanding at all times until such commitments have been terminated, to
 
                 (ii)  Consolidated EBITDA of the Company for the four full fiscal quarters for which internal financial statements are available immediately preceding such date on which such additional Indebtedness is Incurred;
 
and, in each case, with such pro forma adjustments as are consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.

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“ Private Placement Legend ” means the legend set forth in Section 2.1(c) to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions hereof.
 
“ Purchase Money Indebtedness ” means Indebtedness (including Capitalized Lease Obligations) Incurred (within 365 days of such purchase or lease) to finance or refinance the purchase, lease, construction, installation, or improvement of any assets used or useful in a Related Business (whether through the direct purchase of assets or through the purchase of Capital Stock of any Person owning such assets).
 
“ PVFP ” means the actuarial determined value of the right to receive future cash flows from insurance contracts in force on September 10, 2003, the day the Company’s reorganization became effective.
 
“ QIB ” means any “qualified institutional buyer” (as defined in Rule 144A).
 
“ Rating Agencies ” means Standard & Poor’s Ratings Group, Inc. and Moody’s Investors Service, Inc. or if Standard & Poor’s Ratings Group, Inc. or Moody’s Investors Service, Inc. or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a Board Resolution) which shall be substituted for Standard & Poor’s Ratings Group, Inc. or Moody’s Investors Service, Inc. or both, as the case may be.
 
“ Record Date ” for the interest payable on any applicable Interest Payment Date means March 15 and September 15 (whether or not a Business Day) next preceding such Interest Payment Date.
 
“ Refinance ” means, in respect of any Indebtedness, to refinance, extend, renew, refund, replace, repay, prepay, purchase, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for or to consolidate, such Indebtedness. “ Refinanced ” and “ Refinancing ” shall have correlative meanings.
 
“ Refinancing Indebtedness ” means any Indebtedness that Refinances any other Indebtedness, including any successive Refinancings, so long as:
 
(1)          such Indebtedness is in an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) not in excess of the sum of:
 
(a)           the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being Refinanced, and
 
(b)            an amount necessary to pay any fees and expenses, including accrued and unpaid interest, premiums, transaction costs and defeasance costs, related to such Refinancing,

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(2)           the Average Life of such Indebtedness is equal to or greater than the Average Life of the Indebtedness being Refinanced,
 
(3)           the Stated Maturity of such Indebtedness is no earlier than the Stated Maturity of the Indebtedness being Refinanced, and
 
(4)           if the Indebtedness being Refinanced was subordinated to the Notes or the Subsidiary Guarantees, the new Indebtedness shall be subordinated to the Notes or the Subsidiary Guarantees, as applicable, at least to the same extent as such Indebtedness being Refinanced;
 
provided , however , that Refinancing Indebtedness shall not include:
 
(1)           Indebtedness of a Restricted Subsidiary of the Company that is not a Subsidiary Guarantor that Refinances Indebtedness of the Company or a Subsidiary Guarantor, or
 
(2)           Indebtedness of the Company or a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary.
 
“ Registrar ” means initially, the Trustee and thereafter, a replacement registrar chosen by the Company in accordance with this Indenture.
 
“ Regulation S ” means Regulation S promulgated under the Securities Act.
 
“ Regulation S Global Note ” means a Global Note bearing the Global Note Legend, the Private Placement Legend and the Regulation S Legend and deposited with or on behalf of the Depositary and registered in the name of the Depositary or its nominee, issued in an initial denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903.
 
“ Regulation S Legend ” means the legend set forth in Section 2.1(d) hereof, which is required to be placed on all Global Notes issued under this Indenture except where otherwise permitted by the provisions hereof.
 
“ Reinsurance Agreements ” means any agreement, contract, treaty, certificate or other arrangement by which any Insurance Subsidiary agrees to transfer or cede to another insurer all or part of the liability assumed or assets held by it under one or more insurance, annuity, reinsurance or retrocession policies, agreements, contracts, treaties, certificates or similar arrangements. Reinsurance Agreements shall include, but not be limited to, any agreement, contract, treaty, certificate or other arrangement that is treated as such by the applicable Department.
 
“ Related Business ” means any business that is the same as or related, ancillary or complementary to any of the businesses of the Company and its Restricted Subsidiaries on the Issue Date and any reasonable extension or evolution of any of the foregoing, including without limitation, the online business of the Company and its Restricted Subsidiaries.

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“ Restricted Definitive Note ” means a Definitive Note bearing the Private Placement Legend.
 
“ Restricted Global Note ” means a Global Note bearing the Private Placement Legend.
 
“ Restricted Investment ” means any Investment other than a Permitted Investment.
 
“ Restricted Subsidiary ” means any Subsidiary of the Company other than an Unrestricted Subsidiary.
 
“ Rule 144 ” means Rule 144 promulgated under the Securities Act.
 
“ Rule 144A ” means Rule 144A promulgated under the Securities Act.
 
“ Rule 903 ” means Rule 903 promulgated under the Securities Act.
 
“ Rule 904 ” means Rule 904 promulgated under the Securities Act.
 
“ S&P ”  means Standard & Poor’s Ratings Group and any successor thereto.
 
“ Sale/Leaseback Transaction ” means any direct or indirect arrangement relating to property now owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the Company or such Restricted Subsidiary transfers such property to a Person (other than the Company or any of its Subsidiaries) and the Company or such Restricted Subsidiary leases it from such Person.
 
“ SEC ” means the United States Securities and Exchange Commission.
 
“ Secured Party ” means (i) the Holders, (ii) the Trustee, (iii) the Collateral Agent and (iv) any successors, indorsees, transferees and assigns of each of the foregoing.
 
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
 
“ Security Agreement ” means the security agreement dated September 28, 2012, among the Company, the Subsidiary Guarantors and the Collateral Agent, as the same may be amended, supplemented or otherwise modified from time to time.
 
 “ Series ” means (a) with respect to the First Lien Secured Parties, each of (i) the Credit Agreement Secured Parties (in their capacities as such), (ii) the Secured Parties (in their capacity as such) and (iii) the Other First Lien Secured Parties that become subject to the Intercreditor Agreement after the date hereof that are represented by a common Authorized Representative (in its capacity as such for such Other First Lien Secured Parties) and (b) with respect to any First Lien Secured Indebtedness, each of (i) the Credit Agreement Obligations, (ii) the Obligations under the Notes and (iii) the Other First Lien Obligations incurred pursuant to any applicable agreement, which pursuant to any joinder agreement to the Intercreditor Agreement, are to be represented under the Intercreditor Agreement by a common Authorized Representative (in its capacity as such for such Other First Lien Obligations).

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“ Significant Subsidiary ” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
 
“ Stated Maturity ” means, with respect to any security, the date specified in the agreement governing or certificate relating to such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption 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 Obligation ” means any Indebtedness of the Company (whether outstanding on the Issue Date or thereafter Incurred) that is subordinated or junior in right of payment to the Notes pursuant to its terms. No Indebtedness of the Company shall be deemed to be subordinated or junior in right of payment to any other Indebtedness of the Company solely by virtue of Liens, guarantees, maturity or payments or structural subordination.
 
“ Subsidiary ” of any Person means (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time 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 (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof). Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Company.
 
“ Subsidiary Guarantee ” means, individually, any Guarantee by a Subsidiary Guarantor pursuant to the terms of this Indenture and any supplemental indenture thereto, and, collectively, all such Guarantees. Each such Subsidiary Guarantee will be in the form prescribed by this Indenture.
 
“ Subsidiary Guarantor ” means each Restricted Subsidiary in existence on the Issue Date that provides a Subsidiary Guarantee on the Issue Date (and any other Restricted Subsidiary that provides a Subsidiary Guarantee in accordance with this Indenture); provided that upon release or discharge of such Restricted Subsidiary from its Subsidiary Guarantee in accordance with this Indenture, such Restricted Subsidiary ceases to be a Subsidiary Guarantor.
 
“ substantially concurrent ” means, with respect to two or more events, the occurrence of such events within 45 days of each other.

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“ Surplus Debentures ” means, as to any Insurance Subsidiary, debt securities of such Insurance Subsidiary issued to the Company or any other Subsidiary the proceeds of which are permitted to be included, in whole or in part, as Capital and Surplus of such Insurance Subsidiary as approved and permitted by the applicable Department.
 
“ Swap Contract ” means any agreement relating to any transaction (whether or not arising under a master agreement) that is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond, note or bill option, interest rate option, futures contract, forward foreign exchange transaction, cap, collar or floor transaction, currency swap, cross-currency rate swap, swaption, currency option, credit derivative transaction or any other similar transaction (including any option to enter into any of the foregoing) or any combination of the foregoing, and any master agreement relating to or governing any or all of the foregoing.
 
“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined by the Company based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
 
“ Tax Sharing Agreement ” means the amended and restated consolidated income tax agreement dated January 1, 2004 among the Company and certain of its Subsidiaries as in effect on the Issue Date or as thereafter amended in any manner, that, taken as a whole, is not more disadvantageous to the Holders of the Company in any material respect than such agreement as it was in effect on the Issue Date.
 
“ Total Capitalization ” means, without duplication, (a) the amount described in clause (a) of the definition of “Debt to Total Capitalization Ratio” plus (b) the Total Shareholders’ Equity of the Company.
 
“ Total Shareholders’ Equity ” means the total common and preferred shareholders’ equity of the Company as determined in accordance with GAAP (calculated excluding (i) unrealized gains (losses) on securities as determined in accordance with FASB ASC 320 (Investments—Debt and Equity Securities) and (ii) any charges taken to write off any goodwill included on the Company’s balance sheet on the Issue Date to the extent such charges are required by FASB ASC 320 (Investments— Debt and Equity Securities) and ASC 350 (Intangibles—Goodwill and Others).
 
“ TIA ” means the Trust Indenture Act of 1939 as in effect on the date hereof.
 
“ Trade Payables ” means, with respect to any Person, any accounts payable to trade creditors created, assumed or Guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.

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“ Transactions ” means, collectively, the offering of the Notes and the Concurrent Transactions (as defined in the Offering Circular) and payment of the expenses in connection therewith.
 
“ Treasury Rate ” means, as obtained by the Company, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to October 1, 2015; provided , however , that if the period from the Redemption Date to October 1, 2015 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the 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 October 1, 2015 is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
 
“ Trust Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall, in each case, have direct responsibility for the administration of this Indenture.
 
“ Trustee ” has the meaning assigned to such term in the preamble to this Indenture.
 
“ Uniform Commercial Code ” means the New York Uniform Commercial Code as in effect from time to time.
 
“ Unrestricted Definitive Note ” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.
 
“ Unrestricted Global Note ” means a permanent Global Note substantially in the form of Exhibit A attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing Notes that do not bear the Private Placement Legend.
 
“ Unrestricted Subsidiary ” means (1) any Subsidiary of the Company that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors of the Company in the manner provided below; and (2) any Subsidiary of an Unrestricted Subsidiary.

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The Board of Directors of the Company may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary only if:
 
(1)           such Subsidiary or any of its Subsidiaries does not own any Capital Stock or Indebtedness of or have any Investment in, or own or hold any Lien on any property of, any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary;
 
(2)           all the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of designation, and will at all times thereafter while they are Unrestricted Subsidiaries, consist of Non-Recourse Debt;
 
(3)           such designation and the Investment of the Company in such Subsidiary complies with Section 3.4 ;
 
(4)           such Subsidiary, either alone or in the aggregate with all other Unrestricted Subsidiaries, does not operate, directly or indirectly, all or substantially all of the business of the Company and its Subsidiaries;
 
(5)           such Subsidiary is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation:
 
 (a)           to subscribe for additional Capital Stock of such Person; or
 
 (b)           to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and
 
(6)           on the date such Subsidiary is designated an Unrestricted Subsidiary, such Subsidiary is not a party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary with terms substantially less favorable to the Company than those that might have been obtained from Persons who are not Affiliates of the Company.
 
Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by filing with the Trustee a Board Resolution of the Company giving effect to such designation and an Officers’ Certificate certifying that such designation complies with the foregoing conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be Incurred as of such date.
 
The Board of Directors of the Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof and the Company could Incur at least $1.00 of additional Indebtedness pursuant to Section 3.3(a) on a pro forma basis taking into account such designation.

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“ U.S. Government Obligations ” means securities that are (1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the Holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary receipt.
 
“ U.S. Person ” means a U.S. Person as defined in Rule 902(k) of Regulation S under the Securities Act.
 
“ Voting Stock ” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors, managers or trustees, as applicable, of such Person.
 
“ Wholly-Owned Subsidiary ” means a Restricted Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares or local ownership shares) is owned by the Company or another Wholly Owned Subsidiary.
 
SECTION 1.2.      Other Definitions .
 
Term	 	Defined in
  Section  	
 	 	 	
“actual knowledge”                                                                                                               	 	7.2(g)	
“Additional Notes”                                                                                                               	 	2.2	
“Affiliate Transaction”                                                                                                               	 	3.8(a)	
“Agent Members”                                                                                                               	 	2.1(c)	
“Asset Disposition Offer”                                                                                                               	 	3.7(c)	
“Asset Disposition Offer Amount”                                                                                                               	 	3.7(d)	
“Asset Disposition Offer Period”                                                                                                               	 	3.7(d)	
“Asset Disposition Purchase Date”                                                                                                               	 	3.7(d)	
“Bankruptcy Law”                                                                                                               	 	6.1	
“Change of Control Offer”                                                                                                               	 	3.9(b)	
“Change of Control Payment”                                                                                                               	 	3.9(b)(i)	
“Change of Control Payment Date”                                                                                                               	 	3.9(b)(ii)	
“Company Conference Call”	 	3.2(b)	

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Term	 	Defined in
  Section  	
 	 	 	
“covenant defeasance option”                                                                                                               	 	8.1(b)	
“Custodian”                                                                                                               	 	6.1	
“Defaulted Interest”                                                                                                               	 	2.12	
“DTC”                                                                                                               	 	2.1(b)	
“Event of Default”                                                                                                               	 	6.1(a)	
“Excess Proceeds”                                                                                                               	 	3.7(c)	
“Guarantor Obligations”                                                                                                               	 	10.1	
“Initial Lien”                                                                                                               	 	3.5	
“legal defeasance option”                                                                                                               	 	8.1(b)	
“Notice of Default”                                                                                                               	 	6.1	
“Paying Agent”                                                                                                               	 	2.3	
“payment default”                                                                                                               	 	6.1(a)(vi)(A)	
“Redemption Date”                                                                                                               	 	5.4	
“Registrar”                                                                                                               	 	2.3	
“Reinstatement Date”                                                                                                               	 	3.12(b)	
“Restricted Payment”                                                                                                               	 	3.4(a)(iv)	
“Restricted Period”                                                                                                               	 	2.6(b)(i)	
“Special Interest Payment Date”                                                                                                               	 	2.12(a)	
“Special Record Date”                                                                                                               	 	2.12(a)	
“Successor Company”                                                                                                               	 	4.1(a)(i)	
“Successor Guarantor”                                                                                                               	 	4.2(a)(i)	
“Suspended Covenants”                                                                                                               	 	3.12(a)	
“Suspension Period”                                                                                                               	 	3.12(b)	
“Unutilized Excess Proceeds”                                                                                                               	 	3.7(c)	
 
SECTION 1.3.      Rules of Construction .  Unless the context otherwise requires:
 
(a)           a term has the meaning assigned to it;
 
(b)           an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
 
(c)           “or” is not exclusive;
 
(d)           “including” means including without limitation;
 
(e)           words in the singular include the plural and words in the plural include the singular;
 
(f)           unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness;

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(g)           references to sections of, or rules under, the Securities Act or Exchange Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
 
(h)           unless the context otherwise requires, any reference to an “Article,” “Section” or “clause” refers to an Article, Section or clause, as the case may be, of this Indenture; and
 
(i)           the words “herein,” “hereof” and “hereunder” and any other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision.
 
ARTICLE II
 
The Notes
 
SECTION 2.1.  Form and Dating .
 
(a)           The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, the terms of which are incorporated in and made a part hereof.  The Notes may have notations, legends or endorsements approved as to form by the Company, and required by law, stock exchange rule, agreements to which the Company is subject or usage.  Each Note shall be dated the date of its authentication.  The Notes shall be issuable only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
 
(b)           The Notes shall initially be issued in the form of one or more Global Notes and The Depository Trust Company (“ DTC ”), its nominees, and their respective successors, shall act as the Depositary with respect thereto.  Each Global Note (i) shall be registered in the name of the Depositary for such Global Note or the nominee of such Depositary, (ii) shall be delivered by the Trustee to such Depositary or held by the Trustee as custodian for the Depositary pursuant to such Depositary’s instructions, and (iii) shall bear a Global Note Legend in substantially the following form:
 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.

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THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY OR A SUCCESSOR DEPOSITARY.  THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
 
(c)           Except as permitted by Section 2.6(i)(B) , any Note not registered under the Securities Act shall bear the following Private Placement Legend on the face thereof:
 
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.

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(d)           Each Regulation S Global Note shall bear the following Regulation S Legend on the face thereof:
 
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.
 
Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note for all purposes whatsoever, including but not limited to notices and payments.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.  Any notice to be delivered to DTC (including, but not limited to, a notice of redemption) may be delivered electronically by the Trustee or the Company in accordance with the Applicable Procedures.
 
SECTION 2.2.  Form of Execution and Authentication .  An Officer shall sign the Notes for the Company by manual or facsimile signature.
 
If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.
 
A Note shall not be valid until authenticated by the manual signature of the Trustee.  The signature of the Trustee shall be conclusive evidence that the Note has been authenticated under this Indenture.
 
The Trustee shall authenticate (i) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $275,000,000 and (ii) subject to the Company’s compliance with Sections 3.3 and 3.5 , one or more series of Notes (“ Additional Notes ”) for original issue after the Issue Date (such Notes to be substantially in the form of Exhibit A ) in an unlimited amount, in each case upon receipt of a written order of the Company, which shall, in the case of any issuance of Additional Notes, certify that such issuance is in compliance with Sections 3.3 and 3.5 (an “Authentication Order”).  In addition, each such Authentication Order shall specify the amount of Notes to be authenticated, the date on which the Notes are to be authenticated, whether the securities are to be Initial Notes or Additional Notes and the aggregate principal amount of Notes outstanding on the date of authentication, and shall further specify the amount of such Notes to be issued as Global Notes or Definitive Notes.  Such Notes shall initially be in the form of one or more Global Notes, which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Notes to be issued or (ii) shall be registered in the name of the Depositary or its nominee.  All Notes issued under this Indenture shall vote and consent together on all matters as one class and no series of Notes will have the right to vote or consent as a separate class on any matter.

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The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes.  Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal with the Company or any Affiliate of the Company.
 
SECTION 2.3.  Registrar and Paying Agent .  The Company shall maintain (i) an office or agency where Notes may be presented for registration of transfer or for exchange (including any co-registrar, the “ Registrar ”) and (ii) an office or agency where Notes may be presented for payment (“ Paying Agent ”).  The Registrar shall keep a register of the Notes and of their transfer and exchange.  The Company may appoint one or more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any additional paying agent.  The Company may change any Paying Agent, Registrar or co-registrar without prior notice to any Holder of a Note.  The Company shall notify the Trustee in writing and the Trustee shall notify the Holders of the Notes of the name and address of any Agent not a party to this Indenture.  The Company or any of its domestically incorporated Wholly-Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.  The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture.  The agreement shall implement the provisions hereof that relate to such Agent.  The Company shall notify the Trustee in writing of the name and address of any such Agent.  If the Company fails to maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such, and shall be entitled to appropriate compensation in accordance with Section 7.11 .
 
The Company initially appoints the Trustee as Registrar and Paying Agent and to act as Notes Custodian with respect to the Notes.
 
SECTION 2.4.  Paying Agent to Hold Money in Trust .  The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders of the Notes or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, and interest on the Notes, and shall notify the Trustee in writing of any Default by the Company in making any such payment.  While any such Default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Company at any time may require a Paying Agent to pay all money held by such Paying Agent to the Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than the Company or any of its domestically incorporated Wholly-Owned Subsidiaries) shall have no further liability for the money delivered to the Trustee.  If the Company or any of its domestically incorporated Wholly-Owned Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders of the Notes all money held by it as Paying Agent.
 
SECTION 2.5.  Lists of Holders of the Notes .  The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of the Notes.  If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of the Notes, including the aggregate principal amount of the Notes held by each thereof.

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SECTION 2.6.  Transfer and Exchange .
 
(a)            Transfer and Exchange of Global Notes .   A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.  Global Notes will be exchanged by the Company for Definitive Notes, subject to any applicable laws, only (i) if the Company delivers to the Trustee notice from the Depositary that (A) the Depositary is unwilling or unable to continue to act as Depositary for the Global Notes or (B) the Depositary is no longer a clearing agency registered under the Exchange Act and, in either case, the Company fails to appoint a successor Depositary within 90 days after the date of such notice from the Depositary or (ii) if there shall have occurred and be continuing an Event of Default with respect to the Notes and the Depositary so requests.  In any such case, the Company will notify the Trustee in writing that, upon surrender by the Participants and Indirect Participants of their interests in such Global Note, certificated Notes will be issued to each Person that such Participants, Indirect Participants and DTC jointly identify as being the beneficial owner of the related Notes.  Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.7 and 2.10 .  Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note.  A Global Note may not be exchanged for another Note other than as provided in this Section 2.6 .  However, beneficial interests in a Global Note may be transferred and exchanged as provided in paragraph (b) or (c) below.
 
(b)            Transfer and Exchange of Beneficial Interests in the Global Notes .  The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions hereof and the Applicable Procedures.  Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth in this Indenture to the extent required by the Securities Act.  Transfers of beneficial interests in the Global Notes also shall require compliance with the applicable subparagraphs below.
 
(i)             Transfer of Beneficial Interests in the Same Global Note .  Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however , that prior to the expiration of the 40th day after the later of the commencement of the offering of the Notes represented by the Regulation S Global Note and the issue date of such Notes (such period through and including such 40th day, the “ Restricted Period ”), no transfer of beneficial interests in a Regulation S Global Note may be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser) unless permitted by applicable law and made in compliance with subparagraphs (ii) and (iii) below.  Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this subparagraph (i) unless specifically stated above.

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(ii)            All Other Transfers and Exchanges of Beneficial Interests in Global Notes .  In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either:
 
(a)       (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
 
(2)       instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
 
(b)       (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
 
(2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above.
 
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.6(k) hereof.
 
(iii)           Transfer of Beneficial Interests to Another Restricted Global Note .  A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of subparagraph (ii) above and the Registrar receives the following:
 
(A)           if the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
 
(B)           if the transferee will take delivery in the form of a beneficial interest in a Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; or

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(C)           if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(c) thereof.
 
(iv)           Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note .  A beneficial interest in any Restricted Global Note may be exchanged by any Holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.6(b)(ii) above and:
 
(A)          such transfer is effected pursuant to an effective registration statement under the Securities Act; or
 
(B)           the Registrar receives the following:
 
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
 
(B) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
 
and, in each such case set forth in this subparagraph (B), if the Company so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
 
If any such transfer is effected pursuant to subparagraph (A) or (B) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests exchanged or transferred pursuant to subparagraph (A) or (B) above.

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Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
 
(c)            Transfer and Exchange of Beneficial Interests for Definitive Notes .
 
(i)             Transfer and Exchange of Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes .  Subject to Section 2.6(a) , if any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then upon receipt by the Registrar of the following documentation:
 
(A)           if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
 
(B)           if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
 
(C)           if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
 
(D)           if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (C) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(c) thereof; or
 
(E)           if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof,
 
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to paragraph (k) below, and the Company shall execute and, upon receipt of an Authentication Order the Trustee shall authenticate and deliver to the Person designated in the certificate a Restricted Definitive Note in the appropriate principal amount.  Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this paragraph (c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant.  The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered.  Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this subparagraph (i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

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(ii)            Transfer and Exchange of Beneficial Interests in Restricted Global Notes for Unrestricted Definitive Notes .  Subject to Section 2.6(a) , a holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:
 
(A)           such transfer is effected pursuant to an effective registration statement under the Securities Act; or
 
(B)           the Registrar receives the following:
 
(i)           if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
 
(ii)          if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
 
and, in each such case set forth in this subparagraph (B), if the Company so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
 
(iii)           Transfer and Exchange of Beneficial Interests in Unrestricted Global Notes for Unrestricted Definitive Notes .  Subject to Section 2.6(a) , if any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in subparagraph (b)(ii) above, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to paragraph (k) below, and the Company shall execute and, upon receipt of an Authentication Order the Trustee shall authenticate and deliver to the Person designated in the certificate a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a beneficial interest pursuant to this subparagraph (c)(iii) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant.  The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a beneficial interest pursuant to this subparagraph (c)(iii) shall not bear the Private Placement Legend.

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(d)            Transfer and Exchange of Definitive Notes for Beneficial Interests .
 
       (i)      Transfer and Exchange of Restricted Definitive Notes for Beneficial Interests in Restricted Global Notes .   If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
 
(A)          if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
 
(B)           if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
 
(C)           if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
 
(D)           if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (C) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(c) thereof; or
 
(E)           if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof,
 
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in the case of clause (D) above, the IAI Global Note.
 
(ii)            Transfer and Exchange of Restricted Definitive Notes for Beneficial Interests in Unrestricted Global Notes .  A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:

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(a)           if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
 
(b)           if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the applicable certifications in item (4) thereof;
 
and, in each such case set forth in this Section 2.6(d)(ii) , if the Company so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this Indenture and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
 
Upon satisfaction of the conditions of any of the subparagraphs in this subparagraph (d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
 
(e)            Transfer and Exchange of Unrestricted Definitive Notes for Beneficial Interests in Unrestricted Global Notes .  A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
 
If any such exchange or transfer from an Unrestricted Definitive Note or a Restricted Definitive Note, as the case may be, to a beneficial interest is effected pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.2 , the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Unrestricted Definitive Notes or Restricted Definitive Notes, as the case may be, so transferred.
 
(f)            Transfer and Exchange of Definitive Notes for Definitive Notes .  Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this paragraph (f), the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or its attorney, duly authorized in writing.  In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this paragraph (f).

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(g)            Transfer of Restricted Definitive Notes to Restricted Definitive Notes .  (i) Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
 
(A)           if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
 
(B)           if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof;
 
(C)           if the transfer will be made to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (A) through (B) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(c) thereof; or
 
(D)           if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including, if the Company so requests, a certification or opinion of counsel in form reasonably acceptable to the Company to the effect that such transfer is in compliance with the Securities Act.
 
(ii)            Transfer and Exchange of Restricted Definitive Notes for Unrestricted Definitive Notes .  Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:
 
(A)          any such transfer is effected pursuant to an effective registration statement under the Securities Act; or
 
(B)           the Registrar receives the following:
 
(A) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
 
(B) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

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and, in each such case set forth in this subparagraph (B), if the Company so requests, an opinion of counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
 
(h)            Transfer of Unrestricted Definitive Notes to Unrestricted Definitive Notes .  A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note.  Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
 
(i)             Private Placement Legend .
 
(A)                     Except as permitted by subparagraph (B) below, each Global Note (other than an Unrestricted Global Note) and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the Private Placement Legend.
 
(B)                      Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(ii), (c)(iii), (d)(ii), (e) or (g)(ii) of this Section 2.6 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.
 
(j)             Global Note Legend .  Each Global Note shall bear the Global Note Legend.
 
(k)            Cancellation and/or Adjustment of Global Notes .  At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

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(l)              General Provisions Relating to Transfers and Exchanges .
 
(i)            To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order.
 
(ii)           No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.2 , 2.10 , 3.7 , 3.9 and 5.7 ).
 
(iii)          Neither the Registrar nor the Trustee shall  be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except for the unredeemed portion of any Note being redeemed in part.
 
(iv)          All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits hereof, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
 
(v)           Neither the Trustee, the Registrar nor the Company shall be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business on a Business Day 15 days before the mailing of a notice of redemption of Notes and ending at the close of business on the day of such mailing or (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
 
(vi)          Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
 
(vii)         The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.2 .
 
(viii)        All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.6 to effect a registration of transfer or exchange may be submitted by facsimile.
 
(ix)           The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or Indirect Participants) other than to require delivery of such certificates and other documentation or 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.

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(x)           Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.
 
(xi)          The Trustee shall have no responsibility or obligation to any Participant or Indirect Participant or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any Participant or Indirect Participant or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the customary procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Participants or Indirect Participants.
 
SECTION 2.7.  Replacement Notes .
 
If any mutilated Note is surrendered to the Trustee, or the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements for replacements of Notes are met.  The Holder must supply indemnity or security sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent or any authenticating agent from any loss which any of them may suffer if a Note is replaced.  The Company and the Trustee may charge for their fees and expenses in replacing a Note including amounts to cover any tax, assessment, fee or other governmental charge that may be imposed in relation thereto.
 
Every replacement Note is an obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued here under.
 
SECTION 2.8.  Outstanding Notes .
 
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section 2.8 as not outstanding.
 
If a Note is replaced pursuant to Section 2.7 , it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
 
If the principal amount of any Note is considered paid under Section 3.1 hereof, it shall cease to be outstanding and interest on it shall cease to accrue.
 
Subject to Section 2.9 , a Note does not cease to be outstanding because the Company, a Subsidiary of the Company or an Affiliate of the Company holds the Note.

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SECTION 2.9.  Treasury Notes .  In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, any Subsidiary of the Company or any Affiliate of the Company shall be considered as though not outstanding, except that for purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer actually knows to be so owned shall be so considered.  Notwithstanding the foregoing, Notes that are to be acquired by the Company, any Subsidiary of the Company or an Affiliate of the Company pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by the Company, a Subsidiary of the Company or an Affiliate of the Company until legal title to such Notes passes to the Company, such Subsidiary or such Affiliate, as the case may be. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Notes, if any known by the Company to be owned or held by or for the account of any of the Company or any Affiliate of the Company, and the Trustee shall be entitled to accept and rely upon such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any determination.
 
SECTION 2.10.  Temporary Notes .  Until Definitive Notes are ready for delivery, the Company may prepare and, upon receipt of an Authentication Order the Trustee shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that the Company and the Trustee consider appropriate for temporary Notes.  Without unreasonable delay, the Company shall prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate definitive Notes in exchange for temporary Notes.  Until such exchange, temporary Notes shall be entitled to the same rights, benefits and privileges as Definitive Notes.
 
SECTION 2.11.  Cancellation .  The Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  The Trustee shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of all canceled Notes in its customary manner (subject to the record retention requirements of the Exchange Act).  The Company may not issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation.
 
SECTION 2.12.  Payment of Interest; Defaulted Interest .  Interest on any Note which is payable, and is punctually 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 regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 2.3 .
 
Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular Record Date by virtue of having been such Holder, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “ Defaulted Interest ”) shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:

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(a)           The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30 days after such notice unless a shorter period shall be acceptable to the Trustee) of the proposed payment (the “ Special Interest Payment Date ”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided.  Thereupon the Company shall fix a record date (the “ Special Record Date ”) for the payment of such Defaulted Interest, which shall be not more than 15 days and not less than 10 days prior to the Special Interest Payment Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.  The Company shall promptly notify the Trustee, in writing, of such Special Record Date and shall, or at the written request and in the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 12.1 , not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
 
(b)           The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (b), such manner of payment shall be deemed practicable by the Trustee.
 
Subject to the foregoing provisions of this Section, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
 
SECTION 2.13.  CUSIP and ISIN Numbers .  The Company in issuing the Notes may use “CUSIP” and “ISIN” numbers (if then generally in use).  The Trustee shall not be responsible for the use of CUSIP and ISIN numbers, and the Trustee makes no representation as to their correctness as printed on any Note or notice to Holders.  The Company shall promptly notify the Trustee in writing of any change in the CUSIP and ISIN numbers.

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ARTICLE III
 
Covenants
 
SECTION 3.1.  Payment of Notes .  The Company shall promptly pay, or caused to be paid, the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture.  Principal, premium, if any, and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
 
The Company shall pay interest on overdue principal at the rate specified therefor in the Notes.
 
Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder.
 
SECTION 3.2.  Reports .
 
(a)           Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Trustee and the registered Holders of the Notes, within 15 days of the applicable time periods specified in the relevant forms:
 
(1)           all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to file such Forms (but without any requirement to provide separate financial statements of any Subsidiary of the Company), including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and
 
(2)           all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports; provided , however , that to the extent such reports are filed with the SEC and publicly available, such reports shall have been deemed to have been provided to the Holders and no additional copies need to be provided to the Holders, however, copies will still be delivered to the Trustee.
 
If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant Subsidiary, then the quarterly and annual financial information required by the preceding paragraph shall include a summary presentation, in the footnotes to the financial statements, of the financial condition and results of operations of the Company and its Restricted Subsidiaries.

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In addition, the Company and the Subsidiary Guarantors shall make available to the Holders and to prospective investors, upon the request of such Holders, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to the extent such Notes constitute “restricted securities” within the meaning of the Securities Act.
 
The Company shall maintain a website to which all of the reports and press releases required by this Section 3.2 are posted (unless such reports are otherwise filed with the SEC).
 
(b)           So long as any Notes are outstanding, the Company will also:
 
(1) within 15 Business Days after providing the annual and quarterly information required pursuant to Section 3.2(a)(1) (or such earlier time as the Company determines), hold a conference call (the “ Company Conference Call ”) to discuss the results of operations for the relevant reporting period; and
 
(2)           issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the proposed date of the Company Conference Call, announcing the time and date of the Company Conference Call and either including all information necessary to access the call or directing Holders, prospective investors that certify that they are qualified institutional buyers, securities analysts and market makers to contact the appropriate person at the Company to obtain such information. The Company Conference Call may be part of or separate from any earnings or similar conference call relating to the financial results of the Company or any of its Subsidiaries as long as such call otherwise meets the requirements of the foregoing clauses (1) and (2).
 
In addition, if at any time any direct or indirect parent company of the Company becomes a Subsidiary Guarantor (there being no obligation of any such parent to do so), such entity holds no material assets other than cash, cash equivalents and the Capital Stock of the Company or any other direct or indirect parent of the Company (and performs the related incidental activities associated with such ownership) and would comply with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision), the reports, information and other documents required to be furnished to Holders pursuant to this Section 3.2 may, at the option of the Company, be furnished by and be those of such parent rather than the Company.
 
SECTION 3.3.  Limitation on Indebtedness .
 
(a)           The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness); provided, however, that the Company and any Restricted Subsidiary that is a Subsidiary Guarantor may Incur Indebtedness (including Acquired Indebtedness) if the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.00 to 1.00 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred and the application of proceeds therefrom had occurred at the beginning of such four-quarter period.

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(b)           The provisions of Section 3.3(a) shall not apply to the Incurrence of the following Indebtedness:
 
(i)            Indebtedness of the Company evidenced by the Notes (other than Additional Notes) and Indebtedness of Subsidiary Guarantors evidenced by the Subsidiary Guarantees relating to the Notes (other than Additional Notes);
 
(ii)           Indebtedness Incurred pursuant to Debt Facilities in an aggregate principal amount not to exceed $975.0 million, at any time outstanding, less to the extent a permanent repayment or commitment reduction is required thereunder as a result of such application, the aggregate principal amount of all principal repayments following the Issue Date actually made under any Debt Facilities incurred in reliance on this clause (2) with Net Available Cash from Asset Dispositions;
 
(iii)          Guarantees by the Company or a Subsidiary Guarantor (including any Restricted Subsidiary the Company elects to cause to become a Subsidiary Guarantor in connection therewith) of Indebtedness permitted to be Incurred by the Company or a Restricted Subsidiary in accordance with the provisions of this Indenture; provided that (x) if such Indebtedness is by its express terms subordinated in right of payment to the Notes or the Guarantee of such Restricted Subsidiary, as applicable, any such guarantee of such Subsidiary Guarantor with respect to such Indebtedness shall be subordinated in right of payment to such Subsidiary Guarantor’s Guarantee with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes or the Guarantee of such Restricted Subsidiary, as applicable, and (y) Non-Guarantor Subsidiaries of Indebtedness Incurred by Non-Guarantor Subsidiaries in accordance with the provisions of this Indenture;
 
(iv)          Indebtedness of the Company owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any other Restricted Subsidiary; provided , however ,
 
 (A)         if the Company is the obligor on Indebtedness owing to a Non-Guarantor Subsidiary, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
 
 (B)          if a Subsidiary Guarantor is the obligor on such Indebtedness and a Non-Guarantor Subsidiary is the obligee, such Indebtedness is subordinated in right of payment to the Subsidiary Guarantees of such Subsidiary Guarantor; and

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(C)           (1) any subsequent issuance or transfer of Capital Stock or any other event that results in any such Indebtedness being beneficially held by a Person other than the Company or a Restricted Subsidiary of the Company; and (2) any subsequent sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary of the Company; shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
 
(v)          any Indebtedness (other than the Indebtedness described in clauses (i) and (ii)) outstanding on the Issue Date, and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in clause (i), this clause (v) or clause (vi) or Incurred pursuant to Section 3.3(a) ;
 
(vi)          Indebtedness of Persons Incurred and outstanding on the date on which such Person became a Restricted Subsidiary or was acquired by, or merged or consolidated with or into, the Company or any Restricted Subsidiary (other than Indebtedness Incurred in connection with, or in contemplation of, such acquisition, merger or consolidation); provided , however , that at the time such Person is acquired by, or merged or consolidated with, the Company or any Restricted Subsidiary and after giving effect to the Incurrence of such Indebtedness pursuant to this clause (vi), either (x) the Company would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 3.3(a) or (y) the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries would be greater than such Fixed Charge Coverage Ratio immediately prior to such acquisition, merger or consolidation;
 
(vii)         Indebtedness under Hedging Obligations; provided , however , that such Hedging Obligations are entered into (i) in the ordinary course of business by any Insurance Subsidiary or (ii) to fix, manage or hedge interest rate, currency or commodity exposure of the Company or any Restricted Subsidiary and not for speculative purposes;
 
(viii)        (A) Purchase Money Indebtedness in an aggregate principal amount not to exceed $50.0 million at any one time outstanding pursuant to this clause (viii)(A), and Refinancing Indebtedness thereof (but disregarding the requirements of clauses (b) through (d), (x) and (y) of the definition thereof) and (B) Capitalized Lease Obligations arising from the sale and leaseback of the Company’s headquarters pursuant to clause (24) of the definition of “ Asset Disposition ”, and Refinancing Indebtedness thereof (but disregarding the requirements of clauses (b) through (d), (x) and (y) of the definition thereof);
 
(ix)           Indebtedness Incurred by the Company or its Restricted Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety, appeal and similar bonds and completion Guarantees (not for borrowed money) or security deposits, letters of credit, banker’s guarantees or banker’s acceptances, in each case in the ordinary course of business (including letters of credit issued in connection with reinsurance transactions entered into in the ordinary course of business);

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(x)            Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, earn-outs or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets of the Company or any business, assets or Capital Stock of a Subsidiary, other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing such acquisition, provided that
 
 (A)         the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to subsequent changes in value), actually received by the Company and its Restricted Subsidiaries in connection with such disposition; and
 
 (B)          such Indebtedness is not reflected on the balance sheet of the Company or any of its Restricted Subsidiaries (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (x);
 
(xi)           Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument, including, but not limited to, electronic transfers, wire transfers and commercial card payments drawn against insufficient funds in the ordinary course of business (except in the form of committed or uncommitted lines of credit); provided , however , that such Indebtedness is extinguished within ten Business Days of Incurrence;
 
(xii)         Indebtedness Incurred by the Company or any Restricted Subsidiary in connection with third party insurance premium financing arrangements not to exceed $20.0 million at any one time outstanding;
 
(xiii)        Indebtedness owed to banks and other financial institutions Incurred in the ordinary course of business of the Company and its Restricted Subsidiaries with such banks or financial institutions that arise in connection with ordinary banking arrangements to provide treasury services or to manage cash balances of the Company and its Restricted Subsidiaries;
 
(xiv)        guarantees to suppliers or licensors (other than guarantees of Indebtedness) in the ordinary course of business;
 
(xv)         Indebtedness of the Company or any Restricted Subsidiary to the extent that the Net Proceeds thereof are promptly deposited to defease the Notes in accordance with Article VIII ;

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(xvi)        any Surplus Debentures issued by any Insurance Subsidiary to the Company or any of its Subsidiaries that remain outstanding on the Issue Date, and extensions, renewals or replacements thereof;
 
(xvii)       Permitted Transactions entered into by Insurance Subsidiaries or by the Company in connection with Investments permitted by clause (20) of the definition of “Permitted Investment”;
 
(xviii)       non-recourse Indebtedness of Insurance Subsidiaries incurred in the ordinary course of business (x) existing or arising under swap contracts entered into by Insurance Subsidiaries or (y) resulting from the sale or securitization of non-admitted assets, policy loans, CBOs and CMOs;
 
(xix)         (x) Indebtedness (including Surplus Debentures) owed by the Company or any Restricted Subsidiary (other than any Non-Guarantor Subsidiary) to the Company or any Subsidiary (other than any Non-Guarantor Subsidiary); and (y) Indebtedness of the Company owing to any Restricted Subsidiary that is a Non-Guarantor Subsidiary pursuant to the Tax Sharing Agreement;
 
(xx)          Indebtedness (x) owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary or (y) owed by any Non-Guarantor Subsidiary to the Company or any other Subsidiary; provided that the aggregate principal amount outstanding under this clause (xx) shall not exceed $30.0 million at any time; and
 
(xxi)         in addition to the items referred to in clauses (i) through (xx) above, Indebtedness of the Company and its Restricted Subsidiaries in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (xxi) and then outstanding, will not exceed $100.0 million at any time outstanding.
 
(c)           For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.3 :
 
(i)            in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 3.3(b) or could be Incurred pursuant to Section 3.3(a) , the Company, in its sole discretion, may divide and classify such item of Indebtedness (or any portion thereof) on the date of Incurrence and may later reclassify such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 3.3 and only be required to include the amount and type of such Indebtedness once; provided that all Indebtedness outstanding on the Issue Date under the New Senior Secured Credit Agreement shall be deemed Incurred on the Issue Date under Section 3.3(b)(ii) and may not later be reclassified;
 
(ii)           Guarantees of, or obligations in respect of letters of credit or banker’s acceptances related thereto relating to, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;

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(iii)          if obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and are being treated as Incurred pursuant to Section 3.3(b)(ii) and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included;
 
(iv)          the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary that is not a Subsidiary Guarantor, 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;
 
(v)           Indebtedness permitted by this Section 3.3 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 Section 3.3 permitting such Indebtedness; and
 
(vi)          the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
 
Accrual of interest, accrual of dividends, the accretion of accreted value or the amortization of debt discount, the payment of interest in the form of additional Indebtedness and the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.3 .  The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount or the aggregate principal amount outstanding in the case of Indebtedness issued with interest payable-in-kind, (ii) the principal amount or liquidation preference thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness, (iii) in the case of the guarantee by a specified Person of Indebtedness of another Person, the maximum liability to which the specified Person may be subject upon the occurrence of the contingency giving rise to the obligation and (iv) in the case of Indebtedness of others guaranteed solely by means of a Lien on any asset or property of the Company or any Restricted Subsidiary (and not to their other assets or properties generally), the lesser of (x) the Fair Market Value of such asset or property on the date on which such Indebtedness is Incurred and (y) the amount of the Indebtedness so secured.
 
(d)           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 Indebtedness, or first committed, in the case of revolving credit Indebtedness; 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 the principal amount of such Indebtedness being Refinanced plus the amount of any reasonable premium (including reasonable tender premiums), defeasance costs and any reasonable fees and expenses incurred in connection with the issuance of such new Indebtedness. Notwithstanding any other provision of this Section 3.3 , the maximum amount of Indebtedness that the Company may Incur pursuant to this Section 3.3 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to Refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being Refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such Refinancing.

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SECTION 3.4.  Limitation on Restricted Payments .
 
(a)           Unless the Debt to Total Capitalization Ratio as of the last day of the Company’s most recently ended fiscal quarter for which internal financial statements are available that immediately precedes the date of any Restricted Payment, calculated immediately after giving effect to such Restricted Payment and any related transactions on a pro forma basis, is equal to or less than 17.5%, the Company shall not, and shall not permit any of its Restricted Subsidiaries, directly or indirectly, to:
 
(i)            declare or pay any dividend or make any distribution (whether made in cash, securities or other property) on or in respect of its Capital Stock (including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) other than:
 
 (A)          dividends or distributions payable solely in Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Company; and
 
 (B)           dividends or distributions by a Restricted Subsidiary payable to the Company or another Restricted Subsidiary (and if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to its other holders of common Capital Stock on a pro rata basis or on a basis that results in the receipt by the Company or a Restricted Subsidiary of dividends or distributions of a greater value than it would receive on a pro rata basis);
 
(ii)           purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company held by Persons other than the Company or a Restricted Subsidiary (other than in exchange for Capital Stock of the Company (other than Disqualified Stock)); provided, however , that, for the avoidance of doubt, the redemption price or repurchase price paid in cash in connection with (i) the Convertible Debentures Repurchase, (ii) any subsequent redemption or repurchase of the Existing Convertible Debentures and (iii) any redemption or repurchase of any Permitted Convertible Indebtedness issued following the Issue Date that ranks equally in right of payment with the Notes, in each case, will not constitute Restricted Payments;

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(iii)          make any principal payment on, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations other than the purchase, repurchase, redemption, defeasance or other acquisition of such Subordinated Obligations in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase, redemption, defeasance or acquisition; or
 
(iv)          make any Restricted Investment (all such payments and other actions referred to in clauses (i) through (iv) (other than any exception thereto) shall be referred to as a “ Restricted Payment ”), unless, at the time of and after giving effect to such Restricted Payment:
 
(1)           no Default shall have occurred and be continuing (or would result therefrom);
 
(2)           immediately after giving effect to such transaction on a pro forma basis, (1) the Company could Incur $1.00 of additional Indebtedness under Section 3.3(a) hereof; and (2) the Aggregate RBC Ratio exceeds 225%;
 
(3)           the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date (excluding Restricted Payments made pursuant to clauses (i), (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xiv), (xv), (xvi), (xvii), (xviii) and (xix) of Section 3.4(b) ) would not exceed the sum of, without duplication:
 
 (A)            50% of the Net Excess Cash Flow for the period (taken as one accounting period) from July 1, 2012 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, in the case such Net Excess Cash Flow for such period is a deficit, minus 100% of such deficit), plus
 
 (B)            100% of the aggregate Net Cash Proceeds and the Fair Market Value of marketable securities or other property received by the Company or a Restricted Subsidiary from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date, other than:
 
   (x)           Net Cash Proceeds received from an issuance or sale of such Capital Stock to a Subsidiary of the Company or to an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination; and

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  (y)           Net Cash Proceeds received by the Company from the issue and sale of its Capital Stock or capital contributions to the extent applied to redeem Notes pursuant to Section 5.1(b) ; plus
 
(C)             the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced on the Company’s consolidated balance sheet upon the conversion or exchange subsequent to the Issue Date of any Indebtedness of the Company or its Restricted Subsidiaries for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or the Fair Market Value of any other property, distributed by the Company upon such conversion or exchange); plus
 
(D)             100% of the Net Cash Proceeds and the Fair Market Value of property other than cash and marketable securities from the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made after the Issue Date and redemptions and repurchases of such Restricted Investments from the Company or its Restricted Subsidiaries and repayment of Restricted Investments in the form of loans or advances from the Company and its Restricted Subsidiaries and releases of Guarantees that constitute Restricted Investments by the Company and its Restricted Subsidiaries (other than in each case to the extent the Restricted Investment was made pursuant to Section 3.4(b)(xi) ); plus
 
(E)             100% of the Net Cash Proceeds and the Fair Market Value of property other than cash and marketable securities received by the Company or its Restricted Subsidiaries from the sale (other than to the Company or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary was made by the Company or a Restricted Subsidiary pursuant to Section 3.4(b)(xi) or (xvi) or to the extent such Investment constituted a Permitted Investment); plus
 
(F)              to the extent that any Unrestricted Subsidiary of the Company designated as such after the Issue Date is redesignated as a Restricted Subsidiary or any Unrestricted Subsidiary of the Company merges into or consolidates with the Company or any of its Restricted Subsidiaries or any Unrestricted Subsidiary transfers, dividends or distributes assets to the Company or a Restricted Subsidiary, in each case after the Issue Date, the Fair Market Value of such Subsidiary as of the date of such redesignation or such merger or consolidation, or in the case of the transfer, dividend or distribution of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the Fair Market Value of such assets of the Unrestricted Subsidiary, as determined at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, consolidation or transfer, dividend or distribution of assets (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary was made by a Restricted Subsidiary pursuant to Section 3.4(b)(xi) or to the extent such Investment constituted a Permitted Investment).

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(b)           The provisions of Section 3.4(a) hereof shall not prohibit
 
(i)            any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock, Disqualified Stock or Subordinated Obligations or any Restricted Investment made in exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company (other than (x) Disqualified Stock and (y) Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); provided , however , that the Net Cash Proceeds from such sale of Capital Stock shall be excluded from Section 3.4(a)(iv)(3)(B) ;
 
(ii)           any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations made by exchange for, or out of the proceeds of the substantially concurrent Incurrence of Refinancing Indebtedness;
 
(iii)          any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Stock of the Company or a Restricted Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Stock of the Company or such Restricted Subsidiary, as the case may be, that, so long as such refinancing Disqualified Stock is permitted to be Incurred pursuant to Section 3.3 ;
 
(iv)          dividends paid within 90 days after the date of declaration if at such date of declaration such dividend would have complied with this provision;
 
(v)           the purchase, repurchase, redemption or other acquisition (including by cancellation of indebtedness), cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, of the Company held by any existing or former employees, management or directors of or consultants to the Company or any Subsidiary of the Company or their assigns, estates or heirs, in each case in connection with the repurchase provisions under employee stock option or stock purchase agreements or other compensatory agreements approved by the Board of Directors of the Company; provided that such purchases, repurchases, redemptions, acquisitions, cancellations or retirements pursuant to this clause shall not exceed $5.0 million in the aggregate during any calendar year, although such amount in any calendar year (with any unused amounts in any year being available in succeeding years) may be increased by an amount not to exceed:

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(A)         the Net Cash Proceeds from the sale of Capital Stock (other than Disqualified Stock) of the Company to existing or former employees or members of management of the Company or any of its Subsidiaries that occurs 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 (provided that the Net Cash Proceeds from such sales or contributions shall be excluded from Section 3.4(a)(iv)(3)(B) ); plus
 
(B)          the cash proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries after the Issue Date relating to the Company’s or such Restricted Subsidiaries’ key persons who are so insured; less
 
(C)          the amount of any Restricted Payments previously made with the cash proceeds described in the clauses (A) and (B) of this clause (v);
 
(vi)          the accrual, declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company issued in accordance with the terms of this Indenture;
 
(vii)         repurchases or other acquisitions of Capital Stock deemed to occur (i) upon the exercise of stock options, warrants, restricted stock units or other rights to purchase Capital Stock or other convertible securities if such Capital Stock represents a portion of the exercise price thereof or conversion price thereof or (ii) in connection with withholdings or similar taxes payable by any future, present or former employee, director or officer;
 
(viii)        the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligations at a purchase price not greater than 101% of the principal amount of (plus accrued and unpaid interest on) such Subordinated Obligation in the event of a Change of Control in accordance with provisions similar to Section 3.9 ; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company has made a Change of Control Offer under this Indenture and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer under this Indenture;
 
(ix)           cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company or other exchanges of securities of the Company or a Restricted Subsidiary in exchange for Capital Stock of the Company;
 
(x)            the purchase, repurchase, redemption, acquisition or retirement of Subordinated Obligations with Unutilized Excess Proceeds remaining after an Asset Disposition Offer pursuant to Section 3.7 ;
 
(xi)           other Restricted Payments not to exceed $175.0 million in the aggregate since the Issue Date;

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(xii)          the purchase of fractional shares of Capital Stock of the Company arising out of stock dividends, splits or combinations or mergers, consolidations or other acquisitions;
 
(xiii)         in connection with any acquisition by the Company or any of its Subsidiaries, the receipt or acceptance of the return to the Company or any of its Restricted Subsidiaries of Capital Stock of the Company constituting a portion of the purchase price consideration in settlement of indemnification claims or as a result of a purchase price adjustment (including earn outs or similar obligations);
 
(xiv)        the distribution of rights pursuant to any shareholder rights plan or the redemption of such for nominal consideration in accordance with the terms of any shareholder rights plan;
 
(xv)         payments or distributions to stockholders pursuant to appraisal rights required under applicable law in connection with any merger, consolidation or other acquisition by the Company or any Restricted Subsidiary;
 
(xvi)        the distribution or transfer, as a dividend, Investment or otherwise, of shares of Capital Stock of Unrestricted Subsidiaries;
 
(xvii)       the making of cash payments in connection with any conversion of Permitted Convertible Indebtedness in an aggregate amount since the date of the indenture therefor not to exceed the sum of (a) the principal amount of such Permitted Convertible Indebtedness plus (b) any payments received by the Company or any Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge;
 
(xviii)      any payments in connection with (including, without limitation, the purchase of) a Permitted Bond Hedge and the settlement of any related Permitted Warrant (a) by delivery of shares of the Company’s Common Stock upon net share settlement of such Permitted Warrant or (b) by (i) set-off of such Permitted Warrant against the related Permitted Bond Hedge and (ii) payment of an amount due upon termination of such Permitted Warrant in Common Stock or using cash received upon the exercise, settlement or termination of a Permitted Bond Hedge upon any early termination thereof; and
 
(xix)         the declaration and payment of dividends on the Company’s Common Stock in an amount up to $30.0 million in the aggregate during any calendar year;
 
provided , however , that at the time of and after giving effect to any Restricted Payment permitted under clauses (x), (xi) and (xv), no Default shall have occurred and be continuing or would occur as a consequence thereof.
 
(c)           The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the assets or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount and any non-cash Restricted Payment shall be determined conclusively in Good Faith by the Company.

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For purposes of determining compliance with this Section 3.4 , in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (i) through (xix) of Section 3.4(b) , or is entitled to be made pursuant to Section 3.4(a) , the Company shall be entitled to divide and classify such Restricted Payment (or portion thereof) on the date of its payment in any manner that complies with this Section 3.4 .
 
If the Company or any Restricted Subsidiary makes a Restricted Investment or a Permitted Investment and the Person in which such Investment was made subsequently becomes a Restricted Subsidiary, to the extent such Investment resulted in a reduction of the amounts calculated under Section 3.4(a) or any other provision of this Section 3.4 or the definition of Permitted Investment (which was not subsequently reversed), then such amount shall be increased by the amount of such reduction to the extent of the lesser of (x) the amount of such Investment and (y) the Fair Market Value of such Investment at the time such Person becomes a Restricted Subsidiary.
 
(d)           The Company shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the last sentence of the definition of “Unrestricted Subsidiary”. For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated shall be deemed to be Restricted Payments in an amount determined as set forth in the definition of “Investment”. Such designation shall be permitted only if a Restricted Payment in such amount would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
 
SECTION 3.5.  Limitation on Liens .  The Company shall not, and shall not permit any of its Restricted Subsidiaries to create, incur or assume any Lien (other than Permitted Liens) that secures any Indebtedness on any asset or property of the Company or such Restricted Subsidiary, other than Liens securing Indebtedness that are expressly junior in priority to the Liens on such property or assets securing the Notes pursuant to a Permitted Junior Lien Intercreditor Agreement. Additionally, the Company will not, and will not permit any of its Restricted Subsidiaries to incur or suffer to exist any Lien (the “ Initial Lien ”) on any Excluded Property to secure any Pari Passu Lien Indebtedness, unless the Company or such Restricted Subsidiary concurrently grants a Lien to the Collateral Agent to secure the Notes ranking pari passu with such Lien securing such Pari Passu Lien Indebtedness; provided however , that any such Lien on Excluded Property created to secure the Notes pursuant to this sentence shall provide by its terms that upon the release and discharge of the Initial Lien on such Excluded Property by the collateral agent for the Pari Passu Lien Indebtedness secured by such Initial Lien, the Lien on such Excluded Property securing the Notes shall be automatically and unconditionally released and discharged and the Company may take any action necessary to memorialize such release or discharge.

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SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries .
 
(a)           The Company shall not, and shall not permit any Restricted Subsidiary to create or otherwise cause or permit to exist any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
 
(i)            (A) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or
 
(B)           pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
 
(ii)            make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
 
(iii)          sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (i) or (ii) of this Section 3.6(a) ).
 
(b)           The restrictions in Section 3.6(a) shall not prohibit encumbrances or restrictions existing under or by reason of:
 
(i)            any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents, the Intercreditor Agreement and the New Senior Secured Credit Agreement (and related documentation) in effect on such date;
 
(ii)           any encumbrance or restriction with respect to a Person or assets pursuant to an agreement in effect on or before the date on which such Person became a Restricted Subsidiary or was acquired by, merged into or consolidated with the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by, merged into or consolidated with the Company or in contemplation of the transaction) or such assets were acquired by the Company or any Restricted Subsidiary; provided , that any such encumbrance or restriction shall not extend to any Person or the assets or property of the Company or any other Restricted Subsidiary other than the Person and its Subsidiaries or the assets and property so acquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture;

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(iii)          any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this Section 3.6(b) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or Refinancing of an agreement referred to in clause (i) or (ii) of this Section 3.6(b) or this clause (iii); provided , however , that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable (as determined in Good Faith by the Company) in any material respect, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this Section 3.6(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into or consolidated with a Restricted Subsidiary, whichever is applicable;
 
(iv)          in the case of Section 3.6(a)(iii) , encumbrances or restrictions arising in connection with Liens permitted to be Incurred under the provisions of Section 3.5 that apply only to the assets subject to such Liens;
 
(v)           Purchase Money Indebtedness permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in Section 3.6(a)(iii) on the property so acquired;
 
(vi)          contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Subsidiary;
 
(vii)         restrictions on cash or other deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies under contracts entered into in the ordinary course of business;
 
(viii)        any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
 
(ix)           encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, order, permit or grant, including for the avoidance of doubt, any encumbrance or restriction on any Insurance Subsidiary by any governmental authority having the power to regulate such Insurance Subsidiary;
 
(x)            encumbrances or restrictions contained in or arising under indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in accordance with Section 3.3 that are not more restrictive, taken as a whole (as determined in Good Faith by the Company), than those applicable to the Company in this Indenture and the New Senior Secured Credit Agreement on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level);

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(xi)           encumbrances or restrictions contained in or arising under indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to clauses (ii), (v), (vi), (vii) and (xiv) of Section 3.3(b) by Restricted Subsidiaries, provided that such encumbrances and restrictions contained in any agreement or instrument shall not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined in Good Faith by the Company);
 
(xii)          under any contract, instrument or agreement relating to Indebtedness of any Foreign Subsidiary which imposes restrictions solely on such Foreign Subsidiary and its Subsidiaries;
 
(xiii)         customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; and
 
(xiv)         customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business.
 
SECTION 3.7.  Limitation on Sales of Assets and Subsidiary Stock .
 
(a)           The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition following the Issue Date unless :
 
(i)             the Company or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the Fair Market Value (such Fair Market Value to be determined as of the date of contractually agreeing to such Asset Disposition) of the assets subject to such Asset Disposition; and
 
(ii)           at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
 
The Company shall determine the Fair Market Value of any consideration from such Asset Disposition that is not cash or Cash Equivalents.
 
(b)           Any Net Available Cash received by the Company or any Restricted Subsidiary from any Asset Disposition shall be applied at the Company’s election:
 
(x)           in the case of any Asset Disposition by a Non-Guarantor Subsidiary or consisting of Capital Stock of a Non-Guarantor Subsidiary, to repay Indebtedness of a Non-Guarantor Subsidiary,

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(y)           to reinvest in or acquire assets (including Capital Stock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person that is or becomes a Restricted Subsidiary of the Company or that would constitute a Permitted Investment under clause (2) of the definition thereof) used or useful in a Related Business (including, in the case of Asset Dispositions by an Insurance Subsidiary, securities or other investment assets of the type purchased by such Insurance Subsidiary in the ordinary course of business); provided that to the extent the assets subject to such Asset Disposition were Collateral, such newly acquired assets shall also be Collateral, or
 
(z)            to repay, prepay, purchase, redeem or otherwise acquire Pari Passu Lien Indebtedness under the New Senior Secured Credit Agreement (and, if the Pari Passu Lien Indebtedness so repaid, prepaid, purchased, redeemed or acquired, is under a revolving credit facility, effect a permanent reduction in the availability thereunder in an amount equal to the aggregate principal amount of Pari Passu Lien Indebtedness under such revolving credit facility so repaid, prepaid, purchased, redeemed or acquired).
 
(c)           All Net Available Cash that is not applied or invested (or committed pursuant to a written agreement to be applied or invested) as provided in subclause (x), (y) or (z) of the preceding paragraph within 365 days after receipt (or in the case of any amount committed to be so applied or reinvested, which are not actually so applied or reinvested within 180 days following such 365 day period) will be deemed to constitute “ Excess Proceeds ”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“ Asset Disposition Offer ”) to all Holders in an amount equal to the Notes First Lien Percentage (determined with respect to any Net Available Cash from any Asset Disposition included in such Excess Proceeds at the time of such Asset Disposition) of such Excess Proceeds to purchase the maximum principal amount of the Notes (on a pro rata basis) that may be purchased out of the Note First Lien Percentage of such Excess Proceeds, at an offer price in cash equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest thereon to, but excluding, the date of purchase (subject to the rights of Holders of record on any Record Date to receive payments of interest on the related Interest Payment Date), in accordance with the procedures set forth in this Indenture in integral multiples of $1,000 (except that no Note will be purchased in part if the remaining principal amount would be less than $2,000). To the extent that the aggregate amount of Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Notes First Lien Percentage of such Excess Proceeds, the Company may use any remaining portion of such Excess Proceeds that is not applied to purchase Notes (“ Unutilized Excess Proceeds ”) for general corporate purposes, the repayment of Indebtedness or as otherwise required pursuant to its other contractual requirements, subject to the terms of this Indenture. If the aggregate principal amount of Notes surrendered by Holders exceeds the Notes First Lien Percentage of such Excess Proceeds, the Notes to be purchased shall be selected by the Company on a pro rata basis on the basis (except that no Note will be purchased in part if the remaining principal amount would be less than $2,000) of the aggregate principal amount of tendered Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. For the avoidance of doubt, the Company shall be permitted to apply Net Available Cash from any Asset Disposition (other than the Notes First Lien Percentage thereof) to repay, prepay redeem, purchase or otherwise acquire Pari Passu Lien Indebtedness at any time; provided that any such Pari Passu Lien Indebtedness shall be cancelled by the Company and deemed no longer outstanding; provided, further, that if the Pari Passu Lien Indebtedness so repaid, prepaid, purchased, redeemed or acquired, is under a revolving credit facility, the Company shall effect a permanent reduction in the availability thereunder in an amount equal to the aggregate principal amount of Pari Passu Lien Indebtedness under such revolving credit facility so repaid, prepaid, purchased, redeemed or acquired.

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(d)           The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “ Asset Disposition Offer Period ”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “ Asset Disposition Purchase Date ”), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this Section 3.7 (the “ Asset Disposition Offer Amount ”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Notes validly tendered in response to the Asset Disposition Offer.
 
(i)            On or before the Asset Disposition Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes or portions of Notes validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes validly tendered and not properly withdrawn, in each case in minimum denominations of $1,000 (except that no Note shall be purchased in part if the remaining principal amount would be less than $2,000). The Company or the Paying Agent, as the case may be, shall promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes an amount equal to the purchase price of the Notes validly tendered and not properly withdrawn by such holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note shall be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof.
 
(e)           For the purposes of this Section 3.7 , the following are deemed to be Cash Equivalents: (x) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the Notes thereto) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets (including, without limitation, liabilities relating to insurance products); (y) any Notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary of the Company from such transferee that are converted within 180 days by the Company or such Restricted Subsidiary into cash (to the extent of the cash received); and (z) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Dispositions having an aggregate Fair Market Value (determined in Good Faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (z) that is at that time outstanding, not to exceed $25.0 million at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

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(f)            The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 3.7 .  To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.7 , the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 3.7 .
 
(g)           Pending the final application of any such Net Available Cash, the Company or its Restricted Subsidiaries may temporarily reduce revolving indebtedness under any Debt Facility or otherwise invest such Net Available Cash in Cash Equivalents.
 
SECTION 3.8.  Limitation on Affiliate Transactions .
 
(a)           The Company shall not, and shall not permit any of its Restricted Subsidiaries to enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “ Affiliate Transaction ”) unless:
 
(i)             the terms of such Affiliate Transaction, when viewed together with any related Affiliate Transactions, are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not an Affiliate;
 
(ii)            in the event such Affiliate Transaction involves an aggregate consideration in excess of $15.0 million, the terms of such transaction have been approved by a majority of the disinterested members of the Board of Directors of the Company (and such majority determines that such Affiliate Transaction satisfies the criteria in clause (i) above); and
 
(iii)           in the event such Affiliate Transaction involves an aggregate consideration in excess of $25.0 million, the Company has received an opinion from an Independent Financial Advisor that such Affiliate Transaction is fair, from a financial point of view, to the Company and the Restricted Subsidiaries, as applicable, or not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
 
(b)           The provisions of Section 3.8(a) shall not apply to:
 
(i)            any (x) Restricted Payment permitted to be made pursuant to Section 3.4 and (y) Permitted Investment in any Person that is an Affiliate of the Company solely as a result of ownership of Investments in such Person by the Company or any Restricted Subsidiary;

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(ii)           any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company pursuant to restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans, pension plans or similar plans or agreements or arrangements approved by the Board of Directors of the Company;
 
(iii)           loans or advances to employees, officers or directors of the Company or any Subsidiary of the Company in the ordinary course of business, in an aggregate amount outstanding at any time not in excess of $5.0 million (without giving effect to the forgiveness of any such loan);
 
(iv)          any transaction between or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries, and any Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary;
 
(v)           the payment of reasonable and customary compensation (including fees, benefits, severance, change of control payments and incentive arrangements) to, and employee benefit arrangements, including, without limitation, split-dollar insurance policies, and indemnity or similar arrangements provided on behalf of, directors, officers, employees and agents of the Company or any Subsidiary, whether by charter, bylaw, statutory or contractual provisions;
 
(vi)          the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided , however , that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date shall be permitted to the extent that its terms, taken as a whole, are not more disadvantageous to the Holders of the Notes in any material respect, as determined in Good Faith by the Company, than the terms of the agreements in effect on the Issue Date;
 
(vii)         any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged with or into or consolidated with the Company or a Restricted Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition, merger or consolidation, or any amendment thereto (so long as any such amendment is not disadvantageous in any material respect to the Holders, as determined in Good Faith by the Company, when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition or merger);

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(viii)        insurance transactions, intercompany pooling and other reinsurance transactions entered into in the ordinary course of business and consistent with past practice;
 
(ix)           any purchases by the Company’s Affiliates of Indebtedness of the Company or any of its Restricted Subsidiaries the majority of which Indebtedness is placed with Persons who are not Affiliates;
 
(x)            arrangements for indemnification payments for directors and officers of the Company and its Subsidiaries;
 
(xi)           any issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in connection therewith or any contribution to the Capital Stock of the Company or any Restricted Subsidiary;
 
(xii)          transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that might reasonably have been obtained by the Company or such Restricted Subsidiary in a comparable transaction at such time on an arms’ length basis from a Person that is not an Affiliate; and
 
(xiii)         the Transactions and the payment of all fees and expenses related to the Transactions, including without limitation the Convertible Debentures Repurchase, in each case as contemplated in the Offering Circular.
 
SECTION 3.9.  Change of Control .
 
(a)           If a Change of Control occurs, unless the Company has exercised its right to redeem all of the Notes as described under Section 5.1 , each Holder shall have the right to require the Company to repurchase all or any part (in integral multiples of $1,000 except that no Note may be tendered in part if the remaining principal amount would be less than $2,000) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
 
(b)           Within 30 days following any Change of Control, except to the extent the Company has exercised its right to redeem all of the Notes under Section 5.1 , the Company shall mail a notice (the “ Change of Control Offer ”) to each Holder or otherwise give notice in accordance with the applicable procedures of DTC, with a copy to the Trustee, stating:
 
(i)             that a Change of Control Offer is being made and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for purchase by the Company at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on a Record Date to receive interest on the relevant Interest Payment Date) (the “ Change of Control Payment ”);

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(ii)            the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed or otherwise delivered in accordance with the applicable procedures of DTC) (the “ Change of Control Payment Date ”);
 
(iii)           the procedures determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
 
(iv)          that any Notes not tendered will continue to accrue interest in accordance with the terms of this Indenture;
 
(v)           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;
 
(vi)          that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes delivered for purchase and a statement that such Holder is unconditionally withdrawing its election to have such Notes purchased; and
 
(vii)         that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.
 
(c)            On the Change of Control Payment Date, the Company shall, to the extent lawful:
 
(i)            accept for payment all Notes or portions of Notes (in principal amounts of $2,000 or larger integral multiples of $1,000 in excess thereof) properly tendered pursuant to the Change of Control Offer;
 
(ii)           deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes validly tendered; and
 
(iii)          deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.

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(d)           The Paying Agent shall promptly submit electronically or mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and upon receipt of an Authentication Order the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officers’ Certificate will be required for the Trustee to authenticate or deliver such 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 integral multiples of $1,000 in excess thereof.
 
(e)           The Change of Control provisions described above shall be applicable whether or not any other provisions of this Indenture are applicable.
 
(f)           The Company shall not be required to make a Change of Control Offer following a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) a notice of redemption for all of the outstanding Notes has been given pursuant to this Indenture unless and until there is a default in payment of the applicable redemption price, plus accrued and unpaid interest to, but excluding, the proposed Redemption Date. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer.
 
(g)           The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations thereunder in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue of the conflict.
 
SECTION 3.10.  Future Subsidiary Guarantors .
 
(a)           The Company shall cause (i) each Wholly Owned Subsidiary (other than any Foreign Subsidiary, any Insurance Subsidiary or any Subsidiary of an Insurance Subsidiary) that is formed or acquired following the Issue Date and (ii) any other Subsidiary that Incurs Indebtedness in reliance on Section 3.3(b)(ii) to execute and deliver to the Trustee a supplemental indenture to this Indenture, substantially in the form of Exhibit E hereto, pursuant to which such Restricted Subsidiary shall fully and unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any, and interest in respect of the Notes on a senior secured basis (to the extent provided in the Collateral Documents) and all other obligations under this Indenture, on the terms set forth in Article X ; provided that any Wholly Owned Subsidiary that constitutes an Immaterial Subsidiary need not become a Subsidiary Guarantor until 10 Business Days after the date on which financial statements are required to be delivered under this Indenture for the fiscal quarter in which it ceases to be an Immaterial Subsidiary.

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(b)           Each Restricted Subsidiary that becomes a Subsidiary Guarantor on or after the Issue Date shall also become a party to the Security Agreement and the other applicable Collateral Documents and, to the extent required by the Security Agreement, shall as promptly as practicable execute and deliver such security instruments, financing statements and certificates as may be necessary to vest in the Collateral Agent a perfected first priority security interest on a pari passu basis with the Liens securing any Pari Passu Lien Indebtedness (subject to Permitted Liens) in properties and assets that constitute Collateral as security for the Notes or the Subsidiary Guarantees and as may be necessary to have such property or asset added to the applicable Collateral as required under the Collateral Documents and this Indenture, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.
 
SECTION 3.11.  Limitation on Lines of Business .  The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any business other than a Related Business.
 
SECTION 3.12. Effectiveness of Covenants .
 
(a)           After the Issue Date, following the first day: (i) the Notes have an Investment Grade Rating from both of the Ratings Agencies; and (ii) no Default has occurred and is continuing under this Indenture; the Company and its Restricted Subsidiaries shall not be subject to Sections 3.3 , 3.4 , 3.6 , 3.7 , 3.8 , 3.10 and 4.1(a)(iv) (collectively, the “ Suspended Covenants ”).  Additionally, upon the commencement of a Suspension Period (as defined below), the amount of Excess Proceeds will be reset to zero.
 
(b)           If at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by any Rating Agency, then the Suspended Covenants shall thereafter be reinstated as if such covenants had never been suspended (the “ Reinstatement Date ”) and 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), unless and until the Notes subsequently attain an Investment Grade Rating and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Rating); provided , however , that no Default, Event of Default or breach of any kind shall be deemed to exist or have occurred under this Indenture, the Notes, the Subsidiary Guarantees or any of the Collateral Documents with respect to the Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period (as defined below), or any actions taken at any time pursuant to any contractual obligation arising prior to the Reinstatement Date, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the date of suspension of the covenants and the Reinstatement Date is referred to as the “ Suspension Period ”.

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(c)           On the Reinstatement Date, all Indebtedness Incurred during the Suspension Period shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section 3.3(b)(v) .  Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 3.4 shall be made as though Section 3.4 had been in effect since the Issue Date and throughout the Suspension Period.  Accordingly, Restricted Payments made during the Suspension Period shall reduce the amount available to be made as Restricted Payments under Section 3.4(a) to the extent such Restricted Payments were not otherwise permitted to be made pursuant to Section 3.4(b)(i) through (xix) ; provided that the amount available to be made as Restricted Payments on the Reinstatement Date pursuant to the first paragraph shall not be reduced below zero solely as a result of such Restricted Payments made during a Suspension Period.
 
(d)           During any period when the Suspended Covenants are suspended, the Board of Directors of the Company may not designate any of the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to this Indenture.
 
(e)           The Company shall deliver to the Trustee an Officers’ Certificate notifying the Trustee of any Reinstatement Date or the commencement of any Suspension Period and certifying that such suspension or reinstatement complied with the foregoing provisions, and in no event shall the Trustee be charged with the knowledge of such Suspension Period or Reinstatement Date, except to the extent that a Trust Officer has received such Officers’ Certificate. In the case of a Suspension Period such notice shall list the Suspended Covenants.
 
SECTION 3.13.  Compliance Certificate .  The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (commencing with the fiscal year ending December 31, 2012) an Officers’ Certificate stating whether or not the signers know of any Default or Event of Default that occurred during such period.  If they do, the certificate shall describe the Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.
 
SECTION 3.14.  Statement by Officers as to Default .  The Company shall deliver to the Trustee, within 30 days after the knowledge thereof if such event is still continuing, written notice in the form of an Officers’ Certificate of any Event of Default or any event which, with notice or the lapse of time or both, would constitute an Event of Default under Section 6.1(a)(i) , (ii) , (iii) , (iv) , (v) , (vi) , (ix) , (x) or (xi) , which shall include their status and what action the Company is taking or proposing to take in respect thereof.
 
ARTICLE IV
 
Successor Company and Successor Guarantor
 
SECTION 4.1.  When Company May Merge or Otherwise Dispose of Assets .
 
(a)           The Company shall not consolidate with or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to, any Person unless:
 
(i)            if other than the Company, the resulting, surviving or transferee Person (the “ Successor Company ”) shall be a corporation, partnership or limited liability company organized and existing under the laws of the United States of America, any State of the United States, the District of Columbia or any territory thereof;

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(ii)           the Successor Company (if other than the Company) and, in the case of a Successor Company that is not a corporation, a corporate co-issuer, assume pursuant to a supplemental indenture or other documentation instruments, executed and delivered to the Trustee, all of the obligations of the Company under the Notes, this Indenture, the Collateral Documents (as applicable) and the Intercreditor Agreement and, to the extent required by and subject to the limitations set forth in the Security Agreement, will cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Company, together with such financing statements or comparable documents to the extent required by and subject to the limitations set forth in the Security Agreement, as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions;
 
(iii)           immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Company, the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Company, the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
 
(iv)          immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period;
 
(A)          the Company or the Successor Company, as applicable, would be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.3(a) ; or
 
(B)          the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio immediately prior to such transaction;
 
(v)           if the Successor Company is not the Company, each Subsidiary Guarantor (unless it is the other party to the transactions above, in which case clause (i) of Section 4.1(b) shall apply) shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations in respect of this Indenture and the Notes and its obligations under the Collateral Documents and the Intercreditor Agreement shall continue to be in effect and, to the extent required by and subject to the limitations set forth in the Security Agreement, shall cause such amendments, supplements or other instruments to be executed, filed, and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by such Subsidiary Guarantor, together with such financing statements or comparable documents to the extent required by and subject to the limitations set forth in the Security Agreement, as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions; and

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(vi)          the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Section 4.1 and, if any supplement to any Collateral Document is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Indenture.
 
(b)           Without compliance with Sections 4.1(a)(iii) and (iv) :
 
(i)            any Restricted Subsidiary may consolidate with, merge with or into or to the Company or a Subsidiary Guarantor so long as no Capital Stock of the Restricted Subsidiary is distributed to any Person other than the Company or a Subsidiary Guarantor, and
 
(ii)           the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; provided that, in the case of a Restricted Subsidiary that merges into the Company, the Company shall not be required to comply with the preceding clause (vi).
 
(c)           Upon satisfaction of the conditions set forth in Section 4.1(a) or 4.1(b) , as applicable, the Company shall be released from its obligations under this Indenture and the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, the Collateral Documents (as applicable) and the Intercreditor Agreement.
 
(d)           Solely for the purpose of computing amounts under Sections 3.4(a)(iv)(3)(A) , (a)(iv)(3)(B) , (a)(iv)(3)(C) and (a)(iv)(3)(D) , the Successor Company shall only be deemed to have succeeded and be substituted for the Company with respect to periods subsequent to the effective time of such merger, consolidation, combination or transfer of assets.

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SECTION 4.2.  When a Subsidiary Guarantor May Merge or Otherwise Dispose of Assets .
 
(a)           The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into (whether or not the Subsidiary Guarantor is the surviving corporation), or sell, assign, convey, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Company or another Subsidiary Guarantor), unless :
 
(i)            if such entity remains a Subsidiary Guarantor, (A) the resulting, surviving or transferee Person (the “ Successor Guarantor ”) shall be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State of the United States, the District of Columbia or any other territory thereof; (B) the Successor Guarantor, if other than such Subsidiary Guarantor, expressly assumes in writing by supplemental indenture (and other applicable documents), executed and delivered to the Trustee all the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee, this Indenture, the Collateral Documents (as applicable) and the Intercreditor Agreement and, to the extent required by and subject to the limitations set forth in the Security Agreement, shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Guarantor, together with such financing statements or comparable documents to the extent required by and subject to the limitations set forth in the Security Agreement, as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions; (C) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Guarantor or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Guarantor or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; and (D) the Company shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; and
 
(ii)           if such transaction constitutes an Asset Disposition, the transaction is made in compliance with Section 3.7 (it being understood that only such portion of the Net Available Cash as is required to be applied on the date of such transaction in accordance with the terms of this Indenture needs to be applied in accordance therewith at such time), to the extent applicable.
 
(b)           Upon satisfaction of the conditions set forth in Section 4.2(a) , the applicable  Subsidiary Guarantor shall be released from its obligations under this Indenture and its Subsidiary Guarantee and the Successor Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, a Subsidiary Guarantor under this Indenture, the Collateral Documents (as applicable) and the Intercreditor Agreement.
 
(c)           Notwithstanding the foregoing, any Subsidiary Guarantor may (i) merge with or into or transfer all or part of its properties and assets to another Subsidiary Guarantor or the Company or (ii) merge with a Restricted Subsidiary of the Company solely for the purpose of reincorporating the Subsidiary Guarantor in a State of the United States or the District of Columbia, as long as the amount of Indebtedness of such Subsidiary Guarantor and its Restricted Subsidiaries is not increased thereby.

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ARTICLE V
 
Redemption of Notes
 
SECTION 5.1.  Optional Redemption .
 
(a)           Except as set forth in Section 5.1(b) and (c) , the Notes are not redeemable until October 1, 2015.  On and after October 1, 2015, the Company may redeem all or, from time to time, a part of the Notes at the following redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) plus accrued and unpaid interest on the Notes, if any, to, but excluding, the applicable Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the twelve-month period beginning on October 1 of the years indicated below:
 	 	 	 	
Year	 	Percentage	 	
2015 	 	 	104.781	%	
2016 	 	 	103.188	%	
2017 	 	 	101.594	%	
2018 and thereafter 	 	 	100.000	%	
 
(b)           The Company may on any one or more occasions prior to October 1, 2015 redeem up to 35% of the original principal amount of the Notes (including any Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a redemption price of  106.375% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date (subject to the right of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date); provided that
 
(i)            at least 65% of the original principal amount of the Notes (including any Additional Notes) remains outstanding after each such redemption; and
 
(ii)           the redemption occurs within 90 days after the closing of such Equity Offering.
 
Notice of any redemption pursuant to this Section 5.1(b) may, at the Company’s discretion, be subject to one or more conditions precedent, including the completion of an Equity Offering or other corporate transaction.
 
(c)           In addition, at any time prior to October 1, 2015, the Company may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).

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SECTION 5.2.  Election to Redeem; Notice to Trustee of Optional Redemptions .  If the Company elects to redeem Notes pursuant to Section 5.1 , the Company shall furnish to the Trustee, at least 5 Business Days (or such shorter period as the Trustee may agree) before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section 5.4 , an Officers’ Certificate setting forth (a) the paragraph or subparagraph of such Note and/or Section of this Indenture pursuant to which the redemption shall occur, (b) the Redemption Date, (c) the principal amount of the Notes to be redeemed and (d) the redemption price.  The Company shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Notes to be redeemed pursuant to Section 5.3 .
 
SECTION 5.3. Selection by Trustee of Notes to Be Redeemed .  In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed, then on as nearly a pro rata basis as possible or by lot or such other similar method in accordance with the Applicable Procedures (subject to such rounding as may be necessary so that Notes are redeemed in whole increments of $1,000 and no Note of $2,000 in principal amount or less shall be redeemed in part), and in accordance with the Applicable Procedures.  If any Note is to be redeemed in part only, the notice of redemption relating to such Note will state the portion of the principal amount thereof to be redeemed.  A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note in accordance with Section 5.7 .
 
The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed.
 
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of such Note which has been or is to be redeemed.
 
SECTION 5.4. Notice of Redemption .  The Company shall mail or cause to be mailed by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address or in accordance with the applicable procedures of DTC not less than 30 nor more than 60 days prior to a date fixed for redemption (a “ Redemption Date ”), to each Holder of Notes to be redeemed; provided , however , that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article VIII . At the Company’s written request, the Trustee shall give notice of redemption in the Company’s name and at the Company’s expense; provided that the Company shall have delivered to the Trustee, at least 5 Business Days (or such shorter period as the Trustee may agree) before notice of redemption is required to be mailed or caused to be mailed to Holder pursuant to this Section 5.4 (unless a shorter notice shall be agreed to by the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the following paragraph.

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All notices of redemption shall be prepared by the Company and shall state:
 
(a)           the Redemption Date,
 
(b)           the redemption price, if then determinable, and if not, then a method for determination, and the amount of accrued interest, if any, to, but excluding, the Redemption Date payable as provided in Section 5.6 , if any,
 
(c)           if less than all outstanding Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption,
 
(d)           in case any Note is to be redeemed in part only, the notice which relates to such Note shall state that on and after the Redemption Date, upon surrender of such Note, the Holder shall receive, without charge, a new Note or Notes of authorized denominations for the principal amount thereof remaining unredeemed,
 
(e)           that on the Redemption Date the redemption price (and accrued interest, if any, to, but excluding, the Redemption Date payable as provided in Section 5.6 ) shall become due and payable upon each such Note, or the portion thereof, to be redeemed, and, unless the Company defaults in making the redemption payment, that interest on Notes called for redemption (or the portion thereof) shall cease to accrue on and after said date,
 
(f)            the place or places where such Notes are to be surrendered for payment of the redemption price and accrued interest, if any,
 
(g)           the name and address of the Paying Agent,
 
(h)           that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price,
 
(i)            the CUSIP number, and that no representation is made as to the accuracy or correctness of the CUSIP number, if any, listed in such notice or printed on the Notes, and
 
(j)             the Section of this Indenture pursuant to which the Notes are to be redeemed.
 
SECTION 5.5.  Deposit of Redemption Price .  By no later than 10:00 a.m. (New York City time) on the Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 2.4 ) an amount of money sufficient to pay the redemption price of, and accrued interest on, all the Notes which are to be redeemed on that date.  The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price.

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SECTION 5.6.  Notes Payable on Redemption Date .  Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the redemption price therein specified (together with accrued interest, if any, to, but excluding, the Redemption Date) (except as provided for in the last paragraph of Section 5.1(b) ), and from and after such date (unless the Company shall default in the payment of the redemption price and accrued interest) such Notes shall cease to bear interest.  Upon surrender of any such Note for redemption in accordance with said notice, such Note shall be paid by the Company at the redemption price, together with accrued interest, if any, to, but excluding, the Redemption Date (subject to the rights of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
 
If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
 
If a Redemption Date is on or after a Record Date and on or before the related Interest Payment Date, the accrued and unpaid interest, if any, shall be paid to the Person in whose name the Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders whose Notes shall be subject to redemption by the Company.
 
SECTION 5.7.  Notes Redeemed in Part .  Any Note which is to be redeemed only in part (pursuant to the provisions of this Article) shall be surrendered at the office or agency of the Company maintained for such purpose pursuant to Section 2.3 (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and, upon receipt of an Authentication Order, the Trustee shall authenticate and make available for delivery to the Holder of such Note at the expense of the Company, a new Note or Notes, of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered, provided that each such new Note shall be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof.
 
ARTICLE VI
 
Defaults and Remedies
 
SECTION 6.1.      Events of Default .
 
(a)           Each of the following is an event of default (an “ Event of Default ”):
 
(i)            default in any payment of interest on any Note when the same becomes due, and the such default continues for a period of 30 days;

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(ii)           default in the payment of principal of or premium, if any, on any Note when the same becomes due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise;
 
(iii)          failure by the Company to comply with its obligations under Section 3.9 or Article IV ;
 
(iv)          failure by the Company to comply for 45 days after notice as provided below with any of its obligations under Sections 3.2 , 3.3 , 3.4 , 3.5 , 3.6 , 3.7 , 3.8 , 3.10 and 3.11 (in each case, other than matters that would constitute an Event of Default under Section 6.1(a)(iii) );
 
(v)           failure by the Company or any Subsidiary Guarantor to comply for 60 days after notice as provided below with its other agreements (except as provided in clauses (a)(i) through (a)(iv) of this Section 6.1 ) contained in this Indenture or under the Notes or the Collateral Documents;
 
(vi)          the Company or any of its Restricted Subsidiaries defaults under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), other than Indebtedness owed to the Company or a Restricted Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, which default:
 
(A)          is caused by a failure to pay principal on such Indebtedness at its final stated maturity within the grace period provided in the agreements or instruments governing such Indebtedness (“ payment default ”); or
 
(B)          results in the acceleration of such Indebtedness prior to its stated final maturity;
 
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates $50.0 million or more (or its foreign currency equivalent);
 
(vii)         the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law (as defined below):
 
(A)          commences a voluntary case or proceeding with respect to itself;
 
(B)           consents to the entry of an order for relief against it in an involuntary case or proceeding;

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(C)          consents to the appointment of a Custodian (as defined below) of it or for substantially all of its property; or
 
(D)          makes a general assignment for the benefit of its creditors;
 
or takes any comparable action under any foreign laws relating to insolvency;
 
(viii)        a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
 
(A)          is for relief against the Company or any Significant Subsidiary or a group of Restricted Subsidiaries that, taken together (as of the date of the latest audited financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary, in an involuntary case;
 
(B)          appoints a Custodian of the Company, any Significant Subsidiary or a group of Restricted Subsidiaries that, taken together (as of the date of the latest audited financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary, for any substantial part of its property; or
 
(C)          orders the winding up or liquidation of the Company, any Significant Subsidiary or a group of Restricted Subsidiaries that, taken together (as of the date of the latest audited financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary;
 
(ix)          failure by the Company or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final and non-appealable judgments aggregating in excess of $50.0 million (or its foreign currency equivalent) (net of any amounts that are covered by insurance), which judgments remain unsatisfied or undischarged for any period of 60 consecutive days during which a stay of enforcement of such judgments shall not be in effect;
 
(x)           any Subsidiary Guarantee of a Significant Subsidiary or group of Restricted Subsidiaries that taken together (as of the date of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms of this Indenture and the Subsidiary Guarantees) or is declared null and void in a judicial proceeding or any Subsidiary Guarantor that is a Significant Subsidiary or group of Subsidiary Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary denies or disaffirms its obligations under this Indenture, its Subsidiary Guarantee, any Collateral Document or the Intercreditor Agreement and the Company fails to cause such Restricted Subsidiary or Restricted Subsidiaries, as the case may be, to rescind such denials or disaffirmations within 30 days; and

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(xi)          with respect to any Collateral having a fair market value in excess of $30.0 million, individually or in the aggregate, (A) the failure of the security interest with respect to such Collateral under the Collateral Documents, at any time, to be in full force and effect for any reason other than in accordance with the terms of the Collateral Documents and the terms of this Indenture or the Intercreditor Agreement, as applicable, and other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture if such failure continues for 60 days or (B) the assertion by the Company or any Subsidiary Guarantor, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable, except in each case for the failure or loss of perfection resulting from the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents if such assertion is not rescinded within 30 days.
 
The foregoing shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
 
Notwithstanding the foregoing, a default under clauses (iv), (v) or (xi)(A) or (xi)(B) of this Section 6.1(a) shall not constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes notify the Company of the default and the Company does not cure such default within the time specified in clauses (iv), (v) or (xi)(A) or (xi)(B) of this paragraph after receipt of such notice.  Such notice must specify the Default, demand that it be remedied and state that such notice is a “ Notice of Default .”
 
The term “ Bankruptcy Law ” means Title 11, United States Code, or any similar Federal or state law for the relief of debtors.  The term “ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
 
SECTION 6.2.  Acceleration .  If an Event of Default (other than an Event of Default specified in Section 6.1(a)(vii) or (viii) with respect to the Company) occurs and is continuing, the Trustee by notice in writing specifying the Event of Default that it is a “notice” to the Company, or the Holders of at least 25% in principal amount of the then outstanding Notes by notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable.  Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest, if any, shall, subject to Section 6.4 , be immediately due and payable.  In the event of a declaration of acceleration of the Notes because an Event of Default set forth in Section 6.1(a)(vi) above has occurred and is continuing, such declaration of acceleration of the Notes shall be automatically rescinded and annulled if the default triggering such Event of Default pursuant to Section 6.1(a)(vi) shall be remedied or cured by the Company or a Restricted Subsidiary or waived by the holders of the relevant Indebtedness within 30 days after the declaration of acceleration with respect thereto and if (1) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, except nonpayment of principal, premium or interest, if any, on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.  If an Event of Default specified in Section 6.1(a)(vii) or (viii) with respect to the Company occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.

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SECTION 6.3.  Other Remedies .  If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes, this Indenture (including sums owed to the Trustee and Collateral Agent and their agents and counsel), the Subsidiary Guarantees, Collateral Documents or the Intercreditor Agreement.
 
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  No remedy is exclusive of any other remedy.  All available remedies are cumulative to the extent permitted by law.
 
SECTION 6.4.  Waiver of Past Defaults .  The Holders of a majority in principal amount outstanding (including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, notes) Notes by notice to the Trustee may waive an existing Default or Event of Default and its consequences (except a Default or Event of Default in the payment of the principal of, premium or interest on a Note) and rescind any such acceleration with respect to the Notes and its consequences if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived.
 
SECTION 6.5.  Control by Majority .  The Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Collateral Agent or of exercising any trust or power conferred on the Trustee or the Collateral Agent.  However, the Trustee or the Collateral Agent, as the case may be, may refuse to follow any direction that conflicts with law or this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement, or, subject to Sections 7.1 and 7.2 , that the Trustee determines in good faith is unduly prejudicial to the rights of other Holders or would involve the Trustee or the Collateral Agent in personal liability; provided , however , that the Trustee or the Collateral Agent may take any other action deemed proper by the Trustee or the Collateral Agent that is not inconsistent with such direction.  Prior to taking any action under this Indenture, the Trustee or the Collateral Agent shall be entitled to indemnity, security or prefunding satisfactory to it in its sole discretion against all losses, liabilities and expenses caused by taking or not taking such action.

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SECTION 6.6.  Limitation on Suits .  Except to enforce the right to receive payment of principal, premium, if any, or interest when due, no Holder may pursue any remedy with respect to this Indenture or the Notes unless, subject to the provisions of the Intercreditor Agreement:
 
(i)            the Holder has previously given to the Trustee written notice stating that an Event of Default is continuing;
 
(ii)           the Holders of at least 25% in principal amount of the Notes then outstanding have made a written request to the Trustee to pursue the remedy;
 
(iii)          such Holder or Holders have offered to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
 
(iv)          the Trustee has not complied with the request within 60 days after receipt of the request and the offer of security or indemnity; and
 
(v)           the Holders of a majority in principal amount of the then outstanding Notes do not give the Trustee a direction that is inconsistent with the request during such 60-day period.
 
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
 
SECTION 6.7.  Rights of Holders to Receive Payment .  Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of, premium (if any) or interest on the Notes held by such Holder, on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
 
SECTION 6.8.  Collection Suit by Trustee .  If an Event of Default specified in Section 6.1(a)(i) or (ii) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.6 .
 
SECTION 6.9.  Trustee May File Proofs of Claim .  The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent and their agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company, its Subsidiaries or their respective creditors or properties and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.6 . To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent, either agents and counsel, and any other amounts due to the Trustee and Collateral Agent under Section 7.6 hereof out of the estate in any proceeding shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holder may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.   Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan or reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in such proceeding.

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SECTION 6.10.  Priorities .  Subject to the terms of the Intercreditor Agreement and Section 11.4(f) the Trustee shall pay out any money or property received by it, whether pursuant to the foreclosure or other remedial provisions contained in the Collateral Documents or otherwise, in the following order:
 
First:       to the Trustee and Collateral Agent for amounts due to each of them under Section 7.6 and under the Collateral Documents;
 
Second:  to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
 
Third:     to the Company or, to the extent the Trustee receives any amount for any Subsidiary Guarantor, to such Subsidiary Guarantor, or as a court of competent jurisdiction shall direct.
 
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section.  At least 15 days before such record date, the Company shall mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
 
SECTION 6.11.  Undertaking for Costs .  In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Notes.

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ARTICLE VII
 
Trustee
 
SECTION 7.1.  Duties of Trustee .
 
(a)           If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture, the Collateral Documents and the Intercreditor Agreement, as the case may be and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement at the request or direction of any of the Holders unless such Holders have offered the Trustee indemnity, security or prefunding satisfactory to the Trustee in its sole discretion, as applicable, against loss, liability or expense.
 
(b)           Except during the continuance of an Event of Default:
 
(i)            the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, the Collateral Documents and the Intercreditor Agreement and no implied covenants or obligations shall be read into this Indenture, any Collateral Document and the Intercreditor Agreement against the Trustee; and
 
(ii)           the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreement, as applicable.  However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreement, as the case may be (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
 
(c)           The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
 
(i)            this paragraph does not limit the effect of paragraph (b) of this Section;
 
(ii)           the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer or Trust Officers unless it is proved in a final and non-appealable decision of a court of competent jurisdiction that the Trustee was grossly negligent in ascertaining the pertinent facts;

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(iii)          the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5 ; and
 
(iv)          The Collateral Agent shall not have any fiduciary or other implied duties of any kind or nature to any person, regardless of whether an Event of Default has occurred and is continuing.
 
(d)           The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
 
(e)           Money held in trust by the Trustee or the Collateral Agent need not be segregated from other funds except to the extent required by law.
 
(f)            No provision of this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
 
(g)           Every provision of this Indenture, the Collateral Documents and the Intercreditor Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
 
(h)           The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee, security, prefunding or indemnity satisfactory to it against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
 
SECTION 7.2.  Rights of Trustee and Collateral Agent .
 
(a)           The Trustee may conclusively rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond or any other paper or document believed by it to be genuine and to have been signed or presented by the proper Person or Persons.  The Trustee need not investigate any fact or matter stated in the document.
 
(b)           Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both.  The Trustee shall  not be liable for any action it takes or omits to take in good faith in reliance on an Officers’ Certificate or Opinion of Counsel.
 
(c)           The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.

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(d)           The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided , however , that the Trustee’s conduct, respectively, does not constitute willful misconduct or gross negligence as determined in a final and non-appealable decision of a court of competent jurisdiction.
 
(e)           The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder or under the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement in good faith and in accordance with the advice or opinion of such counsel.
 
(f)           The Trustee shall not be bound to make any investigation into any statement, warranty or representation, or the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond or other paper or document made or in connection with this Indenture, any other Collateral Document or the Intercreditor Agreement; moreover, the Trustee shall not be bound to make any investigation into (i) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, in any other Collateral Document or the Intercreditor Agreement, (ii) the occurrence of any default, or the validity, enforceability, effectiveness or genuineness of this Indenture, any other Collateral Document, the Intercreditor Agreement or any other agreement, instrument or document, (iii) the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (iv) the value or the sufficiency of any Collateral, (v) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to it or (vi) the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.  The Trustee shall have no liability with respect to any action or inaction taken by or with respect to any Sub-Collateral Agent (as defined in the Security Agreement).
 
(g)           The Trustee shall not be deemed to have knowledge of any Default or Event of Default except any Default or Event of Default of which a Trust Officer shall have (x) received written notification from the Company or Holders at the Corporate Trust Office of the Trustee and such notice references the Notes and this Indenture or (y) obtained “actual knowledge.”  “ Actual knowledge ” shall mean the actual fact or statement of knowing by a Trust Officer without independent investigation with respect thereto.
 
(h)           In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

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(i)            The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, the Collateral Agent, and each agent, custodian and other Person employed to act hereunder and under the Collateral Documents and the Intercreditor Agreement.
 
(j)            The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
 
(k)           The permissive rights of the Trustee enumerated herein shall not be construed as duties.
 
(l)            The Company shall provide prompt written notice to the Trustee of any change to its fiscal year.
 
SECTION 7.3.  Individual Rights of Trustee .  Each of the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, the Subsidiary Guarantors or their Affiliates with the same rights it would have if it were not Trustee.  Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights.  However, the Trustee must comply with Section 7.9 .  In addition, the Trustee shall be permitted to engage in transactions with the Company; provided , however , that if the Trustee acquires any conflicting interest the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the SEC for permission to continue acting as Trustee or (iii) resign.
 
SECTION 7.4.  Disclaimer .  The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement, it shall not be accountable for the Company’s use of the Notes or the proceeds from the Notes, and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication or for the use or application of any funds received by any Paying Agent other than the Trustee.
 
SECTION 7.5.  Notice of Defaults .  If a Default occurs and is continuing and is known to the Trustee, the Trustee shall mail to each Holder, with a copy to the Collateral Agent, notice of the Default within 90 days after the Trustee obtains such knowledge.  Except in the case of a Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold from the Holders notice of any continuing Default if the Trustee determines in good faith that withholding the notice is in the interests of Holders.

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SECTION 7.6.  Compensation and Indemnity .  The Company shall pay to each of the Trustee and the Collateral Agent from time to time such compensation for its services as the parties shall agree in writing from time to time.  The Trustee’s compensation and the Collateral Agent’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse each of the Trustee and the Collateral Agent upon request for all reasonable out-of-pocket expenses incurred or made by it, including, but not limited to, costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel, in addition to the compensation for its services.  Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.  The Company shall indemnify the Collateral Agent, any predecessor Collateral Agent, the Trustee or any predecessor Trustee in each of its capacities hereunder (including Paying Agent, and Registrar), and each of their officers, directors, employees, counsel and agents, against any and all loss, liability or expense (including, but not limited to, reasonable attorneys’ fees and expenses) incurred by it in connection with the administration of this trust and the performance of its duties hereunder and under the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement, including the costs and expenses of enforcing this Indenture (including this Section 7.6 ), the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement and of defending itself against any claims (whether asserted by any Holder, the Company or otherwise).  The Collateral Agent and the Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Collateral Agent and the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the claim and the Collateral Agent and the Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel.  The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Collateral Agent and the Trustee through their own willful misconduct, gross negligence or bad faith as determined in a final and non-appealable decision of a court of competent jurisdiction.
 
To secure the Company’s payment obligations in this Section, the Collateral Agent and the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes.  The right of the Collateral Agent and the Trustee to receive payment of any amounts due under this Section 7.6 shall not be subordinate to any other liability or indebtedness of the Company.
 
The Company’s payment obligations pursuant to this Section and any lien arising hereunder shall survive the discharge of this Indenture and the resignation or removal of the Trustee or Collateral Agent.  When the Trustee or Collateral Agent incurs expenses after the occurrence of a Default specified in Section 6.1(a)(vii) or (viii) with respect to the Company, the expenses are intended to constitute expenses of administration under any Bankruptcy Law.
 
Pursuant to Section 10.1 , the obligations of the Company hereunder are jointly and severally guaranteed by the Subsidiary Guarantors.
 
The obligation of the Company under this Section 7.6 shall survive satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee.

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SECTION 7.7.  Replacement of Trustee .  The Trustee may resign at any time by so notifying the Company.  The Holders of a majority in principal amount of the Notes may remove the Trustee by so notifying the Company and the Trustee in writing and may appoint a successor Trustee.  The Company shall remove the Trustee if:
 
(i)            the Trustee fails to comply with Section 7.9 ;
 
(ii)           the Trustee is adjudged bankrupt or insolvent;
 
(iii)          a receiver or other public officer takes charge of the Trustee or its property; or
 
(iv)          the Trustee otherwise becomes incapable of acting.
 
If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.
 
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company.  Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to Holders.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.6 .
 
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at least 10% in principal amount of the Notes may petition, at the Company’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
 
If the Trustee fails to comply with Section 7.9 , unless the Trustee’s duty to resign is stayed, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
 
Notwithstanding the replacement of the Trustee pursuant to this Section 7.7 , the Company’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee.
 
SECTION 7.8.  Successor Trustee by Merger .  If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.

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In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have.
 
SECTION 7.9.  Eligibility; Disqualification .  The Trustee shall have a combined capital and surplus of at least $50.0 million as set forth in its most recent filed annual report of condition.
 
SECTION 7.10.  Limitation on Duty of Trustee and Collateral Agent in Respect of Collateral; Indemnification .
 
(a)           Beyond the exercise of reasonable care in the custody thereof, neither the Trustee nor the Collateral Agent shall have any duty as to any Collateral in their possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and neither the Trustee nor the Collateral Agent shall be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral.  The Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in their possession if the Collateral is accorded treatment substantially equal to that which they accord their own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee or the Collateral Agent in good faith.
 
Neither the Trustee nor the Collateral Agent shall have any duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement by the Company, the Subsidiary Guarantors or any other Person.
 
ARTICLE VIII
 
Discharge of Indenture; Defeasance
 
SECTION 8.1.  Discharge of Liability on Notes; Defeasance .
 
(a)           When (i) (x) the Company delivers to the Trustee all outstanding Notes (other than Notes replaced pursuant to Section 2.7 ) for cancellation or (y) all outstanding Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of making a notice of redemption pursuant to Section 5.4 hereof or otherwise, or will become due and payable within one year or may be called for redemption within one year under arrangements pursuant to Article V and the Company or any Subsidiary Guarantor irrevocably deposits or causes to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as shall be sufficient without consideration of any reinvestment of interest to pay and discharge the entire Indebtedness on such Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to, but excluding, the date of maturity or redemption, as the case may be; (ii) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit (other than a default resulting from borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing) and such deposit shall not result in a breach or violation of, or constitute a default under, any material instrument (other than this Indenture) to which the Company or any Subsidiary Guarantor is a party or by which the Company or any Subsidiary Guarantor is bound; (iii) the Company or any Subsidiary Guarantor has paid or caused to be paid all sums payable by the Company on the date of deposit to the Trustee under this Indenture; and (iv) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of such Notes at maturity or the Redemption Date, as the case may be, then this Indenture shall, subject to Section 8.1(c) , cease to be of further effect.

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(b)           Subject to Sections 8.1(c) and 8.2 , the Company at its option and at any time may terminate (i) all the obligations of the Company and any Subsidiary Guarantor under the Notes, this Indenture and the Collateral Documents (“ legal defeasance option ”) or (ii) the obligations of the Company and any Subsidiary Guarantor under Sections 3.2 , 3.3 , 3.4 , 3.5 , 3.6 , 3.7 , 3.8 , 3.9 , 3.10 , 3.11 , 3.12 and 4.1(a)(iv) and the Collateral Documents and the Company and the Subsidiary Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant or provision, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or provision or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply with such covenants or provisions shall no longer constitute a Default or an Event of Default under Section 6.1(a)(iii) (only with respect to Section 3.9 , 6.1(a)(iv) , 6.1(a)(v) , 6.1(a)(vi) , 6.1(a)(vii) (only with respect to Significant Subsidiaries or a group of Restricted Subsidiaries that, taken together (as of the latest audited financial statements of the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary), Section 6.1(a)(viii) (only with respect to Significant Subsidiaries or a group of Restricted Subsidiaries that, taken together (as of the latest audited financial statements of the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary) and 6.1(a)(ix) (clause (ii) being referred to as the “ covenant defeasance option ”), but except as specified above, the remainder of this Indenture and the Notes shall be unaffected thereby.  The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
 
If the Company exercises its legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default.  If the Company exercises its covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified in Section 6.1(a)(iii) (only with respect to Section 3.9 , 6.1(a)(iv) , 6.1(a)(v) (only with respect to the covenants subject to such covenant defeasance), 6.1(a)(vi) , 6.1(a)(vii) (only with respect to Significant Subsidiaries or a group of Restricted Subsidiaries that, taken together (as of the latest audited financial statements of the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary), 6.1(a)(viii) (only with respect to Significant Subsidiaries or a group of Restricted Subsidiaries that, taken together (as of the latest audited financial statements of the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary) or 6.1(a)(ix) , 6.1(a)(x) or 6.1(a)(xi) or because of the failure of the Company to comply with Section 4.1(a)(iv) .

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Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
 
(c)           Notwithstanding the provisions of Sections 8.1(a) and (b) , the Company’s obligations in Sections 2.2 , 2.3 , 2.4 , 2.5 , 2.6 , 2.9 , 2.10 , 2.12 , 3.1 , 6.7 , 6.8 , 7.1 , 7.2 , 7.6 , 7.7 , 8.1(b) (with respect to legal defeasance), 8.3 ,   8.4 , 8.5 and 8.6 shall survive until the Notes have been paid in full.  Thereafter, the Company’s obligations in Sections 6.7 , 7.6 , 8.4 and 8.5 shall survive.
 
SECTION 8.2.  Conditions to Defeasance .  The Company may exercise its legal defeasance option or its covenant defeasance option only if:
 
(i)            the Company shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, U.S. dollars or U.S. Government Obligations, or a combination of U.S. dollars and U.S. Government Obligations, in such amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and premium, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on the applicable Redemption Date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular Redemption Date;
 
(ii)           in the case of legal defeasance, the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that, subject to customary assumptions and exclusions, (a) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal defeasance and shall be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
 
(iii)          in the case of covenant defeasance, the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that, subject to customary assumptions and exclusions, the Holders of the respective outstanding Notes shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and shall be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;

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(iv)          such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
 
(v)           no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
 
(vi)          the Company shall deliver to the Trustee an Opinion of Counsel stating that, assuming, among other things, no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds shall not be subject to the effect of Section 547 of Title 11 of the United States Code;
 
(vii)         the Company shall deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
 
(viii)        the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the legal defeasance or the covenant defeasance, as the case may be, have been complied with.
 
SECTION 8.3.  Application of Trust Money .  The Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to this Article VIII .  It shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
 
SECTION 8.4.  Repayment to Company .  Anything herein to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon receipt of an Officers’ Certificate any money or U.S. Government Obligations held by it as provided in this Article VIII which are in excess of the amount thereof which would then be required to be deposited to effect legal defeasance or covenant defeasance, as applicable.
 
Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal of or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Company for payment as general creditors.
 
SECTION 8.5.  Indemnity for U.S. Government Obligations .  The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.

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SECTION 8.6.  Reinstatement .  If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with this Article VIII by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company and each Subsidiary Guarantor under this Indenture, the Notes, the Subsidiary Guarantees and the Collateral Documents shall be revived and reinstated as though no deposit had occurred pursuant to this Article VIII until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article VIII ; provided , however , that, if the Company or the Subsidiary Guarantors have made any payment of interest on or principal of any Notes because of the reinstatement of its obligations, the Company or the Subsidiary Guarantors, as the case may be, shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
 
ARTICLE IX
 
Amendments
 
SECTION 9.1.  Without Consent of Holders .  This Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreement may be amended or supplemented without notice to or consent of any Holder:
 
(i)            to cure any ambiguity, omission, defect or inconsistency;
 
(ii)           to comply with (a) Article IV in respect of the assumption by a Successor Company of an obligation of the Company under this Indenture, the Notes and the Collateral Documents and (b) Article IV and Article X in respect of the assumption by a Person of the obligations of a Subsidiary Guarantor under its Subsidiary Guarantee, this Indenture, the Collateral Documents and the Intercreditor Agreement;
 
(iii)          to provide for or facilitate the issuance of uncertificated Notes in addition to or in place of certificated Notes;
 
(iv)          to comply with the rules of any applicable depositary;
 
(v)           to add Guarantees with respect to the Notes or to release a Subsidiary Guarantor from its obligations under its Subsidiary Guarantee or this Indenture in accordance with the applicable provisions of this Indenture;
 
(vi)          to add additional assets as Collateral to secure the Notes and the Subsidiary Guarantees;
 
(vii)         to release Liens in favor of the Collateral Agent in the Collateral as provided in Section 11.3 or otherwise in accordance with the terms of this Indenture, Collateral Documents or the Intercreditor Agreement;

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(viii)        to add to the covenants of the Company and its Restricted Subsidiaries or Events of Default for the benefit of the Holders or to make changes that would provide additional rights to the Holders, or to surrender any right or power herein conferred upon the Company or any Subsidiary Guarantor;
 
(ix)          to make any change that does not adversely affect the rights of any Holder in any material respect;
 
(x)           to comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA, as amended, if applicable;
 
(xi)          to provide for the appointment of a successor trustee; provided that the successor trustee is otherwise qualified and eligible to act as such under the terms of this Indenture; or provide for the appointment of a successor Collateral Agent;
 
(xii)         to enter into a Permitted Junior Lien Intercreditor Agreement;
 
(xiii)        to conform the text of this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement to any provision of the “Description of the Notes” section of the Offering Circular; or
 
(xiv)        to provide for or confirm the issuance of Additional Notes in accordance with the terms of this Indenture.
 
In addition, no consent of the Holders will be required under the Collateral Documents and the Intercreditor Agreement to any amendments and other modifications to the Collateral Documents and the Intercreditor Agreement (A) to add other parties (or any authorized agent thereof or trustee therefor) holding Pari Passu Lien Indebtedness that are Incurred in compliance with this Indenture and the Collateral Documents, (B) to establish that the Liens on any Collateral securing such Pari Passu Lien Indebtedness shall be pari passu under the Intercreditor Agreement with the Liens on such Collateral securing the Obligations under this Indenture and the Notes, all on the terms provided for in the Intercreditor Agreement as in effect immediately prior to such amendment or other modification and (C) to provide that the Liens securing the Notes are senior to the Liens securing other Indebtedness pursuant to the terms of a Permitted Junior Lien Intercreditor Agreement.
 
After an amendment under this Section becomes effective, the Company shall mail to Holders, or in accordance with the with the applicable procedures of DTC, a notice briefly describing such amendment.  The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section.  A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender of such Holder’s Note shall not be rendered invalid by such tender.
 
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Sections 7.2 and 12.2 hereof, the Trustee and the Collateral Agent shall join with the Company and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture, but the Trustee and the Collateral Agent shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

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SECTION 9.2.  With Consent of Holders .  This Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreement may be amended or supplemented with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).  Any past default or compliance with the provisions of this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).  However, without the consent of each Holder of an outstanding Note affected, no amendment, supplement or waiver may:
 
(i)            reduce the principal amount of Notes whose Holders must consent to an amendment;
 
(ii)           reduce the rate of or change the stated time for payment of interest on any Note;
 
(iii)          reduce the principal of or extend the Stated Maturity of any Note;
 
(iv)          waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the Notes issued hereunder (except a rescission of acceleration of the Notes issued hereunder by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
 
(v)           reduce the premium payable upon the redemption or repurchase of any Note or change the time at which any Note may be redeemed or repurchased in accordance with Section 3.9 or Article V , whether through an amendment or waiver of provisions in the covenants or otherwise;
 
(vi)          make any Note payable in a currency other than that stated in the Note;
 
(vii)         impair the right of any Holder to receive payment of principal, premium, if any, and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;
 
(viii)        make any change in the amendment provisions in this Section 9.2 ;
 
(ix)          modify the Subsidiary Guarantees of any Significant Subsidiary or group of Subsidiary Guarantors that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary in any manner, taken as a whole, materially adverse to the Holders;

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(x)           release any Subsidiary Guarantor that is a Significant Subsidiary or group of Subsidiary Guarantors that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary from any of its obligations under its Subsidiary Guarantee or this Indenture, except in compliance with the terms thereof; or
 
(xi)          make the Notes or the Guarantees subordinated in right of payment to any other obligations, or subordinate the liens securing the Notes or the Guarantees.
 
In addition, without the consent of the Holders of at least 66 2/3% of the aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), no amendment, supplement or waiver may (1) modify any Collateral Document or the provisions in this Indenture dealing with Collateral Documents or application of trust moneys in any manner, taken as a whole, materially adverse to the Holders or otherwise release any Collateral other than in accordance with this Indenture, the Collateral Documents and the Intercreditor Agreement; or (2) modify the Intercreditor Agreement in any manner adverse to the Holders in any material respect other than in accordance with the terms of this Indenture, the Collateral Documents and the Intercreditor Agreement.
 
It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment or supplement, but it shall be sufficient if such consent approves the substance thereof.  A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender of such Holder’s Note shall not be rendered invalid by such tender.
 
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Sections 7.2 and 12.2 hereof, the Trustee and the Collateral Agent shall join with the Company and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee and the Collateral Agent shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
 
After an amendment or supplement under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement becomes effective, the Company shall mail to the Holders a notice briefly describing such amendment or supplement.  The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or supplement under this Section.

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SECTION 9.3.  Effect of Consents and Waivers .  A consent to an amendment, supplement or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note.  After an amendment or waiver becomes effective, it shall bind every Holder.  An amendment or waiver made pursuant to Section 9.2 shall become effective upon receipt by the Trustee of the requisite number of written consents.
 
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture.  If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or revoke such consent or to take any such action, whether or not such Persons continue to be Holders after such record date.
 
SECTION 9.4.  Notation on or Exchange of Notes .  If an amendment changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee.  The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder.  Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue, and upon receipt of an Authentication Order the Trustee shall authenticate a new Note that reflects the changed terms.  Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment.
 
SECTION 9.5.  Trustee and Collateral Agent To Sign Amendments .  The Trustee and Collateral Agent shall sign any amendment, supplement or waiver authorized pursuant to this Article IX if the amendment, supplement or waiver does not, in the sole determination of the Trustee or Collateral Agent, adversely affect the rights, duties, liabilities or immunities of the Trustee or Collateral Agent.  In signing any amendment, supplement or waiver pursuant to this Article IX , the Trustee or Collateral Agent shall be entitled to receive, and (subject to Sections 7.1 and 7.2 ) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such amendment, supplement or waiver is authorized or permitted by or complies with this Indenture, the Collateral Documents and the Intercreditor Agreement and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to customary exceptions.  Notwithstanding the foregoing, no Opinion of Counsel will be required for the Trustee or Collateral Agent to execute any amendment or supplement adding a new Subsidiary Guarantor under this Indenture.

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ARTICLE X
 
Subsidiary Guarantee
 
SECTION 10.1.  Subsidiary Guarantee .  Subject to the provisions of this Article X , each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Subsidiary Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other obligations of the Company under this Indenture and the Notes (including, without limitation, interest 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 Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6 ) and the Collateral Documents (all the foregoing being hereinafter collectively called the “ Guarantor Obligations ”).  Each Subsidiary Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
 
Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment.  Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
 
Each Subsidiary Guarantor further agrees that its Subsidiary 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 Guarantor Obligations.
 
Except as set forth in Section 4.2 , Section 10.2 and Article VIII , the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise.  Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not (to the extent lawful) 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, the Collateral Documents, the Intercreditor Agreement 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 Indenture, the Notes, the Collateral Documents, the Intercreditor Agreement or any other agreement; (d) the release of any security held by any Holder or the Collateral Agent for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Subsidiary Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor 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 Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.

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Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.2 , Section 10.2 and Article VIII .  Each Subsidiary Guarantor further agrees that its Subsidiary 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, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy 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 Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest 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 Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
 
Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantor for the purposes of this Subsidiary Guarantee.
 
Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
 
Neither the Company nor the Subsidiary Guarantors shall be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Subsidiary Guarantee.
 
SECTION 10.2.  Limitation on Liability; Termination, Release and Discharge .
 
(a)           Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Subsidiary Guarantor hereunder shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.

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(b)           A Subsidiary Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and each Subsidiary Guarantor and its obligations under the Subsidiary Guarantee and this Indenture shall be released and discharged:
 
(i)            upon any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of such Subsidiary Guarantor following which such Subsidiary Guarantor ceases to be a direct or indirect Subsidiary of the Company if such sale or disposition does not constitute an Asset Disposition or is made in compliance with this Indenture, including Section 3.7 and Article IV );
 
(ii)           if such Subsidiary Guarantor is dissolved or liquidated in accordance with the provisions of this Indenture;
 
(iii)          the release or discharge of the guarantee by such Subsidiary Guarantor of the New Senior Secured Credit Agreement or such other guarantee or Indebtedness that resulted in the creation of such Subsidiary Guarantee, except a discharge or release (i) in connection with the repayment in full and termination of commitments under the New Senior Secured Credit Agreement without being replaced with another Debt Facility, or (ii) as a result of payment under such guarantee or Indebtedness by such Subsidiary Guarantor (it being understood that a release subject to a contingent reinstatement is still a release, and if any such Indebtedness of such Subsidiary Guarantor under the New Senior Secured Credit Agreement or other guarantee is so reinstated, such Guarantee shall also be reinstated);
 
(iv)          upon exercise of the Company’s legal defeasance option or covenant defeasance option or upon satisfaction and discharge of this Indenture, in each case, pursuant to the provisions of Article VIII hereof; and
 
(v)           if the Company designates such Subsidiary Guarantor as an Unrestricted Subsidiary and such designation complies with the other applicable provisions of this Indenture.
 
(c)           In the case of Section 10.2(b)(i) only, the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
 
(d)           The release of a Subsidiary Guarantor from its Subsidiary Guarantee and its obligations under this Indenture in accordance with the provisions of this Section 10.2 shall not preclude the future applications of Section 3.10 to such Person.

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SECTION 10.3.  Right of Contribution .  Each Subsidiary Guarantor hereby agrees that to the extent that any Subsidiary Guarantor shall have paid more than its proportionate share of any payment made on the obligations under the Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek and receive contribution from and against the Company or any other Subsidiary Guarantor who has not paid its proportionate share of such payment.  The provisions of this Section 10.3 shall in no respect limit the obligations and liabilities of each Subsidiary Guarantor to the Trustee and the Holders and each Subsidiary Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Subsidiary Guarantor hereunder.
 
SECTION 10.4.  No Subrogation .  Notwithstanding any payment or payments made by each Subsidiary Guarantor hereunder, no Subsidiary Guarantor shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any other Subsidiary Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Guarantor Obligations, nor shall any Subsidiary Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any other Subsidiary Guarantor in respect of payments made by such Subsidiary Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the Guarantor Obligations are paid in full.  If any amount shall be paid to any Subsidiary Guarantor on account of such subrogation rights at any time when all of the Guarantor Obligations shall not have been paid in full, such amount shall be held by such Subsidiary Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Subsidiary Guarantor, and shall, forthwith upon receipt by such Subsidiary Guarantor, be turned over to the Trustee in the exact form received by such Subsidiary Guarantor (duly indorsed by such Subsidiary Guarantor to the Trustee, if required), to be applied against the Guarantor Obligations.
 
ARTICLE XI
 
C ollateral and Security
 
SECTION 11.1. The Collateral .
 
(a)           Subject to the provisions of the Intercreditor Agreement, the due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Subsidiary Guarantees thereof when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent lawful), if any, on the Notes and the Subsidiary Guarantees thereof and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Company set forth in Section 7.6 and Section 8.6 herein, and the Notes and the Subsidiary Guarantees thereof and the Collateral Documents, shall be secured by Liens as provided in the Collateral Documents which the Company and the Subsidiary Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and shall be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture.

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(b)           The Company and the Subsidiary Guarantors hereby agree that the Collateral Agent (or, with respect to Possessory Collateral (as defined in the Intercreditor Agreement), the Applicable Authorized Representative (as defined in the Intercreditor Agreement)) shall hold the Collateral for the benefit of the Secured Parties, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreement, and the Collateral Agent is hereby authorized to execute and deliver the Collateral Documents and the Intercreditor Agreement.
 
(c)           Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, consents and agrees to the terms of the Collateral Documents (including, without limitation, the provisions providing for foreclosure) and the Intercreditor Agreement, as the same may be in effect or as may be amended from time to time in accordance with their terms, and authorizes and directs the Collateral Agent to perform its obligations and exercise its rights under the Collateral Documents and the Intercreditor Agreement in accordance therewith.
 
(d)           The Trustee and each Holder, by accepting the Notes and the Subsidiary Guarantees thereof, acknowledges that, as more fully set forth in the Collateral Documents and the Intercreditor Agreement, the Collateral as now or hereafter constituted shall be for the benefit of the Secured Parties, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and the Intercreditor Agreement and actions that may be taken thereunder.
 
SECTION 11.2.  Further Assurances .
 
The Company shall, and shall cause each Subsidiary Guarantor to, at their sole expense, do or cause to be done all acts which may be reasonably necessary, or as requested by the Collateral Agent, to confirm that the Collateral Agent holds, for the benefit of the Secured Parties, duly created, enforceable and perfected first-priority Liens and security interests on a pari passu basis (pursuant to the Intercreditor Agreement), as applicable, in the Collateral (subject to Permitted Liens and the Intercreditor Agreement) to the extent such liens are required to be so perfected by this Indenture and the Collateral Documents. The Company shall, and shall cause the Subsidiary Guarantors to, take any and all actions and make all filings (including the filing of UCC financing statements, continuation statements and amendments thereto) reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations of the Company and the Subsidiary Guarantors to the Secured Parties under this Indenture, the Notes, the Guarantees, the Intercreditor Agreement and the Collateral Documents, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreement and the Collateral Documents), in favor of the Collateral Agent for the benefit of the Secured Parties subject to no Liens other than Permitted Liens.

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SECTION 11.3.  Release of Liens on the Collateral .
 
(a)           The Liens on the Collateral shall automatically and without the need for any further action by any Person be released:
 
(i)            in whole or in part, as applicable, as to all or any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances;
 
(ii)           in whole upon:
 
(1)           satisfaction and discharge of this Indenture as set forth in Section 8.1(a) ;
 
(2)           a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.1(b) ; or
 
(3)           the occurrence of a Suspension Period (but only until the Reinstatement Date, if any);
 
(iii)          in part, as to any property that (x) is sold, transferred or otherwise disposed of by the Company or any Subsidiary Guarantor (other than to the Company or another Subsidiary Guarantor) in a transaction not prohibited by this Indenture at the time of such sale, transfer or disposition or (y) is owned or at any time acquired by a Subsidiary Guarantor that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);
 
(iv)          pursuant to an amendment in accordance with Article IX ;
 
(v)           in whole as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with Section 10.2 ;
 
(vi)          in part, in accordance with the applicable provisions of the Collateral Documents and the Intercreditor Agreement; and
 
(vii)         in whole or in part, with the consent of Holders of 66 2⁄3 % in aggregate principal amount of the Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) then outstanding.
 
For the avoidance of doubt, the Company and the Subsidiary Guarantors will not be required to comply with all or any portion of Section 314(d) of the TIA.

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(b)           In connection with any termination or release of any Liens in all or any portion of the Collateral pursuant to this Indenture or any of the Collateral Documents, the Trustee shall, or shall cause the Collateral Agent to, promptly, at the sole expense of the Company, execute, deliver or acknowledge all documents, instruments and releases that have been requested, in writing, to release, reconvey to the Company and/or the Subsidiary Guarantors, as the case may be, such Collateral or otherwise give effect to, evidence or confirm such termination or release in accordance with the written directions of the Company and/or the Subsidiary Guarantor, as the case may be.
 
(c)           The release of any Collateral from the terms of the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture.  The Trustee and each of the Holders each acknowledge and direct the Trustee and the Collateral Agent that a release of Collateral or a Lien in accordance with the terms of any Collateral Document and this Article XI will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture.
 
(d)           As and when requested by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to authorize the filing of Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Company or such Subsidiary Guarantor) solely to the extent necessary to delete or release Liens on property or assets not required to be subject to a Lien under the Collateral Documents from the description of assets in any previously filed financing statements.  If requested in writing by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to execute, at the sole expense of the Company, such documents, instruments or statements reasonably requested of it (which shall be prepared by the Company or such Subsidiary Guarantor) and to take such other action as the Company may reasonably request to evidence or confirm that such property or assets not required to be subject to a Lien under the Collateral Documents described in the immediately preceding sentence has been released from the Liens of each of the Collateral Documents.  The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such written instructions from the Company, any Subsidiary Guarantor or the Trustee.
 
(e)           In no event shall the Trustee or Collateral Agent be obligated to execute or deliver any document evidencing any release or reconveyance without receipt of an Opinion of Counsel and Officers’ Certificate, each stating that such release or reconveyance complies with this Indenture, the Intercreditor Agreement and the Collateral Documents.
 
SECTION 11.4.  Authorization of Actions to Be Taken by the Trustee or the Collateral Agent Under the Collateral Documents .
 
(a)           Subject to the provisions of the Collateral Documents, the Intercreditor Agreement and the other provisions of this Indenture, each of the Trustee or the Collateral Agent may take all actions it deems necessary or appropriate in order to (i) upon the occurrence and during the continuance of an Event of Default, enforce any of its rights or any of the rights of the Holders under the Collateral Documents and (ii) upon the occurrence and during the continuance of an Event of Default, collect and receive any and all amounts payable in respect of the Collateral in respect of the obligations of the Company and the Subsidiary Guarantors hereunder and thereunder.  Subject to the provisions of the Collateral Documents and the Intercreditor Agreement, the Trustee or the Collateral Agent shall have the power (but not the obligation) to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in violation of the Collateral Documents, the Intercreditor Agreement or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interest and the interests of the Holders in the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders or the Trustee).

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(b)           Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral (except in its ordinary course of maintaining collateral).  Neither the Trustee nor the Collateral Agent shall have responsibility for recording, filing, re-recording or refiling any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times or to otherwise take any action to perfect or maintain the perfection of any security interest granted to it under the Collateral Documents or otherwise.
 
(c)           Where any provision of the Collateral Documents requires that additional property or assets be added to the Collateral, the Company shall, or shall cause the applicable Subsidiary Guarantors to, take any and all actions reasonably required to cause such additional property or assets to be added to the Collateral and to create and maintain a valid and enforceable perfected first-priority security interest on a pari passu basis with the Liens securing any Pari Passu Lien Indebtedness in such property or assets (subject to Permitted Liens) in favor of the Collateral Agent for the benefit of the Secured Parties, in each case in accordance with and to the extent required under the Collateral Documents.
 
(d)           Except as set forth in this Indenture, the Trustee or the Collateral Agent, in taking any action under the Collateral Documents, shall be entitled to receive, if requested, as a condition to take any action, an Officers’ Certificate and Opinion of Counsel to the effect that such action does not violate this Indenture, the Collateral Documents or the Intercreditor Agreement, and the Trustee or the Collateral Agent shall be fully protected relying thereon.
 
(e)           In acting under the Collateral Documents and the Intercreditor Agreement, the Trustee and Collateral Agent shall have all the protections, rights and immunities given to them under this Indenture.

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(f)           For the avoidance of doubt, upon receipt of any payment by the Collateral Agent or the Trustee pursuant to Section 2.01(b)(ii) of the Intercreditor Agreement, the Company, Subsidiary Guarantors and Holders agree that, as among them, such payments shall be made and such funds applied in accordance with Section 6.10 of this Indenture, and in every case whatsoever, the Trustee and Collateral Agent will each be paid amounts owed them under this Indenture, the Intercreditor Agreement and the Collateral Documents prior to payments (pursuant to Article VI of this Indenture) being made to the Holders.
 
(g)           Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents and the Intercreditor Agreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Original Lien Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents and the Intercreditor Agreement or otherwise exist against the Collateral Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
 
(h)           The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
 
(i)           The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.”  The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 hereof or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 11.4 ).

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(j)           The Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent.  If the Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral agent.  If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent.  If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor.  Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated.  After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 11.4 (and Section 7.6 hereof) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture.
 
ARTICLE XII
 
Miscellaneous
 
SECTION 12.1.      Notices .  Notices given by publication shall be deemed given on the first date on which publication is made, notices given by first-class mail, postage prepaid, shall be deemed given five calendar days after mailing and notices given by overnight courier guaranteeing next day delivery shall be deemed given the next Business Day after timely delivery to the courier.  Any notice or communication shall be in writing and delivered in person, by facsimile, mailed by first-class mail or overnight air courier guaranteeing next day delivery, addressed as follows:
 
if to the Company or to any Subsidiary Guarantor:
 
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, IN 46032
Attention: Karl W. Kindig
Facsimile: (317) 817-3772
 
if to the Trustee or Collateral Agent:
 
Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street/ Suite 1290
Minneapolis, MN 55402
Attention: CNO Financial Administrator
Facsimile: (612) 217-5651

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The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.  Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.
 
Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed.
 
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
 
Each of the Trustee and Collateral Agent agrees to accept and act upon instructions or directions pursuant to this Indenture or the Collateral Documents or Intercreditor Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods.  If the party elects to give the Trustee or Collateral Agent e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee or Collateral Agent in its discretion elects to act upon such instructions, the Trustee’s or Collateral Agent’s understanding of such instructions shall be deemed controlling.  Neither the Trustee nor the Collateral Agent shall be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s or Collateral Agent’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.  The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee or Collateral Agent, including without limitation the risk of the Trustee or Collateral Agent acting on unauthorized instructions, and the risk or interception and misuse by third parties.
 
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption) to any Holder of an interest in a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC or any other applicable Depositary for such Note (or its designee) according to the applicable procedures of DTC or such Depositary.
 
SECTION 12.2.      Certificate and Opinion as to Conditions Precedent .  Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
 
(i)            an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

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(ii)           an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
 
SECTION 12.3.  Statements Required in Certificate or Opinion .  Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture shall include:
 
(i)            a statement that the individual making such certificate or opinion has read such covenant or condition;
 
(ii)           a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(iii)          a statement that, in the opinion of such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
 
(iv)          a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
 
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officers’ Certificate or on certificates of public officials.
 
SECTION 12.4.  Rules by Trustee, Paying Agent and Registrar .  The Trustee may make reasonable rules for action by, or a meeting of, Holders.  The Registrar and the Paying Agent may make reasonable rules for their functions.
 
SECTION 12.5.  Days Other than Business Days .  If a payment date is not a Business Day, payment shall be made on the next succeeding day that is not a Business Day, and no interest shall accrue for the intervening period.  If a regular Record Date is not a Business Day, the Record Date shall not be affected.
 
SECTION 12.6.  Governing Law .  This Indenture, the Notes and the Subsidiary Guarantees shall be governed by, and construed in accordance with, the laws of the State of New York.
 
SECTION 12.7.  No Recourse Against Others .  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of the Company or any of the Subsidiary Guarantors shall have any liability for any obligations of the Company or its Restricted Subsidiaries under the Notes, this Indenture, the Subsidiary Guarantees, the Collateral Documents, the Intercreditor Agreement or for any claim based on, in respect of, or by reason of such obligations or their creation.  Each Holder by accepting a Note waives and releases all such liability.  The waiver and release shall be part of the consideration for the issuance of the Notes and the Subsidiary Guarantees.

-128-

 
SECTION 12.8. Successors .  All agreements of the Company and each Subsidiary Guarantor in this Indenture and the Notes shall bind their respective successors.  All agreements of the Trustee in this Indenture shall bind its successors.
 
SECTION 12.9.  Multiple Originals .  The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  One signed copy is enough to prove this Indenture.
 
SECTION 12.10. Table of Contents; Headings .  The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
 
SECTION 12.11. Direction by Holders to Enter into Collateral Documents and the Intercreditor Agreement .  By accepting a Note, each Holder is deemed to have authorized and directed the Trustee and the Collateral Agent, as applicable, to enter into the Collateral Documents and the Intercreditor Agreement.
 
SECTION 12.12.  Force Majeure .  In no event shall the Trustee or the Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee and the Collateral Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
 
SECTION 12.13. USA Patriot Act .  The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the Trustee and the Trust Officers, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account.  The parties to this agreement agree that they will provide the Trustee and the Trust Officers with such information as they may request in order to satisfy the requirements of the USA Patriot Act.
 
SECTION 12.14. Communication by Holders of Notes with other Holders of Notes .  Holders of the Notes may communicate with other Holders of Notes with respect to their rights under this Indenture or the Notes.
 
SECTION 12.15. Subject to Intercreditor .  By accepting a Note, each Holder is deemed to have authorized and directed the Trustee and the Collateral Agent, as applicable, to enter into the Collateral Documents and the Intercreditor Agreement and to be subject to the terms thereof.
 
[Remainder of Page Intentionally Left Blank]

-129- 

 
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President, Treasury and	 	
 	Investor Relations	 	

[Signature Page to Indenture]

 
 	40|86 ADVISORS, INC.	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President and Treasurer	 	
 
 	40|86 MORTGAGE CAPITAL, INC.	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President and Treasurer	 	
 
 	AMERICAN LIFE AND CASUALTY
MARKETING DIVISION CO.	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President and Treasurer	 	
 
 	CDOC  , INC.	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President and Treasurer	 	
 
 	CNO MANAGEMENT SERVICES COMPANY	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President and Treasurer	 	

[Signature Page to Indenture]

 
 	CNO SERVICES, LLC	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President, Treasury and	 	
 	Investor Relations	 	
 
 	K.F. AGENCY, INC.	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President and Treasurer	 	
 
 	PERFORMANCE MATTERS ASSOCIATES, INC.	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President and Treasurer	 	
 
 	PERFORMANCE MATTERS ASSOCIATES OF TEXAS, INC.	 	
 	 	 	 	
 	By:	              /s/ Erik M. Helding 	 	
 	 	Name:   Erik M. Helding	 	
 	 	Title:     Senior Vice President and Treasurer	 	

[Signature Page to Indenture]

 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee	 	
 	 	 	 	
 	By:	                 /s/ Jane Schweiger  	 	
 	 	Name:      Jane Schweiger	 	
 	 	Title:        Vice President	 	
 
 	WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Collateral Agent	 	
 	 	 	 	
 	By:	                 /s/ Jane Schweiger  	 	
 	 	Name:      Jane Schweiger	 	
 	 	Title:        Vice President	 	

[Signature Page to Indenture]

 
EXHIBIT A
 
[FORM OF FACE OF NOTE]
 
[Global Note Legend, if applicable]
[Private Placement Legend, if applicable]

A-1

 
No. [___] 
Principal Amount $[______________],
 as revised by the Schedule of Increases
or Decreases in the Global Note attached hereto
 
CUSIP NO. ____________
 
CNO FINANCIAL GROUP, INC.
 
6.375% Senior Secured Note due 2020
 
CNO Financial Group, Inc., a Delaware corporation, promises to pay to [Cede & Co.], or registered assigns, the initial principal amount set forth on the Schedule of Increases or Decreases in the Global Note attached hereto, as revised by the Schedule of Increases or Decreases in the Global Note attached hereto, on October 1, 2020.
 
Interest Payment Dates:  April 1 and October 1.
 
Record Dates:  March 15 and September 15.
 
Additional provisions of this Note are set forth on the other side of this Note.

A-2

 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	                  	 	
 	 	Name:     	 	
 	 	Title:       	 	

A-3

 
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
 
WILMINGTON TRUST, NATIONAL ASSOCIATION
 
as Trustee, certifies that this is one of the
Notes referred to in the Indenture.
 
By:	 	 	
 	Authorized Signatory	Date: 	

A-4

 
[FORM OF REVERSE SIDE OF NOTE]
 
6.375% Senior Secured Note due 2020
 
1.              Interest
 
CNO Financial Group, Inc., a Delaware corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “ Company ”), promises to pay interest on the principal amount of this Note at the rate per annum shown above.
 
The Company shall pay interest semiannually on April 1 and October 1 of each year, with the first interest payment to be made on April 1, 2013.  Interest on the Notes shall accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from September 28, 2012.  The Company shall pay interest on overdue principal or premium, if any (plus interest on such interest to the extent lawful), at the rate borne by the Notes to the extent lawful.  Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
 
2.              Method of Payment
 
By no later than 10:00 a.m. (New York City time) on the date on which any principal of, premium, if any, or interest on any Note is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any, and/or interest.  The Company shall pay interest (except Defaulted Interest) to the Persons who are registered Holders of Notes at the close of business on March 15 and September 15 next preceding the Interest Payment Date unless Notes are cancelled, repurchased or redeemed after the record date and before the Interest Payment Date.  Holders must surrender Notes to a Paying Agent to collect principal payments.  The Company shall pay principal, premium, if any, and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts.  Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) shall be made by the transfer of immediately available funds to the accounts specified by the Depositary.  The Company shall make all payments in respect of a Definitive Note (including principal, premium, if any, and interest) by mailing a check to the registered address of each Holder thereof.
 
3.              Paying Agent and Registrar
 
Initially, Wilmington Trust, National Trust, duly organized and existing under the laws of the United States of America and having a corporate trust office at Wilmington Trust, National Association, 50 South Sixth Street/Suite 1290, Minneapolis, MN 55402, as Trustee (in such capacity the “ Trustee ”), shall act as Paying Agent and Registrar.  The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice to any Holder.  The Company or any of its domestically incorporated Wholly-Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.

A-5

 
4.              Indenture
 
The Company issued the Notes under an Indenture dated as of September 28, 2012 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”), among the Company, the Subsidiary Guarantors, the Trustee and the Collateral Agent.  The terms of the Notes include those stated in the Indenture.  Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture.  The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of those terms.  To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
 
The Notes are senior secured obligations of the Company.  This Note is one of the 6.375% Senior Secured Notes due 2020 referred to in the Indenture.  The Notes include (i) $275,000,000 aggregate principal amount of the Company’s 6.375% Senior Secured Notes due 2020 issued under the Indenture on September 28, 2012 (herein called “ Initial Notes ”), and (ii) if and when issued, additional 6.375% Senior Secured Notes due 2020 of the Company that may be issued from time to time under the Indenture subsequent to September 28, 2012 (herein called “ Additional Notes ”).
 
5.              Guarantee
 
To guarantee the due and punctual payment of the principal, premium, if any, and interest (including post-filing or post-petition interest under any Bankruptcy Law) on the Notes and all other amounts payable by the Company under the Indenture, the Notes, the Collateral Documents and the Intercreditor Agreement when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Subsidiary Guarantors have fully and unconditionally guaranteed (and future guarantors, together with the Subsidiary Guarantors, shall fully and unconditionally Guarantee), jointly and severally, such obligations on a senior, secured basis on a pari passu basis with the Liens securing any Pari Passu Lien Indebtedness pursuant to the terms of the Indenture.
 
6.            Security
 
The Initial Notes and Additional Notes, if any, are treated as a single class of securities under the Indenture and shall be secured by first-priority Liens and security interests, subject to Permitted Liens, in the Collateral on the terms and conditions set forth in the Indenture and the Collateral Documents.  The Collateral Agent holds the Collateral for the benefit of the Secured Parties, in each case pursuant to the Collateral Documents.  Each Holder, by accepting this Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, the Indenture and the Intercreditor Agreement and authorizes and directs the Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreement, and to perform its obligations and exercise its rights thereunder in accordance therewith.

A-6

 
7.            Redemption
 
(a)           Except as described in clauses (b) and (c) below, the Notes are not redeemable until October 1, 2015.  On and after October 1, 2015, the Company may redeem all or, from time to time, a part of the Notes, at the following redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) plus accrued and unpaid interest on the Notes, if any, to, but excluding, the applicable Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the twelve-month period beginning on October 1 of the years indicated below:
 
Year	 	Percentage	 	
2015                                                                                           	 	 	104.781%	 	
2016                                                                                           	 	 	103.188%	 	
2017	 	 	101.594%	 	
2018 and thereafter                                                                                           	 	 	100.000%	 	
 
(b)           At any time prior to October 1, 2015, the Company may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof plus the Applicable Premium plus accrued and unpaid interest, if any, to, but excluding, the date of redemption (subject to the rights of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
 
“ Applicable Premium ” means, as determined by the Company with respect to a Note on any Redemption Date, the greater of:
 
(1)           1.0% of the principal amount of such Note; and
 
(2)           the excess, if any, of (a) the present value as of such Redemption Date of (i) the redemption price of such Note on October 1, 2015 as set forth in paragraph 7(a) above, plus (ii) the remaining scheduled interest payments due on such Note through October 1, 2015 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points, over (b) the then outstanding principal amount of such Note.
 
“ Treasury Rate ” means, as obtained by the Company, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to October 1, 2015; provided , however , that if the period from the Redemption Date to October 1, 2015 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the 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 October 1, 2015 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.

A-7

 
(c)           Prior to October 1, 2015, the Company may on any one or more occasions redeem up to 35% of the original principal amount of the Notes (including any Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a redemption price of  106.375% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date (subject to the right of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date); provided that
 
(i)            at least 65% of the original principal amount of the Notes (including any Additional Notes) remains outstanding after each such redemption; and
 
(ii)           the redemption occurs within 90 days after the closing of such Equity Offering.
 
Notice of any redemption pursuant to clause (c) may, at the Company’s discretion, be subject to one or more conditions precedent, including the completion of an Equity Offering or other corporate transaction.
 
(d)           Any redemption pursuant to this paragraph 7 shall be made pursuant to the provisions of Section 5.1 , and Sections 5.2 through 5.7 of the Indenture.
 
8.              Change of Control; Asset Sales
 
(a)           If a Change of Control occurs, unless the Company has exercised its right to redeem all of the Notes under Section 5.1 of the Indenture, each Holder shall have the right to require the Company to repurchase all or any part (in integral multiples of $1,000 except that no Note may be tendered in part if the remaining principal amount would be less than $2,000) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date) as provided in, and subject to the terms of, the Indenture.
 
(b)           In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 3.7(c) of the Indenture, the Company shall be required to make an offer to all Holders to purchase Notes in accordance with Section 3.7(c) of the Indenture at an offer price in cash in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but excluding, the date of purchase (subject to the rights of Holders of record on any Record Date to receive payments of interest on the related Interest Payment Date).  Holders of Notes that are the subject of an offer to purchase will receive an Asset Disposition Offer from the Company prior to any related purchase date and may elect to have such Note purchased pursuant to such offer by completing the form entitled “Option of Holder To Elect Purchase” attached hereto, or transferring its interest in such Note by book-entry transfer, to the Company or a Paying Agent at the address specified in the notice at least three Business Days before the Asset Disposition Purchase Date.

A-8

 
9.              Denominations; Transfer; Exchange
 
The Notes are in registered form without coupons in minimum denominations of principal amount of $2,000 and whole multiples of $1,000 in excess thereof.  A Holder may transfer or exchange Notes in accordance with the Indenture.  The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.  The Registrar need not register the transfer of or exchange any Notes for a period beginning 15 Business Days before an Interest Payment Date and ending on such Interest Payment Date.
 
10.            Persons Deemed Owners
 
The registered Holder of this Note may be treated as the owner of it for all purposes.  Only registered Holders shall have rights hereunder.
 
11.            Unclaimed Money
 
If money for the payment of the principal of or premium, if any, or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person.  After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
 
12.            Discharge and Defeasance
 
Subject to certain conditions set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Notes to redemption or maturity, as the case may be.

A-9

 
13.            Amendment, Waiver
 
Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Notes, the Subsidiary Guarantees, the Intercreditor Agreement and the Collateral Documents may be amended with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for Notes) and (ii) any default (other than (x) with respect to nonpayment or (y) in respect of a provision that cannot be amended without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of a majority in principal amount of the Notes then outstanding (including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).  Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company, the Subsidiary Guarantors and the Trustee may amend the Indenture, the Notes, the Subsidiary Guarantees, the Intercreditor Agreement or the Collateral Documents to cure any ambiguity, omission, defect or inconsistency, or to comply with Article IV or Article X of the Indenture in respect of the assumption by a Successor Company of an obligation of the Company under the Indenture or by a Successor Guarantor of obligations under a Subsidiary Guarantee, or to provide for or facilitate the issuance of uncertificated Notes in addition to or in place of certificated Notes, or to comply with the rules of any applicable depositary, or to add Guarantees with respect to the Notes or to secure the Notes, or to release a Subsidiary Guarantor upon its designation as an Unrestricted Subsidiary or otherwise in accordance with the Indenture, to release Liens in favor of the Collateral Agent in the Collateral as provided under the collateral release provisions, or to add to the covenants of the Company and its Restricted Subsidiaries or Events of Default for the benefit of the Holders or to make changes that would provide additional rights to the Holders, or to surrender any right or power conferred upon the Company or any Subsidiary Guarantor, or to make any change that does not adversely affect the rights of any Holder in any material respect, or to comply with the requirement of the SEC in connection with the qualification of the Indenture under the TIA, as amended, if applicable, or to provide for the appointment of a successor trustee, or to enter into a Permitted Junior Lien Intercreditor Agreement, or to conform the text of the Indenture, the Notes, Subsidiary Guarantees, the Collateral Documents or the Intercreditor Agreement to the “Description of the Notes” section of the Offering Circular or to provide for or confirm the issuance of Additional Notes in accordance with the terms of the Indenture.
 
Without the consent of the Holders of at least 66 2/3% of the aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), no amendment, supplement or waiver may (1) modify any Collateral Document or the provisions in the Indenture dealing with Collateral Documents or application of trust moneys in any manner, taken as a whole, materially adverse to the Holders or otherwise release any Collateral other than in accordance with the Indenture, the Collateral Documents and the Intercreditor Agreement; or (2) modify the Intercreditor Agreement in any manner adverse to the Holders in any material respect other than in accordance with the terms of the Indenture, the Collateral Documents and the Intercreditor Agreement.

A-10

 
14.            Defaults and Remedies
 
Under the Indenture, and subject to the terms and provisions of the Indenture Events of Default include, without limitation:  (i) default in any payment of interest on any Note when the same becomes due and the default continues for 30 days; (ii) default in payment of the principal of or premium, if any, on any Note when the same becomes due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise; (iii) failure by the Company to comply with its obligations under Section 3.9 or Article IV of the Indenture, (iv) failure by the Company or any Subsidiary Guarantor to comply with certain other provisions or agreements in the Indenture, the Notes and the Collateral Documents, in certain cases subject to notice and lapse of time; (v) certain accelerations (including failure to pay within any grace period after final maturity) of other Indebtedness of the Company or any Restricted Subsidiary if the amount accelerated (or so unpaid) exceeds $50.0 million (or its foreign currency equivalent); (vi) certain events of bankruptcy or insolvency with respect to the Company or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together would constitute a Significant Subsidiary; (vii) certain final and non-appealable judgments for the payment of money aggregating in excess of $50.0 million (or its foreign currency equivalent)(net of amounts that are covered by insurance); (viii) any Subsidiary Guarantee of a Significant Subsidiary or group of Restricted Subsidiaries that when taken together would constitute a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms of the Indenture and the Subsidiary Guarantees) or is declared null and void in a judicial proceeding or is denied or disaffirmed by such Significant Subsidiary or group of Restricted Subsidiaries, as the case may be; and (ix) with respect to Collateral with a fair market value in excess of $30.0 million, individually or in the aggregate, a declaration or assertion of invalidity or unenforceability or the failure to be in full force and effect (except as contemplated by the Collateral Documents and the terms of the Indenture and the Intercreditor Agreement), subject to any applicable grace periods as set forth in the Indenture.
 
If an Event of Default occurs and is continuing, the Trustee or Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.  Certain events of bankruptcy or insolvency with respect to the Company are Events of Default which shall result in the Notes being due and payable immediately upon the occurrence of such Events of Default.
 
Holders may not enforce the Indenture or the Notes except as provided in the Indenture.  The Trustee and the Collateral Agent may refuse to enforce the Indenture or the Notes unless each receives indemnity or security satisfactory to each of the Trustee and the Collateral Agent.  Subject to certain limitations, Holders of a majority in principal amount of the Notes may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines in good faith that withholding the notice is in the interests of Holders.
 
15.            Collateral
 
These Notes and any Guarantee by a Subsidiary Guarantor are secured by a security interest in the Collateral pursuant to certain Collateral Documents.
 
16.            Trustee Dealings with the Company
 
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.

A-11

 
17.            No Recourse Against Others
 
No past, present or future director, officer, employee, incorporator, member, partner or stockholder of the Company or any of the Subsidiary Guarantors shall have any liability for any obligations of the Company or its Restricted Subsidiaries under the Notes, the Indenture, the Subsidiary Guarantees, the Collateral Documents, the Intercreditor Agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation.  By accepting a Note, each Holder waives and releases all such liability.  The waiver and release shall be part of the consideration for the issue of the Notes and the Subsidiary Guarantees.
 
18.            Authentication
 
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
 
19.            Abbreviations
 
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
 
20.            CUSIP Numbers
 
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures the Company has caused CUSIP numbers to be printed on the Notes.  No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers placed thereon.
 
21.            Successor Entity
 
When a successor entity assumes, in accordance with the Indenture, all the obligations of its predecessor under the Notes and the Indenture, and immediately before and thereafter no Default or Event of Default exists and all other conditions of the Indenture are satisfied, the predecessor entity will be released from those obligations.
 
22.            Governing Law
 
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.

A-12

 
The Company shall furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture.  Requests may be made to:
 
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, IN 46032
Attention: Karl W. Kindig
Facsimile No.: (317) 817-3772
 
23.            Subject to Intercreditor
 
By accepting a Note, each Holder is deemed to have authorized and directed the Trustee and the Collateral Agent, as applicable, to enter into the Collateral Documents the Intercreditor Agreement and to be subject to the terms thereof.

A-13

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 soc. sec. or tax I.D. No.)
 
and irrevocably appoint ___________ agent to transfer this Note on the books of the Company.  The agent may substitute 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 SEC Rule 17Ad-15.

A-14

 
[TO BE ATTACHED TO GLOBAL NOTES]
 
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
 
The initial principal amount of the Note shall be $ [______________].  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 decrease or
increase	 	Signature of
authorized signatory
of Trustee or Notes
Custodian	

A-15

OPTION OF HOLDER TO ELECT PURCHASE
 
If you want to elect to have this Note purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, check the box:

  o	  o	
  Section 3.7	  Section 3.9	
 
                                If you want to elect to have only part of this Note purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, state the amount in principal amount (must be in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof):  $
 
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 SEC Rule 17Ad-15.

A-16

 
EXHIBIT B
 
FORM OF CERTIFICATE OF TRANSFER
 
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, IN 46032
Attention: Karl W. Kindig
Facsimile No.: (317) 817-3772
 
Wilmington Trust, National Association, as Trustee and Registrar
Corporate Capital Markets
50 South Sixth Street/ Suite 1290
Minneapolis, MN 55402
Attention: CNO Financial Administrator
Facsimile No.: (612) 217-5651
 
Re:   6.375% Senior Secured Notes due 2020
 
Reference is hereby made to the Indenture, dated as of September 28, 2012 (the “ Indenture ”), among CNO Financial Group, Inc., as issuer (the “ Company ”), the Subsidiary Guarantors named therein and Wilmington Trust, National Association, as trustee.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
 
________________ (the “ Transferor ”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $____ in such Note[s] or interests (the “ Transfer ”), to __________ (the “ Transferee ”), as further specified in Annex A hereto.  In connection with the Transfer, the Transferor hereby certifies that:
 
[CHECK ALL THAT APPLY]
 
1.             o	Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A .  The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “ Securities Act ”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.	

B-1

 
2.             o	Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S .  The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the  facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser).  Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.	
 
3.
 	o
 	Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S .  The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):	
 
 	(a)          o	such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;	
 
or
 
 	(b)          o	such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;	
 
or

B-2

 
 	(c)           o	such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.	
 
4.             o	Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note .	
 
 	(a)           o	Check if Transfer is pursuant to Rule 144 .  (i)  The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.	
 
 	(b)           o	Check if Transfer is pursuant to Regulation S.   (i)  The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.	

B-3

 
 	  (c)         o	Check if Transfer is pursuant to other exemption.   (i)  The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.	
 
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 
 	  [Insert Name of Transferor]	
 
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
Dated: ____________________	 	 	 	

B-4

ANNEX A TO CERTIFICATE OF TRANSFER
 
1. 	The Transferor owns and proposes to transfer the following:	
 	 	
   [CHECK ONE OF (a) OR (b)]	
 	
 	(a)	o	a beneficial interest in the:	
 	 	 	 	 	
 	 	(i)	o	144A Global Note (CUSIP 12621E AG8), or	
 	 	 	 	 	
 	 	(ii)	o	Regulation S Global Note (CUSIP U1746E AB9), or	
 	 	 	 	 	
 	 	(iii)	o	IAI Global Note (CUSIP 12621E AH6), or	
 	 	 	 	 	
 	(b)	o	a Restricted Definitive Note. 	
 	 	 	 	 	
2.	After the Transfer the Transferee will hold:	
 	 	 	 	 	
 [CHECK ONE]	
 	 	 	 	 	
 	(a)	o	a beneficial interest in the:	
 	 	 	 	 	
 	 	(i)	o	144A Global Note  (CUSIP 12621E AG8), or	
 	 	 	 	 	
 	 	(ii)	o	Regulation S Global Note (CUSIP U1746E AB9), or	
 	 	 	 	 	
 	 	(iii)	o	IAI Global Note (CUSIP 12621E AH6), or	
 	 	 	 	 	
 	 	(iv)	o	Unrestricted Global Note  CUSIP [               ],  or	
 	 	 	 	 	
 	(b)	o	a Restricted Definitive Note; or	
 	 	 	 	 	
 	(c)	o	an Unrestricted Definitive Note,	
 	 	 	 	
 	in accordance with the terms of the Indenture.	

B-5

EXHIBIT C
 
FORM OF CERTIFICATE OF EXCHANGE
 
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, IN 46032
Attention: Karl Kindig
Facsimile No.: (317) 817-3772
 
Wilmington Trust, National Association, as Trustee and Registrar
Corporate Capital Markets
50 South Sixth Street/ Suite 1290
Minneapolis, MN 55402
Attention: CNO Financial Administrator
Facsimile No.: (612) 217-5651
 
Re:   6.375% Senior Secured Notes due 2020
 
Reference is hereby made to the Indenture, dated as of September 28, 2012 (the “ Indenture ”), among CNO Financial Group, Inc., as issuer (the “ Company ”), the Subsidiary Guarantors named therein and Wilmington Trust, National Association, as trustee.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
 
_______________ (the “ Owner ”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $________ in such Note[s] or interests (the “ Exchange ”).  In connection with the Exchange, the Owner hereby certifies that:
 
1.            Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note .
 
(a)          o             Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note .  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “ Securities Act ”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

C-1

 
(b)          o            Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note.   In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
 
(c)          o             Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note .  In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
 
(d)          o            Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note .  In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
 
2.            Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes .
 
(a)          o             Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note .  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer.  Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

C-2

 
(b)          o            Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note .  In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]  o  144A Global Note,  o  Regulation S Global Note,   o IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

C-3

 
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 
 	  [Insert Name of Transferor]	
 
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
Dated: ____________________	 	 	 	

C-4

 
EXHIBIT D
 
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
 
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, IN 46032
Attention: Karl W. Kindig
Facsimile No.: (317) 817-3772
 
Wilmington Trust, National Association, as Trustee and Registrar
Corporate Capital Markets
50 South Sixth Street/ Suite 1290
Minneapolis, MN 55402
Attention: CNO Financial Administrator
Facsimile No.: (612) 217-5651
 
Re:   6.375% Senior Secured Notes due 2020
 
Reference is hereby made to the Indenture, dated as of September 28, 2012 (the “ Indenture ”), among CNO Financial Group, Inc., as issuer (the “ Company ”), the Subsidiary Guarantors named therein and Wilmington Trust, National Association, as trustee and as collateral agent.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
 
In connection with our proposed purchase of $____________ aggregate principal amount of:
 
(a)  o   a beneficial interest in a Global Note, or
 
(b)  o   a Definitive Note,
 
we confirm that:
 
1.           We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “ Securities Act ”).

D-1

 
2.           We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially in the form of this letter and an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.
 
3.           We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions.  We further understand that the Notes purchased by us will bear a legend to the foregoing effect.
 
4.           We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
 
5.           We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
 
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 
 	  [Insert Name of Accredited Investor]	
 
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
Dated: ____________________	 	 	 	

D-2

 
EXHIBIT E
 
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS
 
SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”), dated as of ________________, among __________________ (the “ Guaranteeing Subsidiary ”), a subsidiary of CNO FINANCIAL GROUP, INC. (or its permitted successor), a Delaware corporation (the “ Company ”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (together with its successors and assigns, in such capacity, the “ Trustee ”) and as collateral agent (together with its successors and assigns in such capacity, the “ Collateral Agent ”) under the Indenture referred to below.
 
WHEREAS, the Company and the Subsidiary Guarantors have heretofore executed and delivered to the Trustee an indenture (the “ Indenture ”), dated as of September 28, 2012 providing for the issuance of 6.375% Senior Secured Notes due 2020 (the “ Notes ”);
 
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “ Subsidiary Guarantee ”); and
 
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
 
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
 
1.            Capitalized Terms.   Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
 
2.            Agreement to Guarantee.   The Guaranteeing Subsidiary acknowledges that it has received and reviewed a copy of the Indenture and all other documents it deems necessary to review in order to enter into this Supplemental Indenture, and acknowledges and agrees to (i) join and become a party to the Indenture as indicated by its signature below; (ii) be bound by the Indenture, as of the date hereof, as if made by, and with respect to, each signatory hereto; and (iii) perform all obligations and duties required of a Guarantor pursuant to the Indenture. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Subsidiary Guarantee on the terms and subject to the conditions set forth in the Indenture, including, but not limited to, Article X thereof.
 
3.            Execution and Delivery .  The Guaranteeing Subsidiary agrees that the Subsidiary Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Subsidiary Guarantee on the Notes.

E-1

 
4.            No Recourse Against Others.   No past, present or future director, officer, employee, incorporator, member, partner or stockholder of the Company or any of the Subsidiary Guarantors shall have any liability for any obligations of the Company or its Restricted Subsidiaries under the Notes, the Indenture, this Supplemental Indenture, the Subsidiary Guarantees, the Collateral Documents, the Intercreditor Agreement or for any claim based on, in respect of, or by reason of such obligations or their creation.  Each Holder by accepting a Note waives and releases all such liability.  The waiver and release shall be part of the consideration for the issuance of the Notes and the Subsidiary Guarantees.
 
5.            Governing Law .  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
6.            Counterparts.   The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  This Supplemental Indenture may be executed in multiple counterparts which, when taken together, shall constitute one instrument.  The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmissions shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
 
7.            Effect of Headings.   The Section headings herein have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
 
8.            The Trustee.   The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.
 
9.            Benefits Acknowledged .  The Guaranteeing Subsidiary’s Subsidiary Guarantee is subject to the terms and conditions set forth in the Indenture.  The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Subsidiary Guarantee are knowingly made in contemplation of such benefits.
 
10.            Successors .  All agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall bind its successors, except as otherwise provided in this Supplemental Indenture.  All agreements of the Trustee and the Collateral Agent in this Supplemental Indenture shall bind their respective successors.
 
[Remainder of Page Intentionally Left Blank]

E-2

 
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
 
 	  CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 
 	  [ Guaranteeing Subsidiary ]	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	

E-3

 
 	WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Trustee	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 
 	WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Collateral Agent	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	

E-4

Exhibit 10.1
 
SECURITY AGREEMENT
 
Dated as of September 28, 2012
 
among
 
CNO FINANCIAL GROUP, INC.,
 
and
 
the SUBSIDIARY GUARANTORS
Party Hereto
 
and
 
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Collateral Agent
 
THIS SECURITY AGREEMENT IS SUBJECT TO THE PROVISIONS OF THE PARI PASSU INTERCREDITOR AGREEMENT, DATED AS OF SEPTEMBER 28, 2012 (AS AMENDED, RESTATED, AMENDED AND RESTATED, REPLACED, REFINANCED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “ INTERCREDITOR AGREEMENT ”), AMONG JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS 2020 NOTES COLLATERAL AGENT, AND AS 2020 NOTES AUTHORIZED REPRESENTATIVE.

 

TABLE OF CONTENTS
 
 	 	Page	
 	 	 	
Section 1.	Definitions	2	
 	 	 	
Section 2.	[Reserved]	9	
 	 	 	
Section 3.	Grant of Transaction Liens	9	
 	 	 	
Section 4.	General Representations and Warranties	12	
 	 	 	
Section 5.	Further Assurances; General Covenants	14	
 	 	 	
Section 6.	Reserved	16	
 	 	 	
Section 7.	Chattel Paper and Instruments	16	
 	 	 	
Section 8.	Commercial Tort Claims	17	
 	 	 	
Section 9.	Recordable Intellectual Property	18	
 	 	 	
Section 10.	Proceeds of Letters of Credit	18	
 	 	 	
Section 11.	Investment Property	19	
 	 	 	
Section 12.	Deposit Accounts	21	
 	 	 	
Section 13.	Payments upon an Event of Default	22	
 	 	 	
Section 14.	Transfer of Record Ownership	22	
 	 	 	
Section 15.	Right to Vote Securities	23	
 	 	 	
Section 16.	Remedies upon Event of Default	23	
 	 	 	
Section 17.	Application of Proceeds	25	
 	 	 	
Section 18.	Fees and Expenses; Indemnification	25	
 	 	 	
Section 19.	Authority to Administer Collateral	26	
 	 	 	
Section 20.	Limitation on Duty in Respect of Collateral	26	
 	 	 	
Section 21.	General Provisions Concerning the Collateral Agent	27	
 	 	 	
Section 22.	Termination of Transaction Liens; Release of Collateral	29	
 	 	 	
Section 23.	Additional Subsidiary Guarantors and Lien Grantors	30	
 	 	 	
Section 24.	Notices	30	

 

Section 25.	No Implied Waivers; Remedies Not Exclusive	31	
 	 	 	
Section 26.	Successors and Assigns	31	
 	 	 	
Section 27.	Amendments and Waivers	31	
 	 	 	
Section 28.	Choice of Law	32	
 	 	 	
Section 29.	Waiver of Jury Trial	32	
 	 	 	
Section 30.	Severability	32	
 	 	 	
Section 31.	Pari Passu Intercreditor Agreement; Indenture	32	
 	 	 	
Exhibit A	Form of Security Agreement Supplement	 	
Exhibit B	Form of Copyright Security Agreement	 	
Exhibit C	Form of Patent Security Agreement	 	
Exhibit D	Form of Trademark Security Agreement	 	
Exhibit E	Form of Perfection Certificate	 	
Exhibit F	Form of Issuer Control Agreement	 	
 	 	 	
Schedule 1	Equity Interests	 	
Schedule 2	Other Securities	 	
Schedule 3	Deposit Accounts, Securities Accounts and Commodities Accounts	 	
Schedule 4	Commercial Tort Claims	 	
Schedule 5	Pledged Instruments	 	

 

 
SECURITY AGREEMENT
 
This SECURITY AGREEMENT (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, this “ Agreement ”),   dated as of September 28, 2012, is entered into by and among CNO FINANCIAL GROUP, INC., a Delaware corporation (the “ Company ”), the SUBSIDIARY GUARANTORS party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent.
 
WHEREAS, the Company will on the date hereof issue $275,000,000 of Notes, pursuant to the Indenture (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Indenture ”), dated as of September 28, 2012, among the Company, the Subsidiary Guarantors, the Trustee and the Collateral Agent, the proceeds of which will be used, together with the proceeds from the Credit Agreement, (i) to repay all amounts outstanding under the Company’s existing credit agreement, (ii) to fund an offer to purchase up to all of the Company’s Existing Senior Secured Notes and a concurrent solicitation of consents, and, to the extent any Existing Senior Secured Notes are not repurchased pursuant to such offer, to redeem such remaining Existing Senior Secured Notes and satisfy and discharge the indenture relating thereto, (iii) to fund the purchase of approximately $200 million aggregate principal amount of the Company’s outstanding Existing Convertible Debentures, (iv) to pay fees and expenses incurred in connection with the foregoing and (v) for the working capital and general corporate purposes of the Company;
 
WHEREAS, the Company is willing to secure its obligations under the Indenture and the Notes by granting Liens on substantially all of its assets to the Collateral Agent, for the benefit of the Secured Parties, as provided in the Collateral Documents;
 
WHEREAS, the Company is willing to cause each of its current and future domestic Subsidiaries (other than Insurance Subsidiaries, Subsidiaries of Insurance Subsidiaries, Unrestricted Subsidiaries and Immaterial Subsidiaries) to (i) guarantee the foregoing obligations of the Company and (ii) secure such guarantee thereof by granting Liens on substantially all of the assets of such Subsidiaries to the Collateral Agent, for the benefit of the Secured Parties, as provided herein and in the other Collateral Documents;
 
WHEREAS, it is a condition precedent to the issuance of the Notes that (i) the foregoing obligations of the Company be secured and guaranteed as described above and (ii) each guarantee thereof be secured by Liens on substantially all of the assets of the relevant Lien Grantor as provided herein and in the other Collateral Documents;
 
WHEREAS, in order to secure the obligations under the Credit Agreement, the Lien Grantors are concurrently granting to the collateral agent under the Credit Agreement, for the benefit of the lenders under the Credit Agreement and certain other secured parties, a security interest in the Collateral ranking pari passu with the Transaction Liens, it being understood that the relative rights of the grantees in respect of the Collateral are governed by the Intercreditor Agreement; and
 
WHEREAS, upon any foreclosure or other enforcement of the Collateral Documents, the net proceeds of, or other collections on, the relevant Collateral are, subject to the terms of the Intercreditor Agreement, to be received by or paid over to the Collateral Agent and applied as provided herein;

 

 
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
Section 1.      Definitions .
 
(a)            Terms Defined in Indenture .  Terms defined in the Indenture and not otherwise defined in subsection (b) or (c) of this Section have, as used herein, the respective meanings provided for therein.
 
(b)            Terms Defined in UCC .  As used herein, each of the following terms has the meaning specified in the UCC:
 
Term	 	UCC	
Account 	 	9-102	
Authenticate 	 	9-102	
Certificated Security 	 	8-102	
Chattel Paper 	 	9-102	
Commercial Tort Claim 	 	9-102	
Commodity Account 	 	9-102	
Commodity Contract 	 	9-102	
Commodity Customer 	 	9-102	
Commodity Intermediary 	 	9-102	
Deposit Account 	 	9-102	
Document 	 	9-102	
Electronic Chattel Paper 	 	9-102	
Entitlement Holder 	 	8-102	
Equipment 	 	9-102	
Financial Asset 	 	8-102 & 103	
General Intangibles 	 	9-102	
Instrument 	 	9-102	
Inventory 	 	9-102	
Investment Property 	 	9-102	
Letter-of-Credit Right 	 	9-102	
record 	 	9-102	
Securities Account 	 	8-501	
Securities Intermediary 	 	8-102	
Security 	 	8-102 & 103	
Security Entitlement 	 	8-102	
Supporting Obligation 	 	9-102	
Tangible Chattel Paper 	 	9-102	
Uncertificated Security 	 	8-102	

(c)           Additional Definitions.  The following additional terms, as used herein, have the following meanings:
 
“ Article 9 ” means Article 9 of the UCC.

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“ Collateral ” means all property, whether now owned or hereafter acquired, on which a Lien is granted or purports to be granted to the Collateral Agent pursuant to the Collateral Documents.  When used with respect to a specific Lien Grantor, the term “Collateral” means all its property on which such a Lien is granted, or purports to be granted, pursuant to the Collateral Documents.
 
“ Collateral Account ” means an account established following the occurrence of an Event of Default by the Collateral Agent or any other account identified by the Collateral Agent to the Company from time to time.
 
“ Collateral Agent ”   means Wilmington Trust, National Association, in its capacity as collateral agent under the Notes Documents, and its successors and assigns in such capacity.
 
“ Company ” has the meaning specified in the recitals hereto.
 
“ Control ” has the following meanings:
 
(a)           when used with respect to any Security or Security Entitlement, the meaning specified in UCC Section 8-106;
 
(b)           when used with respect to any Deposit Account, the meaning specified in UCC Section 9-104;
 
(c)           when used with respect to any Electronic Chattel Paper, the meaning specified in UCC Section 9-105;
 
(d)           when used with respect to any Commodity Account or Commodity Contract, the meaning specified in UCC Section 9-106(b); and
 
(e)           when used with respect to any right to payment or performance by the issuer or a Nominated Person in respect of a letter of credit, the meaning specified in UCC Section 9-107.
 
“ Copyright License ” means any agreement now or hereafter in existence granting to any Lien Grantor, or pursuant to which any Lien Grantor grants to any other Person, any right to use, copy, reproduce, distribute, prepare derivative works of, display or publish any works of authorship on which a Copyright is in existence or may come into existence, including any agreement identified in Schedule 1 to any Copyright Security Agreement.
 
“ Copyright Security Agreement ” means a Copyright Security Agreement, substantially in the form of Exhibit B, executed and delivered by a Lien Grantor in favor of the Collateral Agent for the benefit of the Secured Parties.
 
“ Copyrights ” means all the following: (i) all copyrights under the laws of the United States (whether or not the underlying works of authorship have been published), all registrations and recordings thereof, all copyrightable works of authorship (whether or not published), and all applications for copyrights under the laws of the United States, including registrations, recordings and applications in the United States Copyright Office or in any similar office or agency of the United States or any State thereof, including those described in Schedule 1 to any Copyright Security Agreement, (ii) all renewals of any of the foregoing, (iii) all claims for, and rights to sue for, past, present or future infringements of any of the foregoing and (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past, present or future infringements thereof.

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“ Credit Agreement ” means the Credit Agreement dated as of the date hereof among the Company, the Lenders party thereto, and JPMorgan Chase Bank, N.A., as Agent.
 
“ Environment ” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetlands, flora and fauna.
 
“ Environmental Laws ”   means all requirements of law relating to pollution or protection of the Environment, health and safety.
 
“ Equity Interest ” means (i) in the case of a corporation, any shares of its capital stock, (ii) in the case of a limited liability company, any membership interest therein, (iii) in the case of a partnership, any partnership interest (whether general or limited) therein, (iv) in the case of any other business entity, any participation or other interest in the equity or profits thereof, (v) any warrant, option or other right to acquire any Equity Interest described in this definition or (vi) any Security Entitlement in respect of any Equity Interest described in this definition.
 
“ FINRA ” means the Financial Industry Regulatory Authority, Inc.
 
“ Intellectual Property ” means all rights, priorities and privileges relating to intellectual property, including Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses and trade secrets, arising under the laws of the United States, which intellectual property is owned by the Lien Grantors, together with all claims for, and rights to sue for, past, present or future infringements, misappropriations, dilutions or other violations of any of the foregoing, and all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past, present or future infringements, misappropriations, dilutions and violations thereof.
 
“ Intellectual Property Filing ” means (i) with respect to any Patent, Patent License, Trademark or Trademark License, the filing of the applicable Patent Security Agreement or Trademark Security Agreement with the United States Patent and Trademark Office, together with an appropriately completed recordation form and (ii) with respect to any Copyright or Copyright License, the filing of the applicable Copyright Security Agreement with the United States Copyright Office, together with an appropriately completed recordation form, in each case sufficient to record the Transaction Lien granted to the Collateral Agent in such Recordable Intellectual Property.
 
“ Intellectual Property Security Agreement ” means a Copyright Security Agreement, a Patent Security Agreement or a Trademark Security Agreement.
 
“ Intercreditor Agreement ” has the meaning specified on the cover page hereto.

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“ Issuer Control Agreement ” means an Issuer Control Agreement substantially in the form of Exhibit F.
 
“ Lien Grantors ” means the Company and the Subsidiary Guarantors.
 
“ LLC Interest ” means a membership interest or similar interest in a limited liability company.
 
“ Margin Stock ” means “margin stock” as such term is defined in Regulation U of the FRB.
 
“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the business, properties or condition (financial or otherwise) of the Company or the Company and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Lien Grantor to perform under any Notes Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Lien Grantor of any Notes Document to which it is a party.
 
“ Material Commercial Tort Claim ” means a Commercial Tort Claim involving a claim for more than $5,000,000.
 
“ Material Real Property ” means real property owned in fee by a Lien Grantor with a fair market value in excess of $5,000,000.
 
“ Mortgage ” means a deed of trust, trust deed, deed to secure debt or mortgage, as applicable, made by a Lien Grantor in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties in respect of Material Real Property.
 
“ Mortgage Requirement ” means, with respect to any Material Real Property owned by a Lien Grantor, (i) provision of (a) a Mortgage encumbering such Material Real Property in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties, duly executed and acknowledged by each Lien Grantor that is the owner of or holder of any interest in such Material Real Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Material Real Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable requirements of law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction; (b) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies, with endorsements and in amounts reasonably determined by the Company, issued, coinsured and reinsured by title insurers reasonably acceptable to the Collateral Agent, insuring such Mortgage to be a valid first and subsisting Lien on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance and such coinsurance and direct access reinsurance as may be reasonably necessary or desirable; (c) an ALTA survey ( provided that the Company shall not be required to comply with the requirement of this clause (c) if, in the reasonable discretion of the Company as certified by an officer of the Company, the burden, cost or consequences of obtaining such survey is excessive in relation to the benefits to be obtained therefrom by the Secured Parties); (d) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Material Real Property (and if any building located on such Material Real Property is determined to be in a special flood hazard area, delivery of (x) a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each other applicable Lien Grantor relating thereto and (y) evidence of flood insurance; (e) a local counsel opinion as to the due authorization, execution and delivery and enforceability of such Mortgage in the state in which the Material Real Property described in such Mortgage is located and other matters customarily covered in real estate enforceability opinions and (f) any other documents reasonably requested by the Collateral Agent or the Holders of a majority in aggregate principal amount outstanding of the Notes; and (ii) recording of such Mortgage in the land records of the county in which such Material Real Property to be so encumbered is located.

5

 
“ Nominated Person ” means a Person whom the issuer of a letter of credit (i) designates or authorizes to pay, accept, negotiate or otherwise give value under such letter of credit and (ii) undertakes by agreement or custom and practice to reimburse.
 
“ Notes Documents ” means the Indenture, the Notes issued thereunder, this Agreement, the Collateral Documents and any security documents and other operative agreements evidencing or governing the Indebtedness thereunder, and the liens securing such Indebtedness, including any agreement entered into for the purpose of securing the Secured Obligations.
 
“ Original Lien Grantor ” means any Lien Grantor that grants a Lien on any of its assets hereunder on the Issue Date.
 
“ own ” refers to (i) in the case of personal property, the possession of sufficient rights in property to grant a security interest therein as contemplated by UCC Section 9-203 and (ii) in the case of real property, possession of fee simple interest, and “acquire” refers to the acquisition of any such rights.
 
“ Partnership Interest ” means a partnership interest, whether general or limited.
 
“ Patent License ” means any agreement now or hereafter in existence granting to any Lien Grantor, or pursuant to which any Lien Grantor grants to any other Person, any right with respect to any Patent or any invention now or hereafter in existence, whether patentable or not, whether a patent or application for patent is in existence on such invention or not, and whether a patent or application for patent on such invention may come into existence or not, including any agreement identified in Schedule 1 to any Patent Security Agreement.
 
“ Patent Security Agreement ” means a Patent Security Agreement, substantially in the form of Exhibit C, executed and delivered by a Lien Grantor in favor of the Collateral Agent for the benefit of the Secured Parties.
 
“ Patents ” means (i) all letters patent and design letters patent of the United States and all applications for letters patent or design letters patent of the United States, including applications in the United States Patent and Trademark Office or in any similar office or agency of the United States or any State thereof, including those described in Schedule 1 to any Patent Security Agreement, (ii) all reissues, divisions, continuations, continuations in part, revisions and extensions of any of the foregoing, (iii) all claims for, and rights to sue for, past, present or future infringements of any of the foregoing and (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past, present or future infringements thereof.

6

 
“ Perfection Certificate ” means, with respect to any Lien Grantor, a certificate substantially in the form of Exhibit E, completed and supplemented with the schedules contemplated thereby, and signed by an officer of such Lien Grantor.
 
“ Permitted Liens ” means Liens on the Collateral permitted to be created or assumed or to exist pursuant to Section 3.5 of the Indenture.
 
“ Permitted Priority Liens ” means inchoate tax Liens arising by operation of law.
 
“ Pledged ,” when used in conjunction with any type of asset, means at any time an asset of such type that is included (or that creates rights that are included) in the Collateral at such time.  For example, “Pledged Equity Interest” means an Equity Interest that is included in the Collateral at such time and “Pledged letter of credit” means a letter of credit that creates rights to payment or performance that are included in the Collateral at such time.
 
“ Proceeds ” means all Proceeds (as defined in the UCC) and, to the extent not included therein, shall also include all proceeds of, and all other profits, products, rents or receipts, in whatever form, arising from the collection, sale, lease, exchange, assignment, licensing or other disposition of, or other realization upon, any Collateral, including all claims of the relevant Lien Grantor against third parties for loss of, damage to or destruction of, or for proceeds payable under, or unearned premiums with respect to, policies of insurance in respect of, any Collateral, and any condemnation or requisition payments with respect to any Collateral.
 
“ Recordable Intellectual Property ” means (i) Patents, (ii) Patent Licenses, (iii) Trademarks, (iv) Trademark Licenses, (v) Copyrights and (vi) Copyright Licenses, and all rights in or under any of the foregoing.
 
“ Regulated Subsidiary ” means a Subsidiary as to which the consent of a governmental body or official is required for any acquisition of control or change of control thereof.
 
“ Secured Agreement ,” when used with respect to any Secured Obligation, refers collectively to each instrument, agreement or other document that sets forth obligations of the Company, obligations of a Subsidiary Guarantor and/or rights of the holder with respect to such Secured Obligation.
 
“ Secured Guarantee ” means, with respect to each Subsidiary Guarantor, its guarantee of the Secured Obligations under Article X of the Indenture.
 
“ Secured Obligations ” means the Obligations (as defined in the Indenture) under the Notes, the Indenture and any Notes Document.
 
“ Secured Party ” shall have the meaning assigned to such term in the Indenture.

7

 
“ Secured Party Requesting Notice ” means, at any time, a Secured Party that has, at least five Business Days prior thereto, delivered to the Collateral Agent a written notice (i) stating that it holds one or more Secured Obligations and wishes to receive copies of the notices referred to in Section 21(h) and (ii) setting forth its address, facsimile number and electronic mail address to which copies of such notices should be sent.
 
“ Security Agreement Supplement ” means a Security Agreement Supplement, substantially in the form of Exhibit A, signed and delivered to the Collateral Agent for the purpose of adding a Subsidiary as a party hereto pursuant to Section 23 and/or adding additional property to the Collateral.
 
“ Subsidiary Guarantor ” means each Subsidiary listed on the signature pages hereof under the caption “Subsidiary Guarantors” and each Subsidiary that shall, at any time after the date hereof, become a “Subsidiary Guarantor” pursuant to Section 23 .
 
“ Supporting Letter of Credit ” means a letter of credit that supports the payment or performance of one or more items included in the Collateral.
 
“ Trademark License ” means any agreement now or hereafter in existence granting to any Lien Grantor, or pursuant to which any Lien Grantor grants to any other Person, any right to use any Trademark, including any agreement identified in Schedule 1 to any Trademark Security Agreement.
 
“ Trademark Security Agreement ” means a Trademark Security Agreement, substantially in the form of Exhibit D, executed and delivered by a Lien Grantor in favor of the Collateral Agent for the benefit of the Secured Parties.
 
“ Trademarks ” means: (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, brand names, slogans, trade dress, prints and labels on which any of the foregoing have appeared or appear, package and other designs, and all other source or business identifiers, and all general intangibles of like nature, and the rights in any of the foregoing which arise under applicable law, (ii) the goodwill of the business connected with the use thereof and symbolized thereby, (iii) all registrations and applications in connection therewith, including registrations and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States or any State thereof, including those described in Schedule 1 to any Trademark Security Agreement, (iv) all renewals of any of the foregoing, (v) all claims for, and rights to sue for, past, present or future infringements and dilutions of any of the foregoing, or for unfair competition or for injury to the related goodwill associated therewith and (vi) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past, present or future infringements and dilutions thereof.
 
“ Transaction Liens ” means the Liens granted by the Lien Grantors under the Collateral Documents.
 
“ UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any Transaction Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

8

 
(d)            Terms Generally .  The definitions of terms herein (including those incorporated by reference to the UCC or to another document) apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.  The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.” The word “ will ” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof’ and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement and (v) the word “ property ” shall be construed to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
 
Section 2.             [ Reserved ] .
 
Section 3.              Grant of Transaction Liens .
 
(a)           The Company, in order to secure the Secured Obligations, and each Subsidiary Guarantor listed on the signature pages hereof, in order to secure its Secured Obligations, grants to the Collateral Agent for the benefit of the Secured Parties a continuing security interest in all right, title and interest of the Company or such Subsidiary Guarantor, as the case may be, in, to and under the following property of the Company or such Subsidiary Guarantor, as the case may be, whether now owned or existing or hereafter acquired or arising and regardless of where located:
 
(i)          all Accounts;
 
(ii)         all Chattel Paper;
 
(iii)        the Commercial Tort Claims described in Schedule 4 ;
 
(iv)       all Deposit Accounts;
 
(v)        all Documents;
 
(vi)       all Equipment;
 
(vii)      all General Intangibles (including any Equity Interests in other Persons that do not constitute Investment Property);

9

 
(viii)     all Instruments;
 
(ix)        all Inventory;
 
(x)         all Investment Property;
 
(xi)        all Letter-of-Credit Rights with respect to Specified Letters of Credit;
 
(xii)       all Intellectual Property;
 
(xiii)      all books and records (including customer lists, credit files, computer programs, printouts and other computer materials and records) of such Original Lien Grantor pertaining to any of its Collateral;
 
(xiv)      such Original Lien Grantor’s ownership interest in (1) its Commodity Accounts, Deposit Accounts and Securities Accounts, (2) all Financial Assets credited to such accounts from time to time and all Security Entitlements in respect thereof, (3) all cash held in its such accounts from time to time and (4) all other money in the possession of the Collateral Agent; and
 
(xv)       all Supporting Obligations and Proceeds of the Collateral described in the foregoing clauses (i) through (xiv);
 
provided that the following property is excluded from the foregoing security interests (“ Excluded Property ”): (A) motor vehicles and other assets subject to certificates of title, (B) voting Equity Interests in any first-tier Foreign Subsidiary, to the extent (but only to the extent) required to prevent the Collateral from including more than 65% of all voting Equity Interests in such first-tier Foreign Subsidiary, (C) Capital Stock of any Foreign Subsidiary that is not a first-tier Foreign Subsidiary, (D) Equipment leased by an Original Lien Grantor under a lease that prohibits the granting of a Lien on such Equipment, (E) cash and Cash Equivalents maintained in any trust or payroll account, so long as such account are maintained as a trust or payroll account respectively, (F) Cash and Cash Equivalents maintained in any account of any Lien Grantor that is an investment adviser registered under the Investment Advisers Act of 1940, as amended, so long as (x) such account is maintained to satisfy qualified professional asset manager requirements under ERISA and (y) the aggregate amount of cash and Cash Equivalents in all such accounts does not exceed $2,000,000 at any time, (G) cash and Cash Equivalents maintained in any account of any Lien Grantor that is a broker-dealer registered under the Exchange Act and a member of FINRA so long as (x) such account is maintained to satisfy minimum net regulatory capital requirements imposed by FINRA regulations pursuant to the Exchange Act and (y) the aggregate amount of cash and Cash Equivalents in all such accounts does not exceed $10,000,000 at any time, (H) intent-to-use Trademark applications solely to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent to use Trademark applications or any registrations that issue therefrom under applicable United States federal law, (I) any contract, permit, lease, license or other agreement to the extent that the grant of a security interest therein would result in a breach or default under such contract, permit, lease, license or other agreement (in each case, after giving effect to applicable provisions of the UCC), (J) any leasehold improvements to the extent that the grant of a security interest therein would violate the related lease, (K) assets located outside the United States to the extent a Lien on such assets cannot be perfected by the filing of UCC financing statements (or Personal Property Security Act (PPSA) statements), (L) assets subject to a purchase money lien, capitalized lease obligation or similar arrangement, in each case as permitted by the Indenture and the Credit Agreement, to the extent that the contract or other agreement in which such Lien is granted (or the documentation providing for such capitalized lease obligation or similar arrangement) prohibits such assets from being Collateral and only for so long as such Lien remains outstanding, (M) any real property or real property interests (including leasehold interests) other than Material Real Property, (N) Margin Stock and Equity Interests in any Person other than Wholly-Owned Subsidiaries to the extent not permitted by the terms of such Person’s organizational or joint venture documents, (O) any assets to the extent a security interest in such assets would result in material adverse tax consequences as reasonably determined by the Company, (P) pledges and security interests prohibited or restricted by applicable law (including any requirement to obtain the consent of any governmental authority or third party), in each case, after giving effect to applicable provisions of the UCC and (Q) proceeds and products of any and all of the foregoing excluded assets described in clauses (A) through (P) above only to the extent such proceeds and products would constitute property or assets of the type described in clauses (A) through (P) above.  Each Original Lien Grantor shall use commercially reasonable efforts to obtain any consent that is reasonably obtainable and required for any property described in clause (D) , (I) , (J) or (L) above to cease to constitute Excluded Property.  Notwithstanding the foregoing, (i) property in which a security interest is granted pursuant to Section 5(g) shall not constitute Excluded Property for so long as the Other First Lien Obligations are secured by such property and (ii) all assets of Insurance Subsidiaries (including cash and Cash Equivalents temporarily held by Lien Grantors on behalf of, and for the benefit of, Insurance Subsidiaries) shall be Excluded Property.  In addition, (a) no actions in any non-U.S. jurisdiction shall be required in order to create any security interests in assets located outside the United States or to perfect any security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (b) no control agreements shall be required with respect to Deposit Accounts, Securities Accounts or Commodity Accounts, (c) the Company and the Subsidiary Guarantors shall not be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar agreement and (d) assets will be excluded from the Collateral in circumstances where the cost of obtaining a security interest in such assets exceed the practical benefit to the Secured Parties afforded thereby (as reasonably determined by the Company).

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(b)           With respect to each right to payment or performance included in the Collateral from time to time, the Transaction Lien granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or performance and (ii) any Lien that (x) secures such right to payment or performance or (y) secures any such Supporting Obligation.
 
(c)           The Transaction Liens are granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Lien Grantor with respect to any of the Collateral or any transaction in connection therewith.
 
(d)           Notwithstanding anything to the contrary in this Agreement or any other Notes Document, if the governmental body or official having jurisdiction over any Regulated Subsidiary determines that the pledge of the shares of capital stock of such Regulated Subsidiary hereunder constitutes the acquisition of or a change of control with respect to such Regulated Subsidiary as to which the prior approval of such governmental body or official was required, then, immediately upon the relevant Lien Grantor’s (1) written memorialization of oral notice or (2) receipt of written notice from such governmental body or official of such determination and without any action on the part of the Collateral Agent or any other Person, such pledge shall be rendered void ab initio and of no effect.  Upon any such occurrence, (i) the Collateral Agent shall, at such Lien Grantor’s written request and expense, return all certificates representing such capital stock to such Lien Grantor and execute and deliver such documents as such Lien Grantor shall reasonably request to evidence such Lien Grantor’s retention of all rights in such capital stock and (ii) such Lien Grantor shall, if requested by the Collateral Agent or the Holders of a majority in aggregate principal amount of the Notes, promptly submit a request to the relevant governmental body or official for approval of the pledge of such shares to the Collateral Agent hereunder and, upon receipt of such approval, shall forthwith deliver to the Collateral Agent certificates representing all the outstanding shares of capital stock of such Regulated Subsidiary (subject to the limitation in Section 11(m) if such Regulated Subsidiary is a Foreign Subsidiary) to be held as Collateral hereunder.

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Section 4.                General Representations and Warranties .  Each Original Lien Grantor represents and warrants that:
 
(a)           Such Lien Grantor is duly organized, validly existing and in good standing under the laws of the jurisdiction identified as its jurisdiction of organization in its Perfection Certificate.
 
(b)            Schedule 1 lists all Equity Interests in Subsidiaries and Affiliates owned by such Lien Grantor as of the Issue Date.  Such Lien Grantor holds all such Equity Interests directly ( i.e. , not through a Subsidiary, a Securities Intermediary or any other Person).
 
(c)            Schedule 2 lists, as of the Issue Date, all Securities owned by such Lien Grantor (except Securities evidencing Equity Interests in Subsidiaries and Affiliates).
 
(d)            Schedule 3 lists, as of the Issue Date, (i) all Securities Accounts to which Financial Assets are credited in respect of which such Lien Grantor owns Security Entitlements, (ii) all Commodity Accounts in respect of which such Lien Grantor is the Commodity Customer and (iii) all Deposit Accounts in the name of such Lien Grantor.
 
(e)           All Pledged Equity Interests owned by such Lien Grantor are owned by it free and clear of any Lien other than Permitted Liens.  All shares of capital stock included in such Pledged Equity Interests (including shares of capital stock in respect of which such Lien Grantor owns a Security Entitlement) have been duly authorized and validly issued and are fully paid and non-assessable.  None of such Pledged Equity Interests is subject to any option to purchase or similar right of any Person.  Such Lien Grantor is not and will not become a party to or otherwise bound by any agreement (except as permitted by the Indenture) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest with respect thereto.

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(f)            Such Lien Grantor has good and marketable title to, a right to use, or a valid leasehold interest in, all its Collateral, except for such defects in title or interests as could not, individually or in the aggregate with respect to all Lien Grantors, reasonably be expected to have a Material Adverse Effect.  The property of such Lien Grantor is subject to no Liens, other than Permitted Liens.
 
(g)           Such Lien Grantor has not performed any acts that could reasonably be expected to prevent the Collateral Agent from enforcing any of the provisions of the Collateral Documents or that would limit the Collateral Agent in any such enforcement.  No authorized financing statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Collateral owned by such Lien Grantor is on file or of record in any jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, mortgages or other similar or equivalent documents with respect to Permitted Liens.  After the Issue Date, no Collateral owned by such Lien Grantor will be in the possession or under the Control of any other Person having a claim thereto or security interest therein, other than a Permitted Lien.
 
(h)           The Transaction Liens on all Collateral owned by such Lien Grantor (i) have been validly created, (ii) will attach to each item of such Collateral on the Issue Date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date) and (iii) when so attached, will secure all the Secured Obligations or such Lien Grantor’s Secured Guarantee, as the case may be.
 
(i)            Such Lien Grantor has delivered a Perfection Certificate to the Collateral Agent.  The information set forth therein is correct and complete as of the Issue Date.  Within 60 days after the Issue Date, such Lien Grantor will furnish (or cause to be furnished) to the Collateral Agent a file search report from each UCC filing office listed in its Perfection Certificate, showing the filing made at such filing office to perfect the Transaction Liens on its Collateral.
 
(j)            When UCC financing statements describing the Collateral as set forth in the Perfection Certificate have been filed in the offices specified in such Perfection Certificate, the Transaction Liens will constitute perfected security interests in the Collateral owned by such Lien Grantor to the extent that a security interest therein may be perfected by filing pursuant to the UCC, prior to all Liens and rights of others therein except Permitted Liens that have priority over the Transaction Liens by operation of law.  When, in addition to the filing of such UCC financing statements, the applicable Intellectual Property Filings have been made with respect to such Lien Grantor’s Recordable Intellectual Property (including any future filings required pursuant to Sections 5(a) and 9(a) ), the Transaction Liens will constitute perfected security interests in all right, title and interest of such Lien Grantor in its Recordable Intellectual Property to the extent that security interests therein may be perfected by such filings, prior to all Liens and rights of others therein except Permitted Liens.  Except for (i) the filing of such UCC financing statements and (ii) such Intellectual Property Filings, no registration, recordation or filing with, and no authorization or approval or other action by, any governmental body, agency or official is required in connection with the execution or delivery of the Security Agreement or is necessary for the validity or enforceability thereof or for the perfection or due recordation of the Transaction Liens or (except with respect to the capital stock of any Regulated Subsidiary) for the enforcement of the Transaction Liens.

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(k)           If such Lien Grantor is also a Subsidiary Guarantor, in executing and delivering this Agreement (including providing its Secured Guarantee), such Lien Grantor has (i) without reliance on the Collateral Agent or any other Secured Party or any information received from the Collateral Agent or any other Secured Party and based upon such documents and information it deems appropriate, made an independent investigation of the transactions contemplated by the Notes Documents and the Company, the Company’s business, assets, operations, prospects and condition, financial or otherwise, and any circumstances which may bear upon such transactions, the Company or the obligations and risks undertaken herein with respect to the Secured Obligations, (ii) adequate means to obtain from the Company on a continuing basis information concerning the Company, (iii) full and complete access to the Notes Documents and any other documents executed in connection with the Notes Documents and (iv) not relied and will not rely upon any representations or warranties of the Collateral Agent or any other Secured Party not embodied herein or any acts heretofore or hereafter taken by the Collateral Agent or any other Secured Party (including any review by the Collateral Agent or any other Secured Party of the affairs of the Company).
 
Section 5.               Further Assurances; General Covenants .  Each Lien Grantor covenants as follows:
 
(a)           Such Lien Grantor will at the Company’s expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including any Intellectual Property Filing and any filing of financing or continuation statements under the UCC) that from time to time may be necessary in order to:
 
(i)           create, preserve, perfect or confirm the Transaction Liens on such Lien Grantor’s Collateral;
 
(ii)           in the case of Pledged Letter-of-Credit Rights, Pledged Electronic Chattel Paper and Pledged Investment Property, cause the Collateral Agent to have Control thereof; or
 
(iii)         enable the Collateral Agent to exercise and enforce any of its rights, powers and remedies with respect to any of such Lien Grantor’s Collateral.
 
In furtherance of the foregoing, in respect of the insurance policies required by Section 6.05 of the Credit Agreement relating to any property or business of such Lien Grantor, such Lien Grantor shall deliver to the Collateral Agent, on the Issue Date (with respect to existing polices) and promptly following the entry into new policies or the renewal, extension or modification of existing policies, a copy of, or a certificate as to coverage under such policies, each of which shall (i) within 30 days of the date of such delivery, be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable) naming the Collateral Agent as mortgagee or loss payee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance), as applicable and (ii) to the extent available, provide that no cancellation, material addition in amount or material change in coverage shall be effective until after 30 days’ notice thereof to the Collateral Agent.

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To the extent permitted by applicable law, such Lien Grantor authorizes the Collateral Agent to execute and file such financing statements or continuation statements, and amendments thereto, including, without limitation, one or more financing statements indicating that such financing statements cover all assets or all personal property (or words of similar effect) of such Lien Grantor, in each case without such Lien Grantor’s signature appearing thereon, and regardless of whether any particular asset described in such financing statement falls within the scope of the UCC or the granting clause of this Agreement.  A photographic, photostatic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.  Such Lien Grantor constitutes the Collateral Agent its attorney-in-fact to execute and file, in the event such Lien Grantor fails to do so promptly, all Intellectual Property Filings and other filings required or so requested for the foregoing purposes, all such acts of such attorney being hereby ratified and confirmed; and such power, being coupled with an interest, shall be irrevocable until all the Transaction Liens granted by such Lien Grantor terminate pursuant to Section 22 .  The Company will pay the reasonable costs of, or incidental to, any Intellectual Property Filings and any recording or filing of any financing or continuation statements or other documents recorded or filed pursuant hereto.
 
(b)           Such Lien Grantor will (x) furnish to the Collateral Agent prompt written notice of any (i) change of its name or corporate structure or (ii) change of its location (determined as provided in UCC Section 9-307) and (y) take all actions that are necessary or required by the Collateral Agent for the purpose of perfecting or protecting the security interest granted by this Agreement.
 
(c)           Such Lien Grantor will not sell, lease, license, exchange, assign or otherwise dispose of, or grant any option with respect to, any of its Collateral; provided that such Lien Grantor may do any of the foregoing unless (i) doing so would violate a covenant in the Indenture or (ii) an Event of Default shall have occurred and be continuing and the Collateral Agent shall have notified such Lien Grantor that its right to do so is terminated, suspended or otherwise limited.
 
(d)           Such Lien Grantor will, promptly upon request, provide to the Collateral Agent all information and evidence concerning such Lien Grantor’s Collateral that the Collateral Agent may reasonably request to enable it to enforce the provisions of the Collateral Documents.
 
(e)           Upon the acquisition of any Material Real Property by any Lien Grantor or any real property owned by any Lien Grantor becoming Material Real Property (as of the end of any fiscal quarter), such Lien Grantor will cause such Material Real Property to be subjected to a Lien securing the Secured Obligations and will take such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect or record such Lien in accordance with the Mortgage Requirement and to satisfy the other conditions of the Mortgage Requirement within 120 days of the requirement becoming applicable.

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(f)            Such Lien Grantor shall not incur or suffer to exist any Lien (the “ Initial Lien ”) on any property (including any property that would otherwise be Excluded Property) to secure any Other First Lien Obligations (as defined in the Intercreditor Agreement) or take any action to perfect any such security interest, unless such Lien Grantor concurrently grants a Lien to the Collateral Agent to secure the Secured Obligations ranking pari passu with such Initial Lien securing such Other First Lien Obligations and takes such action to perfect such Lien; provided that any such Lien on property that would otherwise be Excluded Property created to secure the Secured Obligations pursuant to this clause (f) shall provide by its terms that upon the release and discharge of the Initial Lien on such property by the Collateral Agent (as defined in the Intercreditor Agreement) for such Other First Lien Obligations, the Lien on such property securing the Secured Obligations shall be automatically and unconditionally released and discharged and such Lien Grantor may take any action necessary to memorialize such release or discharge.
 
Section 6.                Reserved .
 
Section 7.                Chattel Paper and Instruments .  Except as to actions to be taken by the Collateral Agent, each Lien Grantor represents, warrants and covenants as follows:
 
(a)           On the Issue Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will deliver to the Collateral Agent as Collateral hereunder (i) all Pledged Tangible Chattel Paper, provided that delivery of the Pledged Tangible Chattel Paper shall be required pursuant to this paragraph only to the extent that the aggregate value of all Pledged Tangible Chattel Paper that has not been delivered would exceed $5,000,000 and (ii) each Pledged Instrument having a value in excess of $2,000,000 then owned by such Lien Grantor.  Thereafter, whenever such Lien Grantor acquires any other Pledged Tangible Chattel Paper or Pledged Instrument having a value in excess of $2,000,000, such Lien Grantor will immediately deliver such Pledged Tangible Chattel Paper or Pledged Instrument to the Collateral Agent as Collateral hereunder.  Notwithstanding the foregoing, all debt owing by the Company or any of its Subsidiaries to a Lien Grantor (regardless of the value thereof) shall be pledged by delivery to the Collateral Agent of an intercompany note.
 
(b)           So long as no Event of Default shall have occurred and be continuing, the Collateral Agent will, promptly upon request by the relevant Lien Grantor, make appropriate arrangements for making any Pledged Tangible Chattel Paper or Pledged Instrument available to it for purposes of presentation, collection or renewal (any such arrangement to be effected against trust receipt or like document).

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(c)             Schedule 5 lists, as of the Issue Date, all Pledged Instruments.
 
(d)           All Pledged Tangible Chattel Paper and Pledged Instruments owned by such Lien Grantor, when delivered to the Collateral Agent (to the extent such delivery is required), will be indorsed to the order of the Collateral Agent, or accompanied by duly executed instruments of assignment.
 
(e)           Upon the delivery of any Pledged Tangible Chattel Paper or Pledged Instrument owned by such Lien Grantor to the Collateral Agent, the Transaction Lien on such Collateral will be perfected, subject to no prior Liens or rights of others.
 
(f)            Each Lien Grantor will take (or cause others to take) all actions required under UCC Section 9-105 to cause the Collateral Agent to obtain and maintain Control of any and all Electronic Chattel Paper owned by such Lien Grantor from time to time, provided that such Lien Grantor’s actions to cause the Collateral Agent to obtain and maintain Control of such Electronic Chattel shall be required pursuant to this paragraph only to the extent that the aggregate value of all Electronic Chattel Paper then owned by such Lien Grantor and not subject to the Collateral Agent’s Control would exceed $5,000,000.
 
Section 8.                Commercial Tort Claims .  Each Lien Grantor represents, warrants and covenants as follows:
 
(a)           In the case of an Original Lien Grantor, Schedule 4 accurately describes, with the specificity required to satisfy Official Comment 5 to UCC Section 9-108, each Material Commercial Tort Claim with respect to which such Original Lien Grantor is the claimant as of the Issue Date.  In the case of any other Lien Grantor, Schedule 4 to its first Security Agreement Supplement will accurately describe, with the specificity required to satisfy said Official Comment 5, each Material Commercial Tort Claim with respect to which such Lien Grantor is the claimant as of the date on which it signs and delivers such Security Agreement Supplement.
 
(b)           If any Lien Grantor acquires a Material Commercial Tort Claim after the Issue Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will promptly sign and deliver to the Collateral Agent a Security Agreement Supplement granting a security interest in such Commercial Tort Claim (which shall be described therein with the specificity required to satisfy said Official Comment 5) to the Collateral Agent for the benefit of the Secured Parties.
 
(c)           Upon the filing of a UCC financing statement in the jurisdiction under the laws of which the relevant Lien Grantor is organized, the Transaction Lien on each Commercial Tort Claim described pursuant to subsection (a) or (b) above will be perfected, subject to no prior Liens or rights of others, except for Permitted Liens that have priority over the Transaction Liens by operation of law.

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Section 9.               Recordable Intellectual Property .  Each Lien Grantor covenants as follows:
 
(a)           On the Issue Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will sign and deliver to the Collateral Agent Intellectual Property Security Agreements with respect to all Recordable Intellectual Property then owned by it.  Concurrently with (or prior to) each delivery of annual financial statements pursuant to Section 3.2 of the Indenture, it will sign and deliver to the Collateral Agent any Intellectual Property Security Agreement necessary to grant Transaction Liens on all Recordable Intellectual Property owned by it on December 31st of the most recently ended year covered by such financial statements that is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it.  In each case, it will promptly make all Intellectual Property Filings necessary to record the Transaction Liens on such Recordable Intellectual Property.
 
(b)          Such Lien Grantor will notify the Collateral Agent promptly if it knows that any application or registration relating to any Recordable Intellectual Property owned or licensed by it may become abandoned or dedicated to the public, or of any adverse determination or development (including the institution of, or any adverse determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office or any court) regarding such Lien Grantor’s ownership of such Recordable Intellectual Property, its right to register or patent the same, or its right to keep and maintain the same; provided that the foregoing shall not apply to the extent that any such event, individually or together with all such events, could not reasonably be expected to have a Material Adverse Effect.
 
Section 10.              Proceeds of Letters of Credit .  Except as to actions to be taken by the Collateral Agent, each Lien Grantor represents, warrants and covenants as follows:
 
(a)           On the Issue Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will deliver to the Collateral Agent each letter of credit having a face amount in excess of $2,500,000 (the “ Specified Letters of Credit ”).
 
(b)          Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Collateral Agent will, promptly upon request by any Lien Grantor, make appropriate arrangements for making any Specified Letter of Credit delivered to the Collateral Agent pursuant to subsection (a) above available to such Lien Grantor to facilitate the administration thereof or the exercise of its rights thereunder (any such arrangement to be effected against trust receipt or like document).
 
(c)           Such Lien Grantor, by granting a security interest in its Letter-of-Credit Rights to the Collateral Agent, intends to (and hereby does) assign to the Collateral Agent its rights (including its contingent rights) to the proceeds of all letters of credit of which it is or hereafter becomes a beneficiary.  If any such letter of credit is not a Supporting Letter of Credit, such Lien Grantor will (i) use commercially reasonable efforts to cause the issuer of such letter of credit and each Nominated Person (if any) with respect thereto to consent to such assignment of the proceeds thereof and (ii) deliver written evidence of any such consent obtained to the Collateral Agent.

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(d)           The Transaction Lien on the relevant Lien Grantor’s rights to the proceeds of each letter of credit under which such Lien Grantor is a beneficiary will be perfected, subject to no prior Liens or rights of others, if either (i) such letter of credit is a Supporting Letter of Credit and the Transaction Lien on the item of Collateral supported thereby has been perfected or (ii) the relevant issuing bank and each relevant Nominated Person (if any) shall have consented to the assignment of the proceeds thereof set forth in subsection (c) above.
 
(e)           If an Event of Default shall have occurred and be continuing, such Lien Grantor will, promptly upon request by the Collateral Agent, notify (and in the event such Lien Grantor fails to do so promptly, such Lien Grantor authorizes the Collateral Agent to notify) the issuer and each Nominated Person with respect to each of its Pledged letters of credit that (i) the proceeds thereof have been assigned to the Collateral Agent hereunder and (ii) any payments due or to become due in respect thereof are to be made directly to the Collateral Agent or its designee for the period during which such Event of Default is continuing.
 
Section 11.             Investment Property .  Each Lien Grantor represents, warrants and covenants as follows:
 
(a)            Certificated Securities .  On the Issue Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will deliver to the Collateral Agent as Collateral hereunder all certificates representing Pledged Certificated Securities then owned by such Lien Grantor.  Thereafter, whenever such Lien Grantor acquires any other certificate representing a Pledged Certificated Security, such Lien Grantor will promptly deliver such certificate to the Collateral Agent as Collateral hereunder.  The provisions of this subsection are subject to the limitation in Section 11(m) in the case of voting Equity Interests in a Foreign Subsidiary.
 
(b)            Uncertificated Securities .
 
(i)           On the Issue Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will enter into (and, if the relevant issuer is a Subsidiary, cause, or if the relevant issuer is not a Subsidiary, use commercially reasonable efforts to cause, the relevant issuer to enter into) an Issuer Control Agreement in respect of each Pledged Uncertificated Security then owned by such Lien Grantor and deliver such Issuer Control Agreement to the Collateral Agent (which shall enter into the same).  Thereafter, whenever such Lien Grantor acquires any other Pledged Uncertificated Security, such Lien Grantor will enter into (and, if the relevant issuer is a Subsidiary, cause, or if the relevant issuer is not a Subsidiary, use commercially reasonable efforts to cause, the relevant issuer to enter into) an Issuer Control Agreement in respect of such Pledged Uncertificated Security and deliver such Issuer Control Agreement, if any, to the Collateral Agent (which shall enter into the same).  The provisions of this subsection are subject to (i) the limitation in Section 11(m) in the case of voting Equity Interests in a Foreign Subsidiary and (ii)  Section 14(c) .

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(ii)           If any Pledged Uncertificated Partnership Interest or any Pledged Uncertificated LLC Interest that was not considered a security under the UCC as of the Issue Date becomes a security under the UCC thereafter, the Lien Grantor that originally pledged such interest shall promptly after the date on which such interest becomes an uncertificated security enter into (and, if the relevant issuer is a Subsidiary, cause, or if the relevant issuer is not a Subsidiary, use commercially reasonable efforts to cause, the relevant issuer to enter into) an Issuer Control Agreement in respect of each such Pledged Uncertificated Security then owned by such Lien Grantor and deliver such Issuer Control Agreement to the Collateral Agent (which shall enter into the same).
 
(c)            Security Entitlements .  Each Lien Grantor agrees that it will provide the Collateral Agent with prompt written notice (and in any case within 20 days) of the opening of any new Securities Accounts and any such notice shall be deemed to be an automatic amendment to Schedule 3 hereto to include such account.
 
(d)            Commodity Accounts .  Each Lien Grantor agrees that it will provide the Collateral Agent with prompt written notice (and in any case within 20 days) of the opening of any new Commodity Accounts and any such notice shall be deemed to be an automatic amendment to Schedule 3 hereto to include such account.
 
(e)            Regulated Subsidiaries .  If the Collateral includes any capital stock of a Regulated Subsidiary that is not represented by certificates, the relevant Lien Grantor shall exercise its commercially reasonable efforts to cause such capital stock to be represented by certificates and, promptly upon receipt thereof, comply with Section 11(a) with respect thereto.  No Lien Grantor shall hold any capital stock of a Regulated Subsidiary in a Securities Account.
 
(f)            Perfection as to Certificated Securities .  When such Lien Grantor delivers the certificate representing any Pledged Certificated Security owned by it to the Collateral Agent and complies with Section 11(k) in connection with such delivery, (i) the Transaction Lien on such Pledged Certificated Security will be perfected, subject to no prior Liens or rights of others, (ii) the Collateral Agent will have Control of such Pledged Certificated Security and (iii) the Collateral Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.
 
(g)            Perfection as to Uncertificated Securities .  When such Lien Grantor, the Collateral Agent and the issuer of any Pledged Uncertificated Security owned by such Lien Grantor enter into an Issuer Control Agreement with respect thereto, (i) the Transaction Lien on such Pledged Uncertificated Security will be perfected, subject to no prior Liens or rights of others (except Permitted Priority Liens), (ii) the Collateral Agent will have Control of such Pledged Uncertificated Security and (iii) the Collateral Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.

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(h)            Negative Pledge as to Security Entitlements .  The Transaction Lien on any Security Entitlement will be subject to no prior Liens or rights of others (except (x) Liens and rights of the relevant Securities Intermediary that are Permitted Liens and (y) Permitted Priority Liens) and (ii) no action based on an adverse claim to such Security Entitlement or such Financial Asset, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may be asserted against the Collateral Agent or any other Secured Party.
 
(i)            Negative Pledge as to Commodity Accounts .  The Transaction Liens on each Commodity Account and all Commodity Contracts carried therein will be subject to no prior Liens or rights of others (except (x) Liens and rights of the relevant Commodity Intermediary permitted by the Indenture or any Collateral Document and (y) Permitted Priority Liens).
 
(j)            Agreement as to Applicable Jurisdiction .  In respect of all Security Entitlements owned by such Lien Grantor, and all Securities Accounts to which the related Financial Assets are credited, the Securities Intermediary’s jurisdiction (determined as provided in UCC Section 8-110(e)) will at all times be located in the United States.  In respect of all Commodity Contracts owned by such Lien Grantor and all Commodity Accounts in which such Commodity Contracts are carried, the Commodity Intermediary’s jurisdiction (determined as provided in UCC Section 9-305(b)) will at all times be located in the United States.
 
(k)            Delivery of Pledged Certificates .  All Pledged Certificates, when delivered to the Collateral Agent, will be in suitable form for transfer by delivery, or accompanied by duly executed instruments of transfer or assignment in blank.
 
(l)             Communications .  Each Lien Grantor will promptly give to the Collateral Agent copies of any notices and other communications received by it with respect to (i) Pledged Securities registered in the name of such Lien Grantor or its nominee and (ii) Pledged Security Entitlements as to which such Lien Grantor is the Entitlement Holder, in each case (x) while an Event of Default has occurred and is continuing or (y) relating to any matter that could reasonably be expected to have a Material Adverse Effect.
 
(m)           Foreign Subsidiaries .  A Lien Grantor will not be obligated to comply with the provisions of this Section at any time with respect to any voting Equity Interest in a Foreign Subsidiary if and to the extent (but only to the extent) that such voting Equity Interest is excluded from the Transaction Liens at such time pursuant to clause (B) of the proviso at the end of Section 3(a) and/or the comparable provisions of one or more Security Agreement Supplements.
 
Section 12.             Deposit Accounts .  Each Lien Grantor represents, warrants and covenants that (i) all cash owned by each Lien Grantor shall be deposited, upon or promptly after the receipt thereof, in one or more Deposit Accounts, (ii) the Transaction Liens on each Deposit Account will be subject to no prior Liens or rights of others (except (x) Liens and rights of the relevant financial institution at which such Deposit Account is maintained that are permitted by the Indenture or any Collateral Document and (y) Permitted Priority Liens) and (iii) each Lien Grantor will provide the Collateral Agent with prompt written notice (and in any case within 20 days) of the opening of any new Deposit Account and any such notice shall be deemed to be an automatic amendment to Schedule 3 hereto.

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Section 13.             Payments upon an Event of Default .  Each Lien Grantor represents, warrants and covenants that if an Event of Default shall have occurred and be continuing, such Lien Grantor will, if requested to do so by the Collateral Agent, promptly notify (and to the extent it fails to do so promptly, such Lien Grantor authorizes the Collateral Agent so to notify) and instruct each Person obligated at any time to make any payment to such Lien Grantor for any reason (including each account debtor in respect of any of its Accounts) that any payments due or to become due are to be made directly to the Collateral Account for the period during which such Event of Default is continuing.
 
Section 14.             Transfer of Record Ownership .
 
(a)           At any time when an Event of Default shall have occurred and be continuing, the Collateral Agent may (and to the extent that action by it is required, the relevant Lien Grantor, if directed to do so by the Collateral Agent, will as promptly as practicable) cause each of the Pledged Securities (or any portion thereof specified in such direction) to be (x) transferred of record into the name of the Collateral Agent or its nominee or (y) credited to the Collateral Account; provided that no such action shall be taken with respect to any capital stock of any Regulated Subsidiary unless any and all regulatory approvals required under applicable law shall have been obtained; and provided further that (i) to the extent any of the Pledged Securities (or a portion thereof) have been transferred of record into the name of the Collateral Agent or its nominee and (ii) no Event of Default is continuing, the Collateral Agent will cooperate reasonably with the relevant Lien Grantor to cause such Pledged Security (or a portion thereof) to be re-registered (as promptly as practicable) in the name of such Lien Grantor.  Each Lien Grantor will take any and all actions reasonably necessary or as requested by the Collateral Agent to facilitate compliance with this subsection.
 
(b)            Ownership upon Transfer of Record Ownership .  If and when any Pledged Security (whether certificated or uncertificated) owned by such Lien Grantor is transferred of record into the name of the Collateral Agent or its nominee pursuant to Section 14(a) , (i) the Collateral Agent shall be the holder of record with respect to such Pledged Security, (ii) the Collateral Agent will have Control of such Pledged Security and (iii) the Collateral Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.
 
(c)            Provisions Inapplicable after Transfer of Record Ownership .  If the provisions of Section 14(a) are implemented, Sections 11(b) and 11(c) shall not thereafter apply to (i) any Pledged Security that is registered in the name of the Collateral Agent or its nominee or (ii) any Security Entitlement in respect of which the Collateral Agent or its nominee is the Entitlement Holder.

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(d)            Communications after Transfer of Record Ownership .  The Collateral Agent will promptly give to the relevant Lien Grantor copies of any notices and other communications received by the Collateral Agent with respect to (i) Pledged Securities registered in the name of the Collateral Agent or its nominee and (ii) Pledged Security Entitlements as to which the Collateral Agent or its nominee is the Entitlement Holder.
 
Section 15.             Right to Vote Securities .
 
(a)           Unless an Event of Default shall have occurred and be continuing, each Lien Grantor will have the right, from time to time, to vote and to give consents, ratifications and waivers with respect to any Pledged Security owned by it and the Financial Asset underlying any Pledged Security Entitlement owned by it, and the Collateral Agent will, upon receiving a written request from such Lien Grantor, promptly deliver (or cause to be delivered) to such Lien Grantor or as specified in such request such proxies, powers of attorney, consents, ratifications and waivers in respect of any such Pledged Security that is registered in the name of the Collateral Agent or its nominee or any such Pledged Security Entitlement as to which the Collateral Agent or its nominee is the Entitlement Holder, in each case as shall be specified in such request and be in form and substance reasonably acceptable to the Collateral Agent.  Unless an Event of Default shall have occurred and be continuing, the Collateral Agent will have no right to take any action which the owner of a Pledged Partnership Interest or Pledged LLC Interest is entitled to take with respect thereto, except the right to receive payments and other distributions to the extent provided herein.
 
(b)           If an Event of Default shall have occurred and be continuing, and after written notice from the Collateral Agent to such Lien Grantor, the Collateral Agent will have the right to the extent permitted by law (and, in the case of a Pledged Partnership Interest or Pledged LLC Interest, by the relevant partnership agreement, limited liability company agreement, operating agreement or other governing document) to vote, to give consents, ratifications and waivers and to take any other action with respect to the Pledged Investment Property, the other Pledged Equity Interests (if any) and the Financial Assets underlying the Pledged Security Entitlements, with the same force and effect as if the Collateral Agent were the absolute and sole owner thereof, and each Lien Grantor will take all such action as the Collateral Agent may reasonably request from time to time to give effect to such right; provided that the Collateral Agent will not have the right to vote, to give consents, ratifications or waivers or to take any other action with respect to the capital stock of any Regulated Subsidiary, in each case to the extent that such action would require prior regulatory approval under applicable law, unless such approval shall have been granted.
 
Section 16.             Remedies upon Event of Default .
 
(a)           If an Event of Default shall have occurred and be continuing, the Collateral Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Collateral Documents.

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(b)           Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect to any Collateral and, in addition, the Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, withdraw all cash held in the Collateral Account and apply such cash as provided in Section 17 and, if there shall be no such cash or if such cash shall be insufficient to pay all the Secured Obligations in full, sell, lease, license or otherwise dispose of the Collateral or any part thereof; provided that the right of the Collateral Agent to sell or otherwise dispose of the capital stock of any Regulated Subsidiary shall be subject to the Collateral Agent or the relevant Lien Grantor obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the governmental body or official having jurisdiction with respect to such Regulated Subsidiary.  Notice of any such sale or other disposition shall be given to the relevant Lien Grantor(s) as required by Section 19 .
 
(c)           Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing:
 
(i)           the Collateral Agent may license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Pledged Intellectual Property (including any Pledged Recordable Intellectual Property) for such term or terms, on such conditions and in such manner as the Collateral Agent shall in its reasonable discretion determine; provided that such licenses or sublicenses do not conflict with any existing license of which the Collateral Agent shall have received a copy;
 
(ii)           the Collateral Agent may (without assuming any obligation or liability thereunder), at any time and from time to time, in its sole and reasonable discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of any Lien Grantor in, to and under any of its Pledged Intellectual Property and take or refrain from taking any action under any thereof, and each Lien Grantor releases the Collateral Agent and each other Secured Party from liability for, and agrees to hold the Collateral Agent and each other Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from the Collateral Agent’s or such Secured Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment; and
 
(iii)          upon request by the Collateral Agent (which shall not be construed as implying any limitation on its rights or powers), each Lien Grantor will execute and deliver to the Collateral Agent a power of attorney, in form and substance reasonably satisfactory to the Collateral Agent, for the implementation of any sale, lease, license or other disposition of any of such Lien Grantor’s Pledged Intellectual Property or any action related thereto.  In connection with any such disposition, but subject to any confidentiality restrictions imposed on such Lien Grantor in any license or similar agreement, such Lien Grantor will supply to the Collateral Agent its know-how and expertise relating to the relevant Intellectual Property or the products or services made or rendered in connection with such Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the manufacture, distribution, advertising and sale of said products or services.

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(d)           For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Section 16 (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, license out, convey, transfer or grant options to purchase any Collateral) at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Lien Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, (i) a nonexclusive license (exercisable without payment of royalty or other compensation to such Lien Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of such Lien Grantor to avoid the risk of invalidation of such Trademarks, to use, practice, sublicense and otherwise exploit any and all Intellectual Property now owned or held or hereafter acquired or held by such Lien Grantor (which license shall include access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof).
 
Section 17.              Application of Proceeds .  Subject to the Intercreditor Agreement, if an Event of Default shall have occurred and be continuing, the Collateral Agent shall apply (i) any cash held in the Collateral Account and (ii) the proceeds of any sale or other disposition of, or any collections (including in the form of interest, dividends, redemption payments and other distributions in respect of any Equity Interests) on, all or any part of the Collateral, in accordance with Section 6.10 of the Indenture.
 
Section 18.              Fees and Expenses; Indemnification .
 
(a)           The Company will within 10 Business Days following written demand (together with, in the case of clauses (i) and (ii) below, if requested by the Company, backup documentation supporting such written demand) pay to the Collateral Agent:
 
(i)           the amount of any taxes that the Collateral Agent may have been required to pay by reason of the Transaction Liens or to free any Collateral from any other Lien thereon;
 
(ii)          the amount of any and all reasonable out-of-pocket expenses, including transfer taxes and reasonable fees and expenses of counsel and other outside experts, that the Collateral Agent may incur in connection with (x) the administration or enforcement of the Collateral Documents, including such expenses as are incurred to preserve the value of the Collateral or the validity, perfection, rank or value of any Transaction Lien, (y) the collection, sale or other disposition of any Collateral or (z) the exercise by the Collateral Agent of any of its rights or powers under the Collateral Documents; and
 
(iii)         the amount of any fees that the Company shall have agreed in writing to pay to the Collateral Agent and that shall have become due and payable in accordance with such written agreement.
 
(b)           If any transfer tax, documentary stamp tax or other tax is payable in connection with any transfer or other transaction provided for in the Collateral Documents, the Company will pay such tax and provide any required tax stamps to the Collateral Agent or as otherwise required by law.

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(c)           Each Lien Grantor waives all rights for contribution and all other rights of recovery with respect to liabilities, losses, damages, costs and expenses arising under or related to Environmental Laws that it might have by statute or otherwise against any Indemnified Person.
 
Section 19.              Authority to Administer Collateral .  Each Lien Grantor irrevocably appoints the Collateral Agent its true and lawful attorney, with full power of substitution, in the name of such Lien Grantor, any Secured Party or otherwise, for the sole use and benefit of the Secured Parties, but at the Company’s expense, to the extent permitted by law to exercise, at any time and from time to time while an Event of Default shall have occurred and be continuing, all or any of the following powers with respect to all or any of such Lien Grantor’s Collateral:
 
(a)           to demand, sue for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,
 
(b)           to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
 
(c)           to sell, lease, license or otherwise dispose of the same or the proceeds or avails thereof, as fully and effectually as if the Collateral Agent were the absolute owner thereof, and
 
(d)           to extend the time of payment of any or all thereof and to make any allowance or other adjustment with reference thereto;
 
provided that, except in the case of Collateral that is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Collateral Agent will give the relevant Lien Grantor at least 10 days’ prior written notice of the time and place of any public sale thereof or the time after which any private sale or other intended disposition thereof will be made.  Any such notice shall (i) contain the information specified in UCC Section 9-613, (ii) be Authenticated and (iii) be sent to the parties required to be notified pursuant to UCC Section 9-611(c); provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC.
 
Section 20.              Limitation on Duty in Respect of Collateral .  Beyond the exercise of reasonable care in the custody and preservation thereof and accounting for monies received therefrom, the Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any subagent or bailee or any income therefrom or as to the preservation of rights against prior parties or any other rights pertaining thereto.  The Collateral Agent will be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equal to that which it accords its own property, and will not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of any act or omission of any sub-agent or bailee selected by the Collateral Agent in good faith, except to the extent that such liability arises from the Collateral Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable judgment.

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Section 21.             General Provisions Concerning the Collateral Agent .
 
(a)            Appointment and Authorization; “Collateral Agent.”   The provisions of Article XI of the Indenture shall inure to the benefit of the Collateral Agent, and shall be binding upon all Lien Grantors and all Secured Parties, in connection with this Agreement and the other Collateral Documents.  The Collateral Agent is hereby irrevocably appointed, designated and authorized to take such actions under the provisions of this Agreement and each other Collateral Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Collateral Document, together with such actions and powers as are reasonably incidental thereto.  In furtherance of the foregoing, the Collateral Agent is hereby authorized to serve as Applicable Authorized Representative and Applicable Collateral Agent (each as defined in the Intercreditor Agreement) in accordance with the terms of the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to it by the terms of the Intercreditor Agreement, together with such actions and powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary contained elsewhere herein or in any other Collateral Document, the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with any Secured Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Collateral Document or otherwise exist against the Collateral Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Collateral Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
 
(b)            Delegation of Duties .  The Collateral Agent may execute any of its duties under this Agreement or any other Collateral Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties.  The Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.  The exculpatory provisions of Section 20 and this Section shall apply to any such agent, employee or attorney-in-fact.
 
(c)            Liability of Collateral Agent .  Neither the Collateral Agent nor any sub-agent appointed by the Collateral Agent to carry out the functions under this Agreement shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Collateral Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein or required by applicable law) or (ii) be responsible in any manner to any Secured Party for any recital, statement, representation or warranty made by the Company or any Subsidiary or Affiliate thereof, or any officer thereof, contained herein or in any other Collateral Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement or any other Collateral Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Collateral Document, or for any failure of the Company or any Subsidiary or Affiliate thereof or any other party to any Collateral Document to perform its obligations hereunder or thereunder.  Neither the Collateral Agent nor any sub-agent appointed by the Collateral Agent to carry out the functions under this Agreement shall be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Collateral Document, or to inspect the properties, books or records of the Company or any Subsidiary or Affiliate thereof.  The Collateral Agent shall not be responsible for the existence, genuineness or value of any Collateral or for the validity, perfection, priority or enforceability of any Transaction Lien, including, without limitation, the filing, form, content or renewal of UCC financing statements, Mortgages or similar documents or instruments, whether impaired by operation of law or by reason of any action or omission to act on its part under the Collateral Documents.

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(d)            Reliance by Collateral Agent .  The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company or any Subsidiary), independent accountants and other experts selected by the Collateral Agent.  The Collateral Agent shall be fully justified in failing or refusing to take any action under any Collateral Document unless it shall first receive such advice or concurrence of the Holders of a majority in aggregate principal amount of the Notes as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Secured Parties (other than the Trustee and Collateral Agent) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Collateral Document in accordance with a request or consent of the requisite number of Holders required by the Indenture and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties.
 
(e)            Notice of Default .  The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, unless the Collateral Agent shall have received written notice from a Secured Party or the Company referring to the Indenture, describing such Default and stating that such notice is a “notice of default.” The Collateral Agent will notify the Secured Parties of its receipt of any such notice.  The Collateral Agent shall take such action with respect to such Default as may be directed by the requisite number of Holders required by the Indenture; provided , however , that unless and until the Collateral Agent has received any such direction, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default as it shall deem advisable or in the interest of the Secured Parties.
 
(f)            [Reserved].

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(g)            Information as to Secured Obligations and Actions by Secured Parties .  For all purposes of the Collateral Documents, including determining the amounts of the Secured Obligations or whether any action has been taken under any Secured Agreement, the Collateral Agent will be entitled to rely on information from (i) its own records for information as to the Holders, their Secured Obligations and actions taken by them; (ii) any Secured Party for information as to its Secured Obligations and actions taken by it, to the extent that the Collateral Agent has not obtained such information from the foregoing sources; and (iii) the Company, to the extent that the Collateral Agent has not obtained information from the foregoing sources.
 
(h)           Within two Business Days after it receives or sends any notice referred to in this subsection, the Collateral Agent shall send to each Secured Party Requesting Notice, copies of any notice given by the Collateral Agent to any Lien Grantor, or received by it from any Lien Grantor, pursuant to Sections 16 , 17 , 19 or 22 .
 
(i)           The Collateral Agent may refuse to act on any notice, consent, direction or instruction from any Secured Parties or any agent, trustee or similar representative thereof that, in the Collateral Agent’s opinion, (i) is contrary to law or the provisions of any Collateral Document, (ii) may expose the Collateral Agent to liability (unless the Collateral Agent shall have been indemnified, to its satisfaction, for such liability by the Secured Parties (other than the Trustee and Collateral Agent) that gave such notice, consent, direction or instruction) or (iii) is unduly prejudicial to Secured Parties not joining in such notice, consent, direction or instruction.
 
Section 22.             Termination of Transaction Liens; Release of Collateral .
 
(a)           The Transaction Liens granted by each Subsidiary Guarantor shall terminate when its Secured Guarantee is released pursuant to the Indenture.
 
(b)           The Transaction Liens granted by the Company shall terminate in accordance with Section 11.3 of the Indenture.
 
(c)           Concurrently with any sale, lease or other disposition (except a sale or disposition to another Lien Grantor or a lease) permitted by the proviso to Section 5(c) or release of any Transaction Lien in accordance with the Indenture, the Transaction Liens on the assets sold or disposed of (but not in any Proceeds arising from such sale or disposition) or so released will cease immediately without any action by the Collateral Agent or any other Secured Party.
 
(d)           Upon any termination of a Transaction Lien or release of Collateral, the Collateral Agent will, upon written request certifying that such termination of release is permitted under the Notes Documents and at the expense of the relevant Lien Grantor, execute and deliver to such Lien Grantor such documents as such Lien Grantor shall reasonably request to evidence the termination of such Transaction Lien or the release of such Collateral, as the case may be.

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Section 23.             Additional Subsidiary Guarantors and Lien Grantors .  Any Subsidiary may become a party hereto by signing and delivering to the Collateral Agent a Security Agreement Supplement, whereupon such Subsidiary shall become a “Subsidiary Guarantor” and a “Lien Grantor” as defined herein.
 
Section 24.             Notices .
 
(a)           Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission).  All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number ( provided that any matter transmitted by the Company by facsimile (1) shall be immediately confirmed by a telephone call to the recipient at the number specified below and (2) shall be followed promptly by delivery of a hard copy original thereof) or (subject to subsection (c) below) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
 
(i)            if to the Company or the Collateral Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person in the Indenture or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties;
 
(ii)           if to any Subsidiary Guarantor listed on the signature pages hereof, to the Company as set forth above to be forwarded to such Subsidiary Guarantor at its address, facsimile number, electronic mail address or telephone number designated by such party in a notice to the Company;
 
(iii)          if to any other Subsidiary Guarantor, to the address, facsimile number, electronic mail address or telephone number specified for such Person in its first Security Agreement Supplement or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
 
(iv)         if to any Secured Party Requesting Notice, to such address, facsimile number, electronic mail address or telephone number as such party may hereafter specify for the purpose by notice to the Collateral Agent.
 
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of subsection (c) below), when delivered.  In no event shall a voicemail message be effective as a notice, communication or confirmation hereunder.
 
(b)           This Agreement and the other Collateral Documents may be transmitted and/or signed by facsimile or PDF delivered by electronic mail.  The effectiveness of any such documents and signatures shall, subject to applicable law, have the same force and effect as manually-signed originals and shall be binding on the Company, all Subsidiary Guarantors, the Secured Parties and the Collateral Agent.  The Collateral Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof; provided , that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.

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(c)           Electronic mail and Internet and intranet websites may be used only to distribute routine communications and to distribute this Agreement and other Collateral Documents for execution by the parties thereto, and may not be used for any other purpose.
 
(d)           The Collateral Agent and the other Secured Parties shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Company or any Subsidiary Guarantor even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Company and the Subsidiary Guarantors shall jointly and severally indemnify the Collateral Agent, any sub-agent appointed by the Collateral Agent to carry out the functions under this Agreement and each Secured Party from all losses, costs, out-of-pocket expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Company or any Subsidiary Guarantor; provided that such indemnity shall not, as to any Person, be available to the extent that such losses, costs, out-of-pocket expenses or liabilities are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Person.  All telephonic notices to and other communications with the Collateral Agent may be recorded by the Collateral Agent, and each of the parties hereto hereby consents to such recording.
 
Section 25.             No Implied Waivers; Remedies Not Exclusive .  No failure by the Collateral Agent or any Secured Party to exercise, and no delay in exercising and no course of dealing with respect to, any right or remedy under any Collateral Document shall operate as a waiver thereof; nor shall any single or partial exercise by the Collateral Agent or any Secured Party of any right or remedy under any Notes Document preclude any other or further exercise thereof or the exercise of any other right or remedy.  The rights and remedies specified in the Notes Documents are cumulative and are not exclusive of any other rights or remedies provided by law.
 
Section 26.             Successors and Assigns .  This Agreement is for the benefit of the Collateral Agent and the Secured Parties.  If all or any part of any Secured Party’s interest in any Secured Obligation is assigned or otherwise transferred, the transferor’s rights hereunder, to the extent applicable to the obligation so transferred, shall be automatically transferred with such obligation.  This Agreement shall be binding on the Lien Grantors and their respective successors and assigns.
 
Section 27.             Amendments and Waivers .  Neither this Agreement nor any provision hereof may be waived, amended, modified or terminated except pursuant to an agreement or agreements in writing entered into by the parties hereto, with the consent of such Holders as are required to consent thereto under Article IX of the Indenture.

31

 
Section 28.             Choice of Law .  This Agreement shall be construed in accordance with and governed by the laws of the State of New York.
 
Section 29.             Waiver of Jury Trial .  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY COLLATERAL DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY COLLATERAL DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER COLLATERAL DOCUMENTS.
 
Section 30.             Severability .  If any provision of any Collateral Document is invalid or unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (i) the other provisions of the Collateral Documents shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Collateral Agent and the Secured Parties in order to carry out the intentions of the parties thereto as nearly as may be possible and (ii) the invalidity or unenforceability of such provision in such jurisdiction shall not affect the validity or enforceability thereof in any other jurisdiction.
 
Section 31.             Pari Passu Intercreditor Agreement; Indenture .  Notwithstanding anything herein to the contrary, the Liens and security interests granted to the Collateral Agent pursuant to this Agreement, the exercise of any right or remedy by the Collateral Agent hereunder and the obligations of the Lien Grantors hereunder, in each case, with respect to the Collateral are subject to the limitations and provisions of the Intercreditor Agreement.  In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement with respect to the Collateral, the terms of the Intercreditor Agreement shall govern and control.  For the avoidance of doubt, at any time that the Collateral Agent is not the Applicable Collateral Agent (as defined in the Intercreditor Agreement), the Lien Grantors shall be deemed to have complied with any obligation hereunder to deliver any possessory collateral (or other Collateral that can be held by only one person) to the Collateral Agent by delivering such possessory collateral to the Applicable Collateral Agent (as defined in the Intercreditor Agreement).  In the event of any conflict between this Agreement and the Indenture, the terms of the Indenture shall control.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

32

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
 
 	CNO FINANCIAL GROUP, INC.	
 	 	 	 	 	
 	By: 	 	 /s/ Erik M. Helding	 	
 	Name:	Erik M. Helding	 	
 	Title:	Senior Vice President, Treasury and Investor Relations	 	
 
 	Subsidiary Guarantors:	
 	 	 	 	 	
 	40|86 ADVISORS, INC.	 	
 	40|86 MORTGAGE CAPITAL, INC.	 	
 	AMERICAN LIFE AND CASUALTY	 	
 	 	MARKETING DIVISION CO.	 	
 	CDOC, INC.	 	
 	CNO MANAGEMENT SERVICES	 	
 	 	COMPANY	 	
 	K.F. AGENCY, INC.	 	
 	 PERFORMANCE MATTERS ASSOCIATES,	 	
 	 	 INC.	 	
 	PERFORMANCE MATTERS ASSOCIATES OF	 	
 	 	TEXAS, INC.	 	
 
 	By: 	 	 /s/ Erik M. Helding	 	
 	Name:	Erik M. Helding	 	
 	Title:	Senior Vice President and Treasurer		
 
 	CNO SERVICES, LLC	
 	 	 	 	 	
 	By: 	 	 /s/ Erik M. Helding	 	
 	Name:	Erik M. Helding	 	
 	Title:	Senior Vice President, Treasury and Investor Relations		
 
[Signature Page to the Security Agreement]

33

 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION,	
 	as Collateral Agent	
 	 	 	 	 	
 	By: 	 	 /s/ Jane Schweiger	 	
 	Name:	Jane Schweigher	 	
 	Title:	Vice President		

34

 
Exhibit A to
Security Agreement
SECURITY AGREEMENT SUPPLEMENT
 
This SECURITY AGREEMENT SUPPLEMENT dated as of _______________ is entered into by and between [NAME OF LIEN GRANTOR] (the “ Lien Grantor ”) and Wilmington Trust, National Association, as Collateral Agent (together with its successors and assigns, the “ Collateral Agent ”).
 
WHEREAS, CNO Financial Group, Inc., the Subsidiary Guarantors party thereto and the Collateral Agent are parties to the Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) under which CNO Financial Group, Inc. secures certain of its obligations (the “ Secured Obligations ”) and the Subsidiary Guarantors secure their respective guarantees thereof;
 
WHEREAS, [name of Lien Grantor] [desires to become][is] a party to the Security Agreement as a Lien Grantor thereunder 1 ; and
 
WHEREAS, terms defined in the Security Agreement (or whose definitions are incorporated by reference in Section 1 of the Security Agreement) and not otherwise defined herein have, as used herein, the respective meanings provided for therein;
 
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.              Grant of Transaction Liens .  (a) In order to secure [its Secured Guarantee] 2 [the Secured Obligations] 3 , the Lien Grantor grants to the Collateral Agent for the benefit of the Secured Parties a continuing security interest in all the following property of the Lien Grantor, whether now or owned or existing or hereafter acquired or arising and regardless of where located (the “ New Collateral ”):
 
If the Lien Grantor is the Company, delete this recital and Section 1 hereof.
 
[describe property being added to the Collateral] 4
 
(b)           With respect to each right to payment or performance included in the Collateral from time to time, the Transaction Lien granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or performance and (ii) any Lien that (x) secures such right to payment or performance or (y) secures any such Supporting Obligation.

1 If the Lien Grantor is the Company, delete this recital and Section 1 hereof.
 
2 Delete bracketed words if the Lien Grantor is the Company. 
 
3 Delete bracketed words if the Lien Grantor is a Subsidiary Guarantor. 
 
4 If the Lien Grantor is not already a party to the Security Agreement, clauses (i) through (xv) of, and the proviso to, Section 3(a) of the Security Agreement may be appropriate.

 

 
(c)           The foregoing Transaction Liens are granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Lien Grantor with respect to any of the New Collateral or any transaction in connection therewith.
 
2.              Delivery of Collateral .  Concurrently with delivering this Security Agreement Supplement to the Collateral Agent, the Lien Grantor is complying with the provisions of Section 7 of the Security Agreement with respect to Chattel Paper and Instruments, Section 10 of the Security Agreement with respect to rights to the proceeds of letters of credit, and either Section 11 or Section 14(a) (whichever is applicable) of the Security Agreement with respect to Investment Property, in each case if and, to the extent included in the New Collateral at such time.
 
3.              Party to Security Agreement .  Upon delivering this Security Agreement Supplement to the Collateral Agent, the Lien Grantor will become a party to the Security Agreement and will thereafter have all the rights and obligations of a Subsidiary Guarantor and a Lien Grantor thereunder and be bound by all the provisions thereof as fully as if the Lien Grantor were one of the original parties thereto. 5
 
4.               Address of Lien Grantor .  The address, facsimile number, electronic mail address and telephone number of the Lien Grantor for purposes of Section 29 of the Security Agreement are:
 
[address]
 
[facsimile number]
 
[e-mail address]
 
[telephone number]
 
5.              Representations and Warranties .  (a) The Lien Grantor is a corporation 6 duly organized, validly existing and in good standing under the laws of [jurisdiction of organization].
 
(b)           The Lien Grantor has delivered a Perfection Certificate to the Collateral Agent.  The information set forth therein is correct and complete as of the date hereof.  Within 60 days after the date hereof, the Lien Grantor will furnish (or cause to be furnished) to the Collateral Agent a file search report from each UCC filing office listed in such Perfection Certificate, showing the filing made at such filing office to perfect the Transaction Liens on the New Collateral.

5 Delete Sections 4 and 5 if the Lien Grantor is already a party to the Security Agreement.
 
6 Modify as needed if not a corporation.

A-2

 
(c)           The execution and delivery of this Security Agreement Supplement by the Lien Grantor and the performance by it of its obligations under the Security Agreement as supplemented hereby are within its corporate or other powers, have been duly authorized by all necessary corporate or other action, require no action by or in respect of, or filing with, any governmental body, agency or official (except (i) such as have been obtained on or prior to the date hereof and (ii) filings necessary to perfect the Transactions Liens) and do not contravene, or constitute a default under, any provision of applicable law or regulation (except to the extent that such contraventions or defaults, in the aggregate, could not reasonably be expected to have a Material Adverse Effect) or of its Organization Documents, or of any material agreement, judgment, injunction, order, decree or other instrument binding upon it or result in the creation or imposition of any Lien (except a Transaction Lien) on any of its assets.
 
(d)           The Security Agreement as supplemented hereby constitutes a valid and binding agreement of the Lien Grantor, enforceable in accordance with its terms, except as limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting creditors’ rights generally and (ii) general principles of equity.
 
(e)           Each of the representations and warranties set forth in the Security Agreement is true as applied to the Lien Grantor and the New Collateral.  For purposes of the foregoing sentence, references in said Sections to a “Lien Grantor” shall be deemed to refer to the Lien Grantor, references to Schedules to the Security Agreement shall be deemed to refer to the corresponding Schedules to this Security Agreement Supplement, references to “Collateral” shall be deemed to refer to the New Collateral, and references to the “Issue Date” shall be deemed to refer to the date on which the Lien Grantor signs and delivers this Security Agreement Supplement.
 
6.              Governing Law .  This Security Agreement Supplement shall be construed in accordance with and governed by the laws of the State of New York.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

A-3

 
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement Supplement to be duly executed by their respective authorized officers as of the day and year first above written.
 
 	[NAME OF LIEN GRANTOR]	 	
 	 	 	 	
 	By:	 	 	
 	 	 Name: 	 	
 	 	 Title:	 	
 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION,	 	
 	as Collateral Agent	 	
 	 	 	 	
 	By:	 	 	
 	 	 Name: 	 	
 	 	 Title:		

A-4

 
Schedule 1
to Security Agreement
Supplement
 
EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES
OWNED BY LIEN GRANTOR
 
Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent Pledged	

 	 	 	 	 	

 
A-5

 
Schedule 2
to Security Agreement
Supplement

OTHER SECURITIES
(OTHER THAN EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES)
 
Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent Pledged	

 	 	 	 	 	

 
A-6

 
Schedule 3
                                                                                                                                          to Security Agreement
Supplement
 
DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS
 
PART 1 — Securities Accounts
 
The Lien Grantor owns Security Entitlements with respect to Financial Assets credited to the following Securities Accounts:
 
Owner	 	Type Of
Account	 	Intermediary	 	Account
Numbers	

 
 
PART 2 — Commodity Accounts
 
The Lien Grantor is the Commodity Customer with respect to the following Commodity Accounts:
 
Owner	 	Type Of
Account	 	Intermediary	 	Account
Numbers	

 
 
PART 3 — Deposit Accounts
 
The Lien Grantor is the Customer with respect to the following Deposit Accounts:
 
Owner	 	Type Of
Account	 	Intermediary	 	Account
Numbers	

 

 
A-7

 
Schedule 4
                                                                                                                                          to the Security Agreement
Supplement
 
COMMERCIAL TORT CLAIMS
 
 	Description
 
 	 	 	Pledged
(Yes/No)	 	

 	 	 	 	 	 	

 
A-8

 
Schedule 5
                                                                                                                                          to Security Agreement
Supplement
 
PLEDGED INSTRUMENTS
 
1.            Promissory Notes :
 
Entity	Principal
Amount
 	Date of
Issuance	Interest Rate	Maturity Date	Pledged
(Yes/No)	

 	 	 	 	 	 	

2.            Chattel Paper :
 
 	Description
 
 	 	 	Pledged
(Yes/No)	 	

 	 	 	 	 	 	

 
 
A-9

 
EXHIBIT B
to Security Agreement
 
COPYRIGHT SECURITY AGREEMENT
 
(Copyrights, Copyright Registrations, Copyright
Applications and Copyright Licenses)
 
WHEREAS, [name of Lien Grantor], a [_____] corporation 7 (herein referred to as the “ Lien Grantor ”) owns, or in the case of licenses is a party to, the Copyright Collateral (as defined below);
 
WHEREAS, CNO Financial Group, Inc. (the “ Company ”) and Wilmington Trust, National Association, as collateral agent (together with its successors and assigns, the “ Collateral Agent ”) and trustee, are parties to the Indenture dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Indenture ”);
 
WHEREAS, pursuant to (i) the Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) among the Company, the Subsidiary Guarantors party thereto and the Collateral Agent for the Secured Parties referred to therein (in such capacity, together with its successors and assigns in such capacity, the “ Grantee ”), and (ii) certain other Collateral Documents (including this Copyright Security Agreement) and the Indenture, the Lien Grantor has [secured certain of its obligations (the “ Secured Obligations ”)] 8 [guaranteed certain obligations of the Company and secured such guarantee (the “ Lien Grantor’s Secured Guarantee of the Secured Obligations ”)] 9 by granting to the Grantee for the benefit of the Secured Parties a continuing security interest in personal property of the Lien Grantor, including all right, title and interest of the Lien Grantor in, to and under the Copyright Collateral (as defined below); and
 
WHEREAS, capitalized terms used but not defined herein shall have the meanings given to them in the Security Agreement.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lien Grantor grants to the Grantee for the benefit of the Secured Parties, to secure the [Secured Obligations] [Lien Grantor’s Secured Guarantee of the Secured Obligations], a continuing security interest in all of the Lien Grantor’s right, title and interest in, to and under the following (all of the following items or types of property being herein collectively referred to as the “ Copyright Collateral ”), whether now owned or existing or hereafter acquired or arising:
 
(i)           each Copyright (as defined in the Security Agreement) owned by the Lien Grantor, including, without limitation, each Copyright registration or application therefor referred to in Schedule 1 hereto;

7 Modify as needed if the Lien Grantor is not a corporation. 
 
8 Delete these bracketed words if the Lien Grantor is a Subsidiary Guarantor. 
 
9 Delete these bracketed words if the Lien Grantor is the Company.

 

 
(ii)          each Copyright License (as defined in the Security Agreement) to which the Lien Grantor is a party, including, without limitation, each Copyright License identified in Schedule 1 hereto; and
 
(iii)         all proceeds of, revenues from, and accounts and general intangibles arising out of, the foregoing, including, without limitation, all proceeds of and revenues from any claim by the Lien Grantor against third parties for past, present or future infringement of any Copyright (including, without limitation, any Copyright owned by the Lien Grantor and identified in Schedule 1 hereto), and all rights and benefits of the Lien Grantor under any Copyright License (including, without limitation, any Copyright License identified in Schedule 1 hereto).
 
The Lien Grantor irrevocably constitutes and appoints the Grantee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of the Lien Grantor or in the Grantee’s name, from time to time, in the Grantee’s reasonable discretion, so long as any Event of Default (as defined in the Indenture) shall have occurred and be continuing, to take with respect to the Copyright Collateral, in accordance with the Security Agreement, any and all appropriate action which the Lien Grantor might take with respect to the Copyright Collateral and to execute any and all documents and instruments which may be necessary or desirable to carry out the terms of this Copyright Security Agreement and to accomplish the purposes hereof.
 
Except to the extent expressly permitted in the Security Agreement or the Indenture, the Lien Grantor agrees not to sell, license, exchange, assign or otherwise transfer or dispose of, or grant any rights with respect to, or mortgage or otherwise encumber, any of the Copyright Collateral.
 
The foregoing security interest is granted in conjunction with the security interests granted by the Lien Grantor to the Grantee pursuant to the Security Agreement.  The Lien Grantor acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Copyright Collateral granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  In the event that any provision of this Copyright Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

B-2

 
IN WITNESS WHEREOF, the Lien Grantor has caused this Copyright Security Agreement to be duly executed by its officer thereunto duly authorized as of the  _____ day of _____________.
 
 	[NAME OF LIEN GRANTOR]	 	

 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 
Acknowledged	 	
 	 	
WILMINGTON TRUST, NATIONAL ASSOCIATION,	 	
as Collateral Agent	 	
 	 	
By:	 	 	
 	Name:	 	
 	Title: 	 	

 

STATE OF ___________________                                          
 ) ss.:
COUNTY OF __________________                                          
 
I, ____________________ , a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY, that ___________________________________, of [NAME OF LIEN GRANTOR] (the “Lien Grantor”), personally known to me to be the same person whose name is subscribed to the foregoing instrument as such _______________, appeared before me this day in person and acknowledged that (s)he signed, executed and delivered said instrument as her/his own free and voluntary act and as the free and voluntary act of said Lien Grantor, for the uses and purposes therein set forth being duly authorized so to do.
 
GIVEN under my hand and Notarial Seal this _____day of _______________

 
[Seal]
 
__________________________________________ Signature of notary public
 
My Commission expires ______________

 

 
Schedule 1
to Copyright
Security Agreement
 
[NAME OF LIEN GRANTOR]
 
COPYRIGHT REGISTRATIONS
 
Registration. No	 	Registration Date	 	Title	

 
COPYRIGHT APPLICATIONS
 
Case No.	 	Filing Date	 	Filing Title	

 
COPYRIGHT LICENSES
 
Name of
Agreement	 	Parties
Licensor/Licensee	 	Date of
Agreement	 	Subject
Matter	

 

 
EXHIBIT C
Security Agreement
 
PATENT SECURITY AGREEMENT
 
(Patents, Patent Applications and Patent Licenses)
 
WHEREAS, [name of Lien Grantor], a [_______] corporation 10 (herein referred to as the “ Lien Grantor ”) owns, or in the case of licenses is a party to, the Patent Collateral (as defined below);
 
WHEREAS, CNO Financial Group, Inc. (the “ Company ”) and Wilmington Trust, National Association, as collateral agent (together with its successors and assigns, the “ Collateral Agent ”) and trustee, are parties to the Indenture dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Indenture ”);
 
WHEREAS, pursuant to (i) the Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) among the Company, the Subsidiary Guarantors party thereto and the Collateral Agent for the Secured Parties referred to therein (in such capacity, together with its successors and assigns in such capacity, the “ Grantee ”), and (ii) certain other Collateral Documents (including this Patent Security Agreement) and the Indenture, the Lien Grantor has [secured certain of its obligations (the “ Secured Obligations ”)] 11 [guaranteed certain obligations of the Company and secured such guarantee (the “ Lien Grantor’s Secured Guarantee of the Secured Obligations ”)] 12 by granting to the Grantee for the benefit of the Secured Parties a continuing security interest in personal property of the Lien Grantor, including all right, title and interest of the Lien Grantor in, to and under the Patent Collateral (as defined below); and
 
WHEREAS, capitalized terms used but not defined herein shall have the meanings given to them in the Security Agreement.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lien Grantor grants to the Grantee for the benefit of the Secured Parties, to secure the [Secured Obligations] [Lien Grantor’s Secured Guarantee of the Secured Obligations], a continuing security interest in all of the Lien Grantor’s right, title and interest in, to and under the following (all of the following items or types of property being herein collectively referred to as the “ Patent Collateral ”), whether now owned or existing or hereafter acquired or arising:
 
(i)           each Patent (as defined in the Security Agreement) owned by the Lien Grantor, including, without limitation, each Patent referred to in Schedule 1 hereto;

 

10 Modify as needed if the Lien Grantor is not a corporation.
 
11 Delete these bracketed words if the Lien Grantor is a Subsidiary Guarantor.
 
12 Delete these bracketed words if the Lien Grantor is the Company.

 

 
(ii)          each Patent License (as defined in the Security Agreement) to which the Lien Grantor is a party, including, without limitation, each Patent License identified in Schedule 1 hereto; and
 
(iii)         all proceeds of and revenues from the foregoing, including, without limitation, all proceeds of and revenues from any claim by the Lien Grantor against third parties for past, present or future infringement of any Patent owned by the Lien Grantor (including, without limitation, any Patent identified in Schedule 1 hereto) and all rights and benefits of the Lien Grantor under any Patent License (including, without limitation, any Patent License identified in Schedule 1 hereto).
 
The Lien Grantor irrevocably constitutes and appoints the Grantee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of the Lien Grantor or in the Grantee’s name, from time to time, in the Grantee’s reasonable discretion, so long as any Event of Default (as defined in the Indenture) shall have occurred and be continuing, to take with respect to the Patent Collateral, in accordance with the Security Agreement, any and all appropriate action which the Lien Grantor might take with respect to the Patent Collateral and to execute any and all documents and instruments which may be necessary or desirable to carry out the terms of this Patent Security Agreement and to accomplish the purposes hereof.
 
Except to the extent expressly permitted in the Security Agreement or the Indenture, the Lien Grantor agrees not to sell, license, exchange, assign or otherwise transfer or dispose of, or grant any rights with respect to, or mortgage or otherwise encumber, any of the Patent Collateral.
 
The foregoing security interest is granted in conjunction with the security interests granted by the Lien Grantor to the Grantee pursuant to the Security Agreement.  The Lien Grantor acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Patent Collateral granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  In the event that any provision of this Patent Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

C-2

IN WITNESS WHEREOF, the Lien Grantor has caused this Patent Security Agreement to be duly executed by its officer thereunto duly authorized as of the _____ day of _______________.
 
 	[NAME OF LIEN GRANTOR]	 	

 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 
Acknowledged:	 	
 	 	
WILMINGTON TRUST, NATIONAL ASSOCIATION,	 	
as Collateral Agent	 	
 	 	
By:	 	 	
 	Name:	 	
 	Title: 		

C-3

 
STATE OF ____________________                                         
 ) ss.:
COUNTY OF ___________________                                          
 
I, _______________________ , a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY, that ___________________________________, of [NAME OF LIEN GRANTOR] (the “ Lien Grantor ”), personally known to me to be the same person whose name is subscribed to the foregoing instrument as such _______________, appeared before me this day in person and acknowledged that (s)he signed, executed and delivered said instrument as her/his own free and voluntary act and as the free and voluntary act of said Lien Grantor, for the uses and purposes therein set forth being duly authorized so to do.
 
GIVEN under my hand and Notarial Seal this _____day of _______________

 
[Seal]
 
________________________________________________  Signature of notary public
 
My Commission expires ______________

C-4

 
Schedule 1
to Patent
Security Agreement
 
[NAME OF LIEN GRANTOR]
 
PATENTS AND DESIGN PATENTS
 
Patent No.	Issued   	 Expiration 	Title	

 
PATENT APPLICATIONS
 
Case No.	Serial No.	Filing Date	Filing Title	

 
PATENT LICENSES
 
Name of
Agreement	 	Parties
Licensor/Licensee	 	Date of
Agreement	 	Subject
Matter	

 
 
C-5

 
EXHIBIT D
to Security Agreement
 
TRADEMARK SECURITY AGREEMENT
 
(Trademarks, Trademark Registrations, Trademark
 
Applications and Trademark Licenses)
 
WHEREAS, [name of Lien Grantor], a [_______] corporation 13 (herein referred to as the “ Lien Grantor ”) owns, or in the case of licenses is a party to, the Trademark Collateral (as defined below);
 
WHEREAS, CNO Financial Group, Inc. (the “ Company ”) and Wilmington Trust, National Association, as collateral agent (together with its successors and assigns, the “ Collateral Agent ”) and trustee, are parties to the Indenture dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Indenture ”);
 
WHEREAS, pursuant to (i) the Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) among the Company, the Subsidiary Guarantors party thereto and the Collateral Agent for the Secured Parties referred to therein (in such capacity, together with its successors and assigns in such capacity, the “ Grantee ”), and (ii) certain other Collateral Documents (including this Trademark Security Agreement) and the Indenture, the Lien Grantor has [secured certain of its obligations (the “ Secured Obligations ” )] 14 [guaranteed certain obligations of the Company and secured such guarantee (the “ Lien Grantor’s Secured Guarantee of the Secured Obligations ”)] 15 by granting to the Grantee for the benefit of the Secured Parties a continuing security interest in personal property of the Lien Grantor, including all right, title and interest of the Lien Grantor in, to and under the Trademark Collateral (as defined below); and
 
WHEREAS, capitalized terms used but not defined herein shall have the meanings given to them in the Security Agreement.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lien Grantor grants to the Grantee for the benefit of the Secured Parties, to secure the [Secured Obligations] [Lien Grantor’s Secured Guarantee of the Secured Obligations (as defined in the Security Agreement)], a continuing security interest in all of the Lien Grantor’s right, title and interest in, to and under the following (all of the following items or types of property being herein collectively referred to as the “ Trademark Collateral ”), whether now owned or existing or hereafter acquired or arising:
 
(i)           each Trademark (as defined in the Security Agreement) owned by the Lien Grantor, including, without limitation, each Trademark registration and application referred to in Schedule 1 hereto, and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark;

13 Modify as needed if the Lien Grantor is not a corporation.
 
14 Delete these bracketed words if the Lien Grantor is a Subsidiary Guarantor.
 
15 Delete these bracketed words if the Lien Grantor is the Company.

 

 
(ii)          each Trademark License (as defined in the Security Agreement) to which the Lien Grantor is a party, including, without limitation, each Trademark License identified in Schedule 1 hereto, and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark licensed pursuant thereto; and
 
(iii)         all proceeds of and revenues from the foregoing, including, without limitation, all proceeds of and revenues from any claim by the Lien Grantor against third parties for past, present or future unfair competition with, or violation of intellectual property rights in connection with or injury to, or infringement or dilution of, any Trademark owned by the Lien Grantor (including, without limitation, any Trademark identified in Schedule 1 hereto), and all rights and benefits of the Lien Grantor under any Trademark License (including, without limitation, any Trademark License identified in Schedule 1 hereto), or for injury to the goodwill associated with any of the foregoing;
 
provided that intent-to-use Trademark applications are excluded from the Trademarks Collateral solely to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use Trademark applications or any registrations that issue therefrom under applicable United States federal law.
 
The Lien Grantor irrevocably constitutes and appoints the Grantee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of the Lien Grantor or in the Grantee’s name, from time to time, in the Grantee’s reasonable discretion, so long as any Event of Default (as defined in the Indenture) shall have occurred and be continuing, to take with respect to the Trademark Collateral, in accordance with the Security Agreement, any and all appropriate action which the Lien Grantor might take with respect to the Trademark Collateral and to execute any and all documents and instruments which may be necessary or desirable to carry out the terms of this Trademark Security Agreement and to accomplish the purposes hereof.
 
Except to the extent expressly permitted in the Security Agreement or the Indenture, the Lien Grantor agrees not to sell, license, exchange, assign or otherwise transfer or dispose of, or grant any rights with respect to, or mortgage or otherwise encumber, any of the Trademark Collateral.
 
The foregoing security interest is granted in conjunction with the security interests granted by the Lien Grantor to the Grantee pursuant to the Security Agreement.  The Lien Grantor acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Trademark Collateral granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  In the event that any provision of this Trademark Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

D-2

IN WITNESS WHEREOF, the Lien Grantor has caused this Trademark Security Agreement to be duly executed by its officer thereunto duly authorized as of the ____ day of _____________.
 
 	 [NAME OF LIEN GRANTOR]	 	

 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 
Acknowledged:	 	
 	 	
WILMINGTON TRUST, NATIONAL ASSOCIATION,	 	
as Collateral Agent	 	
 	 	
By:	 	 	
 	Name:	 	
 	Title: 		

D-3

 
STATE OF  ____________________                                        
 ) ss.:
COUNTY OF  ___________________                                         
 
I, __________________________, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY, that ________________________________, of [NAME OF LIEN GRANTOR] (the “Lien Grantor”), personally known to me to be the same person whose name is subscribed to the foregoing instrument as such _______________, appeared before me this day in person and acknowledged that (s)he signed, executed and delivered said instrument as her/his own free and voluntary act and as the free and voluntary act of said Lien Grantor, for the uses and purposes therein set forth being duly authorized so to do.
 
GIVEN under my hand and Notarial Seal this _____day of _______________
 
[Seal]
 
__________________________________ Signature of notary public
 
My Commission expires ______________

D-4

 
Schedule 1
to Trademark
Security Agreement
[NAME OF LIEN GRANTOR]
 
U.S. TRADEMARK REGISTRATIONS
 
TRADEMARK	 	REG. NO.	 	REG. DATE	

 
U.S. TRADEMARK APPLICATIONS
 
TRADEMARK	 	SERIAL NO.	 	FILING DATE	

 
TRADEMARK LICENSES
 
Name of
Applicant	 	Parties
Licensor/Licensee	 	Date of
Agreement	 	Subject
Matter	

 
 
D-5

 
EXHIBIT E
to Security Agreement
 
PERFECTION CERTIFICATE
[SEE ATTACHED]

D-6

 
EXHIBIT F
to Security Agreement
 
ISSUER CONTROL AGREEMENT
 
ISSUER CONTROL AGREEMENT dated as of _______________among [name of Lien Grantor] (the “ Lien Grantor ”), Wilmington Trust, National Association, as Collateral Agent (the “ Secured Party ”), and CNO Financial Group, Inc. (the “ Issuer ”).  All references herein to the “UCC” refer to the Uniform Commercial Code as in effect from time to time in [Issuer’s jurisdiction of incorporation].
 
WITNESSETH:
 
WHEREAS, the Lien Grantor is the registered holder of [specify Pledged Uncertificated Securities issued by the Issuer] issued by the Issuer (the “ Securities ”);
 
WHEREAS, pursuant to the Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”), the Lien Grantor has granted to the Secured Party a continuing security interest (the “ Transaction Lien ”) in all right, title and interest of the Lien Grantor in, to and under the Securities, whether now existing or hereafter arising; and
 
WHEREAS, the parties hereto are entering into this Agreement in order to perfect the Transaction Lien on the Securities;
 
NOW, THEREFORE, the parties hereto agree as follows:
 
Section 1.      Nature of Securities .  The Issuer confirms that (i) the Securities are “uncertificated securities” (as defined in Section 8-102 of the UCC) and (ii) the Lien Grantor is registered on the books of the Issuer as the registered holder of the Securities.
 
Section 2.      Instructions .  The Issuer agrees to comply with any “instruction” (as defined in Section 8-102 of the UCC) originated by the Secured Party and relating to the Securities without further consent by the Lien Grantor or any other person.  The Lien Grantor consents to the foregoing agreement by the Issuer.
 
Section 3.      Waiver of Lien; Waiver of Set-off .  The Issuer waives any security interest, lien or right of set-off that it may now have or hereafter acquire in or with respect to the Securities.  The Issuer’s obligations in respect of the Securities will not be subject to deduction, set-off or any other right in favor of any person other than the Secured Party.
 
Section 4.       Choice of Law .  This Agreement shall be governed by the laws of [Issuer’s jurisdiction of incorporation].
 
Section 5.       Conflict with Other Agreements .  There is no agreement (except this Agreement) between the Issuer and the Lien Grantor with respect to the Securities [except for [identify any existing other agreements] (the “ Existing Other Agreements ”)].  In the event of any conflict between this Agreement (or any portion hereof) and any other agreement [(including any Existing Other Agreement)] between the Issuer and the Lien Grantor with respect to the Securities, whether now existing or hereafter entered into, the terms of this Agreement shall prevail.

D-7

 
Section 6.        Amendments .  No amendment or modification of this Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all the parties hereto.
 
Section 7.        Notice of Adverse Claims .  As of the date hereof, except for the claims and interests of the Secured Party and the Lien Grantor in the Securities, the Issuer does not know of any claim to, or interest in, the Securities.  When the Issuer knows of any person asserting any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, attachment, execution or similar process) against the Securities, the Issuer will promptly notify the Secured Party and the Lien Grantor thereof.
 
Section 8.        Maintenance of Securities .  In addition to, and not in lieu of, the obligation of the Issuer to honor instructions as agreed in Section 2 hereof, the Issuer agrees as follows:
 
(i)            Lien Grantor Instructions; Notice of Exclusive Control .  So long as the Issuer has not received a Notice of Exclusive Control (as defined below), the Issuer may comply with instructions of the Lien Grantor or any duly authorized agent of the Lien Grantor in respect of the Securities.  After the Issuer receives a written notice from the Secured Party that it is exercising exclusive control over the Securities (a “ Notice of Exclusive Control ”) and until such Notice of Exclusive Control is rescinded by the Secured Party, the Issuer will cease complying with instructions of the Lien Grantor or any of its agents.
 
(ii)           Dividends and Distributions .  So long as the Issuer has not received a Notice of Exclusive Control, the Issuer shall deliver to the Lien Grantor all dividends, interest and other distributions paid or made upon or with respect to the Securities.  After the Issuer receives a Notice of Exclusive Control (and until such Notice of Exclusive Control is rescinded by the Secured Party), the Issuer shall deliver to the Secured Party all dividends, interest and other distributions paid or made upon or with respect to the Securities.
 
(iii)         Voting Rights .  Until the Issuer receives a Notice of Exclusive Control, the Lien Grantor shall be entitled to direct the Issuer with respect to voting the Securities.
 
(iv)          Statements and Confirmations .  The Issuer will promptly send copies of all statements and other correspondence concerning the Securities simultaneously to each of the Lien Grantor and the Secured Party at their respective addresses specified in Section 11 hereof.
 
(v)           Tax Reporting .  All items of income, gain, expense and loss recognized in respect of the Securities shall be reported to the Internal Revenue Service and all state and local taxing authorities under the name and taxpayer identification number of the Lien Grantor.

D-8

 
Section 9.      Representations, Warranties and Covenants of the Issuer .  The Issuer makes the following representations, warranties and covenants:
 
(i)           This Agreement is a valid and binding agreement of the Issuer enforceable in accordance with its terms, except as limited by (A) applicable bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting creditors’ rights generally and (B) general principles of equity.
 
(ii)          The Issuer has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other person relating to the Securities pursuant to which it has agreed, or will agree, to comply with instructions (as defined in Section 8-102 of the UCC) of such person.
 
(iii)         The Issuer has not entered into any other agreement with the Lien Grantor or the Secured Party purporting to limit or condition the obligation of the Issuer to comply with instructions as agreed in Section 2 hereof.
 
Section 10.      Successors .  This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
 
Section 11.     Notices .  Each notice, request or other communication given to any party hereunder shall be in writing (which term includes facsimile or other electronic transmission) and shall be effective (i) when delivered to such party at its address specified below, (ii) when sent to such party by facsimile or other electronic transmission, addressed to it at its facsimile number or electronic mail address specified below, and such party sends back an electronic confirmation of receipt or (iv) 10 days after being sent to such party by certified or registered United States mail, addressed to it at its address specified below, with first class or airmail postage prepaid:
 
Lien Grantor:  [INSERT NOTICE ADDRESS]
 
Secured Party:  [INSERT NOTICE ADDRESS]
 
Issuer:  [INSERT NOTICE ADDRESS]
 
Any party may change its address, facsimile number and/or electronic mail address for purposes of this Section by giving notice of such change to the other parties in the manner specified above.
 
Section 12.      Termination .  The rights and powers granted herein to the Secured Party (i) have been granted in order to perfect the Transaction Lien, (ii) are powers coupled with an interest and (iii) will not be affected by any bankruptcy of the Lien Grantor or any lapse of time.  The obligations of the Issuer hereunder shall continue in effect until the Secured Party has notified the Issuer in writing that the Transaction Lien has been terminated pursuant to the Security Agreement.
 
Section 13.      Counterparts .  This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of an original executed counterpart of this Agreement.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

D-9

 
IN WITNESS WHEREOF, the parties hereto have each caused this Issuer Control Agreement to be duly executed by its officer thereunto duly authorized as of the date hereof.
 
 	[NAME OF LIEN GRANTOR]	 	
 	 	 	 	
 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 	 	 		
 	WILMINGTON TRUST, NATIONAL ASSOCIATION,		
 	as Collateral Agent		
 	 	 		
 	By: 	 		
 	 	 Name:		
 	 	 Title:		
 	 	 		
 	CNO FINANCIAL GROUP, INC.		
 	 	 		
 	By: 	 		
 	 	 Name:		
 	 	 Title:		

D-10

Schedule 1
EQUITY INTERESTS
 
Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent
Pledged	
40|86 Advisors, Inc.	CNO Financial Group, Inc.	5	100	100	
40|86 Mortgage Capital, Inc.	CDOC, Inc.	4	100	100	
American Life and Casualty Marketing Division Co.   	CDOC, Inc.	5	1,000	100	
CDOC, Inc.	CNO Financial Group, Inc.	5
4	100
900	100
100	
CNO Management Services Company	CDOC, Inc.	30	48,150	100	
CNO Services, LLC	CNO Financial Group, Inc.	n/a	9.9%	100	
CNO Services, LLC	CDOC, Inc.	n/a	89.1%	100	
CNO Services, LLC	CNO Management Services Company   	n/a	1%	100	
Performance Matters Associates, Inc.	CDOC, Inc.	008	1,000	100	
Performance Matters Associates of Texas, Inc.	Performance Matters Associates, Inc.	007	1,000	100	
CNO IT Services (India) Private Limited	CDOC, Inc.	8	324,987	100	
CNO IT Services (India) Private Limited	CNO Financial Group, Inc.	10	13	100	
CNO IT Services (India) Private Limited	CDOC, Inc.	7	174,793	0	
CNO IT Services (India) Private Limited	CNO Financial Group, Inc.	9	7	0	
Conseco Life Insurance Company of Texas	CDOC, Inc.	3	700,000	100	
Conseco Health Services, Inc.	CDOC, Inc.	6	100	100	

 

Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent
Pledged	
Conseco Securities, Inc.	CDOC, Inc.	4	1,500	100	
Hawthorne Advertising Agency Incorporated   	CDOC, Inc.	3	1,000	100	
K.F. Agency, Inc.	CDOC, Inc.	3	500	100	
K.F. Insurance Agency of Massachusetts, Inc.	CDOC, Inc.	3	1,000	100	
Resortport Holding of Delaware, Inc.	CDOC, Inc.	2	100	100	
Design Benefit Plans, Inc.	CNO Financial Group, Inc.	9	1,000,000	100	
Washington National Insurance Company	CDOC, Inc.	C25881	5,007,370	100	
Association Management Corporation	CDOC, Inc.	5	1,000	100	
Conseco Life Insurance Company	CDOC, Inc.	U36846	4,178,222	100	
Conseco Marketing, L.L.C.	CNO Financial Group, Inc.	n/a	9%	100	
Conseco Marketing, L.L.C.	CNO Services, LLC	n/a	90%	100	
Conseco Marketing, L.L.C.	CNO Management Services Company   	n/a	1%	100	

 

 
Schedule 2
 
OTHER SECURITIES
 
None.

 

 
Schedule 3
 
DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS
 
PART 1— Securities Accounts
 
The following Lien Grantors own Security Entitlements with respect to Financial Assets credited to the following Securities Accounts:
 
Owner	Intermediary	Description of Account	Account Numbers	
40|86 Advisors, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]   	
40|86 Mortgage Capital, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
40|86 Mortgage Capital, Inc.	Bank of New York Mellon	Custody - Origination	[Intentionally Omitted]	
40|86 Mortgage Capital, Inc.	Bank of New York Mellon	Custody - Rep. Reserves   	[Intentionally Omitted]	
40|86 Mortgage Capital, Inc.	Bank of New York Mellon	Custody - Comm. Fees	[Intentionally Omitted]	
American Life & Casualty Marketing Division Co.   	Bank of New York Mellon   	Custody	[Intentionally Omitted]	
CDOC, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
CNO Services, LLC	Bank of New York Mellon	Custody	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Custody	[Intentionally Omitted]	
 
PART 2 — Commodity Accounts
 
The following Lien Grantors are the Commodity Customers with respect to the following Commodity Accounts:
 
None.

 

PART 3 — Deposit Accounts
 
Owner	Intermediary	Description of Account	Account Numbers	
40|86 Advisors, Inc.	Bank of New York Mellon	Checking	[Intentionally Omitted]   	
40|86 Mortgage Capital, Inc.	Bank of New York Mellon	Checking	[Intentionally Omitted]	
40|86 Mortgage Capital, Inc.	Bank of New York Mellon	Checking - Escrow	[Intentionally Omitted]	
40|86 Mortgage Capital, Inc.	Bank of New York Mellon	Lockbox	[Intentionally Omitted]	
40|86 Mortgage Capital, Inc.	JP Morgan Chase	ACH Business	[Intentionally Omitted]	
American Life & Casualty Marketing Division Co.   	Bank of New York Mellon   	Checking	[Intentionally Omitted]	
CDOC, Inc.	Bank of New York Mellon	Checking	[Intentionally Omitted]	
CDOC, Inc.	Bank of New York Mellon	Checking	[Intentionally Omitted]	
CNO Services, LLC	Bank of New York Mellon	Checking	[Intentionally Omitted]	
CNO Services, LLC	Bank of New York Mellon	Checking	[Intentionally Omitted]	
CNO Services, LLC	Bank of New York Mellon	Checking	[Intentionally Omitted]	
CNO Services, LLC	Bank of New York Mellon	Lockbox	[Intentionally Omitted]	
CNO Services, LLC	Huntington Bank	Checking - Payroll   	[Intentionally Omitted]	
CNO Services, LLC	JP Morgan Chase	Checking	[Intentionally Omitted]	
CNO Services, LLC	JP Morgan Chase	ACH Business	[Intentionally Omitted]	
CNO Services, LLC	JP Morgan Chase	ACH Business	[Intentionally Omitted]	
CNO Services, LLC	State Street Bank	Retained Assets	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Checking	[Intentionally Omitted]	
CNO Financial Group, Inc.	Bank of New York Mellon	Checking	[Intentionally Omitted]	
Performance Matters Associates of Texas, Inc.	Bank of New York Mellon	Checking	[Intentionally Omitted]	
Performance Matters Associates of Texas, Inc.	Bank of New York Mellon	Checking	[Intentionally Omitted]	
Performance Matters Associates of Texas, Inc.	Compass Bank	Checking	[Intentionally Omitted]	
Performance Matters Associates of Texas, Inc.	Compass Bank	Money Market   	[Intentionally Omitted]	

 

 
Schedule 4
 
COMMERCIAL TORT CLAIMS
 
None.

 

 
Schedule 5
 
PLEDGED INSTRUMENTS
 
1.            Promissory Notes:
 
 	(a)	Global Intercompany Note, dated September 28, 2012 which will be pledged hereunder.	
 
(b)
 
No.	Entity	Principal Amount	Date of Issuance	Interest Rate	Maturity Date Pledged	[Yes/No]	
Surplus Debenture No. 2009-1	CDOC, Inc.	$50,000,000	July 1, 2009	Offshore Rate + 4%	December 31, 2030	Yes	
Surplus Debenture No. 2009-2	CDOC, Inc.	$58,250,000	July 1, 2009	Offshore Rate + 4%	December 31, 2030	Yes	
Surplus Debenture No. 2009-3	CDOC, Inc.	$305,000,000	July 1, 2009	Offshore Rate + 4%	December 31, 2030	Yes	
Surplus Debenture No. 2009-4	CDOC, Inc.	$336,300,000	July 1, 2009	Offshore Rate + 4%	December 31, 2030	Yes	
Surplus Note No. 2006-2	CDOC, Inc.	$160,000,000	October 31, 2006	Offshore Rate + 4%	December 31, 2036	Yes	
 
Offshore Rate = Eurodollar Base Rate ÷ (1.00 — Eurodollar Reserve Percentage)
 
2.            Chattel Paper:
 
None.

Exhibit 10.2

 
CREDIT AGREEMENT
 
Dated as of September 28, 2012
 
among
 
CNO FINANCIAL GROUP, INC.,
as Company,
 
JPMORGAN CHASE BANK, N.A.,
as Agent,
 
and
 
THE LENDERS PARTY HERETO

 
GOLDMAN SACHS BANK USA
and
J.P. MORGAN SECURITIES LLC,
as Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents
 
and
 
ASSOCIATED BANK, N.A., THE NORTHERN TRUST COMPANY,
 THE PRIVATEBANK AND TRUST COMPANY, and
RBC CAPITAL MARKETS,
as Co-Documentation Agents

 

 

TABLE OF CONTENTS
 
 	 	 	Page	
 	 	 	 	
ARTICLE 1
DEFINITIONS	
 	 	 	 	
Section 1.01.	Certain Defined Terms	 	1	
Section 1.02.	Other Interpretive Provisions	 	33	
Section 1.03.	Classification of Loans	 	34	
Section 1.04.	Accounting Principles	 	34	
 	 	 	 	
ARTICLE 2
THE CREDITS	
 	 	 	 	
Section 2.01.	Term Loans	 	35	
Section 2.02.	Revolving Loans	 	36	
Section 2.03.	Swing Line Loans	 	37	
Section 2.04.	Issuance of Letters of Credit and Purchase of Participations Therein	 	39	
Section 2.05.	Pro Rata Shares	 	43	
Section 2.06.	Conversion and Continuation of Loans	 	43	
Section 2.07.	Notes; Loan Accounts	 	44	
Section 2.08.	Repayment of Loans	 	44	
Section 2.09.	Optional and Mandatory Prepayments and Reductions of Commitments	 	45	
Section 2.10.	Interest	 	49	
Section 2.11.	Fees	 	51	
Section 2.12.	Computation of Fees and Interest	 	52	
Section 2.13.	Payments Generally	 	53	
Section 2.14.	Sharing of Payments by Lenders	 	54	
Section 2.15.	Incremental Facilities	 	54	
Section 2.16.	Defaulting Lenders	 	57	
Section 2.17.	Maturity Extensions of Loans	 	60	
 	 	 	 	
ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY	
 	 	 	 	
Section 3.01.	Taxes	 	63	
Section 3.02.	Illegality	 	65	
Section 3.03.	Increased Costs and Reduction of Return	 	66	
Section 3.04.	Funding Losses	 	67	
Section 3.05.	Inability to Determine Rates; Breakage Costs	 	67	
Section 3.06.	Certificates of Lenders	 	68	
Section 3.07.	Substitution of Lenders	 	68	
Section 3.08.	Survival	 	68	
 	 	 	 	
ARTICLE 4
CONDITIONS PRECEDENT	
 	 	 	 	
Section 4.01.	Conditions of Initial Credit Extension	 	68	
Section 4.02.	Conditions to All Credit Extensions	 	71	
Section 4.03.	Determinations Under Section 4.01	 	72	

i

ARTICLE 5
REPRESENTATIONS AND WARRANTIES	
 	 	 	 	
Section 5.01.	Corporate Existence and Power	 	72	
Section 5.02.	Corporate Authorization; No Contravention	 	73	
Section 5.03.	Governmental Authorization	 	73	
Section 5.04.	Binding Effect	 	73	
Section 5.05.	Litigation	 	73	
Section 5.06.	No Default	 	74	
Section 5.07.	ERISA Compliance	 	74	
Section 5.08.	Margin Regulations	 	74	
Section 5.09.	Title to Properties	 	75	
Section 5.10.	Taxes	 	75	
Section 5.11.	Financial Condition	 	75	
Section 5.12.	Environmental Matters	 	76	
Section 5.13.	Regulated Activities and Regulated Entities	 	77	
Section 5.14.	Subsidiaries	 	77	
Section 5.15.	Insurance Licenses	 	78	
Section 5.16.	Full Disclosure	 	78	
Section 5.17.	Solvency	 	78	
Section 5.18.	Security Interests	 	78	
Section 5.19.	Insurance	 	79	
Section 5.20.	OFAC; Anti-Terrorism Laws; PATRIOT Act	 	79	
Section 5.21.	Surplus Debenture Interest and Dividends	 	79	
 	 	 	 	
ARTICLE 6
AFFIRMATIVE COVENANTS	
 	 	 	 	
Section 6.01.	Financial Statements	 	80	
Section 6.02.	Certificates; Other Information	 	81	
Section 6.03.	Notices	 	83	
Section 6.04.	Preservation of Corporate Existence, Etc.	 	84	
Section 6.05.	Insurance	 	84	
Section 6.06.	Payment of Obligations	 	85	
Section 6.07.	Compliance with Laws	 	85	
Section 6.08.	Compliance with ERISA	 	85	
Section 6.09.	Inspection of Property and Books and Records	 	85	
Section 6.10.	Information Regarding Collateral	 	86	
Section 6.11.	Use of Proceeds	 	86	
Section 6.12.	Additional Subsidiaries; Immaterial Subsidiaries	 	86	
Section 6.13.	Further Assurances	 	87	
Section 6.14.	Maintenance of Ratings	 	87	
Section 6.15.	Designation of Subsidiaries	 	87	
Section 6.16.	Maintenance of Properties	 	88	
Section 6.17.	Post-Closing Matters	 	88	
 	 	 	 	
ARTICLE 7
NEGATIVE COVENANTS	
 	 	 	 	
Section 7.01.	Limitation on Indebtedness; Certain Capital Stock	 	88	
Section 7.02.	Liens	 	90	

ii

Section 7.03.	Disposition of Assets	 	92	
Section 7.04.	[Reserved]	 	94	
Section 7.05.	Transactions with Affiliates	 	94	
Section 7.06.	Change in Business	 	94	
Section 7.07.	Fundamental Changes	 	94	
Section 7.08.	Restricted Payments	 	95	
Section 7.09.	Investments and Acquisitions	 	96	
Section 7.10.	Prepayment of Certain Indebtedness; Modifications of Certain Agreements; Synthetic Purchase Agreements	 	97	
Section 7.11.	Debt to Total Capitalization Ratio	 	98	
Section 7.12.	Interest Coverage Ratio	 	98	
Section 7.13.	[Reserved.]	 	98	
Section 7.14.	Aggregate RBC Ratio	 	98	
Section 7.15.	Combined Statutory Capital and Surplus Level	 	98	
Section 7.16.	Investment Portfolio Requirement	 	98	
Section 7.17.	Restrictive Agreements	 	99	
Section 7.18.	Holding Company Activities	 	100	
Section 7.19.	Changes in Accounting Policies; Fiscal Year	 	100	
 	 	 	 	
ARTICLE 8
EVENTS OF DEFAULT	
 	 	 	 	
Section 8.01.	Events of Default	 	100	
Section 8.02.	Remedies	 	103	
Section 8.03.	Rights Not Exclusive	 	103	
 	 	 	 	
ARTICLE 9
THE AGENT	
 	 	 	 	
Section 9.01.	Appointment and Authority	 	103	
Section 9.02.	Rights as a Lender	 	103	
Section 9.03.	Exculpatory Provisions	 	104	
Section 9.04.	Reliance by Agent	 	104	
Section 9.05.	Delegation of Duties	 	105	
Section 9.06.	Resignation of Agent	 	105	
Section 9.07.	Non-Reliance on Agent and Other Lenders	 	105	
Section 9.08.	No Other Duties, Etc.	 	106	
Section 9.09.	Agent May File Proofs of Claim	 	106	
Section 9.10.	Collateral and Guaranty Matters	 	106	
Section 9.11.	Indemnification of Agent-Related Persons	 	107	
Section 9.12.	Withholding Tax	 	107	
 	 	 	 	
ARTICLE 10
MISCELLANEOUS	
 	 	 	 	
Section 10.01.	Amendments and Waivers	 	108	
Section 10.02.	Notices	 	110	
Section 10.03.	No Waiver; Cumulative Remedies	 	112	
Section 10.04.	Costs and Expenses	 	112	
Section 10.05.	Company Indemnification; Damage Waiver	 	113	
Section 10.06.	Marshalling; Payments Set Aside	 	113	

iii

Section 10.07.	Assignments, Successors, Participations, Etc.	 	114	
Section 10.08.	Confidentiality	 	118	
Section 10.09.	Set-off	 	118	
Section 10.10.	Notification of Addresses, Lending Offices, Etc.	 	119	
Section 10.11.	Effectiveness; Counterparts	 	119	
Section 10.12.	Survival of Representations and Warranties	 	119	
Section 10.13.	Severability	 	119	
Section 10.14.	Replacement of Defaulting Lenders and Non-Consenting Lenders	 	120	
Section 10.15.	Governing Law; Jurisdiction; Consent to Service of Process	 	120	
Section 10.16.	Waiver of Jury Trial	 	121	
Section 10.17.	USA PATRIOT Act Notice	 	121	
Section 10.18.	Entire Agreement	 	121	
Section 10.19.	Independence of Covenants	 	121	
Section 10.20.	Obligations Several; Independent Nature of Lenders’ Right	 	121	
Section 10.21.	No Fiduciary Duty	 	121	
 	 	 	 	
APPENDICES	 	 	 	
 	 	 	 	
Appendix A-1	Tranche B-1 Term Loan Commitments	 	 	
Appendix A-2	Tranche B-2 Term Loan Commitments	 	 	
Appendix A-3	Revolving Commitments	 	 	
 	 	 	 	
SCHEDULES	 	 	 	
 	 	 	 	
Schedule 5.05	Litigation	 	 	
Schedule 5.07	ERISA	 	 	
Schedule 5.13	Investment Companies	 	 	
Schedule 5.14(a)	Capital Stock	 	 	
Schedule 5.14(b)	Subsidiaries	 	 	
Schedule 6.17	Post-Closing Matters	 	 	
Schedule 7.01	Existing Indebtedness	 	 	
Schedule 7.02	Existing Liens	 	 	
Schedule 7.09	Existing and Committed Investments	 	 	
Schedule 7.17	Restrictive Agreements	 	 	
Schedule 10.02	Addresses for Notices	 	 	
 	 	 	 	
EXHIBITS	 	 	 	
 	 	 	 	
Exhibit A	Form of Compliance Certificate	 	 	
Exhibit B-1	Form of Tranche B-1 Term Loan Note	 	 	
Exhibit B-2	Form of Tranche B-2 Term Loan Note	 	 	
Exhibit B-3	Form of Revolving Loan Note	 	 	
Exhibit B-4	Form of Swing Line Note	 	 	
Exhibit C-1	Form of Loan Notice	 	 	
Exhibit C-2	Form of Continuation/Conversion Notice	 	 	
Exhibit C-3	Form of Issuance Notice	 	 	
Exhibit D	Form of Assignment and Assumption	 	 	
Exhibit E	Eurodollar Rate Funding Loss Determination Methodology	 	 	
Exhibit F	Form of Security Agreement	 	 	
Exhibit G-1	United States Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)	 	 	

iv

Exhibit G-2	United States Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)	 	 	
Exhibit G-3	United States Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)	 	 	
Exhibit G-4	United States Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)	 	 	
Exhibit H-1	Form of Opinion of Simpson Thacher & Bartlett LLP	 	 	
Exhibit H-2	Form of Opinion of Karl Kindig	 	 	
Exhibit H-3	Form of Opinion of Faegre Baker Daniels LLP	 	 	
Exhibit H-4	Form of Opinion of Porter Hedges LLP	 	 	
Exhibit I	Form of Solvency Certificate	 	 	
Exhibit J	Form of Pari Passu Intercreditor Agreement	 	 	
Exhibit K	Form of Joinder Agreement	 	 	
Exhibit L	Form of Modified Dutch Auction Procedures	 	 	

v

 
CREDIT AGREEMENT
 
This CREDIT AGREEMENT is entered into as of September 28, 2012, by and among CNO FINANCIAL GROUP, INC., a Delaware corporation (together with its successors, the “ Company ”), the lenders from time to time party to this Agreement (collectively, the “ Lenders ”; individually, each a “ Lender ”), and JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders.
 
WHEREAS, the Company desires to obtain from the Lenders (i) a revolving credit facility in an aggregate principal amount of $50,000,000, (ii) a term loan B-1 facility in an aggregate principal amount of $250,000,000 and (iii) a term loan B-2 facility in an aggregate principal amount of $425,000,000;
 
WHEREAS, the Company intends to use the proceeds of the revolving credit facility for (i) capital expenditures and acquisitions permitted hereunder and (ii) working capital and general corporate purposes of the Company;
 
WHEREAS, the Company intends to use the proceeds of the term loan B-1 facility and term loan B-2 facility, together with the proceeds from the offering of the Senior Secured Notes (i) to repay all amounts outstanding under the Existing Credit Agreement (as defined below), (ii) to fund an offer to purchase up to all of the Company’s Existing Senior Secured Notes (as defined below) and a concurrent solicitation of consents, and, to the extent any Existing Senior Secured Notes are not repurchased pursuant to such offer, to redeem such remaining Existing Senior Secured Notes and satisfy and discharge the indenture relating thereto, (iii) to fund the purchase of approximately $200,000,000 aggregate principal amount of the Company’s outstanding Existing Convertible Debentures (as defined below), (iv) to pay fees and expenses incurred in connection with the foregoing and in connection with a proposed offering of Senior Secured Notes (as defined below), and (v) for the working capital and general corporate purposes of the Company;
 
WHEREAS, the Company is willing to secure its obligations under this Agreement and certain other obligations by granting Liens on substantially all of its assets to the Agent, for the benefit of the Secured Parties, as provided in the Security Documents; and
 
WHEREAS, the Company is willing to cause each of its current and future wholly-owned Domestic Subsidiaries (other than Insurance Subsidiaries, Subsidiaries of Insurance Subsidiaries, Immaterial Subsidiaries and Unrestricted Subsidiaries) to (i) guarantee the foregoing obligations of the Company and (ii) secure such guarantee thereof by granting Liens on substantially all of the assets of such Subsidiaries to the Agent, for the benefit of the Secured Parties, as provided in the Security Documents;
 
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
 
ARTICLE 1
Definitions
 
Section 1.01. Certain Defined Terms.
 
The following terms have the following meanings:
 
“ Acquisition ” means (i) any Investment by the Company or any of its Restricted Subsidiaries in a Person (other than an existing Wholly-Owned Subsidiary) whereby such Person becomes a direct or indirect Restricted Subsidiary of the Company or is merged with and into the Company or such Restricted Subsidiary or (ii) an acquisition by the Company or any of its Restricted Subsidiaries of the property and assets of any Person (other than an existing Wholly-Owned Subsidiary) that constitutes all or substantially all of the assets of such Person or any division, line of business, book of business or business unit of such Person; provided that capital expenditures (as determined in accordance with GAAP) that do not, individually or as part of a series of related transactions, result in the acquisition of all or substantially all of the assets of any Person or any division, line of business, book of business or business unit of such Person shall be deemed not to be Acquisitions.

1

 
“ Affiliate ” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with, such Person.  A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power (a) to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners of the other Person or (b) to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, membership interests, by contract or otherwise.
 
“ Agent ” means JPM,  in its capacity as administrative agent under the Loan Documents, and its successors and permitted assigns in such capacity.
 
“ Agent-Related Persons ” means the initial Agent and any successor Agent, the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents, in each case together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
 
“ Agent’s Office ” means the Agent’s address and, as appropriate, account as set forth on Schedule 10.02 or such other address or account as the Agent may from time to time specify.
 
“ Aggregate RBC Ratio ” means, with respect to the Insurance Subsidiaries taken as a whole, on any date of determination, one-half of the ratio (expressed as a percentage) of (a) the aggregate Total Adjusted Capital (as defined by each relevant Insurance Subsidiary’s Department) for the Insurance Subsidiaries to (b) the aggregate Authorized Control Level Risk-Based Capital (as defined by each relevant Insurance Subsidiary’s Department) for the Insurance Subsidiaries.
 
“ Agreement ” means this Credit Agreement.
 
“ A.M. Best ” means A.M. Best Company.
 
“ Annual Statement ” means the annual statutory financial statement of any Insurance Subsidiary required to be filed with the insurance commissioner (or similar authority) of its jurisdiction of incorporation, which statement shall be in the form required by such Insurance Subsidiary’s jurisdiction of incorporation or, if no specific form is so required, in the form of financial statements permitted by such insurance commissioner (or such similar authority) to be used for filing annual statutory financial statements and shall contain the type of information permitted or required by such insurance commissioner (or such similar authority) to be disclosed therein, together with all exhibits or schedules filed therewith.
 
“ Anti-Money Laundering Laws ” means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to a Obligor, its subsidiaries or Affiliates, related to terrorism financing or money laundering including any applicable provision of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (Title III of Pub. L. 107-56) and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).

2

 
“ Anti-Terrorism Laws ”   means any Requirement of Law related to terrorism financing or money laundering, including the Patriot Act, The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), the Trading With the Enemy Act (50 U.S.C. § 1 et seq ., as amended) and Executive Order 13224 (effective September 24, 2001).
 
“ Applicable Margin ” and “ Applicable Revolving Commitment Fee Percentage ” mean with respect to Revolving Loans, (i) from the Closing Date until the date of delivery of the Compliance Certificate and the financial statements for the period ending December 31, 2012,  a percentage, per annum , determined by reference to the following table as if the Debt to Total Capitalization Ratio then in effect were 20.0%; and (ii) thereafter, a percentage, per annum , determined by reference to the Debt to Total Capitalization Ratio in effect from time to time as set forth below:
 
Debt to Total
Capitalization
Ratio	 
Applicable Margin for
Eurodollar Rate Loans

Applicable Margin for
Base Rate Loans
 
 	Applicable Revolving
Commitment Fee
Percentage	
≥  20.0%	3.50%	2.50%	0.500%	
< 20.0%
≥  17.5%	3.25%	2.25%	0.500%	
< 17.5%	3.00%	2.00%	0.375%	
 
No change in the Applicable Margin or the Applicable Revolving Commitment Fee Percentage shall be effective until three Business Days after the date on which the Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(a) calculating the Debt to Total Capitalization Ratio.  At any time the Company has not submitted to the Agent the applicable information as and when required under Section 6.02(a) , the Applicable Margin and the Applicable Revolving Commitment Fee Percentage shall be determined as if the Debt to Total Capitalization Ratio were in excess of 20.0%.  Within one Business Day of receipt of the applicable information under Section 6.02(a) , the Agent shall give each Lender telefacsimile, telephonic or electronic notice (confirmed in writing) of the Applicable Margin and the Applicable Revolving Commitment Fee Percentage in effect from such date.  In the event that any financial statement or certificate delivered pursuant to Section 6.02(a) is shown to be inaccurate (at a time when this Agreement is in effect and unpaid Obligations under this Agreement are outstanding (other than indemnities and other contingent obligations not yet due and payable)), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or Applicable Revolving Commitment Fee Percentage for any period (an “ Applicable Period ”) than the Applicable Margin or Applicable Revolving Commitment Fee Percentage applied for such Applicable Period, then (x) the Company shall immediately deliver to the Agent a correct certificate required by Section 6.02(a) for such Applicable Period, (y) the Applicable Margin or Applicable Revolving Commitment Fee Percentage shall be determined based on the Debt to Total Capitalization Ratio set forth in such correct certificate and (z) the Company shall immediately pay to the Agent the accrued additional interest owing as a result of such increased Applicable Margin or Applicable Revolving Commitment Fee Percentage for such Applicable Period.  Nothing in this paragraph shall limit the right of the Agent or any Lender under Section 2.10 or Article 8 .

3

 
“ Approved Electronic Communications ” means any notice, demand, communication, information, document or other material that any of the Company or any of its Subsidiaries provides to the Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Agent, Lenders or Issuing Bank by means of electronic communications pursuant to Section 10.02(b) .
 
 “ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
 
“ Arrangers ” means, collectively, JPMorgan and Goldman Sachs.
 
“ Asset Sale ” means any Disposition of property or series of related Dispositions of property pursuant to Section 7.03(e) (only to the extent proceeds therefrom are not required to be retained by any Insurance Subsidiary pursuant to regulatory restrictions), (m) or (o) .
 
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee substantially in the form of Exhibit D or in another form reasonably acceptable to the Agent.
 
“ Attorney Costs ” means and includes all reasonable fees, expenses and disbursements of any law firm or other external legal counsel and, without duplication, the reasonable allocated cost of internal legal services and all reasonable out-of pocket expenses and out-of pocket disbursements of internal counsel.
 
“ Auction ” has the meaning specified in Section 10.07(c) .
 
“ Auction Manager ” means (a) either the Agent or any Arranger, as determined by the Company, or any of their respective Affiliates or (b) any other financial institution or advisor agreed by the Company and the Agent (whether or not an affiliate of the Agent) to act as an arranger in connection with any repurchases pursuant to Section 10.07(c) .
 
“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest, if any, quoted for such day in The Wall Street Journal as the “U.S. Prime Rate”, (c) the Eurodollar Rate for an Interest Period of one month beginning on such day (or if such day is not a Business Day, the Business Day immediately preceding such day) plus 1.00% per annum and (d) (x) with respect to Tranche B-1 Term Loans, 2.00% per annum and (y) with respect to Tranche B-2 Term Loans, 2.25% per annum .
 
“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.
 
“ Borrowing Date ” means the date of a Credit Extension.
 
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the state where the Agent’s Office is located or New York City and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
 
“ Calculation Period ” means, with respect to any ratio or calculation, the period for which such ratio or calculation is being calculated.

4

 
“ Capital Adequacy Regulation ” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank.
 
“ Capital and Surplus ” means, as to any Insurance Subsidiary, as of any date, the total amount shown on line 38, page 3, column 1 (or such other line on which the equivalent information is provided on any other such Annual Statement) of the Annual Statement of such Insurance Subsidiary as of such date, or an amount determined in a consistent manner for any date other than one as of which an Annual Statement is prepared.
 
“ Capital Expenditures ” means, for any period, (a) the additions to property, plant and equipment capitalized in accordance with GAAP and other capital expenditures of the Company and its Subsidiaries that are (or would be) set forth in a consolidated statement of cash flows of the Company and its Subsidiaries for such period prepared in accordance with GAAP and (b) any Capitalized Lease Liabilities incurred by the Company and its Subsidiaries during such period.
 
“ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase any of the foregoing; provided that, for the avoidance of doubt, Capital Stock shall not be deemed to include debt convertible or exchangeable for any of the foregoing.
 
“ Capitalized Lease Liabilities ” means, with respect to any Person, all monetary obligations of such Person under any leasing or similar arrangement that, in accordance with GAAP, would be classified as a capitalized lease, and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.  For purposes of this definition, whenever in this Agreement is it necessary to determine whether a lease is a capital lease or an operating lease, such determination shall be made on the basis of GAAP as in effect on January 1, 2012.
 
“ Cash Collateralize ” means, in respect of an Obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance satisfactory to the Agent and the Issuing Bank (and “Cash Collateralization” has a corresponding meaning). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
 
“ Cash Equivalents ” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of twelve months or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000 and a short term deposit rating of at least A-1 by S&P and P-l by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally; (c) commercial paper of an issuer rated at least A-2 by S&P and P-2 by Moody’s at the time of acquisition thereof, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within nine months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P and A2 by Moody’s; (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; or (g) shares of money market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.

5

 
“ Cash Interest Expense ” means, for any Calculation Period, the sum of (a) total interest expense, to the extent paid or payable in cash, of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP, excluding interest paid or, without duplication, accrued but unpaid by any Insurance Subsidiary to the extent otherwise included in total interest expense in this clause (a) for such Calculation Period, and (b) total dividends paid or payable in cash on any preferred stock issued by the Company to the extent the terms of such preferred stock require payment of cash dividends for such Calculation Period; provided that, following the conversion of any such preferred stock into common stock, any cash dividends paid on such preferred stock during the applicable Calculation Period shall, on a Pro Forma Basis, as if the conversion was completed on the first day of the Calculation Period, be excluded from calculations of Cash Interest Expense for such Calculation Period.
 
“ Cash Management Obligations ” means obligations owed by any Obligor to any Lender or any Affiliate of a Lender in respect of any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds or in respect of any credit card or similar services.
 
“ Casualty Event ” means any casualty or other insured damage to any property of the Company or any of its Subsidiaries (other than Insurance Subsidiaries or Subsidiaries of Insurance Subsidiaries), or any taking of any such property under power of eminent domain or by condemnation or similar proceeding, or any transfer of any such property in lieu of a condemnation or similar taking thereof.
 
“ CBOs ” means notes or other instruments (other than CMOs) secured by collateral consisting primarily of debt securities and/or other types of debt obligations, including loans.
 
“ CDOC ” means CDOC, Inc., a Delaware corporation, and a direct Wholly-Owned Subsidiary of the Company on the Closing Date.
 
“ CDOC Preferred Stock ” means preferred stock of CDOC that is held by one or more of the Insurance Subsidiaries.
 
“ CERCLA ” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
 
“ Change of Control ” means (a) any acquisition, directly or indirectly, by any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), of beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of 35% or more of the outstanding shares of Voting Stock of the Company or (b) the occurrence of a “change of control” (howsoever defined) in the indenture or any other instrument governing any Indebtedness or preferred stock with an aggregate outstanding amount in excess of $50,000,000.

6

 
“ Class ” means (i) with respect to Lenders, each of the following classes of Lenders: (a) Lenders having Tranche B-1 Term Loan Exposure, (b) Lenders having Tranche B-2 Term Loan Exposure, (c) Lenders having Revolving Exposure (including the Swing Line Lender) and (d) Lenders having New Term Loan Exposure of each applicable Series, and (ii) with respect to Loans, each of the following classes of Loans: (a) Tranche B-1 Term Loans, (b) Tranche B-2 Term Loans, (c) Revolving Loans (including Swing Line Loans) and (d) each Series of New Term Loans.
 
“ Closing Date ” means September 28, 2012, or, if later, the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .
 
“ CMOs ” means notes or other instruments secured by collateral consisting primarily of mortgages, mortgage-backed securities and/or other types of mortgage-related obligations.
 
“ CNO Excess Cash Flow ” means, for any Calculation Period, the sum, without duplication, of (a) dividends paid in cash to the Company by any Subsidiary plus (b) interest paid in cash to the Company by any Subsidiary pursuant to any Indebtedness owing by such Subsidiary to the Company plus (c) interest or principal paid in cash to the Company with respect to any Surplus Debenture plus (d) amounts paid in cash to the Company under the Tax Sharing Agreement plus (e) management and other similar fees received by the Company under servicing agreements or otherwise from any Subsidiary plus (f) amounts paid in cash to the Company pursuant to a loan made to it by any Subsidiary plus (g) the Company’s Investment Income received in cash minus (h) cash operating expenses of the Company , which, for the avoidance of doubt, shall exclude the redemption price, repurchase price, premiums, fees, costs and expenses paid in cash incurred in connection with (1) the redemption or repurchase of the Existing Senior Secured Notes , (2) the purchase and redemption of the Existing Convertible Debentures on or after the Closing Date, (3) any redemption or repurchase of any bonds, debentures or notes issued subsequent to the Closing Date and (4) without duplication, the Transactions minus (i) Capital Expenditures of the Company made in cash minus (j) any amounts paid by the Company in respect of interest on or in repayment of any loan referred to in clause (f) above plus (k) non-recurring cash and non-cash charges (not to exceed $40,000,000 in the aggregate (of which up to $25,000,000 may be cash charges) for all Calculation Periods) related to restructuring, consolidation, severance or discontinuance of any portion of the operations, employees and/or management of the Company minus (l) any amounts paid in cash by the Company to any Insurance Subsidiary in respect of any overpayment by such Insurance Subsidiary of amounts required to be paid by such Insurance Subsidiary to the Company under the Tax Sharing Agreement, in each case for such Calculation Period.  Amounts received by the Company or any of its Subsidiaries and required to be applied to prepay the Credit Extensions pursuant to Section 2.09(d) (other than pursuant to Section 2.09(d)(iii) ) shall, to the extent otherwise included in CNO Excess Cash Flow for any Calculation Period, be excluded from this calculation for such Calculation Period.
 
“ Code ” means the Internal Revenue Code of 1986, and regulations promulgated thereunder.
 
“ Co-Documentation Agents ” means Associated Bank, N.A., The Northern Trust Company, The PrivateBank and Trust Company, and RBC Capital Markets and each of their respective successors and assigns in such capacity.
 
“ Collateral ” means, collectively, all of the Security Agreement Collateral and all other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Security Document.
 
“ Collateral and Guarantee Requirement ” means the requirement that:

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(a)           the Agent shall have received from each Obligor either (i) a counterpart of the Security Agreement duly executed and delivered on behalf of such Obligor or (ii) in the case of any Person that becomes an Obligor after the Closing Date, a supplement to the Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Obligor;
 
(b)           all outstanding Capital Stock in any Restricted Subsidiary owned by or on behalf of any Obligor shall have been pledged pursuant to the Security Agreement (except that, in the case of Foreign Subsidiaries or Foreign Subsidiary Holding Companies, (x) such pledge shall be limited to 65% of the outstanding Voting Stock and 100% of the outstanding Capital Stock (other than Voting Stock) of first-tier Foreign Subsidiaries or Foreign Subsidiary Holding Companies and (y) no assets of any Foreign Subsidiary or Foreign Subsidiary Holding Company (including any Capital Stock or Voting Stock of a Subsidiary owned by a Foreign Subsidiary or Foreign Subsidiary Holding Company, as applicable) shall be subject to the Collateral and Guarantee Requirement) and the Agent shall have received all certificates or other instruments representing such Capital Stock, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;
 
(c)           all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents and perfect or record such Liens to the extent, and with the priority, required by the Security Agreement, shall have been filed, registered or recorded or delivered to the Agent for filing, registration or recording;
 
(d)           each Obligor shall have obtained all consents and approvals required to be obtained by it in connection with the execution and delivery of all Security Documents to which it is a party, the performance of its obligations thereunder and the granting of the Liens granted by it thereunder; and
 
(e)            each Obligor shall have taken all other action required under the Security Documents to perfect, register and/or record the Liens granted by it thereunder.
 
“ Combined Statutory Capital and Surplus ” means, as of the last day of any Fiscal Quarter, the sum of the amounts shown on the Combined Statutory Statement of the Insurance Subsidiaries as of the last day of such Fiscal Quarter on (i) p. 3, line 38 and (ii) p. 3, line 24.1 (or such other line on which the equivalent information is provided on any other such Combined Statutory Statement).
 
“ Combined Statutory Statement ” means a statement combining the Quarterly Statements or Annual Statements, as applicable, of all the Insurance Subsidiaries.
 
“ Commitment ” means any Revolving Commitment or Term Loan Commitment.
 
“ Company ” has the meaning specified in the introduction to this Agreement.
 
“ Company Assignment and Acceptance ” means an Assignment and Acceptance Agreement substantially in the form of Annex C to Exhibit L , with such amendments or modifications as may be approved by the Agent.
 
“ Compensation Period ” has the meaning specified in Section 2.13(c)(ii) .
 
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit A .

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“ Contingent Obligation ” means, without duplication, any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the debt, obligation or other liability of any other Person (other than by endorsements of instruments in the course of collection or indemnities under contracts entered into in the ordinary course of business and not in respect of Indebtedness or the issuance of Capital Stock), or guarantees the payment of dividends or other distributions upon the shares of any other Person; provided that the obligations of any Person under Reinsurance Agreements or in connection with Investments of Insurance Subsidiaries permitted by the applicable Department shall not be deemed Contingent Obligations of such Person.  The amount of any Contingent Obligation of any Person shall (subject to any limitation set forth therein) be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.
 
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its property is bound.
 
“ Conversion/Continuation Notice ” means a Conversion/Continuation Notice substantially in the form of Exhibit C-2 .
 
“ Co-Syndication Agents ” means Goldman Sachs and JPMorgan, and each of their respective successors and assigns in such capacity.
 
“ Credit Extension ” means the (a) making, conversion or continuation of a Loan or (b) the issuance of a Letter of Credit.
 
“ Debt to Total Capitalization Ratio ” means, as of any date of determination, without duplication, the ratio of (a) the principal amount of, and accrued but unpaid interest on, all Indebtedness of the Company outstanding on such date, other than (i) Indebtedness owing to any Subsidiary Guarantor and (ii) Indebtedness of the kind referred to in clause (e) of the definition of “Indebtedness,” to (b) Total Capitalization on such date.
 
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
 
“ Default ” means any event or circumstance that constitutes an Event of Default or that, with the giving of notice, the lapse of time, or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default.

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“ Defaulting Lender ” means subject to Section 2.16(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Agent, Issuing Bank, Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Company, the Agent, Issuing Bank or Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Agent or the Company, to confirm in writing to the Agent or the Company that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent), or (d) the Agent has received notification that such Lender has, or has a direct or indirect parent company that is (i) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors or (ii) the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
 
“ Department ” means, with respect to any Insurance Subsidiary, the Governmental Authority of such Insurance Subsidiary’s state of domicile with which such Insurance Subsidiary is required to file its Annual Statement.
 
“ Designated Asset Sale ” means the Disposition by the Company or one or more of its Restricted Subsidiaries on one occasion of all or substantially all of the Capital Stock or assets of one or more Insurance Subsidiaries; provided that such Disposition shall only constitute the “Designated Asset Sale” to the extent that (x) the aggregate consideration received by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries, as the case may be,  in connection with such Disposition does not exceed $125,000,000 and (y) as of the date on which such Disposition is consummated, the portion of CNO Excess Cash Flow for the four-Fiscal Quarter period then most recently ended that is attributable to such Insurance Subsidiary or Insurance Subsidiaries, as the case may be, does not exceed 5% of the aggregate CNO Excess Cash Flow for such four-Fiscal Quarter Period.  Notwithstanding the foregoing, a Disposition shall not fail to constitute the Designated Asset Sale solely because the aggregate consideration therefor exceeds $125,000,000; provided that (i) the entire amount of any such excess shall constitute a Disposition under Section 7.03(o) for all purposes thereunder (and the Net Proceeds of such excess shall be applied in accordance with Section 2.09(d) ) and (ii) such Disposition shall be permitted and constitute the Designated Asset Sale only if such Disposition, to the extent exceeding $125,000,000, is permitted to be made by the Company and its Restricted Subsidiaries under Section 7.03(o) on the date of (and after giving effect to) such Disposition.
 
“ Disposition ” means the sale, assignment, leasing as lessor (other than in the ordinary course), transfer, contribution, conveyance, issuance or other disposal of, or granting of options, warrants or other rights with respect to, any of a Person’s assets (including any transaction pursuant to a Reinsurance Agreement or a sale and leaseback transaction and, in the case of any Restricted Subsidiary, the issuance or sale of its Capital Stock).  The terms “ Dispose of ”, “ Disposing of ” and “ Disposed of ” shall have correlative meaning.

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“ Disqualified Capital Stock ” means any Capital Stock 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 happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Latest Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock referred to in clause (a) above, in each case at any time on or prior to the first anniversary of the Latest Maturity Date, or (c) contains any repurchase obligation which may come into effect prior to payment in full of all Obligations; provided , however , that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Capital Stock upon the occurrence of a change in control or an asset sale occurring prior to the first anniversary of the Latest Maturity Date shall not constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the repayment in full of the Obligations.
 
“ Dollars ,” “ dollars ” and “ $ ” each mean lawful money of the United States.
 
“ Domestic Subsidiary ” means a Subsidiary that is not a Foreign Subsidiary.
 
“ Economic Sanctions Laws ” means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to a Obligor, its Subsidiaries or Affiliates relating to economic sanctions and terrorism financing, including any applicable provisions of the Trading with the Enemy Act (50 U.S.C. App. §§ 5(b) and 16, as amended), the International Emergency Economic Powers Act (50 U.S.C. §§ 1701-1706, as amended) and Executive Order 13224 (effective September 24, 2001), as amended.
 
“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Agent and (ii) unless an Event of Default has occurred and is continuing, the Company (each such approval not to be unreasonably withheld or delayed); provided that (x) notwithstanding the foregoing, “Eligible Assignee” shall not include any of the Company’s Subsidiaries, (y) the Company shall be deemed to have approved an assignee unless it shall object thereto by written notice to the Agent within ten (10) Business Days after having received notice thereof and (z) any assignment to the Company shall be subject to the terms of Section 10.07(c) .
 
“ Embargoed Person ”   means any party that (i) is publicly identified on the most current list of “Specially Designated Nationals and Blocked Persons” published by the U.S. Treasury Department’s Office of Foreign Assets Control (“ OFAC ”) or resides, is organized or chartered or has a place of business in a country or territory subject to OFAC sanctions or embargo programs or (ii) is publicly identified as prohibited from doing business with the United States under the International Emergency Economic Powers Act, the Trading With the Enemy Act or any other Requirement of Law.
 
“ Environment ” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetlands, flora and fauna.
 
“ Environmental Claims ” means all written claims, complaints, notices or inquiries, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release or injury to the environment or threat to public health, personal injury (including sickness, disease or death), property damage, natural resources damage, or otherwise alleging liability or responsibility for damages (punitive or otherwise), cleanup, removal, remedial or response costs, restitution, civil or criminal penalties, injunctive relief or other type of relief, resulting from or based upon the presence, placement, or Release (including intentional or unintentional, negligent or non-negligent, sudden or non-sudden or accidental or non-accidental placement, spills, leaks, discharges, emissions or releases) of any Hazardous Material at, in, under or from property, whether or not owned by the Company or any of its Subsidiaries, excluding, in any case, liabilities or claims arising under any insurance contract or policy, reinsurance agreement or retrocession agreement relating to any of the foregoing where the Company or any of its Subsidiaries is the insurer.

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“ Environmental Laws ” means all Requirements of Law relating to pollution or protection of the Environment, health and safety.
 
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of remediation, fines, penalties or indemnities), of the Company, any other Obligor or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
 
“ ERISA ” means the Employee Retirement Income Security Act of 1974 and the regulations promulgated thereunder.
 
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Company or any of its Subsidiaries within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
 
“ ERISA Event ” means (a) a Reportable Event with respect to a Single Employer Pension Plan; (b) with respect to any Single Employer Pension Plan, the failure to satisfy the minimum funding standard under Sections 412 or  430 of the Code and Sections 302 or 303 of ERISA, whether or not waived, the failure to make by its due date a required installment under Section 430(j) of the Code or Section 303 of ERISA with respect to any Single Employer Pension Plan or the failure to make a required contribution to a Multiemployer Plan; (c) a withdrawal by the Company, any of its Subsidiaries or any ERISA Affiliate from a Single Employer Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (d) a complete or partial withdrawal by the Company, any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization or is insolvent; (e) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a Single Employer Pension Plan or Multiemployer Plan; (f) an event or condition that could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Single Employer Pension Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA, other than required plan contributions and PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company, any of its Subsidiaries or any ERISA Affiliate; (h) a Multiemployer Plan is determined to be in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA, or, with respect to any Single Employer Pension Plan, a determination that it is “at risk” under Section 430 of the Code or Section 303 of ERISA or (i) the imposition of a Lien under Section 430(k) of the Code or Section 303(k) or 4068 of ERISA.
 
“ Eurodollar Rate ” means for any Interest Period with respect to a Eurodollar Rate Loan:

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(a)           the rate per annum equal to the rate determined by the Agent to be the offered rate that appears on the Reuters page (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or
 
(b)           if the rate referenced in the preceding clause (a) does not appear on such page or service or such page or service shall not be available, the rate per annum equal to the rate determined by the Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or
 
(c)           if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by the Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by JPM and with a term equivalent to such Interest Period would be offered by JPM’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two Business Days prior to the first day of such Interest Period;
 
; provided that, (x) with respect to Tranche B-1 Term Loans, the Eurodollar Rate shall not be deemed to be less than 1.00% per annum and (y) with respect to Tranche B-2 Term Loans, the Eurodollar Rate shall not be deemed to be less than 1.25% per annum .
 
“ Eurodollar Rate Loan ” means a Loan that bears interest at a rate based on the Eurodollar Rate.
 
“ Event of Default ” has the meaning specified in Section 8.01 .
 
“ Exchange Act ” means the Securities Exchange Act of 1934 and the regulations promulgated thereunder.
 
“ Excluded Subsidiary ” means any Subsidiary that is a Foreign Subsidiary, a Foreign Subsidiary Holding Company, a Subsidiary of a Foreign Subsidiary, a non-Wholly-Owned Subsidiary, an Immaterial Subsidiary or an Unrestricted Subsidiary.
 
“ Excluded Taxes ” means, with respect to the Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Obligor under any Loan Document, (a) Taxes imposed on or measured by its net income (however denominated, and including (for the avoidance of doubt) any backup withholding in respect thereof under Section 3406 of the Code or any similar provision of state, local or foreign law), franchise Taxes imposed on it in lieu of net income Taxes and branch profits Taxes imposed on it, in each case, by a jurisdiction (or any political subdivision thereof) as a result of the recipient being organized, having an office or being engaged in business (other than a business arising (or being deemed to arise) solely as a result of the Loan Documents or the transactions and activities contemplated by the Loan Documents) in such jurisdiction, (b) in the case of a Lender (other than an assignee pursuant to a request by the Company under Section 10.14 ), (i) any United States Federal withholding Tax that is imposed on amounts payable to such Lender under any laws in effect at the time such Lender becomes a party hereto (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts from the Company with respect to such withholding Tax pursuant to Section 3.01(a) ; or (ii) any Tax that is attributable to such Lender’s failure to comply with Section 3.01(e) and (c) any United States federal withholding Tax that is imposed pursuant to FATCA.

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“ Existing Class ” has the meaning specified in Section 2.17(a) .
 
“ Existing Convertible Debentures ” means the Company’s 7.0% Convertible Senior Debentures due 2016, to the extent outstanding on the Closing Date.
 
“ Existing Credit Agreement ” means that certain Credit Agreement, dated as of December 21, 2010, by and among the Company, the lenders named therein, Morgan Stanley Senior Funding, Inc., as agent for such lenders, and Barclays Capital, as syndication agent (as amended by Amendment No. 1 and Amendment No. 2 thereto dated as of May 6, 2011 and March 20, 2012, respectively).
 
“ Existing Revolving Commitments ” has the meaning specified in Section 2.17(c) .
 
“ Existing Revolving Loans ” has the meaning specified in Section 2.17(c) .
 
“ Existing Senior Secured Notes ” means $275,000,000 aggregate principal amount of 9.00% senior secured notes due 2018 of the Company issued under the Existing Senior Secured Notes Indenture.
 
“Existing Senior Secured Notes Indenture” means the Indenture, dated December 21, 2010, between the Company, certain guarantors party thereto and Wilmington Trust, National Association (as successor by merger to Wilmington Trust FSB).
 
“ Existing Term Loans ” has the meaning specified in Section 2.17(c) .
 
“ Extended Maturity Date ” has the meaning specified in Section 2.17(a) .
 
“ Extended Revolving Commitments ”   has the meaning specified in Section 2.17(c) .
 
“ Extended Revolving Loans ”   has the meaning specified in Section 2.17(c) .
 
“ Extended Term Loans ” has the meaning specified in Section 2.17(c) .
 
“ Extension ” has the meaning specified in Section 2.17(a) .
 
“ Extension Amendment ” has the meaning specified in Section 2.17(f) .
 
“ Extension Offer ” has the meaning specified in Section 2.17(a) .
 
“ Facilities ” means, collectively, (a) Term Loans and Term Loan Commitments therefor, (b) Revolving Loans and Revolving Commitments therefor, (c) New Term Loans and New Term Loan Commitments therefor and (d) New Revolving Loans and New Revolving Commitments therefor.
 
“ FATCA ” means current Sections 1471 through 1474 of the Code and any amended or successor version that is substantively comparable and not materially more onerous to comply with (including any Treasury regulations or other official administrative guidance promulgated thereunder).
 
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Agent on such day on such transactions as determined by the Agent.

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“ Financial Strength Rating Condition ” has the meaning specified in Section 2.09(d) .
 
“ Fiscal Quarter ” means any fiscal quarter of a Fiscal Year.
 
“ Fiscal Year ” means any period of twelve consecutive calendar months ending on December 31.
 
“ Fitch ” means Fitch Ratings Limited.
 
“ Foreign Lender ” means any Lender that is not a U.S. Person within the meaning of Section 7701(a)(30) of the Code.
 
“ Foreign Subsidiary ” means a Subsidiary (which may be a corporation, limited liability company, partnership or other legal entity) organized under the laws of a jurisdiction outside the United States, other than any such entity that is (whether as a matter of law, pursuant to an election by such entity or otherwise) treated as a partnership in which any Obligor is a partner or as a branch of any Obligor for United States income tax purposes.
 
“ Foreign Subsidiary Holding Company ” means a Domestic Subsidiary that is a disregarded entity for U.S. federal income tax purposes, substantially all of the assets of which consist of stock of Foreign Subsidiaries.
 
“ FRB ” means the Board of Governors of the Federal Reserve System and any Governmental Authority succeeding to any of its principal functions.
 
“ Fronting Exposure ” means, at any time there is a Defaulting Lender, with respect to Issuing Bank, such Defaulting Lender’s Pro Rata Share of the outstanding Obligations with respect to Letters of Credit issued by Issuing Bank other than such Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
 
“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
 
“ GAAP ” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), that are applicable to the circumstances as of the date of determination.
 
“ Goldman Sachs ” means Goldman Sachs Bank USA.

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“ Governmental Acts ” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.
 
“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial or regulatory functions of or pertaining to government and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing, including any board of insurance, insurance department or insurance commissioner.
 
“ Hazardous Material ” means:  (a) any “hazardous substance,” as defined by CERCLA; (b) any “hazardous waste,” as defined by the Resource Conservation and Recovery Act; (c) petroleum and any petroleum product; or (d) any other pollutant, contaminant, chemical, material, waste or substance in any form that is subject to regulation or, as to which, liability or standards of conduct can be imposed under any Environmental Law.
 
“ Historical Statutory Statements ” has the meaning specified in Section 5.11 .
 
“ Immaterial Subsidiary ” means any Non-Insurance Subsidiary that (a) has assets with an aggregate fair market value less than $5,000,000 as of the end of the most recently ended Fiscal Quarter, (b) has aggregate revenues less than $10,000,000 for the period of four consecutive Fiscal Quarters most recently ended, (c) has no Indebtedness (other than Indebtedness existing on the date hereof and listed in Schedule 7.01 or permitted under Section 7.01(a)(x) and other Indebtedness in an aggregate principal amount not exceeding at any time one-half of the fair market value of the assets of such Subsidiary at such time), (d) is not integral to the business or operations of the Company or its Subsidiaries (other than Immaterial Subsidiaries), (e) has no Subsidiaries (other than Immaterial Subsidiaries), and (f) is not an Obligor; provided that CNO Management Services Company shall not be deemed to be an Immaterial Subsidiary so long as it is the manager of CNO Services, LLC pursuant to the latter’s limited liability company agreement.
 
“ Increased Amount Date ” has the meaning specified in Section 2.15 .
 
“ Indebtedness ” means, with respect to any Person, without duplication:  (a) all indebtedness of such Person for borrowed money or in respect of loans or advances; (b) all indebtedness of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all indebtedness in respect of letters of credit, whether or not drawn, and bankers’ acceptances and letters of guaranty issued for the account or upon the application or request of such Person; (d) all Capitalized Lease Liabilities of such Person; (e) the liabilities (if any) of such Person in respect of Swap Contracts as determined by reference to the Swap Termination Value thereof; (f) all obligations of such Person to pay the deferred purchase price of property or services that are included as liabilities in accordance with GAAP (other than accrued expenses incurred and trade accounts payable in each case in the ordinary course of business) and all obligations secured by a Lien on property owned or being purchased by such Person, but only to the extent of the lesser of the obligations secured or the value of the property to which such Lien is attached (including obligations arising under conditional sales or other title retention agreements); (g) any obligations of a partnership of the kind referred to in clauses (a) through (f) above or clause (h) or (i)  below in which such Person is a general partner; (h) solely for purposes of Section 7.11 , all obligations in respect of preferred stock (other than preferred stock that qualifies as permanent equity for purposes of GAAP) of such Person; and (i) all Contingent Obligations of such Person in connection with Indebtedness or obligations of others of the kinds referred to in clauses (a) through (h) above.
 
“ Indemnified Liabilities ” has the meaning specified in Section 10.05 .

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“ Indemnified Person ” has the meaning specified in Section 10.05 .
 
“ Indemnified Taxes ” means all Taxes other than Excluded Taxes.
 
“ Independent Auditor ” has the meaning specified in Section 6.01(a) .
 
“ Insolvency Proceeding ” means, with respect to any Person, (a) any case, action or proceeding with respect to such Person before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, conservation, rehabilitation, receivership, dissolution, winding-up or relief of debtors or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in any case, undertaken under U.S. Federal, state or foreign law, including title 11 of the United States Code.
 
“ Insurance Subsidiary ” means any Subsidiary that is required to be licensed as an insurer or reinsurer.
 
“ Intercreditor Agreement ” shall mean the Pari Passu Intercreditor Agreement substantially in the form attached hereto as Exhibit J .
 
“ Interest Coverage Ratio ” means, for any Calculation Period, the ratio of (a) CNO Excess Cash Flow for such Calculation Period to (b) Cash Interest Expense for such Calculation Period.
 
“ Interest Payment Date ” means (a) with respect to any Base Rate Loan, the last Business Day of each calendar quarter and (b) with respect to any Eurodollar Rate Loan, the last day of each Interest Period applicable to the Credit Extension of which such Loan is a part; provided that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the date that falls three months after the beginning of such Interest Period and after each Interest Payment Date thereafter is also an Interest Payment Date (but in each case, subject to the definition of “ Interest Period ”).
 
“ Interest Period ” means, with respect to any Eurodollar Rate Loan, the period beginning on the date of the applicable Credit Extension and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Company may elect; provided that:
 
(i)            if any Interest Period would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day;
 
(ii)           any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) of this definition, end on the last Business Day of the calendar month at the end of such Interest Period; and
 
(iii)          no Interest Period with respect to any portion of any Class of Term Loans shall extend beyond such Class’s Maturity Date; and
 
(iv)          no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.

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For purposes hereof, the date of a Credit Extension initially shall be the date on which such Credit Extension is made and thereafter shall be the effective date of the most recent continuation of such Credit Extension.
 
“ Interest Rate Determination Date ” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
 
“ Interest Type ” means, when used with respect to any Loan, whether the rate of interest on such Loan is determined by reference to the Eurodollar Rate or the Base Rate.
 
“ Investment ” means any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase (including purchases financed with equity) of any Capital Stock, bonds, notes, obligations, debentures or other debt securities of, or any other investment in, any Person.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, but shall be reduced by the amount equal to any returns in respect of such Investment received by the investor thereof in the same form as the original Investment (or in cash).
 
“ Investment Grade Asset ” means any Investment with a fixed maturity that has a rating of (x) at least BBB- by S&P and, if such Investment is rated by Moody’s, at least Ba2 from Moody’s or (y) at least Baa3 by Moody’s and, if such Investment is rated by S&P, at least BB from S&P, or, if such Investment is not rated by either S&P or Moody’s, an NAIC rating of at least Class 2.
 
“ Investment Income ” means the amount of earnings of the Company on Investments, net of expenses actually incurred in connection with such Investments and taking into account realized gains and losses on such Investments.
 
“ IRS ” means the Internal Revenue Service or any Governmental Authority succeeding to any of its principal functions under the Code.
 
“ Issuance Notice ” means an Issuance Notice substantially in the form of Exhibit C-3 .
 
“ Issuing Bank ” means JPM as Issuing Bank hereunder, together with its permitted successors and assigns in such capacity.
 
“ Joinder Agreement ” means an agreement substantially in the form of Exhibit K .
 
“ JPM ” means JPMorgan Chase Bank, N.A.
 
“ JPMorgan ” means J.P. Morgan Securities LLC.
 
“ L/C Exposure ” shall mean at any time the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate amount of all payments or disbursements made by the Issuing Bank pursuant to a Letter of Credit that have not yet been reimbursed by or on behalf of the Company at such time. The L/C Exposure of any Revolving Lender at any time shall equal its Pro Rata Share of the aggregate L/C Exposure at such time.
 
 “ Latest Maturity Date ” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any New Revolving Commitments, New Term Loan Commitments, New Revolving Loans or New Term Loans, in each case as extended in accordance with this Agreement from time to time.

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“ Lenders ” has the meaning specified in the introduction to this Agreement and includes any other Person that shall have become a party hereto pursuant to an Assignment and Assumption in accordance with Section 10.07 , other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
 
“ Lending Office ” means, as to any Lender, the office or offices of such Lender specified as its “Lending Office” or “Domestic Lending Office” or “Eurodollar Lending Office,” as the case may be, on Schedule 10.02 or in its administrative questionnaire delivered to the Agent, or such other office or offices or office of a third party or sub-agent, as appropriate, as such Lender may from time to time notify the Company and the Agent.
 
“ Letter of Credit ” means a commercial or standby letter of credit issued or to be issued by Issuing Bank pursuant to this Agreement.
 
“ Letter of Credit Sublimit ” means the lesser of (i) $5,000,000 and (ii) the aggregate unused amount of the Revolving Commitments then in effect.
 
“ Letter of Credit Usage ” means, as at any date of determination, the sum of (i) the maximum aggregate amount which is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding plus (ii) the aggregate amount of all drawings under Letters of Credit honored by Issuing Bank and not theretofore reimbursed by or on behalf of the Company.
 
“ License ” means any license, certificate of authority, permit or other authorization that is required to be obtained from any Governmental Authority in connection with the operation, ownership or transaction of insurance business.
 
“ Lien ” means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential arrangement of any kind or nature whatsoever in respect of any property (including those created by, arising under or evidenced by, any conditional sale or other title retention agreement, the interest of a lessor under a capital lease or any financing lease having substantially the same economic effect as any of the foregoing) and any contingent or other agreement to provide any of the foregoing, but not including the interest of a lessor under an operating lease or a licensor under a license that does not otherwise secure an obligation.
 
“ Loan ” means a Tranche B-1 Term Loan, a Tranche B-2 Term Loan, a Revolving Loan, a Swing Line Loan and/or a New Term Loan, as applicable.
 
“ Loan Documents ” means this Agreement and amendments of and joinders to this Agreement that are deemed pursuant to their terms to be Loan Documents for purposes hereof, all Notes, the Intercreditor Agreement, the Security Documents and any fee letter agreement entered into pursuant to Section 2.11 , and in the case of the Security Documents, all Secured Swap Contracts.
 
“ Loan Notice ” means a notice of Credit Extension substantially in the form of Exhibit C-1 .
 
“ Margin Stock ” means “margin stock” as such term is defined in Regulation T, U or X of the FRB.

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“ Material Acquisition ” means any Acquisition of assets by the Company or its Restricted Subsidiaries in a transaction or series of related transactions for consideration exceeding $80,000,000, other than any such acquisition (x) by any Insurance Subsidiary in the ordinary course of business in compliance with Section 7.16 and the investment policy approved by the board of directors of such Insurance Subsidiary or (y) by the Company in compliance with Section 7.16 and the investment policy approved by the board of directors of the Company.
 
“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the business, properties, results of operations or financial condition of the Company or the Company and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Obligor to perform under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Obligor of any Loan Document to which it is a party.
 
“ Material Disposition ” means any disposition of assets by the Company or its Subsidiaries in a transaction or series of related transactions for consideration exceeding $80,000,000, other than any such disposition by any Insurance Subsidiary in the ordinary course of business consistent with the investment policy approved by the board of directors of such Insurance Subsidiary.
 
“ Maturity Date ” means, except to the extent extended pursuant to Section 2.17 , (i) with respect to the Tranche B-1 Term Loans, the earlier of (a) the fourth anniversary of the Closing Date, and (b) the date on which all Tranche B-1 Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise, (ii) with respect to the Tranche B-2 Term Loans, the earlier of (a) the sixth anniversary of the Closing Date, and (b) the date on which all Tranche B-2 Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise, (iii) with respect to New Term Loans, the date on which New Term Loans of a Series shall become due and payable in full hereunder, as specified in the applicable Joinder Agreement or the definitive agreement therefor, including by acceleration or otherwise and (iv) with respect to New Revolving Loans, the date on which New Revolving Loans of a Series shall become due and payable in full hereunder, as specified in the applicable Joinder Agreement, including by acceleration or otherwise.
 
“ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of Issuing Bank with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Agent and Issuing Bank in their reasonable discretion.
 
“ Minimum Extension Condition ” as defined in Section 2.17(d) .
 
“ Moody’s ” means Moody’s Investors Service, Inc., together with any Person succeeding thereto by merger, consolidation or acquisition of all or substantially all of its assets, including substantially all of its business of rating securities.
 
“ Multiemployer Plan ” means a “multiemployer plan,” within the meaning of Section 4001(a)(3) of ERISA, to which the Company, any of its Subsidiaries or any ERISA Affiliate makes, is making or is obligated to make contributions or, during the preceding six calendar years, has made, or been obligated to make, contributions.
 
“ NAIC ” means the National Association of Insurance Commissioners or any successor thereto, or in the absence of the National Association of Insurance Commissioners or such successor, any other association, agency or other organization performing advisory, coordination or other like functions among insurance departments, insurance commissioners and similar Governmental Authorities of the various states of the United States toward the promotion of uniformity in the practices of such Governmental Authorities.

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“ Net Income ” means, for any Person for any Calculation Period, the net income (or loss) of such Person for such period as determined in accordance with GAAP.
 
“ Net Proceeds ” means (a) with respect to any Asset Sale or Casualty Event, the aggregate amount of cash and Cash Equivalents received in respect of such Asset Sale or Casualty Event, as the case may be (including any such amounts received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received and, in the case of a Casualty Event, insurance proceeds, condemnation awards and similar payments) minus the sum of (i) all costs and expenses (including legal fees, notarial fees, accountants’ fees, investment banking fees, survey costs and title insurance premiums) paid by the Company or any of its Restricted Subsidiaries to third parties, amounts applied to the repayment of Indebtedness (other than the Loans) secured by a Lien (other than a Lien that ranks pari passu with or junior to the Liens securing the Obligations) expressly permitted hereunder on any asset that is the subject of such Asset Sale or Casualty Event, costs of discontinuance (including any reasonable severance payments), Taxes other than Income Taxes (after taking into account any available tax credits, exemptions or deductions and any tax sharing arrangements) and other customary fees and expenses incurred in connection with such Asset Sale or Casualty Event and required to be paid in cash or deducted from the proceeds of such Asset Sale or Casualty Event, (ii) the estimated income tax or other Taxes to the extent payable by the Person selling or Disposing of such asset actually required to be paid in cash in connection with such Asset Sale (after taking into account any available tax credits, exemptions or deductions and any tax sharing arrangements), (iii) purchase price adjustments reasonably expected to be payable in connection therewith and the aggregate amount of reserves taken by the Company or any of its Restricted Subsidiaries in accordance with GAAP against indemnification obligations incurred in connection therewith so long as, if any such amount ceases to be payable, it shall then become “Net Proceeds” and (iv) for an Insurance Subsidiary or any Subsidiary of an Insurance Subsidiary, any amounts that the Department will not permit such Insurance Subsidiary or such Subsidiary of an Insurance Subsidiary to distribute (including as a dividend or otherwise) directly or indirectly to the Company as a result of such Asset Sale or Casualty Event, and (b) with respect to any incurrence of Indebtedness by the Company or any of its Subsidiaries, the proceeds thereof in the form of cash and Cash Equivalents minus the costs and expenses paid or payable within 90 days of incurrence (so long as, if any such amount is not paid within such period, it shall become “Net Proceeds” on the last day of such period) by the Company or any of its Subsidiaries to third parties in connection therewith (including legal fees, notarial fees, accountants’ fees, investment banking fees, underwriting discounts and commissions, taxes and other customary fees and expenses incurred in connection therewith) and required to be paid in cash or deducted from the proceeds of such issuance, contribution or incurrence.  For purposes of this definition, the Net Proceeds received by any Person in respect of any Disposition shall include such cash or Cash Equivalents as may be received (“subsequent cash proceeds”) by such Person at any time or from time to time in connection with the sale, transfer, lease or other disposition, or otherwise in respect of, any consideration other than cash or Cash Equivalents received by such Person in respect of such Disposition, less the estimated income tax or other Taxes to the extent payable by the Person selling or Disposing of such asset to be paid in connection with the receipt of such subsequent cash proceeds (after taking into account any available tax credits, exemptions or deductions and any tax sharing arrangements) that was not theretofore deducted in computing Net Proceeds.
 
“ New Revolving Commitments ” has the meaning specified in Section 2.15 .
 
“ New Revolving Loan Lender ” has the meaning specified in Section 2.15 .

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“ New Revolving Loans ” has the meaning specified in Section 2.15 .
 
“ New Term Loan Commitments ” has the meaning specified in Section 2.15 .
 
“ New Term Loan Exposure ” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the New Term Loans of such Lender.
 
“ New Term Loan Lender ” has the meaning specified in Section 2.15 .
 
“ New Term Loans ” has the meaning specified in Section 2.15 .
 
“ Non-Consenting Lender ” means a Lender that does not consent to an amendment or waiver pursuant to Section 10.01 that requires the consent of all or all affected Lenders in order to become effective and as to which Lenders holding more than 50% of the Loans have consented.
 
“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.
 
“ Non-Insurance Subsidiary ” means any Subsidiary that is not an Insurance Subsidiary.
 
“ Note ” has the meaning specified in Section 2.07(b) .
 
“ Obligations ” means  all advances to, and debts, liabilities, obligations, covenants and duties of, any Obligor arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Obligor of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  Without limiting the generality of the foregoing, the Obligations of the Obligors under the Loan Documents include (a) the obligation to pay principal, interest, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Obligor under any Loan Document and (b) the obligation of any Obligor to reimburse any amount in respect of any of the foregoing that any Lender or Issuing Bank, in its sole discretion, may elect to pay or advance on behalf of such Obligor.
 
“ Obligors ” means the Company and the Subsidiary Guarantors.
 
“ OFAC ” has the meaning set forth in the definition of “Embargoed Person.”
 
“ Organization Documents ” means (i) with respect to any corporation, the certificate or articles of incorporation, the bylaws, any certificate of designation or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and all applicable resolutions of the board of directors (or any committee thereof) of such corporation, (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement, and all applicable resolutions or consents of the governing body (or any committee thereof) of such limited liability company and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, and all applicable resolutions or consents of the governing body (or any committee thereof), or in the case of clauses (i) , (ii)  and (iii) , the equivalent or comparable constituent documents with respect to any Foreign Subsidiary.

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“ Other Applicable Indebtedness ” has the meaning set forth in Section 2.09(e) .
 
“ Other Taxes ” means any present or future recording, stamp, court or documentary Taxes or any other excise, sales or property Taxes, charges or similar levies that arise from any payment made under this Agreement or any other Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Agreement or any other Loan Document.
 
“ Outstanding Amount ” means, with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date.
 
“ Participant ” has the meaning specified in Section 10.07(e) .
 
“ Participant Register ” has the meaning specified in Section 10.07(e) .
 
“ Patriot Act ” has the meaning specified in Section 10.17 .
 
“ PBGC ” means the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to any of its principal functions under ERISA.
 
“ Pension Plan ” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA that the Company, any of its Subsidiaries or any ERISA Affiliate sponsors or maintains, or to which it makes, is making or is obligated to make contributions, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five plan years.
 
“ Perfection Certificate ” means a certificate substantially in the form of Exhibit E to the Security Agreement or any other form approved by the Agent.
 
“ Permitted First Priority Refinancing Debt ” means any secured Indebtedness (including any Registered Equivalent Notes) incurred by the Company in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and under security documents substantially similar to the Security Documents and is not secured by any property or assets of  the Company or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Refinancing Indebtedness, (iii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Obligors and the terms of such guarantee shall, when taken as a whole, be no more favorable to the secured parties in respect of such Indebtedness than the terms of the Secured Guaranty, (iii) the holders of such Indebtedness (or their representative) and the Agent shall be party to the Intercreditor Agreement and (iv) such Indebtedness has covenants, default and remedy provisions and other terms and conditions (other than interest, fees, premiums, funding discounts, or optional prepayment provisions) that are substantially identical to, or, when taken as a whole, no more favorable to the investors providing such Permitted First Priority Refinancing Debt than, those set forth in this Agreement (except for covenant or other provisions applicable only to periods after the Latest Maturity Date at the time such Indebtedness is incurred).

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“ Permitted Junior Debt Conditions ” means that such applicable debt (i) is not scheduled to mature prior to the date that is 180 days after the Latest Maturity Date, (ii) does not mature or have scheduled amortization payments of principal or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale or change of control provisions that provide for the prior repayment in full of the Loans and all other Obligations), in each case prior to the Latest Maturity Date at the time such Indebtedness is incurred, (iii) is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Obligors and the terms of such guarantee shall be no more favorable to the secured parties in respect of such Indebtedness than the terms of the Secured Guaranty, (iv) has no financial maintenance covenants, other than in the case of any Indebtedness secured by a Lien on the Collateral that is junior to the Liens securing the Obligations (in which event the financial maintenance covenants in the documentation governing such Indebtedness shall not be more restrictive than those set forth in this Agreement), (v) does not contain any provisions that cross-default to any Default or Event of Default hereunder (other than customary cross payment default and cross-acceleration provisions; provided that any such provision shall provide for a customary standstill period prior to the exercise by the holders of such debt of remedies), and (vi) has covenants, default and remedy provisions and other terms and conditions (other than interest, fees, premiums and funding discounts) that are substantially identical to, or less favorable to the investors providing such debt than, those set forth in this Agreement (except for covenant or other provisions applicable only to periods after the Latest Maturity Date at the time such Indebtedness is incurred).
 
“ Permitted Second Priority Refinancing Debt ” means secured Indebtedness (including any Registered Equivalent Notes) incurred by the Company in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (i) such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Obligations and under security documents substantially similar to the Security Documents and the obligations in respect of any Permitted First Priority Refinancing Debt and is not secured by any property or assets of the Company or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Refinancing Indebtedness ( provided that such Indebtedness may be secured by a Lien on the Collateral that is junior to the Liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt, notwithstanding any provision to the contrary contained in the definition of “Refinancing Indebtedness”), (iii) the holders of such Indebtedness (or their representative) and the Agent shall be subject to intercreditor arrangements reasonably satisfactory to the Agent and (iv) such Indebtedness meets the Permitted Junior Debt Conditions.
 
“ Permitted Swap Obligations ” means all obligations (contingent or otherwise) of the Company or any Restricted Subsidiary existing or arising under Swap Contracts; provided that each of the following criteria is satisfied:  (a) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments or assets held by such Person, or changes in the value of securities issued by such Person in conjunction with a securities repurchase program not otherwise prohibited hereunder, and not for purposes of speculation or taking a “market view” and (b) such Swap Contracts do not contain any provision (“walk-away” provision) exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party.
 
“ Permitted Transactions ” means (a) mortgage-backed security transactions in which an investor sells mortgage collateral, such as securities issued by the Government National Mortgage Association and the Federal Home Loan Mortgage Corporation, for delivery in the current month while simultaneously contracting to repurchase “substantially the same” (as determined by the Public Securities Association and GAAP) collateral for a later settlement, (b) transactions in which an investor lends cash to a primary dealer and the primary dealer collateralizes the borrowing of the cash with certain securities, (c) transactions in which an investor lends securities to a primary dealer and the primary dealer collateralizes the borrowing of the securities with cash collateral, (d) transactions in which an investor makes loans of securities to a broker-dealer under an agreement requiring such loans to be continuously secured by cash collateral or United States government securities, (e) transactions structured as, and submitted to the NAIC Securities Valuation Office for approval as, Replication (Synthetic Asset) Transactions (RSAT) ( provided that, to the extent that such approval is not granted in respect of any such transaction, such transaction shall cease to constitute a Permitted Transaction 30 days following the date of such rejection, denial or non-approval) and (f) transactions in which a federal home loan mortgage bank (a “ FHLMB ”) makes loans to an Insurance Subsidiary that are sufficiently secured by appropriate assets of such Insurance Subsidiary consisting of government agency mortgage-backed securities in accordance with the rules, regulations and guidelines of such FHLMB for its loan programs.

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“ Permitted Unsecured Refinancing Debt ” means unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Company in the form of one or more series of senior unsecured notes or loans; provided that such Indebtedness (i) constitutes Refinancing Indebtedness and (ii) meets the Permitted Junior Debt Conditions.
 
“ Person ” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority or other entity of whatever nature.
 
“ Plan ” means an employee benefit plan (as defined in Section 3(3) of ERISA) that the Company or any of its Subsidiaries sponsors or maintains or to which the Company or any of its Subsidiaries makes, is making or is obligated to make, contributions and includes any Pension Plan.
 
“ Pro Forma Basis ” means, with respect to compliance with any test or covenant hereunder and in connection with any event or transaction requiring a calculation on a Pro Forma Basis for any period, compliance with such test or covenant after giving effect to such event or transaction, and (i) in the case of any Material Acquisition or Material Disposition, including pro forma adjustments only to the extent consistent with Article 11 of Regulation S-X under the Securities Act and using for purposes of determining such compliance (x) in the case of any Material Acquisition, the historical financial statements of all entities or assets so acquired or to be acquired and (y) the consolidated financial statements of the Company and its Subsidiaries, which shall be reformulated as if such Material Acquisition or Material Disposition, and any other Material Acquisitions or Material Dispositions that have been consummated during such period, had been consummated on the first day of such period; (ii) in the case of any incurrence or prepayment or repayment of Indebtedness (other than under revolving credit facilities in the ordinary course of business), assuming such Indebtedness was incurred, prepaid or repaid on the first day of such period and assuming that such Indebtedness bears interest during the portion of such period prior to the date of incurrence at, in the case of Indebtedness bearing interest at a floating rate, the weighted average of the interest rates applicable to outstanding Loans during such period and, in the case of Indebtedness bearing interest at a fixed rate, such fixed rate; (iii) in the case of the declaration or payment of any dividend, assuming such dividend had been declared and paid on the first day of such period; and (iv) making such other pro forma adjustments as would be permitted or required by Regulation S-X under the Securities Act; provided , however , that such compliance calculation shall take into account other cost savings measures identified by the Company which the Agent, in its reasonable business judgment, deems reasonably identifiable and factually supportable, and which cost savings measures have been certified by a Responsible Officer.
 
“ Pro Rata Share ” means (i) with respect to all payments, computations and other matters relating to the Tranche B-1 Term Loan of any Lender, the percentage obtained by dividing (a) the Tranche B-1 Term Loan Exposure of that Lender by (b) the aggregate Tranche B-1 Term Loan Exposure of all Lenders; (ii) with respect to all payments, computations and other matters relating to the Tranche B-2 Term Loan of any Lender, the percentage obtained by dividing (a) the Tranche B-2 Term Loan Exposure of that Lender by (b) the aggregate Tranche B-2 Term Loan Exposure of all Lenders; (iii) with respect to all payments, computations and other matters relating to the Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit issued or participations purchased therein by any Lender or any participations in any Swing Line Loans purchased by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of that Lender by (b) the aggregate Revolving Exposure of all Lenders; and (iv) with respect to all payments, computations, and other matters relating to New Term Loan Commitments or New Term Loans of a particular Series, the percentage obtained by dividing (a) the New Term Loan Exposure of that Lender with respect to that Series by (b) the aggregate New Term Loan Exposure of all Lenders with respect to that Series.  For all other purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (A) an amount equal to the sum of the Tranche B-1 Term Loan Exposure, the Tranche B-2 Term Loan Exposure, the Revolving Exposure and the New Term Loan Exposure of that Lender, by (B) an amount equal to the sum of the aggregate Tranche B-1 Term Loan Exposure, the aggregate Tranche B-2 Term Loan Exposure, the aggregate Revolving Exposure and the aggregate New Term Loan Exposure of all Lenders.

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“ Purchase Money Debt ” means Indebtedness incurred by a Person in connection with the purchase of fixed or capital assets by such Person, in which assets the seller or financier thereof has taken or retained a Lien; provided that (x) any such Lien attaches to such assets concurrently with or within 120 days after the purchase thereof by such Person and (y) at the time of incurrence of such Indebtedness, the aggregate principal amount of such Indebtedness shall not exceed the costs of the assets so purchased plus fees and expenses reasonably related thereto.
 
“ Quarterly Statement ” means the quarterly statutory financial statement of any Insurance Subsidiary required to be filed with the insurance commissioner (or similar authority) of its jurisdiction of incorporation or, if no specific form is so required, in the form of financial statements permitted by such insurance commissioner (or such similar authority) to be used for filing quarterly statutory financial statements and shall contain the type of financial information permitted by such insurance commissioner (or such similar authority) to be disclosed therein, together with all exhibits or schedules filed therewith.
 
“ Refinance ” means, with respect to any Indebtedness, to refinance, refund, renew, replace, exchange or extend such Indebtedness.  The term “ Refinancing ” shall have a correlative meaning.
 
“ Refinancing Indebtedness ” means with respect to Indebtedness (“ Refinanced Debt ”), any Refinancing of such Indebtedness; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Debt except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Refinancing and as otherwise permitted to be incurred pursuant to Section 7.01 (it being understood that any such Indebtedness otherwise permitted to be incurred shall constitute Indebtedness under the relevant provision of Section 7.01 pursuant to which it shall be incurred and not Refinancing Indebtedness); provided , further , that the principal amount of such Indebtedness shall not include any principal constituting interest paid in kind, (b) such Refinancing Indebtedness shall have a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Refinanced Debt, (c) such Refinancing Indebtedness shall be incurred by the Person or Persons who are the obligors on the Refinanced Debt or would otherwise be permitted to incur such Indebtedness (including any guarantees thereof pursuant to Section 7.01 and Section 7.09 ), (d) at the time thereof, no Event of Default shall have occurred and be continuing, (e) the Company and its Subsidiaries shall be in compliance with Sections 7.11 , 7.12 , 7.14 , 7.15 , and 7.16 as of the date that any Refinancing Indebtedness is incurred and (f) such Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, substantially concurrently with the incurrence of such Refinancing Indebtedness in accordance with the provisions of Section 2.09(a) .

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“ Refunded Swing Line Loans ” has the meaning specified in Section 2.03(b)(iv) .
 
“ Register ” has the meaning specified in Section 10.07(d) .
 
“ Registered Equivalent Notes ” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (guaranteed on a basis substantially identical to the Secured Guarantee) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the U.S. Securities and Exchange Commission.
 
“ Reimbursement Date ” has the meaning specified in Section 2.04(d) .
 
“ Reinsurance Agreements ” means any agreement, contract, treaty, certificate or other arrangement by which any Insurance Subsidiary agrees to transfer or cede to another insurer all or part of the liability assumed or assets held by it under one or more insurance, annuity, reinsurance or retrocession policies, agreements, contracts, treaties, certificates or similar arrangements.  Reinsurance Agreements shall include, but not be limited to, any agreement, contract, treaty, certificate or other arrangement that is treated as such by the applicable Department.
 
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
 
“ Release ” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection, migration or leaching into or through the Environment.
 
“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.
 
“ Repricing Transaction ”   has the meaning specified in Section 2.09(c) .
 
“ Required Lenders ” means, as of any date of determination, one or more Lenders having or holding Tranche B-1 Term Loan Exposure, Tranche B-2 Term Loan Exposure, New Term Loan Exposure and/or Revolving Exposure and representing more than 50% of the aggregate Voting Power Determinants of all Lenders; provided that the amount of Voting Power Determinants shall be determined with respect to any Defaulting Lender by disregarding the Voting Power Determinants of such Defaulting Lender.
 
“ Required Revolving Lenders ” means, as of any date of determination, one or more Lenders having or holding Revolving Exposure and representing more than 50% of the aggregate Revolving Exposure of all Revolving Lenders; provided that the aggregate amount of Revolving Exposure shall be determined with respect to any Defaulting Lender by disregarding the Revolving Exposure of such Defaulting Lender.
 
“ Requirement of Law ” means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or legally binding upon the Person or any of its property or to which the Person or any of its property is subject.
 
“ Responsible Officer ” means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of an Obligor.  Any document delivered under any Loan Document that is signed by a Responsible Officer of an Obligor shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Obligor and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Obligor.  Unless otherwise specified, “Responsible Officer” means a Responsible Officer of the Company.

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“ Restricted Payments ” has the meaning set forth in Section 7.08 .
 
“ Restricted Subsidiary ” means any subsidiary other than an Unrestricted Subsidiary; provided that upon the occurrence of any Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such subsidiary shall be included in the definition of “Restricted Subsidiary.”
 
“ Revolving Commitment ” means the commitment of a Lender to make or otherwise fund any Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder, and “Revolving Commitments” means such commitments of all Lenders in the aggregate.   The amount of each Lender’s Revolving Commitment, if any, is set forth on Appendix A-3 or in the applicable Assignment and Assumption or Joinder Agreement, as applicable, subject to any adjustment or reduction pursuant to the terms and conditions hereof.  The aggregate amount of the Revolving Commitments as of the Closing Date is $50,000,000.
 
“ Revolving Commitment Period ” means the period from the Closing Date to but excluding the Revolving Commitment Termination Date.
 
“ Revolving Commitment Termination Date ” means the earliest to occur of (i) the third anniversary of the Closing Date, (ii) the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.09 , and (iii) the date of the termination of the Revolving Commitments pursuant to Section 8.1 .
 
“ Revolving Exposure ” means, with respect to any Lender as of any date of determination, (i) prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii) after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (b) in the case of Issuing Bank, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of any participations by Lenders in such Letters of Credit),  (c) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (d) in the case of Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and (e) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line Loans.
 
“ Revolving Lender ” means a Lender having a Revolving Commitment.
 
“ Revolving Loan ” means a Loan made by a Lender to the Company pursuant to Section 2.2(a) and/or Section 2.15 .
 
“ Revolving Loan Note ” means a promissory note in the form of Exhibit B-3 , as it may be amended, restated, supplemented or otherwise modified from time to time.
 
“ S&P ” means Standard & Poor’s Ratings Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., together with any Person succeeding thereto by merger, consolidation or acquisition of all or substantially all of its assets, including substantially all of its business of rating securities.
 
“ SAP ” means, with respect to any Insurance Subsidiary, the statutory accounting practices prescribed or permitted by the insurance commissioner (or other similar authority) in the jurisdiction of such Insurance Subsidiary for the preparation of annual statements and other financial reports by insurance companies of the same type as such Insurance Subsidiary that are applicable to the circumstances as of the date of filing of such statement or report.

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“ SEC ” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
 
“ Secured Guarantee ” has the meaning specified in the Security Agreement.
 
“ Secured Obligations ” has the meaning specified in the Security Agreement.
 
“ Secured Parties ” has the meaning specified in the Security Agreement.
 
“ Secured Swap Contract ” means any Swap Contract entered into by an Obligor with a Lender (or an Affiliate of a Lender), at the time such Swap Contract was entered into, to hedge interest rate risk of such Obligor and Subsidiaries that are not Insurance Subsidiaries.
 
“ Securities Act ” means the Securities Act of 1933 and the regulations promulgated thereunder.
 
“ Security Agreement ” means the Guarantee and Security Agreement, dated as of the Closing Date, among the Obligors and the Agent, substantially in the form attached hereto as Exhibit F .
 
“ Security Agreement Collateral ”   means all property pledged or granted as collateral pursuant to the Security Agreement.
 
“ Security Documents ” means the Security Agreement, each Mortgage (as defined in the Security Agreement) and each other security agreement, instrument or document executed and delivered pursuant thereto or pursuant to Section 6.12 or Section 6.13 to secure any of the Secured Obligations.
 
“ Senior Secured Notes ” means $275,000,000 aggregate principal amount of 6.375% senior secured notes due 2020 of the Company issued under the Senior Secured Notes Indenture.
 
“ Senior Secured Notes Documents ” means the Senior Secured Notes Indenture and the other documents governing the Senior Secured Notes.
 
“ Senior Secured Notes Indenture ”   means the Indenture, dated as of the Closing Date, among the Company, the Subsidiary Guarantors and Wilmington Trust, National Association, as trustee and as collateral agent.
 
“ Single Employer Pension Plan ” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, other than a Multiemployer Plan, that the Company, any of its Subsidiaries or any ERISA Affiliate sponsors or maintains, or to which the Company, any of its Subsidiaries or any ERISA Affiliate makes or is obligated to make contributions or could reasonably be expected to have liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
 
“ Subsidiary ” of a Person means any corporation, partnership, limited liability company, limited liability partnership, joint venture, trust, association or other unincorporated organization of which or in which such Person and such Person’s Subsidiaries own directly or indirectly more than 50% of (a) the combined voting power of all classes of stock having general voting power under ordinary circumstances to elect a majority of the board of directors, if it is a corporation, (b) the voting or managing interests (which shall mean the general partner in the case of a partnership), if it is a partnership, joint venture or similar entity, (c) the beneficial interest, if it is a trust, association or other unincorporated organization or (d) the membership interest, if it is a limited liability company; provided that that (i) Resortport Investment Partnership or any of its Subsidiaries and (ii) for the avoidance of doubt, Eagle Creek CLO Ltd, Mill Creek CLO Ltd, Sugar Creek Ltd, and any other variable interest entity formed after the Closing Date shall not be considered a Subsidiary for any purpose of this Agreement.  Unless otherwise specified, “ Subsidiary ” means a Subsidiary of the Company.

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“ Subsidiary Guarantors ” means each Subsidiary listed on the signature pages of the Security Agreement under the caption “ Subsidiary Guarantors ” and each Subsidiary that shall, at any time after the date thereof, become a Subsidiary Guarantor pursuant to Section 23 of the Security Agreement.  For the avoidance of doubt, no Insurance Subsidiary, Subsidiary of an Insurance Subsidiary, Foreign Subsidiary, Unrestricted Subsidiary or, subject to Section 6.12(b) , Immaterial Subsidiary shall be required to be a Subsidiary Guarantor.
 
“ Surplus Debentures ” means, as to any Insurance Subsidiary, debt securities of such Insurance Subsidiary issued to the Company or any other Subsidiary the proceeds of which are permitted to be included, in whole or in part, as Capital and Surplus of such Insurance Subsidiary as approved and permitted by the applicable Department.
 
“ Swap Contract ” means any agreement relating to any transaction (whether or not arising under a master agreement) that is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond, note or bill option, interest rate option, futures contract, forward foreign exchange transaction, cap, collar or floor transaction, currency swap, cross-currency rate swap, swaption, currency option, credit derivative transaction or any other similar transaction (including any option to enter into any of the foregoing) or any combination of the foregoing, and any master agreement relating to or governing any or all of the foregoing.
 
“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a) , the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined by the Company based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include any Lender).
 
“ Swing Line Lender ” means JPM in its capacity as Swing Line Lender hereunder, together with its permitted successors and assigns in such capacity.
 
“ Swing Line Loan ” means a Loan made by Swing Line Lender to the Company pursuant to Section 2.03 .
 
“ Swing Line Note ” means a promissory note in the form of Exhibit B-4, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
“ Swing Line Sublimit ” means the lesser of (i) $5,000,000 and (ii) the aggregate unused amount of Revolving Commitments then in effect.

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“ Synthetic Purchase Agreement ” means any agreement pursuant to which the Company or any of its Subsidiaries is or may become obligated to make (a) any payment in connection with the purchase by any third party from a Person other than the Company or any of its Subsidiaries (other than any Subsidiary that is a Subsidiary of an Insurance Subsidiary but is not itself an Insurance Subsidiary) of any Capital Stock or Indebtedness of the Company or any of its Subsidiaries (other than any Subsidiary that is a Subsidiary of an Insurance Subsidiary but is not itself an Insurance Subsidiary) or (b) any payment the amount of which is determined by reference to the price or value at any time of any such Capital Stock or Indebtedness; provided that (i) no phantom stock or similar plan providing for payments only to current or former directors, officers or employees of the Company or any of its Subsidiaries (or to their heirs or estates) and (ii) no such agreement in respect of any Disposition of any Capital Stock of a Subsidiary of the Company that is permitted by Section 7.03 shall in either case be deemed to be a Synthetic Purchase Agreement.
 
“ Tax Sharing Agreement ” means the amended and restated consolidated income tax agreement dated January 1, 2004 among the Company and certain of its Subsidiaries and any amendment, extension, renewal or replacement thereof.
 
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
 
“ Term Loan ” means a Tranche B-1 Term Loan, a Tranche B-2 Term Loan and/or a New Term Loan, as applicable.
 
“ Term Loan Commitment ” means the Tranche B-1 Term Loan Commitment, the Tranche B-2 Term Loan Commitment or the New Term Loan Commitment of a Lender, and “Term Loan Commitments” means such commitments of all Lenders.
 
“ Total Capitalization ” means, without duplication, (a) the amount described in clause (a) of the definition of “Debt   to Total Capitalization Ratio” plus (b) the Total Shareholders’ Equity of the Company.
 
“ Total Shareholders’ Equity ” means the total common and preferred shareholders’ equity of the Company as determined in accordance with GAAP (calculated excluding (i) unrealized gains (losses) on securities as determined in accordance with FASB ASC 320 (Investments–Debt and Equity Securities) and (ii) any charges taken to write off any goodwill included on the Company’s balance sheet on the Closing Date to the extent such charges are required by FASB ASC 320 (Investments–Debt and Equity Securities) and ASC 350 (Intangibles–Goodwill and Others)).
 
“ Total Utilization of Revolving Commitments ” means, as at any date of determination, the sum of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank for any amount drawn under any Letter of Credit, but not yet so applied) plus (ii) the aggregate principal amount of all outstanding Swing Line Loans plus (iii) the Letter of Credit Usage.
 
“ Tranche B-1 Term Loan ” means a Tranche B-1 Term Loan made by a Lender to the Company pursuant to Section 2.01(a)(i) .
 
“ Tranche B-1 Term Loan Commitment ” means the commitment of a Lender to make or otherwise fund a Tranche B-1 Term Loan, and “Tranche B-1 Term Loan Commitments” means such commitments of all Lenders in the aggregate.  The amount of each Lender’s Tranche B-1 Term Loan Commitment, if any, is set forth on Appendix A-1 or in the applicable Assignment and Assumption, subject to any adjustment or reduction pursuant to the terms and conditions hereof.  The aggregate amount of the Tranche B-1 Term Loan Commitments as of the Closing Date is $250,000,000.

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“ Tranche B-1 Term Loan Exposure ” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Tranche B-1 Term Loans of such Lender; provided that at any time prior to the making of the Tranche B-1 Term Loans, the Tranche B-1 Term Loan Exposure of any Lender shall be equal to such Lender’s Tranche B-1 Term Loan Commitment.
 
“ Tranche B-1 Term Loan Note ” means a promissory note in the form of Exhibit B-1 , as it may be amended, restated, supplemented or otherwise modified from time to time.
 
“ Tranche B-2 Term Loan ” means a Tranche B-2 Term Loan made by a Lender to the Company pursuant to Section 2.01(a)(ii) .
 
“ Tranche B-2 Term Loan Commitment ” means the commitment of a Lender to make or otherwise fund a Tranche B-2 Term Loan and “Tranche B-2 Term Loan Commitments” means such commitments of all Lenders in the aggregate.  The amount of each Lender’s Tranche B-2 Term Loan Commitment, if any, is set forth on Appendix A-2 or in the applicable Assignment and Assumption, subject to any adjustment or reduction pursuant to the terms and conditions hereof.  The aggregate amount of the Tranche B-2 Term Loan Commitments as of the Closing Date is $425,000,000.
 
“ Tranche B-2 Term Loan Exposure ” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Tranche B-2 Term Loans of such Lender; provided that   at any time prior to the making of the Tranche B-2 Term Loans, the Tranche B-2 Term Loan Exposure of any Lender shall be equal to such Lender’s Tranche B-2 Term Loan Commitment.
 
“ Tranche B-2 Term Loan Note ” means a promissory note in the form of Exhibit B-2 , as it may be amended, restated, supplemented or otherwise modified from time to time.
 
“ Transaction Liens ” means the Liens granted by the Obligors under the Security Documents.
 
“ Transactions ” means the (i) execution, delivery and performance by each Obligor of the Loan Documents to which it is to be a party, (ii) borrowing of the Loans hereunder on the Closing Date, (iii) repayment of all amounts outstanding under the Existing Credit Agreement, (iv) offering, sale and issuance of the Senior Secured Notes, (v) repurchase and redemption of the Existing Senior Secured Notes and satisfaction and discharge of the indenture relating thereto, (vi) purchase and redemption of approximately $200,000,000 aggregate principal amount of Existing Convertible Debentures and (vii) payment of fees and expenses incurred in connection with the foregoing.
 
“ Unfunded Pension Liability ” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 430 of the Code for the applicable plan year.
 
“ Uniform Commercial Code ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any Transaction Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
 
“ United States ” and “ U.S. ” each means the United States of America.

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“ Unrestricted Subsidiary ” means any Subsidiary designated by the board of directors (or similar governing body) of the Company as an Unrestricted Subsidiary pursuant to Section 6.15 subsequent to the date hereof.  The Company may designate any subsidiary (including any existing subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Company or any Subsidiary (other than any subsidiary of the subsidiary to be so designated); provided that (i) each of (A) the subsidiary to be so designated and (B) its subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any Restricted Subsidiary, (ii) the Company may not designate any Insurance Subsidiary to be an Unrestricted Subsidiary and (iii) for the avoidance of doubt, there shall be no Unrestricted Subsidiaries on the Closing Date.
 
“ Voting Power Determinants ” means, collectively, Tranche B-1 Term Loan Exposure, Tranche B-2 Term Loan Exposure, New Term Loan Exposure and/or Revolving Exposure.
 
“ Voting Stock ” of any Person means Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock or other relevant equity interest has voting power by reason of any contingency) to vote in the election of the board of directors or similar governing body of such Person.
 
“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
 
“ Weighted Average Yield ”   means with respect to any Loan, on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such Loan on such date and giving effect to all upfront or similar fees or original issue discount (but excluding arrangement and similar fees and expenses payable by the Company), based on a four year average life to maturity, or if less, remaining life to maturity, payable with respect to such Loan.
 
“ Wholly-Owned Subsidiary ” means any Person in which all of the Capital Stock (other than directors’ and national citizen qualifying shares or similar de minimis holdings by another Person, in each case, as required by law) is owned, beneficially and of record, by the Company, or by one or more of the other Wholly-Owned Subsidiaries, or both.
 
Section 1.02. Other Interpretive Provisions.
 
(a)           The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
 
(b)           The words “ hereof ,” “ herein ,” “ hereunder ” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and subsection, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
 
(c)           (i)           The term “ documents ” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.

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(ii)           The term “ including ” is not limiting and means “including without limitation.”
 
(iii)           In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “from and including,” the words “ to ” and “ until ” each mean “to but excluding” and the word “ through ” means “to and including.”
 
(d)           Unless otherwise expressly provided herein or the context requires otherwise, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document, (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation, (iii) any reference herein to a Person shall be construed to include such Person’s permitted successors and assigns and (iv) the word “ property ” shall be construed to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
 
(e)           The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
 
(f)           This Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters.  All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.
 
(g)           This Agreement and the other Loan Documents are the result of negotiations among, and have been reviewed by counsel to, the Agent, the Company and the other parties, and are the products of all parties.  Accordingly, they shall not be construed against the Lenders or the Agent merely because of the Agent’s or Lenders’ involvement in their preparation.
 
Section 1.03. Classification of Loans.
 
For purposes of this Agreement, Loans may be classified and referred to by Interest Type ( e.g ., a “ Eurodollar Rate Loan ”).
 
Section 1.04. Accounting Principles.
 
(a)           Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP as in effect from time to time, consistently applied.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Company and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
 
(b)           References herein to particular columns, lines or sections of any Person’s Annual Statement shall be deemed, where appropriate, to be references to the corresponding column, line or section of such Person’s Quarterly Statement, or if no such corresponding column, line or section exists or if any report form changes, then to the corresponding item referenced thereby.  In the event the columns, lines or sections of the Annual Statement or Quarterly Statement referenced herein are changed or renumbered from the columns, lines and sections applicable to the 2011 Annual Statement, or the June 30, 2012 Quarterly Statement, all such references shall be deemed references to such column, line or section as so renumbered or changed.

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(c)           In the event of any future Material Acquisition or Material Disposition, determinations of compliance with the financial covenants contained herein for any applicable Calculation Period shall be made on a Pro Forma Basis.
 
(d)           If, at any time after the date of this Agreement, any material change is made to GAAP or the Company’s accounting practices that would affect in any material respect the determination of compliance with the covenants set forth in this Agreement, the Company shall notify the Agent of the change and the Company and the Agent shall negotiate in good faith to amend such covenant, subject to the approval of the Required Lenders, to restore the Company and the Lenders to the position they occupied before the implementation of such material change in GAAP or accounting practices; provided that if the Company and the Agent are unable to reach agreement within 30 days following the implementation of such material change, the Agent shall be permitted, acting in good faith, to make such amendments, in each case subject to the approval of the Required Lenders, to the covenants set forth in this Agreement as it reasonably determines are necessary to restore the Company and the Lenders to the position they occupied prior to the implementation thereof.
 
ARTICLE 2
The Credits
 
Section 2.01. Term Loans.
 
(a)            Loan Commitments .  Subject to the terms and conditions hereof,
 
(i)            each Lender with a Tranche B-1 Term Loan Commitment severally agrees to make, on the Closing Date, a Tranche B-1 Term Loan to the Company in an amount equal to such Lender’s Tranche B-1 Term Loan Commitment; and
 
(ii)            each Lender with a Tranche B-2 Term Loan Commitment severally agrees to make, on the Closing Date, a Tranche B-2 Term Loan to the Company in an amount equal to such Lender’s Tranche B-2 Term Loan Commitment.
 
The Company may make only one borrowing under each of the Tranche B-1 Term Loan Commitment and Tranche B-2 Term Loan Commitment which shall be on the Closing Date.  Amounts borrowed under this Section 2.01(a) and subsequently repaid or prepaid may not be reborrowed.  Subject to Section 2.09 , all amounts owed hereunder with respect to the Tranche B-1 Term Loans and the Tranche B-2 Term Loans shall be paid in full no later than the Maturity Date applicable to such Term Loans.  Each Tranche B-1 Term Loan Commitment and Tranche B-2 Term Loan Commitment shall terminate immediately and without further action on the Closing Date and after giving effect to the funding of such Tranche B-1 Term Loan Commitment and Tranche B-2 Term Loan Commitment on such date.
 
(b)            Borrowing Mechanics for Term Loans .
 
(i)             The Company shall deliver to the Agent a fully executed Loan Notice no later than (x) 10:00 a.m. (New York City time) on the Closing Date with respect to Base Rate Loans and (y) 3:00 p.m. (New York City time) on the date that is three (3) Business Days prior to the Closing Date with respect to Eurodollar Rate Loans (or such shorter period as may be acceptable to the Agent).  Promptly upon receipt by the Agent of such Loan Notice, the Agent shall notify each Lender of the proposed Credit Extension.

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(ii)            Each Lender shall make its Tranche B-1 Term Loan and/or Tranche B-2 Term Loan, as the case may be, available to the Agent not later than 12:00 p.m. (New York City time) on the Closing Date, by wire transfer of same day funds in Dollars, at the Agent’s Office designated by the Agent.  Upon satisfaction or waiver of the conditions precedent specified herein, the Agent shall make the proceeds of the Term Loans available to the Company on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by the Agent from Lenders to be credited to the account of the Company at the Agent’s Office or to such other account as may be designated in writing to the Agent by the Company.
 
Section 2.02. Revolving Loans.
 
(a)            Revolving Commitments .  During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender with a Revolving Commitment severally agrees to make Revolving Loans to the Company in an aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided that, after giving effect to the making of any Revolving Loans, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect.  Amounts borrowed pursuant to this Section 2.02(a) may be repaid and reborrowed during the Revolving Commitment Period.  Each Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
 
(b)            Borrowing Mechanics for Revolving Loans .
 
(i)            Except pursuant to Section 2.04(d) , Revolving Loans shall be made in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000   in excess of that amount.
 
(ii)            Whenever the Company desires that Lenders make Revolving Loans, the Company shall deliver to the Agent a fully executed and delivered Loan Notice no later than 10:00 a.m. (New York City time) at least three Business Days in advance of the proposed Borrowing Date in the case of a Eurodollar Rate Loan, and no later than 10:00 a.m. (New York City time) on the proposed Borrowing Date in the case of a Revolving Loan that is a Base Rate Loan; provided that, if such Borrowing Date is the Closing Date, such Loan Notice may be delivered within such period shorter than three Business Days as may be agreed by the Agent with respect to Eurodollar Rate Loans.  Except as otherwise provided herein, a Loan Notice for a Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date.
 
(iii)            Notice of receipt of each Loan Notice in respect of Revolving Loans, together with the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest rate, shall be provided by the Agent to each applicable Lender by facsimile or other electronic communication with reasonable promptness, but ( provided that the Agent shall have received such notice by 10:00 a.m. (New York City time)) not later than 3:00 p.m. (New York City time) on the same day as the Agent’s receipt of such Notice from the Company.
 
(iv)            Each Lender shall make the amount of its Revolving Loan available to the Agent not later than 12:00 p.m. (New York City time) on the applicable Borrowing Date by wire transfer of same day funds in Dollars, at the Agent’s Office.  Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, the Agent shall make the proceeds of such Revolving Loans available to the Company on the applicable Borrowing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by the Agent from Lenders to be credited to the account of the Company at the Agent’s Office or such other account as may be designated in writing to the Agent by the Company.

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Section 2.03. Swing Line Loans.
 
(a)            Swing Line Loans Commitments .  During the Revolving Commitment Period, subject to the terms and conditions hereof, Swing Line Lender may, from time to time in its discretion, agree to make Swing Line Loans to the Company in the aggregate amount up to but not exceeding the Swing Line Sublimit; provided that, after giving effect to the making of any Swing Line Loan, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect.  Amounts borrowed pursuant to this Section 2.03 may be repaid and reborrowed during the Revolving Commitment Period.  Swing Line Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans and the Revolving Commitments shall be paid in full no later than such date.
 
(b)            Borrowing Mechanics for Swing Line Loans .
 
(i)             Swing Line Loans shall be made in an aggregate minimum amount of $1,000,000 and integral multiples of $200,000 in excess of that amount.
 
(ii)            Whenever the Company desires that Swing Line Lender make a Swing Line Loan, the Company shall deliver to the Agent a Loan Notice no later than 10:00 a.m. (New York City time) on the proposed Borrowing Date.
 
(iii)           Swing Line Lender shall make the amount of its Swing Line Loan available to the Agent not later than 3:00 p.m. (New York City time) on the applicable Borrowing Date by wire transfer of same day funds in Dollars, at the Agent’s Office.  Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, the Agent shall make the proceeds of such Swing Line Loans available to the Company on the applicable Borrowing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Swing Line Loans received by the Agent from Swing Line Lender to be credited to the account of the Company at the Agent’s Office, or to such other account as may be designated in writing to the Agent by the Company.
 
(iv)           With respect to any Swing Line Loans which have not been voluntarily prepaid by the Company pursuant to Section 2.09 , Swing Line Lender may at any time in its sole and absolute discretion, deliver to the Agent (with a copy to the Company), no later than 1:00 p.m. (New York City time) at least one Business Day in advance of the proposed Borrowing Date, a notice (which shall be deemed to be a Loan Notice given by the Company) requesting that each Lender holding a Revolving Commitment make Revolving Loans that are Base Rate Loans to the Company on such Borrowing Date in an amount equal to the amount of such Swing Line Loans (the “ Refunded Swing Line Loans ”) outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay.  Anything contained in this Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made by the Lenders other than Swing Line Lender shall be immediately delivered by the Agent to Swing Line Lender (and not to the Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender to the Company, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans to the Company and shall be due under the Revolving Loan Note issued by the Company to Swing Line Lender.  The Company hereby authorizes the Agent and Swing Line Lender to charge the Company’s accounts with the Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loans deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans.  If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of the Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by Section 2.14 .

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(v)            If for any reason Revolving Loans are not made pursuant to Section 2.03(b)(iv)  in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after demand for payment thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans, and in an amount equal to its Pro Rata Share of the applicable unpaid amount together with accrued interest thereon.  Upon one Business Day’s notice from Swing Line Lender, each Lender holding a Revolving Commitment shall deliver to Swing Line Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the Swing Line Lender’s Lending Office. In order to evidence such participation each Lender holding a Revolving Commitment agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender.  In the event any Lender holding a Revolving Commitment fails to make available to Swing Line Lender the amount of such Lender’s participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by Swing Line Lender for the correction of errors among banks and thereafter at the Base Rate, as applicable.
 
(vi)           Notwithstanding anything contained herein to the contrary, (1) each Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to Section 2.03(b)(iv) and each Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to Section 2.03(b)(v) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, any Obligor or any other Person for any reason whatsoever; (B) the occurrence or continuation of a Default or Event of Default; (C) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Obligor; (D) any breach of this Agreement or any other Loan Document by any party thereto; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Lender are subject to the condition that Swing Line Lender shall not have received prior notice from the Company or the Required Lenders that any of the conditions under Section 4.02 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were not satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made; and (2) Swing Line Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not to do so after the occurrence and during the continuation of a Default or Event of Default, (B) it does not in good faith believe that all conditions under Section 4.02 to the making of such Swing Line Loan have been satisfied or waived by the Required Lenders or (C) at a time when any Lender is a Defaulting Lender unless Swing Line Lender has entered into arrangements satisfactory to it and the Company to eliminate Swing Line Lender’s risk with respect to the Defaulting Lender’s participation in such Swing Line Loan, including by Cash Collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line Loans.

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(c)            Resignation and Removal of Swing Line Lender .  Swing Line Lender may resign as Swing Line Lender upon 30 days prior written notice to the Agent, Lenders and the Company.  Swing Line Lender may be replaced at any time by written agreement among the Company, the Agent, the replaced Swing Line Lender ( provided that no consent will be required if the replaced Swing Line Lender has no Swing Line Loans outstanding) and the successor Swing Line Lender.  The Agent shall notify the Lenders of any such replacement of Swing Line Lender.  At the time any such replacement or resignation shall become effective, (i) the Company shall prepay any outstanding Swing Line Loans made by the resigning or removed Swing Line Lender, (ii) upon such prepayment, the resigning or removed Swing Line Lender shall surrender any Swing Line Note held by it to the Company for cancellation, and (iii) the Company shall issue, if so requested by the successor Swing Line Lender, a new Swing Line Note to the successor Swing Line Lender, in the principal amount of the Swing Line Sublimit then in effect and with other appropriate insertions. From and after the effective date of any such replacement or resignation, (x) any successor Swing Line Lender shall have all the rights and obligations of a Swing Line Lender under this Agreement with respect to Swing Line Loans made thereafter and (y) references herein to the term “Swing Line Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such successor and all previous Swing Line Lenders, as the context shall require.
 
Section 2.04. Issuance of Letters of Credit and Purchase of Participations Therein .
 
(a)            Letters of Credit .  During the Revolving Commitment Period, subject to the terms and conditions hereof, Issuing Bank shall issue Letters of Credit in respect of which the Company is the applicant for the support of its and/or its Subsidiaries obligations in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided , (i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of Credit shall not be less than $250,000 or such lesser amount as is acceptable to Issuing Bank; (iii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving Commit­ments exceed the Revolving Commitments then in effect; (iv) after giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in effect; (v) in no event shall any Letter of Credit have an expiration date later than the earlier of (1) five days prior to the Revolving Commitment Termination Date and (2) the date which is one year from the date of issuance of such Letter of Credit; and (vi)  in no event shall any Letter of Credit be issued if such Letter of Credit is otherwise unacceptable to Issuing Bank in its reasonable discretion.  Subject to the foregoing, Issuing Bank may agree that a standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each, unless Issuing Bank elects not to extend for any such additional period; provided that Issuing Bank shall not extend any such Letter of Credit if it has received written notice from a Lender or the Company that an Event of Default has occurred and is continuing at least two Business Days prior to  the time Issuing Bank must elect to allow such extension; provided , further , if any Lender is a Defaulting Lender, Issuing Bank shall not be required to issue any Letter of Credit unless Issuing Bank has entered into arrangements satisfactory to it and the Company to eliminate Issuing Bank’s risk with respect to the participation in Letters of Credit of the Defaulting Lender.

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(b)            Notice of Issuance .  Whenever the Company desires the issuance of a Letter of Credit, it shall deliver to the Agent an Issuance Notice no later than 11:00 a.m. (New York City time) at least three Business Days (in the case of standby letters of credit) or five Business Days (in the case of commercial letters of credit), or in each case such shorter period as may be agreed to by Issuing Bank in any particular instance, in advance of the proposed date of issuance.  Subject to  the conditions set forth in Section 4.02 , Issuing Bank shall issue the requested Letter of Credit only in accordance with Issuing Bank’s standard operating procedures.  If requested by the Issuing Bank, the Company also shall submit a letter of credit application on the Issuing Bank’s standard form in connection with any request for a Letter of Credit.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Company to, or entered into by the Company with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.  Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit, Issuing Bank shall promptly notify the Agent of such issuance which shall notify each Lender with a Revolving Commitment of such issuance, which notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a Letter of Credit and the amount of such Lender’s respective participation in such Letter of Credit pursuant to Section 2.04(e) .
 
(c)            Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments .  In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof, Issuing Bank shall be responsible only to examine the documents delivered under such Letter of Credit with reasonable care so as to ascertain whether they appear on their face to be in substantial compliance with the terms and conditions of such Letter of Credit.  As between the Company and Issuing Bank, the Company assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of Issuing Bank, including any Governmental Acts; none of the above shall affect or impair, or prevent the vesting of, any of Issuing Bank’s rights or powers hereunder.  Without limiting the foregoing and in furtherance thereof, any action taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any documents and certificates delivered thereunder, if taken or omitted in good faith (as defined under Article 5 of the Uniform Commercial Code as adopted by the State of New York), shall not give rise to any liability on the part of Issuing Bank to the Company.  Notwithstanding anything to the contrary contained in this Section 2.04(c) , the Company shall retain any and all rights it may have against Issuing Bank for any direct damages (as opposed to special, indirect, consequential or punitive damages, which claims are hereby waived by the Company to the extent permitted under applicable law) suffered by the Company arising solely out of the gross negligence or willful misconduct of Issuing Bank in determining whether documents delivered under any Letter of Credit substantially comply with the terms thereof as determined by a final, non-appealable judgment of a court of competent jurisdiction.

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(d)            Reimbursement by the Company of Amounts Drawn or Paid Under Letters of Credit .  In the event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall promptly notify the Company and the Agent, and the Company shall reimburse Issuing Bank on or before the Business Day immediately following the date on which such drawing is honored (the “ Reimbursement Date ”) in an amount in Dollars and in same day funds equal to the amount of such honored drawing; provided that any failure to give or delay in giving such notice shall not relieve the Company of its obligation to reimburse the Issuing Bank and the Lenders with respect to their respective obligations under Section 2.04(e) once such notice is delivered; provided , further , that anything contained herein to the contrary notwithstanding, (i) unless the Company shall have notified the Agent and Issuing Bank prior to 10:00 a.m. (New York City time) on the date such drawing is honored that the Company intends to reimburse Issuing Bank for the amount of such honored drawing with funds other than the proceeds of Revolving Loans, the Company shall be deemed to have given a timely Loan Notice to the Agent requesting Lenders with Revolving Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal to the amount of such honored drawing, and (ii) subject to satisfaction or waiver of the conditions specified in Section 4.02 , Lenders with Revolving Commitments shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the proceeds of which shall be applied directly by the Agent to reimburse Issuing Bank for the amount of such honored drawing; provided , further , if for any reason proceeds of Revolving Loans are not received by Issuing Bank on the Reimbursement Date in an amount equal to the amount of such honored drawing, the Company shall reimburse Issuing Bank, on demand, in an amount in same day funds equal to the excess of the amount of such honored drawing over the aggregate amount of such Revolving Loans, if any, which are so received.  Nothing in this Section 2.04(d) shall be deemed to relieve any Lender with a Revolving Commitment from its obligation to make Revolving Loans on the terms and conditions set forth herein, and the Company shall retain any and all rights it may have against any such Lender resulting from the failure of such Lender to make such Revolving Loans under this Section 2.04(d) .
 
(e)            Lenders’ Purchase of Participations in Letters of Credit .  Immediately upon the issuance of each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof), each Lender having a Revolving Commitment shall be deemed to have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any time may become available to be drawn thereunder.  In the event that the Company shall fail for any reason to reimburse Issuing Bank as provided in Section 2.04(d) , Issuing Bank shall promptly notify each Lender with a Revolving Commitment of the unreimbursed amount of such honored drawing and of such Lender’s respective participation therein based on such Lender’s Pro Rata Share of the Revolving Commitments.  Each Lender with a Revolving Commitment shall make available to Issuing Bank an amount equal to its respective participation, in Dollars and in same day funds, at the office of Issuing Bank specified in such notice, not later than 12:00 p.m. (New York City time) on the first business day (under the laws of the jurisdiction in which such office of Issuing Bank is located) after the date notified by Issuing Bank.  In the event that any Lender with a Revolving Commitment fails to make available to Issuing Bank on such business day the amount of such Lender’s participation in such Letter of Credit as provided in this Section 2.04(e) , Issuing Bank shall be entitled to recover such amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by Issuing Bank for the correction of errors among banks and thereafter at the Base Rate.  In the event Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section 2.04(e) for all or any portion of any drawing honored by Issuing Bank under a Letter of Credit, such Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this Section 2.04(e) with respect to such honored drawing such Lender’s Pro Rata Share of all payments subsequently received by Issuing Bank from the Company in reimbursement of such honored drawing when such payments are received.  Any such distribution shall be made to a Lender at its Lending Office or at such other address as such Lender may request.

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(f)            Obligations Absolute .  The obligation of the Company to reimburse Issuing Bank for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders pursuant to Section 2.04(d) and the obligations of Lenders under Section 2.04(e) shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under all circumstances including any of the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other right which the Company or any Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank, Lender or any other Person or, in the case of a Lender, against the Company, whether in connection herewith, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Company or one of its Subsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of Credit against presentation of a draft or other document which does not substantially comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries; (vi) any breach hereof or any other Loan Document by any party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the fact that an Event of Default or a Default shall have occurred and be continuing.
 
(g)            Indemnification .  Without duplication of any obligation of the Company under Section 10.04 or 10.05 , in addition to amounts payable as provided herein, the Company hereby agrees to protect, indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of one outside counsel) which Issuing Bank may incur or be subject to as a consequence, direct or indirect, of (i) the issuance or wrongful dishonor of any Letter of Credit by Issuing Bank, other than as a result of  the gross negligence or willful misconduct of Issuing Bank as determined by a final, non-appealable judgment of a court of competent jurisdiction or (ii) the failure of Issuing Bank to honor a drawing under any such Letter of Credit as a result of any Governmental Act.
 
(h)            Resignation and Removal of Issuing Bank .  An Issuing Bank may resign as Issuing Bank upon 60 days prior written notice to the Agent, Lenders and the Company.  An Issuing Bank may be replaced at any time by written agreement among the Company, the Agent, the replaced Issuing Bank ( provided that no consent will be required if the replaced Issuing Bank has no Letters of Credit or reimbursement obligations with respect thereto outstanding) and the successor Issuing Bank.  The Agent shall notify the Lenders of any such replacement of such Issuing Bank.  At the time any such replacement or resignation shall become effective, the Company shall pay all unpaid fees accrued for the account of the replaced Issuing Bank.  From and after the effective date of any such replacement or resignation, (i) any successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.  After the replacement or resignation of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto to the extent that Letters of Credit issued by it remain outstanding and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement or resignation, but shall not be required to issue additional Letters of Credit.

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(i)            Cash Collateralization .  If any Event of Default shall occur and be continuing, on the Business Day that the Company receives notice from the Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total L/C Exposure) demanding the deposit of Cash Collateral pursuant to this paragraph, the Company shall deposit in an account with the Agent, in the name of the Agent and for the benefit of the Lenders, an amount in cash equal to 103% of the L/C Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such Cash Collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Company described in clause (f) or (g) of Section 8 .  Such deposit shall be held by the Agent as collateral for the payment and performance of the obligations of the Company under this Agreement.  The Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account.  Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Agent and at the Company’s risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by the Agent to reimburse the Issuing Bank for any drawing under a Letter of Credit for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Company for the L/C Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with L/C Exposure  representing greater than 50% of the total L/C Exposure), be applied to satisfy other obligations of the Company under this Agreement.  If the Company is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Company within three Business Days after all Events of Default have been cured or waived.
 
Section 2.05. Pro Rata Shares.
 
All Loans shall be made, and all participations purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Term Loan Commitment or any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.
 
Section 2.06. Conversion and Continuation of Loans.
 
(a)           Each conversion of Loans from one Interest Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Company’s irrevocable written notice to the Agent in the form of a Conversion/Continuation Notice, appropriately completed and signed by a Responsible Officer of the Company.  Each such Conversion/Continuation Notice must be received by the Agent not later than 11:00 a.m. (New York City time) three Business Days prior to the requested date of any conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans.  Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  The Agent shall determine the interest rate that shall apply to any converted or continued Eurodollar Rate Loans pursuant to Section 2.10(c) .
 
(b)           Each Conversion/Continuation Notice shall specify (i) whether the Company is requesting a conversion of Loans from one Interest Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be converted or continued, (iv) the Interest Type of Loans to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto (each such Interest Period shall comply with the provisions of the definition of “Interest Period”).
 
(c)           Notwithstanding any contrary provision hereof, if (i) an Event of Default of the type described in Section 8.01(a) , (f) or (g) has occurred and is continuing, unless the Required Lenders otherwise consent or (ii) any other Event of Default has occurred and is continuing and the Required Lenders have requested, each Loan will be converted into a Base Rate Loan at the end of the Interest Period applicable thereto.

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Section 2.07. Notes; Loan Accounts.
 
(a)           Each Loan made by each Lender shall be evidenced by one or more loan accounts or records maintained by such Lender and by the Agent in the ordinary course of business.  The loan accounts or records maintained by the Agent and each Lender shall be conclusive evidence of the amount of the Loans made by the Lenders to the Company and the interest and payments thereon absent manifest error.  Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Company hereunder to pay any amount owing with respect to the Loans.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error.
 
(b)           Upon the request of any Lender made through the Agent, instead of or in addition to loan accounts, the Loans made by each Lender may be evidenced by one or more Tranche B-1 Term Loan Notes, Tranche B-2 Term Loan Notes, Revolving Loan Notes or Swing Line Notes, substantially the form of Exhibit B-1 , Exhibit B-2 , Exhibit B-3 , or Exhibit B-4 , as applicable, hereto (each such note, a “ Note ”).  Each Lender shall endorse on the schedules annexed to its Note the date, amount and maturity of each Loan deemed made by it and the amount of each payment of principal made by the Company with respect thereto.  Each such Lender is irrevocably authorized by the Company to endorse its Note and each Lender’s record shall be conclusive absent manifest error; provided that the failure of a Lender to make, or an error in making, a notation thereon with respect to any Loan shall not limit or otherwise affect the obligations of the Company hereunder or under any such Note to such Lender.
 
Section 2.08. Repayment of Loans.
 
The Company shall repay to the Agent, for the ratable account of the Lenders, the aggregate principal amount of Term Loans set forth below, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment, on the following dates or if any such date is not a Business Day, on the immediately preceding Business Day (which installments shall be reduced as a result of the application of prepayments in accordance with Section 2.09(e) ):
 
Date	Tranche B-1 Term Loan
Amortization Payment	Tranche B-2 Term Loan
Amortization Payment	
December 31, 2012	$12,500,000	$1,062,500	
March 31, 2013	$12,500,000	$1,062,500	
June 30, 2013	$12,500,000	$1,062,500	
September 30, 2013	$12,500,000	$1,062,500	
December 31, 2013	$12,500,000	$1,062,500	
March 31, 2014	$12,500,000	$1,062,500	
June 30, 2014	$12,500,000	$1,062,500	
September 30, 2014	$12,500,000	$1,062,500	
December 31, 2014	$18,750,000	$1,062,500	
March 31, 2015	$18,750,000	$1,062,500	
June 30, 2015	$18,750,000	$1,062,500	
September 30, 2015	$18,750,000	$1,062,500	
December 31, 2015	$18,750,000	$1,062,500	
March 31, 2016	$18,750,000	$1,062,500	
June 30, 2016	$18,750,000	$1,062,500	
September 30, 2016	$18,750,000	$1,062,500	
December 31, 2016	 	$1,062,500	
March 31, 2017		$1,062,500	
June 30, 2017		$1,062,500	
September 30, 2017		$1,062,500	
December 31, 2017		$1,062,500	
March 31, 2018		$1,062,500	
June 30, 2018		$1,062,500	
Tranche B-2 Term Loan Maturity Date
 		Remainder	

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; provided that   in the event any New Term Loans are made, such New Term Loans shall be repaid on each amortization date listed above occurring on or after the applicable Increased Amount Date in the manner specified in the Joinder Agreement, or, if any such New Term Loans are documented as a separate credit facility, such New Term Loans shall be repaid as provided in the definitive agreement therefor, subject in each case to the provisions of Section 2.15 .
 
Notwithstanding the foregoing, (x) such amortization payments shall be reduced in connection with any voluntary or mandatory prepayments of the Tranche B-1 Term Loans or the Tranche B-2 Term Loans, as the case may be, in accordance with Section 2.09 ; and (y) the Tranche B-1 Term Loans and the Tranche B-2 Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Maturity Date applicable to such Term Loans.
 
Section 2.09. Optional and Mandatory Prepayments and Reductions of Commitments.
 
(a)            Optional Prepayments .  The Company will have the right at any time to prepay any Credit Extension in whole or in part, in minimum amounts of $1,000,000 or any multiple of $1,000,000 in excess thereof, subject to the provisions of this Section.
 
(b)            Voluntary Commitment Reductions .
 
(i)            The Company may, upon not less than three Business Days’ prior written or telephonic notice to the Agent, at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; provided that   any such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.
 
(ii)            The Company’s notice to the Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and shall reduce the Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof.

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(c)            Tranche B-1 Term Loan and Tranche B-2 Term Loan Prepayment Premium.   In the event that all or any portion of the Tranche B-1 Term Loans or the Tranche B-2 Term Loans is (i) repaid, prepaid, refinanced or replaced or (ii) repriced or effectively refinanced through any waiver, consent or amendment (in each case, in connection with any waiver, consent or amendment to the Tranche B-1 Term Loans or Tranche B-2 Term Loans directed at, or the result of which would be, the lowering of the effective interest cost or the Weighted Average Yield of the Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable, or the incurrence of any debt financing having an effective interest cost or Weighted Average Yield that is less than the effective interest cost or Weighted Average Yield of the Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable (or portion thereof) so repaid, prepaid, refinanced, replaced or repriced, but excluding, in each case, any repayment, prepayment, refinancing, replacement or repricing in connection with any transaction resulting in a Change of Control  (each a “ Repricing Transaction ”)) occurring on or prior to the first anniversary of the Closing Date, such repayment, prepayment, refinancing, replacement or repricing will be made at 101.0% of the principal amount so repaid, prepaid, refinanced, replaced or repriced.  If all or any portion of the Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable, held by any Lender is repaid, prepaid, refinanced or replaced pursuant to a “yank-a-bank” or similar provision in the Loan Documents as a result of, or in connection with, such Lender not agreeing or otherwise consenting to any waiver, consent or amendment referred to in clause (ii) above (or otherwise in connection with a Repricing Transaction), such repayment, prepayment, refinancing or replacement will be made at 101.0% of the principal amount so repaid, prepaid, refinanced or replaced.
 
(d)            Mandatory Prepayments .  The Company shall be required to make mandatory prepayments as set forth in subclauses (i)  to (v)  below; provided that subclauses (ii) and (iii) shall not apply if (x) the Debt to Total Capitalization Ratio is equal to or less than 20% and (y) either (1) each of the Company’s Insurance Subsidiaries (other than Conseco Life Insurance Company, Conseco Life Insurance Company of Texas and Bankers Conseco Life Insurance Company) has a financial strength rating of not less than A- (stable) from A.M. Best Company, in each case at the time such prepayment is required to be made (the “ Financial Strength Rating Condition ”) or (2) the Facilities have a rating of not less than BBB- (stable) from S&P and Baa3 (stable) from Moody’s, in each case at the time such prepayment is required to be made.
 
(i)             Indebtedness .  Within one Business Day after any Net Proceeds are received by or on behalf of the Company or any Restricted Subsidiary in respect of the incurrence of any Indebtedness pursuant to Section 7.01(a)(i)(B) , the Company shall prepay Loans in an aggregate amount equal to such Net Proceeds.
 
(ii)             Asset Sales .  Within five Business Days after any Net Proceeds are received by or on behalf of the Company or any Restricted Subsidiary in respect of any Asset Sale, the Company shall prepay the Loans in an aggregate amount equal to such Net Proceeds; provided that a prepayment of the Loans shall be required pursuant to this paragraph only to the extent that the aggregate Net Proceeds of all Asset Sales in any Fiscal Year exceeds $5,000,000; provided that so long as no Event of Default shall have occurred and be continuing, and except in the case of the Net Proceeds from any sale of an Insurance Subsidiary that would constitute a Material Disposition, the Company may reinvest all or any portion of such Net Proceeds in assets useful in its business so long as, within 12 months after the receipt of such Net Proceeds, such reinvestment shall have been consummated or the Company shall have entered into a definitive agreement for such reinvestment, and such reinvestment shall have been consummated no later than 18 months after the receipt of such Net Proceeds (in each case, as certified by the Company in writing to the Agent); and provided , further , that any Net Proceeds not subject to such definitive agreement or so reinvested by the conclusion of the 12 th or 18 th month, as the case may be, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.09(d)(ii) .

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(iii)            Casualty Events .  Within five Business Days after any Net Proceeds are received by or on behalf of the Company or any Restricted Subsidiary (that is not an Insurance Subsidiary or a Subsidiary of an Insurance Subsidiary) in respect of any Casualty Event, the Company shall prepay Loans in an aggregate amount equal to such Net Proceeds; provided that a prepayment of Loans shall be required pursuant to this paragraph only to the extent that the aggregate Net Proceeds of all Casualty Events in any Fiscal Year exceeds $10,000,000; provided that, so long as no Event of Default shall have occurred and be continuing, the Company may apply all or any portion of such Net Proceeds to the repair or restoration of the property subject to such Casualty Event or the acquisition of replacement property so long as, within 12 months after the receipt of such Net Proceeds, such reinvestment shall have been consummated or the Company shall have entered into a definitive agreement for such application, and such application shall have been consummated no later than 18 months after the receipt of such Net Proceeds, such repair, restoration or replacement shall have been consummated (as certified by the Company in writing to the Agent); and provided , further , that any Net Proceeds not so applied by the conclusion of the 12 th or 18 th month, as the case may be, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.09(d)(iii) .
 
(iv)            Restricted Payments .  On the last day of each Fiscal Quarter (starting with the last day of the Fiscal Quarter beginning October 1, 2012) in which any Restricted Payment pursuant to Section 7.08(d) , Section 7.08(e) , Section 7.08(g) or, to the extent relating to Restricted Payments made pursuant to Section 7.08(d) , Section 7.08(e) or   Section 7.08(g) , Section 7.08(h) (including any payment made pursuant to Section 7.10(a)(iv)  deemed to be such a Restricted Payment) is made (or if such last day is not a Business Day, on the immediately preceding Business Day), the Company shall prepay Loans in an aggregate amount equal to 100% of all such Restricted Payments made in such Fiscal Quarter; provided that if, as of the end of the Fiscal Quarter immediately preceding such Restricted Payment, the Debt to Total Capitalization Ratio is (a) equal to or less than 22.5%, but greater than 17.5%, the prepayment requirement shall be reduced to 33.33% or (b) equal to or less than 17.5%, the prepayment requirement set forth in this Section 2.09(d)(iv) shall not apply.
 
(v)            Revolving Loans and Swing Loans .  The Company shall from time to time prepay first , the Swing Line Loans, and second , the Revolving Loans to the extent necessary so that the Total Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments then in effect.
 
(e)            Application of Prepayments .
 
(i)            Any prepayment of any Loan pursuant to Section 2.09(a) shall be applied as specified by the Company in the applicable notice of prepayment; provided that in the event the Company fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied as follows:
 
(1)            first , to repay outstanding Swing Line Loans to the full extent thereof;
 
(2)           second , to repay outstanding Revolving Loans to the full extent thereof; and
 
(3)           third , to prepay the Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof); and further applied on a pro rata basis to reduce the scheduled remaining amortization payments of principal of the Tranche B-1 Term Loans and Tranche B-2 Term Loans in inverse order of maturity.

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(ii)            Any prepayment of any Loans pursuant to Sections 2.09(d)(i)  through (iv) shall be applied as follows:
 
(1)            first , to the Tranche B-1 Term Loans and Tranche B-2 Term Loans on a pro rata basis for application to the scheduled principal repayments thereof due within twelve months after the occurrence of the event giving rise to such prepayment in direct order of maturity;
 
(2)           second , to the Tranche B-1 Term Loans and Tranche B-2 Term Loans on a pro rata basis for application to the remaining principal repayment installments thereof in inverse order of maturity until paid in full;
 
(3)           third , to prepay the Swing Line Loans to the full extent thereof without any permanent reduction of the Revolving Commitments;
 
(4)            fourth , to prepay the Revolving Loans to the full extent thereof without any permanent reduction of the Revolving Commitments;
 
(5)            fifth , to prepay outstanding reimbursement obligations with respect to Letters of Credit without any permanent reduction of the Revolving Commitments;
 
(6)           sixth , to Cash Collateralize Letters of Credit without any permanent reduction of the Revolving Commitments; and
 
(7)           seventh , to the Company;
 
provided that, with respect to clause (1) and (2) above, (x) at the election of Lenders holding Tranche B-2 Term Loans, the portion of amounts otherwise allocable to such Lenders may be allocated to repay Tranche B-1 Term Loans on a pro rata basis until such Tranche B-1 Term Loans are paid in full prior to prepayment of Tranche B-2 Term Loans held by such Lenders, (y) at the election of Lenders holding Tranche B-1 Term Loans, the portion of amounts otherwise allocable to such Lenders may be allocated to repay Tranche B-2 Term Loans on a pro rata basis until such Tranche B-2 Term Loans are paid in full prior to prepayment of Tranche B-1 Term Loans held by such Lenders and (z) any prepayment of Term Loans pursuant to this Section 2.09(e)(ii) that is declined by both the Lenders holdings Tranche B-1 Term Loans and Tranche B-2 Term Loans may be retained by the Company ;   provided , further , that if at the time any amount is required to be paid pursuant to Section 2.09(d)(ii) or (iii) , the Company is required to offer to repay or repurchase Permitted First Priority Refinancing Debt pursuant to the terms of the documentation governing such Indebtedness with any Net Proceeds from Asset Sales or Casualty Events (such Permitted First Priority Refinancing Debt required to be offered to be so repaid or repurchased, “ Other Applicable Indebtedness ”), then the Company may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Tranche B-1 Term Loans and Tranche B-2 Term Loans and Other Applicable Indebtedness at such time; provided , further , that the portion of such Net Proceeds allocated to Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Tranche B-1 Term Loans and Tranche B-2 Term Loans and to the repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Tranche B-1 Term Loans and Tranche B-2 Term Loans that would have otherwise been required pursuant to Section 2.09(d)(ii) or (iii) , as applicable, shall be reduced accordingly; provided , further , that to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness purchased, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Tranche B-1 Term Loans and Tranche B-2 Term Loans in accordance with the terms hereof .

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(f)            Notice of Prepayments .  The Company shall notify the Agent in writing of any prepayment of any Credit Extension hereunder (i) in the case of a Eurodollar Rate Loan, not later than 11:00 a.m. (New York City time) three Business Days before the date of prepayment and (ii) in the case of a Base Rate Loan, not later than 11:00 a.m. (New York City time) on the prepayment date.  Each such notice shall be irrevocable (other than to the extent provided in connection with refinancing the Obligations) and shall specify the prepayment date, the principal amount of each Credit Extension or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of Net Proceeds giving rise to such prepayment.  Promptly after it receives any such notice, the Agent shall advise the Lenders of the contents thereof.
 
(g)            Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans .  Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner which minimizes the amount of any payments required to be made by the Company pursuant to Section 3.05(b) .
 
Section 2.10. Interest.
 
(a)           Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
 
(i)            in the case of Revolving Loans:
 
(1)          if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
 
(2)          if a Eurodollar Rate Loan, at the Eurodollar Rate plus the Applicable Margin;
 
(ii)            in the case of Swing Line Loans, at the Base rate plus the Applicable Margin;
 
(iii)           in the case of Tranche B-1 Term Loans:
 
(1)          if a Base Rate Loan, at the Base Rate plus 2.25% per annum ; or
 
(2)          if a Eurodollar Rate Loan, at the Eurodollar Rate plus 3.25% per annum ;
 
(iv)           in the case of Tranche B-2 Term Loans:
 
(1)          if a Base Rate Loan, at the Base Rate plus 2.75% per annum ; or
 
(2)          if a Eurodollar Rate Loan, at the Eurodollar Rate plus 3.75% per annum .
 
(b)           The basis for determining the rate of interest with respect to any Loan (except Swing Line Loans which shall be made and maintained as Base Rate Loans only), and the Interest Period with respect to any Eurodollar Rate Loan, shall be selected by the Company and notified to the Agent and Lenders pursuant to the applicable Loan Notice or Conversion/Continuation Notice, as the case may be; provided  that the Company may not select the Eurodollar Rate for any Credit Extension if the aggregate amount of such Credit Extension is less than $5,000,000.

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(c)           In connection with Eurodollar Rate Loans there shall be no more than ten (10) Interest Periods outstanding at any time.  In the event the Company fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the applicable Loan Notice or Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan).  In the event the Company fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Loan Notice or Conversion/Continuation Notice (or fails to deliver a Conversion/Continuation Notice within the time limits provided in Section 2.06(a) ), the Company shall be deemed to have selected an Interest Period of one month.  As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, the Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Company and each Lender.  At any time that Base Rate Loans are outstanding, the Agent shall notify the Company and the Lenders of any change in the U.S. Prime Rate used in determining the Base Rate promptly following the public announcement of such change.
 
(d)           The Company agrees to pay to Issuing Bank, with respect to drawings honored under any Letter of Credit, interest on the amount paid by Issuing Bank in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by or on behalf of the Company at a rate equal to (i) for the period from the date such drawing is honored to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate which is 2.00% per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans.
 
(e)           Interest payable pursuant to Section 2.10(d) shall be computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed in the period during which it accrues, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full.  Promptly upon receipt by Issuing Bank of any payment of interest pursuant to Section 2.10(d) , Issuing Bank shall distribute to each Lender, out of the interest received by Issuing Bank in respect of the period from the date such drawing is honored to but excluding the date on which Issuing Bank is reimbursed for the amount of such drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Lender would have been entitled to receive in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period if no drawing had been honored under such Letter of Credit.  In the event Issuing Bank shall have been reimbursed by Lenders for all or any portion of such honored drawing, Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under Section 2.04(e) with respect to such honored drawing such Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that portion of such honored drawing so reimbursed by Lenders for the period from the date on which Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of such honored drawing is reimbursed by the Company.
 
(f)           Notwithstanding the foregoing, upon the occurrence of any Event of Default pursuant to Section 8.01(a) , for so long as such Event of Default shall be continuing, all overdue principal and interest payable on each Loan shall, without further notice, bear interest, after as well as before judgment to the extent permitted by law, at a rate per annum equal to 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding subsections of this Section.  In addition, if any fee or other amount (other than principal or interest on any Loan) payable by the Company pursuant to any Loan Document is not paid when due, whether upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment to the extent permitted by law, at a rate per annum equal to 2.00% plus the rate otherwise applicable to Base Rate Loans as provided in the preceding subsections of this Section.

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(g)           Interest on each Loan shall be paid in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.10(f) shall be payable on demand of the Agent (upon the instruction of the Required Lenders; provided that no such instruction shall be required in the case of an Event of Default pursuant to Section 8.01(a) , (f) , or (g) ), (ii) upon any repayment or prepayment of any Loan, interest accrued on the principal amount repaid shall be payable on the date of such repayment and (iii) upon any conversion of a Eurodollar Rate Loan before the end of the current Interest Period therefor, interest accrued on such Loan shall be payable on the effective date of such conversion.
 
(h)           Anything herein to the contrary notwithstanding, the obligations of the Company to any Lender hereunder shall be subject to the limitation that payments of interest shall not be required for any period for which interest is computed hereunder to the extent (but only to the extent) that contracting for or receiving such payment by such Lender would be contrary to the provisions of any law applicable to such Lender limiting the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, and in such event the Company shall pay such Lender interest at the highest rate permitted by applicable law until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect.  In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Company shall pay to the Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the highest rate of interest that may be lawfully contracted for, charged or received had at all times been in effect.  Notwithstanding the foregoing, it is the intention of Lenders and the Company to conform strictly to any applicable usury laws.  Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Company.
 
Section 2.11. Fees.
 
(a)           The Company agrees to pay to Lenders having Revolving Exposure:
 
(i)             commitment fees equal to (1) the average of the daily difference between (A) the Revolving Commitments and (B) the aggregate principal amount of (x) all outstanding Revolving Loans (for the avoidance of doubt, excluding Swing Line Loans) plus (y) the Letter of Credit Usage, times (2) the Applicable Revolving Commitment Fee Percentage; and
 
(ii)            letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans, times (2) the average aggregate daily maximum amount available to be drawn under all such Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination).

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All fees referred to in this Section 2.11(a) shall be paid to the Agent at the Agent’s Office and upon receipt, the Agent shall promptly distribute to each Lender its Pro Rata Share thereof.
 
(b)          The Company agrees to pay directly to Issuing Bank, for its own account, the following fees:
 
(i)             a fronting fee equal to 0.25% per annum , times the average aggregate daily maximum amount available to be drawn under all Letters of Credit (determined as of the close of business on any date of determination); and
 
(ii)            such documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be.
 
(c)           All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated pursuant to the second sentence of Section 2.12(a) and shall be payable quarterly in arrears on the last Business Day of March, June, September and December of each year during the Revolving Commitment Period, commencing on the first such date to occur after the Closing Date, and on the Revolving Commitment Termination Date.
 
(d)           The Company agrees to pay on the Closing Date to (i) each Lender party to this Agreement and holding Tranche B-1 Term Loans on the Closing Date, as fee compensation for the funding of such Lender’s Term Loan, a closing fee in an amount equal to 0.50% of the stated principal amount of such Lender’s Tranche B-1 Term Loan, payable to such Lender from the proceeds of its Tranche B-1 Term Loans as and when funded on the Closing Date, and (ii) each Lender party to this Agreement and holding Tranche B-2 Term Loans on the Closing Date, as fee compensation for the funding of such Lender’s Term Loan, a closing fee in an amount equal to 1.00% of the stated principal amount of such Lender’s Tranche B-2 Term Loan, payable to such Lender from the proceeds of its Tranche B-2 Term Loans as and when funded on the Closing Date.  Such closing fees will be in all respects fully earned, due and payable on the Closing Date and non-refundable and non-creditable thereafter.
 
(e)           In addition to the foregoing, the Company shall pay to the Agent, for its own account, fees payable in the amounts and at the times separately agreed upon by the Company and the Agent.  Such fees shall be fully earned when paid and shall not be refundable under any circumstances.
 
Section 2.12. Computation of Fees and Interest.
 
(a)           All computations of interest for Base Rate Loans when the Base Rate is determined by the “U. S. Prime Rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more interest being paid than if computed on the basis of a 365-day year).  Interest and fees shall accrue during each period during which interest or such fees are computed from the first day thereof to the last day thereof.
 
(b)           Each determination of an interest rate by the Agent shall be conclusive and binding on the Company and the Lenders in the absence of manifest error.  The Agent will, at the request of the Company or any Lender, deliver to the Company or the Lender, as the case may be, a statement showing the quotations used by the Agent in determining any interest rate and the resulting interest rate.

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Section 2.13. Payments Generally.
 
(a)           All payments to be made by the Company under the Loan Documents shall be made without condition or deduction for any defense, set-off, recoupment or counterclaim.  Except as otherwise expressly provided in any Loan Document, all payments to be made by the Company under any Loan Document shall be made to the Agent for the account of the Lenders at the Agent’s Office, and shall be made in dollars and in immediately available funds, no later than 3:00 p.m. (New York City time) on the date specified in such Loan Document.  The Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as expressly provided herein) of such payment in like funds as received.  Any payment received by the Agent later than 3:00 p.m. (New York City time) shall be deemed to have been received on the following Business Day and any applicable interest or fee shall continue to accrue.
 
(b)           Subject to the provisions set forth in the definition of “ Interest Period ” herein, whenever any payment is due on a day other than a Business Day, such payment shall be made on the following Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.
 
(c)           Unless the Company or any Lender has notified the Agent, prior to the date any payment is required to be made by it to the Agent hereunder, that the Company or such Lender, as the case may be, will not make such payment, the Agent may assume that the Company or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto.  If and to the extent that such payment was not in fact made to the Agent in immediately available funds, then:
 
(i)             if the Company failed to make such payment, each Lender shall forthwith on demand repay to the Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Agent to such Lender to the date such amount is repaid to the Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
 
(ii)            if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Agent to the Company to the date such amount is recovered by the Agent (the “ Compensation Period ”) at the customary rate set by the Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate.  If such Lender pays such amount to the Agent, then such amount shall constitute such Lender’s Loan included in the applicable Credit Extension.  If such Lender does not pay such amount forthwith upon the Agent’s demand therefor, the Agent may make a demand therefor upon the Company, and the Company shall pay such amount to the Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the applicable rate for Base Rate Loans to the applicable Credit Extension.  Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitments or to prejudice any rights that the Agent or the Company may have against any Lender as a result of any default by such Lender hereunder.
 
A notice of the Agent to any Lender or the Company with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.

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(d)           If any Lender makes available to the Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article 2 , and such funds are not made available to the Company by the Agent because the conditions to the extension of Loans set forth in Article 4 are not satisfied or waived in accordance with the terms hereof, the Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
 
(e)           The obligations of the Lenders hereunder to make Loans are several and not joint.  The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan.
 
(f)           Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
 
Section 2.14. Sharing of Payments by Lenders.
 
(a)           If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment (a) on account of any Obligations due and payable hereunder and under the other Loan Documents at such time resulting in such Lender receiving payment in excess of its ratable share (calculated according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) of or on account of any of Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (calculated according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time, then in each case, such Lender shall (x) notify the Agent of such fact, and (y) purchase (for cash at face value) participations in the Obligations of the other Lenders due and payable or owing, as the case may be, or make such other adjustments as shall be equitable, so that the benefit of such excess payments shall be shared by all such Lenders; provided that:
 
(i)             if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
 
(ii)            the provisions of this Section shall not be construed to apply to (1) any payment made by the Company pursuant to and in accordance with the express terms of this Agreement or (2) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Company or any Subsidiary thereof (as to which the provisions of this Section shall apply).
 
(b)           Each Obligor consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Obligor rights of setoff and counterclaim (subject to Section 10.09 ) with respect to such participation as fully as if such Lender were a direct creditor of such Obligor in the amount of such participation.
 
Section 2.15. Incremental Facilities.

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(a)           The Company may, by written notice to the Agent, elect to request (A) prior to the Revolving Commitment Termination Date, an increase to the then-existing Revolving Commitments (any such increase, “ New Revolving Commitments ”) and/or (B) prior to the Maturity Date applicable to the Tranche B-2 Term Loans, the establishment of one or more new term loan commitments (the “ New Term Loan Commitments ”), by an amount not in excess of $250,000,000 in the aggregate and not less than $25,000,000 individually (or such lesser amount which shall be approved by the Agent or such lesser amount that shall constitute the difference between $250,000,000 and all such New Revolving Commitments and New Term Loan Commitments obtained prior to such date), and integral multiples of $1,000,000 in excess of that amount.  Each such notice shall specify (A) the date (each, an “ Increased Amount Date ”) on which the Company proposes that the New Revolving Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, a “ New Revolving Loan Lender ” or “ New Term Loan Lender ” , as applicable) to whom the Company proposes any portion of such New Revolving Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Agent may elect or decline to arrange such New Revolving Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Commitment or a New Term Loan Commitment.  Such New Revolving Commitments or New Term Loan Commitments, as applicable, shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Commitments or New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section 4.02 shall be satisfied; (3) the Company and its Subsidiaries shall be in pro forma compliance with Sections 7.11 , 7.12 , 7.14 , 7.15 , and 7.16 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Revolving Commitments or New Term Loan Commitments, as applicable; (4) all New Revolving Commitments shall, and all New Term Loan Commitments may, be effected pursuant to one or more Joinder Agreements executed and delivered by the Company, the New Revolving Loan Lender or New Term Loan Lender, as applicable, and the Agent, each of which shall be recorded in the Register and each New Revolving Loan Lender and New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e) ; (5) the Company shall make any payments required pursuant to Section 3.05(b) in connection with the New Revolving Commitments or New Term Loan Commitments, as applicable; and (6) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “ Series ”) of New Term Loans for all purposes of this Agreement.
 
(b)           The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be as set forth herein, in the Joinder Agreement or in the definitive agreement for such Series of New Term Loans and New Term Loan Commitments; provided that the New Term Loans and New Term Loan Commitments may rank pari passu or junior in right of payment and pari passu or junior in right of security with the existing Tranche B-2 Term Loan Facility or may be unsecured.

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(1)          In the event any New Term Loans and New Term Loan Commitments rank pari passu in right of payment or pari passu in right of security with the existing Tranche B-2 Term Loans (i) the Weighted Average Life to Maturity of all New Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the existing Tranche B-2 Term Loans, (ii) the applicable Maturity Date of each Series shall be no earlier than the Latest Maturity Date applicable to the Tranche B-2 Term Loans then in effect, (iii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the Company and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement or in the definitive agreement for such Series of New Term Loans and New Term Loan Commitments; provided , however , that the Weighted Average Yield applicable to the New Term Loans shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Tranche B-2 Term Loans plus 0.50% per annum unless the interest rate with respect to the Tranche B-2 Term Loan is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Tranche B-2 Term Loans to equal the Weighted Average Yield then applicable to the New Term Loans and (iv) all other terms of the New Term Loans and New Term Loan Commitments, if not consistent with the terms of the Tranche B-2 Term Loans, as applicable shall be reasonably acceptable to the Agent.  Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent to effect the provision of this Section 2.15 .
 
(2)           In the event any New Term Loans and New Term Loan Commitments (x) rank junior in right of payment or junior in right of security with the existing Tranche B-2 Term Loans or (y) are unsecured, such New Term Loans or New Term Loan Commitments shall (i) be subject to intercreditor and subordination arrangements reasonably satisfactory to the Agent, (ii) be guaranteed solely by the Secured Guarantee (or a guarantee substantially similar to the Secured Guarantee, but on an unsecured basis, as the case may be) and, to the extent secured, secured solely by the Collateral, (iii) not mature, or have amortization (other than customary mandatory prepayments upon asset sales or casualty events), in each case, prior to the date that is six (6) months after the Latest Maturity Date applicable to the Tranche B-2 Term Loans and (iv) be subject to covenants and events of default applicable to substantially the same as, or less favorable to the Lenders than, those applicable to the Tranche B-2 Term Loans (except for covenants, events of default or other provisions that are applicable only after the occurrence of the Latest Maturity Date applicable to the Tranche B-2 Term Loans).
 
(c)           On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Loan Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by then-existing Revolving Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (a “ New Revolving Loan ”) shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Commitment and all matters relating thereto.  For the avoidance of doubt, the terms and provisions of the New Revolving Loans and New Revolving Commitments shall be  documented solely as an increase, and shall be identical, to the then-existing Revolving Loan Commitments.

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(d)           On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender of any Series shall make a Loan to the Company (a “ New Term Loan ”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) to the extent such New Term Loans are documented by a Joinder Agreement, each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
 
(e)           The Agent shall notify Lenders promptly upon receipt of the Company’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.15 .
 
Section 2.16. Defaulting Lenders.
 
(a)            Defaulting Lender Adjustments .  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
 
(i)             Defaulting Lender Waterfall . Any payment of principal, interest, fees or other amounts received by the Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 or otherwise) or received by the Agent from a Defaulting Lender pursuant to Section 10.09 shall be applied at such time or times as may be determined by the Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to Issuing Bank or Swing Line Lender hereunder; third , to Cash Collateralize Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.16(d) ; fourth , as the Company may request (so long as no Default or Event of Default shall have occurred and be continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth , if so determined by the Agent and the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize Issuing Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.16(d) ; sixth , to the payment of any amounts owing to the Lenders, Issuing Bank or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Bank or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied and waived, such payment shall be applied solely to pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.16(a)(iii) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(i)  shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

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(ii)             Certain Fees .
 
(A)          No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.11(a) for any period during which that Lender is a Defaulting Lender (and the Company shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender); provided that such Defaulting Lender shall be entitled to receive fees pursuant to Section 2.11(a)(ii)  for any period during which that Lender is a Defaulting Lender only to extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.16(d) .
 
(B)          With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Company shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iii)  below, (y) pay to Issuing Bank the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to Issuing Bank’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
 
(iii)            Reallocation of Participations to Reduce Fronting Exposure .  All or any part of such Defaulting Lender’s participation in Letters of Credit and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Company shall have otherwise notified the Agent at such time, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
 
(iv)            Cash Collateral .  If the reallocation described in clause (iii)  above cannot, or can only partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 2.16(d) .
 
(b)            Defaulting Lender Cure .  If the Company, the Agent and each Swing Line Lender and Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice, and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.16(a)(iii)) , whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while that Lender was a Defaulting Lender; and provided , further , that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.

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(c)            New Letters of Credit .  So long as any Lender is a Defaulting Lender, Issuing Bank shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that the participations in any existing Letters of Credit as well as the new, extended, renewed or increased Letter of Credit has been or will be fully allocated among the Non-Defaulting Lenders in a manner consistent with clause (a)(iii)  above and such Defaulting Lender shall not participate therein except to the extent such Defaulting Lender’s participation has been or will be fully Cash Collateralized in accordance with Section 2.16(d) .
 
(d)            Cash Collateral .  At any time that there shall exist a Defaulting Lender, within three Business Days following the written request of the Agent or Issuing Bank (with a copy to the Agent), the Company shall Cash Collateralize Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender that has not been reallocated pursuant to Section 2.16(a)(iii)  or for which Cash Collateral has been provided by such Defaulting Lender in an amount not less than the Minimum Collateral Amount.
 
(i)              Grant of Security Interest .  The Company, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Agent, for the benefit of Issuing Bank, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (ii)  below.  If at any time the Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Agent and Issuing Bank as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Company will, promptly upon demand by the Agent, pay or provide to the Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).
 
(ii)             Application .  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.16 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
 
(iii)            Termination of Requirement .  Cash Collateral (or the appropriate portion thereof) provided to reduce Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.16 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender) or (ii) the determination by the Agent and Issuing Bank that there exists excess Cash Collateral; provided that, subject to the other provisions of this Section 2.16 , the Person providing Cash Collateral and Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations; provided , further , that to the extent that such Cash Collateral was provided by the Company, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

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(e)            Lender Counterparties .  So long as any Lender is a Defaulting Lender, such Lender shall not be a contractual counterparty with respect to any Secured Swap Contract entered into while such Lender was a Defaulting Lender.
 
Section 2.17.  Maturity Extensions of Loans.
 
(a)   The Company may from time to time, pursuant to the provisions of this Section 2.17 , agree with one or more Lenders holding Loans and Commitments of any Class (each an “ Existing Class ”) to extend the maturity date of such Class of Loans and to provide for other terms consistent with this Section 2.17 (each such modification, an “ Extension ”) pursuant to one or more written offers (each an “ Extension Offer ”) made from time to time by the Company to all Lenders under any Class that is proposed to be extended under this Section 2.17 , in each case on a pro rata basis (based on the relative principal amounts of the outstanding Loans of each Lender in such Class) and on the same terms to each such Lender.  In connection with each Extension, the Company will provide notification to the   Agent (for distribution to the Lenders of the applicable Class), no later than 30 days prior to the maturity of the applicable Class or Classes to be extended of the requested new maturity date for the extended Loans of each such Class (each an “ Extended Maturity Date ”) and the due date for Lender responses.  In connection with any Extension, each Lender of the applicable Class wishing to participate in such Extension shall, prior to such due date, provide the Agent with a written notice thereof in a form reasonably satisfactory to the Agent.  Any Lender that does not respond to an Extension Offer by the applicable due date shall be deemed to have rejected such Extension.  In connection with any Extension, the Company shall agree to such procedures, if any, as may be reasonably established by, or acceptable to, the Agent to accomplish the purposes of this Section 2.17 .
 
(b)   After giving effect to any Extension, the Term Loans or Revolving Commitments so extended shall cease to be a part of the Class of which they were a part immediately prior to the Extension and shall be a new Class hereunder; provided that at no time shall there be more than four (4)   different Classes of Term Loans and four (4) different Classes of Revolving Commitments; provided , further , that, in the case of any Extension Amendment relating to Revolving Commitments or Revolving Loans, (i) all Credit Extensions and all prepayments of Revolving Loans shall continue to be made on a ratable basis among all Revolving Lenders, based on the relative amounts of their Revolving Commitments, until the repayment of the Revolving Loans attributable to the non-extended Revolving Commitments on the applicable Revolving Commitment Termination Date, (ii) the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit or Swing Line Loan as between the Revolving Commitments of such new “Class” and the remaining Revolving Commitments shall be made on a ratable basis in accordance with the relative amounts thereof until the applicable Revolving Commitment Termination Date has occurred, (iii) no termination of Extended Revolving Commitments and no repayment of Extended Revolving Loans accompanied by a corresponding permanent reduction in Extended Revolving Commitments shall be permitted unless such termination or repayment (and corresponding reduction) is accompanied by at least a pro rata termination or permanent repayment (and corresponding pro rata permanent reduction), as applicable, of the Existing Revolving Loans and Existing Revolving Commitments (or all Existing Revolving Commitments of such Class and related Existing Revolving Loans shall have otherwise been terminated and repaid in full) and (iv) with respect to Letters of Credit and Swing Line Loans, the maturity date with respect to the Revolving Commitments may not be extended without the prior written consent of the Issuing Bank and the Swing Line Lender.  If the Total Utilization of Revolving Commitments exceeds the Revolving Commitment as a result of the occurrence of the Revolving Credit Termination Date (or the applicable Maturity Date with respect to any Class of New Revolving Loans or Class of Revolving Commitments extended pursuant to this Section 2.17 ) while an extended Class of Revolving Commitments remains outstanding, the Company shall make such payments as are necessary in order to eliminate such excess on such  date.

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(c)   The consummation and effectiveness of each Extension shall be subject to the following:
 
(i)   no Default or Event of Default shall have occurred and be continuing at the time any Extension Offer is delivered to the Lenders or at the time of such Extension (after giving effect to such Extension);
 
(ii)   the Term Loans, Revolving Loans or Revolving Commitments, as applicable, of any Lender extended pursuant to any Extension (as applicable, “ Extended Term Loans ”,   “ Extended Revolving Loans ”   or “ Extended Revolving Commitments ”) shall have the same terms as the Class of Term Loans, Revolving Loans or Revolving Commitments, as applicable, subject to the related Extension Amendment (as applicable, “ Existing Term Loans ”,   “ Existing Revolving Loans ”   or “ Existing Revolving Commitments ”); except (A) the final maturity date of any Extended Term Loans or Extended Revolving Commitments of a Class to be extended pursuant to an Extension may be later than the Latest Maturity Date at the time of such Extension, and the Weighted Average Life to Maturity of any Extended Term Loans or Extended Revolving Commitments of a Class to be extended pursuant to an Extension shall be no shorter than the Weighted Average Life to Maturity of the Class of Existing Term Loans or Existing Revolving Commitments, as applicable, subject to the Latest Maturity Date at the time of such Extension; (B) the all-in pricing (including, without limitation, margins, fees and premiums) with respect to the Extended Term Loans, Extended Revolving Loans or Extended Revolving Commitments, as applicable, may be higher or lower than the all-in pricing (including, without limitation, margins, fees and premiums) for the Existing Term Loans, Existing Revolving Loans or Existing Revolving Commitments, as applicable; (C) the revolving credit commitment fee rate with respect to the Extended Revolving Commitments may be higher or lower than the revolving credit commitment fee rate for Existing Revolving Commitments, in each case, to the extent provided in the applicable Extension Amendment; (D) no repayment of any Extended Term Loans, Extended Revolving Loans or Extended Revolving Commitments, as applicable, shall be permitted unless such repayment is accompanied by an at least pro rata repayment of all earlier maturing Loans (including previously extended Loans) (or all earlier maturing Loans (including previously extended Loans) shall otherwise be or have been terminated and repaid in full); (E) the Extended Term Loans, Extended Revolving Loans and/or Extended Revolving Commitments may contain a “most favored nation” provision for the benefit of Lenders holding Extended Term Loans or Extended Revolving Commitments, as applicable; and (F) the other terms and conditions applicable to Extended Term Loans, Extended Revolving Loans and/or Extended Revolving Commitments may be terms different than those with respect to the Existing Term Loans, Existing Revolving Loans or Existing Revolving Commitments, as applicable, so long as such terms and conditions only apply after the Latest Maturity Date; provided , further , that each Extension Amendment may, without the consent of any Lender other than the applicable extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent and the Company, to give effect to the provisions of this Section 2.17 , including any amendments necessary to treat the applicable Loans and/or Commitments of the extending Lenders as a new “Class” of loans and/or commitments hereunder; provided , however , that no Extension Amendment may provide for any Class of Extended Term Loans or Extended Revolving Commitments to be secured by any Collateral or other assets of any Restricted Subsidiary that does not also secure the Existing Term Loans or Existing Revolving Commitments;
 
(iii)   all documentation in respect of such Extension shall be consistent with the foregoing, and all written communications by the Company generally directed to the applicable Lenders under the applicable Class in connection therewith shall be in form and substance consistent with the foregoing and otherwise reasonably satisfactory to the Agent;

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(iv)   a minimum amount in respect of such Extension (to be determined in the Company’s discretion and specified in the relevant Extension Offer, but in no event less than $25,000,000, unless another amount is agreed to by the Agent in its reasonable discretion) shall be satisfied (the “ Minimum Extension Condition ”); and
 
(v)   no Extension shall become effective unless, on the proposed effective date of such Extension, the conditions set forth in Section 4.02 shall be satisfied (with all references in such Section to the making of a Loan being deemed to be references to the Extension on the applicable date of such Extension), and the Agent shall have received a certificate to that effect dated the applicable date of such Extension and executed by a Responsible Officer of the Company.
 
(d)   For the avoidance of doubt, it is understood and agreed that the provisions of Section 2.14 and Section 10.01 will not apply to any payment of interest or fees in respect of any Extended Term Loans or Extended Revolving Commitments, as applicable, that have been extended pursuant to an Extension at a rate or rates different from those paid or payable in respect of Loans of any other Class, in each case as is set forth in the relevant Extension Offer made pursuant to and in accordance with the provisions of this Section 2.17 with respect to such Extensions of Term Loans or Revolving Commitments.
 
(e)   No Lender who rejects any request for an Extension shall be deemed a Non-Consenting Lender for purposes of Section 10.14 .
 
(f)   The Lenders hereby irrevocably authorize the Agent to enter into amendments (collectively, “ Extension Amendments ”) to this Agreement and the other Loan Documents as may be necessary in order to establish new Classes of Term Loans or Revolving Commitments, as applicable, created pursuant to an Extension, in each case on terms consistent with this Section 2.17 .  Notwithstanding the foregoing, the Agent shall have the right (but not the obligation) to seek the advice or concurrence of the Required Lenders with respect to any matter contemplated by this Section 2.17 and, if the Agent seeks such advice or concurrence, the Agent shall be permitted to enter into such amendments with the Company in accordance with any instructions received from such Required Lenders and shall also be entitled to refrain from entering into such amendments with the Company unless and until it shall have received such advice or concurrence; provided , however , that, whether or not there has been a request by the Agent for any such advice or concurrence, all such Extension Amendments entered into with the Company by the Agent hereunder shall be binding on the Lenders.  Without limiting the foregoing, in connection with any Extension, (i) the Company and the appropriate Subsidiaries shall (at their expense) amend (and the Agent is hereby directed to amend) any Loan Document that the Agent reasonably requests to be amended to reflect the then latest Extended Maturity Date (or such later date as may be advised by local counsel to the Agent, in the case of any Mortgage (as defined in the Security Agreement)) and (ii) the Company and the appropriate Subsidiaries shall deliver board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection therewith and, if requested by the Agent, a legal opinion of counsel in form and substance reasonably acceptable to the Agent.
 
(g)   Promptly following the consummation and effectiveness of any Extension, the Company will furnish to the Agent (who shall promptly furnish to each Lender) written notice setting forth the Extended Maturity Date and material economic terms of the Extension and the aggregate principal amount of each Class of Loans and Commitments after giving effect to the Extension and attaching a copy of the fully executed Extension Amendment.

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ARTICLE 3
Taxes, Yield Protection and Illegality
 
Section 3.01.  Taxes.
 
(a)            Payments Free of Indemnified Taxes and Other Taxes .  Any and all payments by or on account of any obligation of any Obligor hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes, provided that if any applicable withholding agent shall be required by applicable law to deduct or withhold any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable by the applicable Obligor shall be increased as necessary so that after all required deductions or withholdings have been made (including deductions applicable to additional sums payable under this Section) the Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent shall make such deductions or withholdings and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law.
 
(b)            Payment of Other Taxes by the Company .  Without limiting the provisions of subsection (a) above, the Company shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
 
(c)            Indemnification by the Company .  Without duplication of Section 3.01(a) , the Company shall indemnify the Agent and each Lender, within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes in respect of payments under any Loan Document or Other Taxes (including Indemnified Taxes or Other Taxes imposed on or attributable to amounts payable under this Section) that are imposed on or payable by the Agent or such Lender, as the case may be, and reasonable expenses arising therefrom, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate setting forth the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.  If the Company reasonably believes that there is an appropriate basis to pursue a refund of any Indemnified Tax or Other Tax indemnified by the Company under this Section 3.01(c) , or for which any Obligor has paid additional amounts under Section 3.01(a) , the affected Agent or Lender (as applicable) shall, upon the Company’s written request and at the Company’s expense, pursue such refund; provided that no Agent or Lender shall be obligated to pursue any such refund if such Agent or Lender determines in good faith that it would be materially disadvantaged or prejudiced, or subject to any unreimbursed cost or expense, by pursuing such refund.  Any refund described in the preceding sentence that is received by the Agent or any Lender shall be payable to the Company to the extent provided in Section 3.01(f) .
 
(d)            Evidence of Payments .  As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Obligor to a Governmental Authority, the Company shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence of such payment reasonably satisfactory to the Agent.

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(e)            Status of Lenders .  Each Lender shall deliver to the Company and to the Agent, whenever reasonably requested by the Company or the Agent, such properly completed and executed documentation prescribed by applicable laws and such other reasonably requested information as will permit the Company or the Agent, as the case may be, (A) to determine whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) to determine, if applicable, the required rate of withholding or deduction and (C) to establish such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of any payments to be made to such Lender pursuant to any Loan Document or otherwise to establish such Lender’s status for withholding tax purposes in an applicable jurisdiction.  If any form, certification or other documentation provided by a Lender pursuant to this Section 3.01(e) (including any of the specific documentation described below) expires or becomes obsolete or inaccurate in any respect, such Lender shall promptly notify the Company and the Agent in writing and shall promptly update or otherwise correct the affected documentation or promptly notify the Company and the Agent in writing that such Lender is not legally eligible to do so.
 
Without limiting the generality of the foregoing,
 
(A)          any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Company and the Agent duly completed and executed originals of IRS Form W-9 or such other documentation or information prescribed by applicable laws or reasonably requested by the Company or the Agent (in such number of signed originals as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon request of the Company or the Agent) as will enable the Company or the Agent, as the case may be, to determine whether or not such Lender is subject to U.S. federal backup withholding or information reporting requirements; and
 
(B)          each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding tax with respect to any payments hereunder or under any other Loan Document shall deliver to the Company and the Agent (in such number of signed originals as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Agent), duly completed and executed copies of whichever of the following is applicable:
 
 (i)            IRS Form W-8BEN (or any successor thereto) claiming eligibility for benefits of an income tax treaty to which the United States is a party,
 
 (ii)           IRS Form W-8ECI (or any successor thereto) claiming that specified payments (as applicable) under this Agreement or any other Loan Documents (as applicable) constitute income that is effectively connected with such Foreign Lender’s conduct of a trade or business in the United States,
 
 (iii)         in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Sections 881(c) or 871(h) of the Code (the “ Portfolio Interest Exemption ”), (x) a certificate, substantially in the form of Exhibit G-1 , G-2 , G-3 or G-4 , as applicable (a “ Tax Status Certificate ”), to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of  the Company, within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and that no interest to be received is effectively connected with a U.S. trade or business and (y) IRS Form W-8BEN (or any successor thereto),
 
 (iv)         where such Lender is a partnership (for U.S. federal income tax purposes) or otherwise not a beneficial owner ( e. g., where such Lender has sold a participation), IRS Form W-8IMY (or any successor thereto) and all required supporting documentation (including, where one or more of the underlying beneficial owner(s) is claiming the benefits of the Portfolio Interest Exemption, a Tax Status Certificate of such beneficial owner(s); provided that, if the Foreign Lender is a partnership and not a participating Lender, the Tax Status Certificate from the beneficial owner(s) may be provided by the Foreign Lender on behalf of the beneficial owner(s)),  or

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 (v)          any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Company or the Agent to determine the withholding or deduction required to be made; and
 
(C)           Each Lender shall deliver to the Company and the Agent (in such number of duly completed and executed originals as shall be requested by the recipient), at such time or times reasonably requested by the Company or the Agent, such documentation prescribed by applicable law or reasonably requested by the Company or the Agent (1) to comply with the Company’s and/or Agent’s obligations under FATCA, (2) to determine that such Lender has complied with such Lender’s obligations under FATCA and/or (3) to determine the amount to deduct and withhold from any payment under this Agreement or the other Loan Documents pursuant to FATCA. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
 
Notwithstanding anything to the contrary in this Section 3.01(e) , no Lender shall be required to deliver any documentation that it is not legally eligible to provide.
 
(f)             Treatment of Certain Refunds .  If the Agent or any Lender determines, in its good faith discretion, that it has received a refund (whether received in cash or applied as an offset against other Taxes due) of any Indemnified Taxes or Other Taxes as to which it has been indemnified by an Obligor or with respect to which an Obligor has paid additional amounts pursuant to this Section, it shall promptly pay to the Company an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by an Obligor under this Section 3.01 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Agent or such Lender (including any Taxes), as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Company, upon the request of the Agent or such Lender, agrees to repay the amount paid over to the Company (plus any penalties, interest or other charges imposed by the relevant Governmental Authority (other than any penalties arising from the gross negligence or willful misconduct of the Agent or the Lender)) to the Agent or such Lender in the event the Agent or such Lender is required to repay such refund to such Governmental Authority.  Such Lender or Agent, as the case may be, shall, at the Company’s reasonable request, provide the Company with a copy of any notice of assessment or other evidence reasonably satisfactory to the Company of the requirement to repay such refund received from the relevant taxing authority.  This subsection shall not be construed to require the Agent,  or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Company or any other Person.
 
Section 3.02.  Illegality.
 
(a)           If any Lender reasonably and in good faith determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, after the Closing Date, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make Eurodollar Rate Loans, then, on notice thereof by the Lender to the Company through the Agent, any obligation of that Lender to make Eurodollar Rate Loans shall be suspended until the Lender notifies the Agent and the Company that the circumstances giving rise to such determination no longer exist.

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(b)           If a Lender reasonably and in good faith determines that it is unlawful for such Lender to maintain any Eurodollar Rate Loan after the Closing Date, the Company shall, upon its receipt of written notice of such fact and demand from such Lender (with a copy to the Agent), prepay in full such Eurodollar Rate Loans of that Lender then outstanding, together with interest accrued thereon and amounts required under Section 3.04 , either on the last day of the Interest Period thereof, if the Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if the Lender may not lawfully continue to maintain such Eurodollar Rate Loan.  If the Company is required to so prepay any Eurodollar Rate Loan, then concurrently with such prepayment, the Company shall borrow from the affected Lender, in the amount of such prepayment, a Base Rate Loan.
 
(c)           If the obligation of any Lender to make or maintain Eurodollar Rate Loans has been so terminated or suspended, the Company may elect, by giving notice to the Lender through the Agent, that all Loans which would otherwise be made or maintained by the Lender as Eurodollar Rate Loans shall instead be Base Rate Loans.
 
(d)           Before giving any notice to the Agent under this Section 3.02 , the affected Lender shall designate a different Lending Office with respect to its Eurodollar Rate Loans if such designation will avoid the need for giving such notice or making such demand and will not, in the judgment of the Lender, be illegal or otherwise disadvantageous to the Lender.
 
Section 3.03.  Increased Costs and Reduction of Return.
 
(a)               If any Lender reasonably and in good faith determines that, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance by that Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) after the Closing Date, there shall be any increase in the cost including Taxes (other than (i) Excluded Taxes and (ii) Indemnified Taxes and Other Taxes that are covered by Section 3.01 ) to such Lender of agreeing to make or making, funding or maintaining any Eurodollar Rate Loans, then the Company shall be liable for, and shall from time to time, promptly upon written demand (with a copy of such demand to be sent to the Agent), pay to the Agent for the account of such Lender, additional amounts as are sufficient to compensate such Lender for such increased costs; provided   that such Lender shall only be entitled to seek such additional amounts if such Lender is generally seeking the payment of similar additional amounts from similarly situated borrowers in comparable credit facilities .  Notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives in connection therewith are deemed to have been adopted and to have taken effect after the   date hereof.
 
(b)              If any Lender reasonably and in good faith shall have determined that (i) the introduction of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof, or (iv) compliance by the Lender (or its Lending Office) or any corporation controlling the Lender with any Capital Adequacy Regulation, in each case after the Closing Date, affects or would affect the amount of capital required or expected to be maintained by the Lender or any corporation controlling the Lender and (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy and such Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment, loans, credits or obligations under this Agreement, then, thirty (30) days after written demand by such Lender to the Company through the Agent, the Company shall pay to the Lender, from time to time as specified by the Lender, additional amounts sufficient to compensate the Lender for such increase; provided   that such Lender shall only be entitled to seek such additional amounts if such Lender is generally seeking the payment of similar additional amounts from similarly situated borrowers in comparable credit facilities; provided , further ,   that the Company shall not be required to compensate a Lender for any such increases in capital for any period more than 120 days prior to the date such Lender delivers such demand.

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Section 3.04.  Funding Losses.
 
The Company shall reimburse each Lender and hold each Lender harmless from any loss (other than loss of profits or the Applicable Margin) or expense which the Lender may sustain or incur as a consequence of:
 
(a)           the failure of the Company to make on a timely basis any payment of principal of any Eurodollar Rate Loan;
 
(b)           the failure of the Company to continue a Loan after the Company has given (or is deemed to have given) a Notice of Continuation;
 
(c)           the failure of the Company to make any prepayment of any Loan in accordance with any notice delivered under Section 2.09 ; or
 
(d)           the prepayment (including pursuant to Section 2.09 ) or other payment (including after acceleration thereof) of a Eurodollar Rate Loan on a day that is not the last day of the relevant Interest Period;
 
including any such loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain its Eurodollar Rate Loans or from fees payable to terminate the deposits from which such funds were obtained, but excluding any administrative fee or other amount chargeable by such Lender for the calculation of such loss.  For purposes of calculating amounts payable by the Company to the Lenders under this Section 3.04 and under Section 3.03(a) , each Eurodollar Rate Loan made by a Lender (and each related reserve, special deposit or similar requirement) shall be conclusively deemed to have been funded at the Eurodollar Rate used in determining the Eurodollar Rate for such Eurodollar Rate Loan (but without giving effect to the proviso to the definition of “Eurodollar Rate”) by a matching deposit or other borrowing in the London interbank market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan is in fact so funded.
 
Section 3.05.  Inability to Determine Rates; Breakage Costs.
 
(a)           If the Required Lenders determine that for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Agent will promptly so notify the Company and each Lender.  Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Agent (upon the instruction of the Required Lenders) revokes such notice in writing.  Upon receipt of such notice, the Company may revoke any notice of continuation then submitted by it pursuant to Section 2.06 .  If the Company does not revoke such notice of continuation, the Lenders shall make, convert or continue the Loans, as proposed by the Company, in the amount specified in the applicable notice submitted by the Company, but such Loans shall be made, converted or continued as Base Rate Loans instead of Eurodollar Rate Loans.  Notwithstanding the foregoing, the Agent and each Lender shall take any reasonable actions available to them (including designation of different Lending Offices), consistent with legal and regulatory restrictions, that will avoid the need to take the steps described in this Section 3.05 , which will not, in the reasonable judgment of the Agent or such Lender, be disadvantageous to the Agent, such Lender or the Company, as compared to the steps described in this Section 3.05 .

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(b)           The Company shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid or payable by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a Credit Extension of any Eurodollar Rate Loan does not occur on a date specified therefor in a Loan Notice, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by the Company.
 
Section 3.06.  Certificates of Lenders.
 
Any Lender claiming reimbursement or compensation under this Article shall deliver to the Company (with a copy to the Agent) a certificate setting forth in reasonable detail the amount payable to the Lender hereunder and such certificate shall be conclusive and binding on the Company in the absence of demonstrable error.  Such certificate shall set forth in reasonable detail (in the form of Exhibit E hereto for amounts claimed with respect to Eurodollar Rate Loans under Section 3.04 and in a form reasonably determined by the applicable Lender with respect to Base Rate Loans) the methodology used in determining the amount payable to the Lender.
 
Section 3.07.  Substitution of Lenders.
 
If the Company receives notice from any Lender of a claim for compensation under Section 3.01 , 3.02 or 3.03 , the Company may, upon notice to such Lender and the Agent, replace such Lender by causing such Lender to assign its Loans (with the assignment fee to be paid by the Company in such instance) pursuant to Section 10.07(b) to one or more other Lenders or Eligible Assignees procured by the Company; provided that (x) the Company shall be obligated to replace all Lenders that have made similar requests for compensation and (y) each such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it under the Loan Documents from the applicable assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts).  The Company shall release such Lender from its obligations under the Loan Documents.  Any Lender being replaced shall execute and deliver an Assignment and Assumption with respect to such Lender’s outstanding Loans.
 
Section 3.08.  Survival.
 
The agreements and obligations of the Company in Section 3.01 , Section 3.03 , Section 3.04 and Section 3.06 shall survive the termination of this Agreement and the payment of all other Obligations.
 
ARTICLE 4
Conditions Precedent
 
Section 4.01.  Conditions of Initial Credit Extension.

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The obligation of each Lender to make any Credit Extension on the Closing Date is subject to satisfaction of the following conditions precedent at or substantially simultaneously with the making of such Credit Extension:
 
(a)          The Agent shall have received each of the following, each of which shall be originals or facsimiles or Adobe PDFs delivered by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Obligor, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Agent and each of the Lenders:
 
(i)             executed counterparts of this Agreement, the Security Agreement and the Intercreditor Agreement in sufficient number as the Agent shall request on behalf of the Lenders; and
 
(ii)            a Note executed by the Company in favor of each Lender that has requested a Note at least three Business Days prior to the Closing Date.
 
(b)          The Agent shall have received:
 
(i)             copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of each Obligor authorizing the Transactions to which such Obligor is a party, certified as of the Closing Date by the Secretary or an Assistant Secretary of such Obligor (or in the case of a limited liability company, of its manager); and
 
(ii)            a certificate of the Secretary or Assistant Secretary of each Obligor (or in the case of a limited liability company, of its manager) certifying the names and true signatures of the officers of such Obligor authorized to execute, deliver and perform, as applicable, this Agreement and all other Loan Documents to be delivered by such Obligor hereunder.
 
(iii)           the following personal property collateral requirements:
 
(A)           certificates representing the Pledged Equity (as defined in the Security Agreement) that constitutes certificated securities (as defined in the Uniform Commercial Code) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (as defined in the Security Agreement) indorsed in blank to the extent required by the Security Agreement;
 
(B)            proper financing statements in form appropriate for filing, duly prepared for filing under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
 
(C)            proper filings in form appropriate for filing with the United States Patent and Trademark Office and United States Copyright Office (if applicable) together with evidence that all action that the Agent may deem necessary in order to perfect the Liens created under the Intellectual Property Security Agreement (as defined in the Security Agreement) has been taken or will be taken promptly after the Closing Date;
 
(D)           evidence of the completion of, or of arrangements reasonably satisfactory to the Agent for the completion of, all other actions, recordings and filings of or with respect to the Security Agreement that the Agent may deem necessary in order to perfect the Liens created thereby;

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(E)            evidence that all other action that the Agent may reasonably deem necessary in order to perfect the Liens created under the Security Agreement has been taken or that arrangements reasonably satisfactory to the Agent for the completion thereof have been made;
 
(F)            certified copies of Uniform Commercial Code, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Obligor as debtor and that are filed in those state and county jurisdictions in which any Obligor is organized or maintains its principal place of business and such other searches that the Agent deems necessary; and United States Patent and Trademark Office and United States Copyright Office searches in form and scope reasonably satisfactory to the Agent; and
 
(G)            evidence reasonably acceptable to the Agent of payment or arrangements for payment by the Obligors of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents.
 
(c)          The Agent shall have received:
 
(i)             the articles or certificate of incorporation or equivalent document of each Obligor as in effect on the Closing Date, certified by the Secretary of State of its state of incorporation or organization as of a recent date;
 
(ii)            the bylaws or equivalent document of each Obligor as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of such Obligor as of the Closing Date;
 
(iii)           a certificate of good standing or equivalent document for each Obligor from the Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation or organization as of a recent date; and
 
(iv)           a compliance certificate for each Insurance Subsidiary from the Department of Insurance of its jurisdiction of domicile as of a recent date.
 
(d)          The Agent shall have received a written opinion, reasonably acceptable to the Agent in form and substance, (addressed to the Agent and the Lenders and dated the Closing Date) from each of (i) Simpson Thacher & Bartlett LLP, counsel for the Obligors, substantially in the form of Exhibit H-1 , (ii) Karl Kindig, counsel for the Obligors, substantially in the form of Exhibit H-2 , (iii) Faegre Baker Daniels LLP, Indiana, Illinois and Iowa counsel for the Obligors, substantially in the form of Exhibit H-3 and (iv) Porter Hedges LLP, Texas counsel for the Obligors, substantially in the form of Exhibit H-4 .
 
(e)          The Agent shall have been paid all accrued and unpaid fees, and reasonable costs and expenses to the extent then due and payable to the Agent on or before the Closing Date, including accrued and projected Attorney Costs of the Agent to the extent invoiced four (4) Business Days prior to the Closing Date.
 
(f)           The Agent shall be satisfied (and may, but shall not be obligated to, rely on the receipt of a certificate from any Company or any Affiliate thereof for all or part of such purpose) that the Senior Secured Notes shall have been issued in accordance with the Senior Secured Notes Indenture, and the Company shall have received the net proceeds thereof.

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(g)           (i) The Company and its Subsidiaries shall have (i) repaid in full all existing Indebtedness other than up to $92,996,000 of aggregate principal amount of Existing Convertible Debentures, (ii) terminated any commitments to lend or make other extensions of credit under the Existing Credit Agreement and (iii) delivered to the Agent all documents or instruments necessary to release all Liens securing Indebtedness pursuant to the Existing Credit Agreement (including executed payoff letter with respect thereto in form and substance satisfactory to the Agent) and the Existing Senior Secured Notes on the Closing Date.
 
(h)           The Agent shall have received (i) a certificate signed by a Responsible Officer on behalf of the Company, dated as of the Closing Date, confirming that the Company and its Subsidiaries have received all required approvals of the transactions contemplated hereby and by the other Loan Documents, including the Transactions, from each applicable Governmental Authority and (ii) a solvency certificate executed by the Chief Financial Officer of the Company, substantially in the form of Exhibit I .
 
(i)            All governmental authorizations and third party approvals (or arrangements reasonably satisfactory to the Lenders in lieu of such approvals) necessary in connection with the financing contemplated hereby and the continuing operations of the Company and its Subsidiaries shall have been obtained and be in full force and effect, in each case except for such authorizations and approvals as would not be reasonably likely to have a Material Adverse Effect.
 
(j)            The Agent shall have received such other approvals, documents or materials as the Agent may reasonably request, all in form and substance reasonably satisfactory to the Agent.
 
(k)           The Company and each of the Subsidiary Guarantors shall have provided the documentation and other information to the Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, to the extent the Company shall have received written requests therefor at least ten (10) Business Days prior to the Closing Date.
 
Section 4.02.  Conditions to All Credit Extensions.
 
The obligation of each Lender to make any Loans or the Issuing Bank to issue any Letter of Credit, on any Borrowing Date (including on the Closing Date) is subject to satisfaction of the following conditions precedent:
 
(a)           The representations and warranties of the Company contained in Article 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, (x) which are not qualified as to materiality shall be true and correct in all material respects and (y) which are qualified as to materiality shall be true and correct, in each case, on and as of the date of such Loan Notice and after giving effect to such borrowing, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects, or true and correct, as the case may be, as of such earlier date, and except that for purposes of this Section 4.02 , the representations and warranties contained in Sections 5.11(a) and (b) shall be deemed to refer to the most recent statements furnished prior to the Closing Date or pursuant to Sections 6.01(a) and (b) , respectively.
 
(b)           No Default or Event of Default shall have occurred and be continuing on such date or immediately after giving effect to the proposed Credit Extension.

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(c)           No order, judgment or decree of any Governmental Authority shall purport to restrain any Lender from making any Loans to be made by it.  No injunction or other restraining order shall have been issued, shall be pending or noticed with respect to any action, suit or proceeding seeking to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated by this Agreement or the making of Loans hereunder.
 
(d)           The Agent shall have received a Loan Notice in accordance with the requirements hereof.
 
(e)           after making the Credit Extension requested on such Borrowing Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
 
(f)            on or before the date of issuance of any Letter of Credit, the Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit
 
Each Loan Notice (other than a notice of conversion requesting only a conversion of Loans to the other Interest Type, or a continuation of Eurodollar Rate Loans) submitted by the Company shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied (or waived) on and as of the date of the applicable Credit Extension.
 
Section 4.03.  Determinations Under Section 4.01.
 
For purposes of determining compliance with the conditions specified in Section 4.01 , each of the Lenders shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by, or acceptable or satisfactory to, the Lenders unless an officer of the Agent responsible for the Transactions shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of any Lender, such Lender shall not have made available to the Agent on the Closing Date such Lender’s Pro Rata Share of the borrowing to be made on such date.
 
ARTICLE 5
Representations and Warranties
 
The Company represents and warrants to the Agent and each Lender that:
 
Section 5.01.  Corporate Existence and Power.
 
The Company and each of its Restricted Subsidiaries:
 
(a)           is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization;
 
(b)           has the corporate (or other organizational) power and authority and all governmental licenses, authorizations, consents and approvals to own its assets and carry on its business;
 
(c)           is duly qualified and is licensed and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification or license; and

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(d)            is in compliance with all Requirements of Law;
 
except, in each case referred to in clauses (a) (other than with respect to the Company), (b) , (c) and (d) , to the extent that the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
 
Section 5.02.  Corporate Authorization; No Contravention.
 
The Transactions to be entered into by each Obligor are within its corporate or other organizational powers.  The Transactions (including the execution, delivery and performance by each Obligor of each Loan Document to which it is a party) have been duly authorized by all necessary corporate or other organizational action of each Obligor, and do not and will not:
 
(a)           contravene the terms of any of such Obligor’s Organization Documents;
 
(b)           conflict with or result in any breach or contravention of, or result in or require the creation of any Lien (other than the Transaction Liens and the Liens securing the Senior Secured Notes) under, any document evidencing any material Contractual Obligation to which such Obligor is a party; or
 
(c)            violate any Requirement of Law or any order, injunction, writ or decree of any Governmental Authority to which such Obligor or its property is subject, except to the extent that such violations, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
 
Section 5.03.  Governmental Authorization.
 
No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the Transactions (including the execution, delivery or performance by, or enforcement against, each Obligor of each Loan Document to which it is a party), except (i) such as have been obtained and are in full force and effect (including without limitation, the approval of the Department of Insurance of the jurisdiction of the domicile of the Insurance Subsidiaries) and (ii) filings necessary to perfect the Transaction Liens.
 
Section 5.04.  Binding Effect.
 
This Agreement has been duly executed and delivered by the Company and constitutes, and each other Loan Document to which any Obligor is to be a party, when executed and delivered by such Obligor, will constitute, a legal, valid and binding obligation of the Company or such Obligor, as the case may be, in each case enforceable against the Company or such Obligor, as the case may be, in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
 
Section 5.05.  Litigation.
 
Except as set forth on Schedule 5.05 , there are no actions, suits, proceedings, claims or disputes pending, or to the knowledge of the Company, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, against the Company or any of its Restricted Subsidiaries or any of their respective properties that:  (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions (including the Transactions) contemplated hereby or thereby; or (b) individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.  No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement or any other Loan Document or directing that the transactions (including the Transactions) provided for herein or therein not be consummated as herein or therein provided.

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Section 5.06.  No Default.
 
No Default or Event of Default has occurred and is continuing.  Without limiting the foregoing, no Default would result from the consummation of the Transactions.  As of the Closing Date, neither the Company nor any Restricted Subsidiary is in default under or with respect to any Contractual Obligation in any respect that, individually or together with all such defaults, could reasonably be expected to have a Material Adverse Effect.
 
Section 5.07.  ERISA Compliance.
 
(a)           Each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state law except to the extent that such non-compliance could not reasonably be expected to have a Material Adverse Effect.  Each Plan that is intended to qualify under Section 401(a) of the Code has either (i) received a favorable determination letter from the IRS and to the knowledge of the Company, nothing has occurred which would reasonably be expected to cause the loss of such qualification or (ii) with respect to the Plans identified on Schedule 5.07 , is in the process of requesting a favorable determination letter from the IRS as to its qualified status, and the Company is not aware of any fact or issue that would reasonably be expected to cause the IRS to fail to issue a favorable determination letter, except where such non-qualification could not reasonably be expected to have a Material Adverse Effect.  The Company, its Restricted Subsidiaries and each ERISA Affiliate have made all required contributions to any Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan, except where such lack of contribution or application for funding waiver could not reasonably be expected to have a Material Adverse Effect.
 
(b)           Except as set forth on Schedule 5.07 , there are no pending or, to the knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.  To the knowledge of the Company, there has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
 
(c)           Except for occurrences or circumstances that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect: (i) except as set forth on Schedule 5.07 , since December 31, 2011, no ERISA Event has occurred or is reasonably expected to occur; (ii) except as set forth on Schedule 5.07 , as of the date hereof, no Single Employer Pension Plan has any Unfunded Pension Liability; (iii) the Unfunded Pension Liabilities, if any, of all Single Employer Pension Plans do not exceed,  in the aggregate, $25,000,000; (iv) none of the Company, any of its Subsidiaries or any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred that, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) none of the Company, any of its Restricted Subsidiaries or any ERISA Affiliate has knowingly engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
 
Section 5.08.  Margin Regulations.
 
Neither the Company nor any Restricted Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.  Margin Stock does not constitute more than 25% of the value of the consolidated assets of the Company and its Restricted Subsidiaries.  None of the proceeds of the Loans will be used to acquire Margin Stock.  None of the transactions contemplated by this Agreement (including the direct or indirect use of the proceeds of the Loans) will violate or result in a violation of the Securities Act of 1933, as amended, or the Exchange Act, or regulations issued pursuant thereto, or Regulation T, U or X of the FRB.

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Section 5.09.  Title to Properties.
 
The Company and each Restricted Subsidiary have good legal title in fee simple or rights in and power to transfer, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of their respective businesses, except for any failure to have such good title and any defects in title or interests as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  As of the Closing Date, the property of the Company and its Restricted Subsidiaries is subject to no Liens, other than Liens permitted under Section 7.02 .
 
Section 5.10.  Taxes.
 
(a)           The Company and each of its Restricted Subsidiaries has timely filed all federal Tax, material income Tax and other material Tax returns and reports required to be filed, and has paid all federal Tax, income Tax and other material Taxes levied or imposed upon it or its properties, income or assets that have become due and payable (including in its capacity as a withholding agent), except those that are (i) not more than 90 days overdue or (ii) being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with SAP or GAAP, as applicable ( provided that such contest effectively suspends collection of the same and enforcement of any Lien securing the same).  There is no current or proposed Tax audit, assessment, deficiency or other claim or proceeding against the Company or any Restricted Subsidiary that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
 
(b)           Except as could not be reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect (i) the Company and each of its Restricted Subsidiaries has made adequate provision in accordance with SAP or GAAP (as applicable) for all Taxes not yet due and payable and (ii) neither the Company nor any Restricted Subsidiary has ever participated in a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4.
 
Section 5.11.  Financial Condition.
 
(a)           Each of (i) the audited consolidated financial statements of the Company and its Restricted Subsidiaries dated December 31, 2011, and the related consolidated statements of income, shareholders’ equity and cash flows for the Fiscal Year ended on that date, reported on by PricewaterhouseCoopers LLP, independent public accountants and (ii) the unaudited consolidated financial statements of the Company and its Restricted Subsidiaries dated June 30, 2012, and the related consolidated statements of income, shareholders’ equity and cash flows for the period ended on that date:
 
(i)             were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, subject, in the case of such unaudited financial statements, to ordinary, good faith year end and audit adjustments and the absence of footnote disclosure;
 
(ii)            fairly present in all material respects the financial condition, results of operations, cash flows and changes in shareholders’ equity of the Company and its Restricted Subsidiaries as of the date thereof and results of operations for the period covered thereby; and

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 (iii)           show all material indebtedness and other liabilities, direct or contingent, of the Company and its consolidated Restricted Subsidiaries as of the date thereof.
 
(b)           Each of (i) the December 31, 2011 Annual Statement of each Insurance Subsidiary, (ii)  the March 31, 2012 Quarterly Statement of each Insurance Subsidiary and (iii) the June 30, 2012 Quarterly Statement of each Insurance Subsidiary (collectively, the “ Historical Statutory Statements ”):
 
 (i)            were prepared  in accordance with SAP, except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by SAP and to normal year-end adjustments; and
 
 (ii)            were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and changes in Capital and Surplus of the respective Insurance Subsidiaries covered thereby for the respective periods then ended.
 
Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with SAP, would have been required to have been disclosed or provided for in such Historical Statutory Statement.
 
(c)           The financial projections, budgets and estimates are as to future events provided to the Agent prior to the date hereof have been prepared in good faith based upon assumptions that are believed by the preparer thereof to be reasonable at the time that they are provided to the Agent, it being understood and agreed that (a) financial projections, budgets and estimates are as to future events and are not to be viewed as facts, (b) financial projections, budgets and estimates are subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, (c) no assurance can be given that any particular financial projections, budgets or estimates will be realized and (d) actual results during the period or periods covered by any such projections, budgets or estimates may differ significantly from the projected, budgeted or estimated results and such differences may be material.
 
(d)           Since December 31, 2011, there has been no material adverse change in the business, properties, results of operations or financial condition of the Company and its Restricted Subsidiaries, taken as a whole.
 
Section 5.12.  Environmental Matters.
 
(a)           All properties owned or leased by the Company or any of its Restricted Subsidiaries have been, and continue to be, owned or operated by the Company and its Restricted Subsidiaries in compliance with all Environmental Laws, except where failure to so comply could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
 
(b)           There have been no past, and there are no pending or, to the knowledge of the Company, threatened, Environmental Claims against the Company or any of its Restricted Subsidiaries, except for such Environmental Claims that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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(c)           There has been no Release of Hazardous Materials at, on, under or from any property now or, to the knowledge of the Company, previously owned or leased by the Company or any of its Restricted Subsidiaries that, individually or in the aggregate, have had, or could reasonably be expected to have, a Material Adverse Effect.
 
(d)           The Company and each of its Restricted Subsidiaries have been issued and are in compliance with all permits, certificates, approvals, licenses and other authorizations required under any Environmental Law to own and operate their property or to conduct their businesses except where failure to obtain or comply with the foregoing could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
 
(e)           There are no underground or above ground storage tanks, active or abandoned, including petroleum storage tanks, on or under any property now owned or leased by the Company or any of its Restricted Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
 
(f)            To the knowledge of the Company, neither the Company nor any of its Restricted Subsidiaries has directly transported or directly arranged for the transportation of any Hazardous Material to any location that could reasonably be expected to result in liability of the Company or any of its Restricted Subsidiaries under any Environmental Law, except any such liability which could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
 
(g)           There are no polychlorinated biphenyls or friable asbestos present at any property now owned or leased by the Company or any of its Restricted Subsidiaries that, individually or in the aggregate, could be reasonably expected to have a Material Adverse Effect.
 
Section 5.13.  Regulated Activities and Regulated Entities.
 
Except as disclosed on Schedule 5.13 , none of the Company, any Person controlling the Company, or any Restricted Subsidiary, is (a) subject to regulation, or required to register, under the Investment Company Act of 1940 or (b) a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.  None of the Company or any Restricted Subsidiary is subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities code or any other Federal or state statute or regulation limiting its ability to incur Indebtedness.
 
Section 5.14.  Subsidiaries.
 
(a)           The Capital Stock of each of the Company and its Restricted Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable.  Except as set forth on Schedule 5.14(a) , as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which the Company or any of its Restricted Subsidiaries is a party requiring, and there is no membership interest or other Capital Stock of the Company or any of its Restricted Subsidiaries outstanding which upon conversion or exchange would require, the issuance by the Company or any of its Restricted Subsidiaries of any additional membership interests or other Capital Stock of the Company or any of its Restricted Subsidiaries or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or other Capital Stock of the Company or any of its Restricted Subsidiaries.

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(b)            Schedule 5.14(b) sets forth the name of, and the ownership interest of the Company (or the applicable Subsidiary) in, each of its Subsidiaries and identifies each Subsidiary that is a Subsidiary Guarantor, a Foreign Subsidiary, an Immaterial Subsidiary, Unrestricted Subsidiary and/or an Insurance Subsidiary, in each case as of the Closing Date.  All the Company’s Subsidiaries are, and will at all times be, fully consolidated in its consolidated financial statements.  As of the Closing Date each Subsidiary that is required to be a Subsidiary Guarantor is a Subsidiary Guarantor.
 
Section 5.15.  Insurance Licenses.
 
No License of the Company or any Insurance Subsidiary, the loss of which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, is the subject of a proceeding for suspension or revocation.  To the Company’s knowledge, there is no sustainable basis for such suspension or revocation, and no such suspension or revocation has been threatened by any Governmental Authority.
 
Section 5.16.  Full Disclosure.
 
All written Information (other than financial projections, budgets, estimates and information of a general economic or industry nature) provided to the Agent directly by or on behalf of the Company or its subsidiaries or affiliates to the Agent or the Lenders in connection with the Transactions was, as of the Closing Date and when taken as a whole (after giving effect to all supplements thereto), correct in all material respects and did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made.
 
Section 5.17.  Solvency.
 
Immediately after the Transactions to occur on the Closing Date are consummated and, upon the incurrence of any Obligation by any Obligor on any date on which this representation and warranty is made, (a) the fair value of the assets of each Obligor, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (b) such Obligor does not intend to, and does not believe that it will, incur debts or liabilities beyond such Obligor’s ability to pay such debts and liabilities as they mature; (c) each Obligor will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) no Obligor will have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and proposed to be conducted after the Closing Date; provided that in the case of any Obligor that is a going concern, the value of the assets of such Obligor (for purposes of clauses (a) and (b) above) shall be determined on a going-concern basis.
 
Section 5.18.  Security Interests.
 
On the Closing Date, the Security Documents will create valid security interests in the Collateral to the extent set forth therein.  At all times thereafter, the Security Documents will create valid and, when financing statements are filed in the offices specified in the Perfection Certificates delivered pursuant to the Security Agreement, perfected security interests in the Collateral from time to time covered or purportedly covered thereby to the extent that a security interest in such Collateral may be perfected by filing under the Uniform Commercial Code.  Such security interests will be prior (or pari passu, as applicable) to all other Liens (except Liens permitted under Section 7.02(b) , Section 7.02(c) , Section 7.02(d) , Section 7.02(e) , Section 7.02(f) , Section 7.02(g) , Section 7.02(h) , Section 7.02(i) , Section 7.02(k) , Section 7.02(l) , Section 7.02(o) , Section 7.02(q) , Section 7.02(r) and Section 7.02(u) ) on the Collateral until the applicable Security Interest are released in accordance with the Loan Documents.

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Section 5.19.  Insurance.
 
Other than as could not reasonably be expected to have a Material Adverse Effect, the insurance maintained by or reserved on the books of the Company and its Restricted Subsidiaries is sufficient to protect the Company and its Restricted Subsidiaries and their respective directors and officers against such risks as are usually insured against in accordance with industry practice by companies in the same or similar business.
 
Section 5.20.  OFAC; Anti-Terrorism Laws; PATRIOT Act.
 
(a)           No Obligor, none of its Subsidiaries and, to the knowledge of senior management of each Obligor, none of its controlled Affiliates and none of the respective officers, directors, brokers or agents of such Obligor, such Subsidiary or controlled Affiliate (i) has violated or is in violation of any applicable Anti-Money Laundering Law or (ii) has engaged or engages in any transaction, investment, undertaking or activity that conceals the identity, source or destination of the proceeds from any category of offenses designated in any applicable law, regulation or other binding measure implementing the “Forty Recommendations” and “Nine Special Recommendations” published by the Organisation for Economic Co-operation and Development’s Financial Action Task Force on Money Laundering.
 
(b)           No Obligor, none of its Subsidiaries and, to the knowledge of senior management of each Obligor, none of its controlled Affiliates and none of the respective officers, directors, brokers or agents of such Obligor, such Subsidiary or such controlled Affiliate that is acting or benefiting in any capacity in connection with the Loans (i) is an Embargoed Person or (ii) except as otherwise authorized by OFAC, otherwise permitted for U.S. persons by a U.S. Governmental Authority or by any rule, regulation or order of a U.S. Governmental Authority, will use any proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing the activities of or with any Person or in any country or territory that, at the time of funding or facilitation, is an Embargoed Person.
 
(c)           Except as otherwise authorized by OFAC, no Obligor, none of its Subsidiaries and, to the knowledge of senior management of each Obligor, none of its controlled Affiliates and none of the respective officers, directors, brokers or agents of such Obligor, such Subsidiary or such controlled Affiliate acting or benefiting in any capacity in connection with the Loans (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Embargoed Person, (ii) deals in, or otherwise engages in any transaction related to, any property or interests in property blocked pursuant to any applicable Economic Sanctions Laws or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the applicable prohibitions set forth in any Economic Sanctions Laws.
 
Section 5.21.  Surplus Debenture Interest and Dividends.
 
The Company has not received any notice from NAIC, any other Governmental Authority or any other insurance regulatory authority that its Insurance Subsidiaries will not be permitted to pay dividends or Surplus Debenture interest, and has no reason to believe that such notice is forthcoming.
 
ARTICLE 6
Affirmative Covenants
 
Until all principal of and interest on each Loan and all fees and other amounts payable hereunder have been paid in full (other than unmatured, surviving contingent indemnification obligations not yet due and payable), all Commitments have been terminated and all Letters of Credit have been cancelled or have expired, the Company covenants and agrees with the Lenders that:

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Section 6.01.  Financial Statements.
 
The Company shall deliver to the Agent and each Lender:
 
(a)           promptly upon filing thereof with the SEC (including as part of a Form 10-K) but not later than 90 days after the end of each Fiscal Year, copies of the audited consolidated and the unaudited consolidating balance sheet of the Company and its Restricted Subsidiaries as at the end of such year (including, with respect to the consolidating balance sheets, any adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from the consolidated financial statements)   and the related audited consolidated and unaudited consolidating statements of operations, shareholders’ equity and cash flows for such year (including, with respect to the consolidating balance sheets, any adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from the consolidated financial statements), setting forth in the case of the audited consolidated statements in comparative form the figures for the previous Fiscal Year, and accompanied by the opinion of PricewaterhouseCoopers LLP or another nationally-recognized independent public accounting firm (“ Independent Auditor ”), which opinion shall state that such audited consolidated financial statements present fairly in all material respects the financial position and result of operations of the Company and its Restricted Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with prior years, except as stated therein. Such opinion shall be without a “going concern” or like qualification and shall not be qualified as to scope;
 
(b)           promptly upon filing thereof with the SEC (including as part of a Form 10-Q) but not later than 50 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, copies of the condensed unaudited consolidated and consolidating balance sheet of the Company and its Restricted Subsidiaries as of the end of such quarter (including, with respect to the consolidating balance sheets, any adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from the consolidated financial statements) and the related condensed unaudited consolidated and consolidating statements of operations, shareholders’ equity and cash flows for the period commencing on the first day and ending on the last day of such quarter and for the then elapsed portion of such Fiscal Year (including, with respect to the consolidating balance sheets, any adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from the consolidated financial statements), setting forth in the case of the consolidated statements in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, and certified by a Responsible Officer as fairly presenting in all material respects, in accordance with GAAP (subject to the absence of footnotes and year-end audit adjustments), the financial position, the results of operations and cash flows of the Company and the Restricted Subsidiaries;
 
(c)           as soon as available but not later than 75 days (or, in the case of the Annual Statement prepared on a combined basis, 90 days) after the close of each Fiscal Year of each Insurance Subsidiary, copies of the unaudited Annual Statement of such Insurance Subsidiary on a stand-alone basis and on a combined basis for all Insurance Subsidiaries, the stand-alone Annual Statement to be certified by a Responsible Officer of such Insurance Subsidiary, all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein and, if required by the applicable Governmental Authority, audited and certified by independent certified public accountants of recognized national standing (such audited Annual Statement to be delivered as soon as available but not later than June 15 of each Fiscal Year of such Insurance Subsidiary);

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(d)           as soon as available but not later than 60 days (or, in the case of the Quarterly Statement prepared on a combined basis, 75 days) after the close of each of the first three Fiscal Quarters of each Fiscal Year of each Insurance Subsidiary, copies of the Quarterly Statement of such Insurance Subsidiary on a stand-alone basis and on a combined basis for all Insurance Subsidiaries, the stand-alone Quarterly Statement to be certified by a Responsible Officer of such Insurance Subsidiary, all such statements to be prepared in accordance with SAP consistently applied through the period reflected therein;
 
(e)           promptly following the delivery to or receipt by the Company or any of its Restricted Subsidiaries of any regular or periodic final Triennial Examination Reports, risk adjusted capital reports or results of any market conduct examination or examination by any Department or the NAIC of the financial condition and operations of, or any notice of any assertion as to violation of any Requirement of Law by, any Insurance Subsidiary, or any report with respect to any Insurance Subsidiary (including any summary report from the NAIC with respect to the performance of such Insurance Subsidiary as measured against the ratios and other financial measurements developed by the NAIC under its Insurance Regulatory Information System as in effect from time to time) that could reasonably be expected to result in a Material Adverse Effect; and
 
(f)            within 91 days after the close of each Fiscal Year of each Insurance Subsidiary, a copy of the “Statement of Actuarial Opinion” and “Management Discussion and Analysis” for each such Insurance Subsidiary that is provided to the applicable Department (or equivalent information should such Department no longer require such a statement) as to the adequacy of reserves of such Insurance Subsidiary, such opinion to be in the format prescribed by the insurance code of the state of domicile of such Insurance Subsidiary.
 
Section 6.02.  Certificates; Other Information.
 
The Company shall furnish to the Agent, for further distribution to each Lender:
 
(a)           concurrently with the delivery of the financial statements referred to in Section 6.01(a) and Section 6.01(b) , a Compliance Certificate executed by a Responsible Officer;
 
(b)           concurrently with the delivery of the financial statements referred to in Section 6.01(a) , a certificate of the Independent Auditor that reported on such financial statements stating (i) whether during the course of its examination of such financial statements it obtained knowledge of any Default relating to accounting matters (which certificate may be limited to the extent required by auditing rules or guidelines), (ii) if a Default relating to accounting matters has come to its attention, specifying the nature and period of existence thereof and (iii) stating whether or not, based on its audit examination, anything has come to its attention that causes them to believe that the matters set forth in Schedule 3 to the Compliance Certificate delivered pursuant to Section 6.02(a) for the applicable Fiscal Year to the extent such matters relate to accounting are not stated in accordance with the terms of this Agreement;
 
(c)           promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the financial statements of the Company made by such accountants, including the comment letter submitted by such accountants to management in connection with their annual audit;
 
(d)           promptly, copies of all Forms 10-K and 10-Q that the Company or any Restricted Subsidiary may file with the SEC, all financial statements and reports that the Company sends to its shareholders and copies of all other financial statements and regular, periodic or special reports (including Form 8-K) that the Company or any Restricted Subsidiary may make to, or file with, the SEC;

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(e)           concurrently with the delivery of the financial statements referred to in Section 6.01(a) , a detailed consolidated budget for the next Fiscal Year (including statements of projected operations and cash flows for such period and setting forth the assumptions used in preparing such budget) and, promptly when available, any significant revisions of such budget;
 
(f)            promptly and in any event within three Business Days after learning thereof, notification of any changes after the date hereof in any rating given by S&P, Moody’s, Fitch or A.M. Best in respect of the Company, any of its Restricted Subsidiaries or any of their Indebtedness or securities;
 
(g)           to the extent not otherwise provided under Section 6.01 or Section 6.02 , promptly upon receipt thereof, or delivery thereof by the Company or any Restricted Subsidiary, as applicable, a copy of any written communication addressed to the Company or any of its Restricted Subsidiaries setting forth or relating to the Company’s and its Restricted Subsidiaries’ operations that may reasonably be expected to be materially adverse to the interests of the Company, such Restricted Subsidiary or the Lenders delivered to or received from S&P, Moody’s, Fitch or A.M. Best or any other rating agency;
 
(h)           as soon as available but not later than five Business Days after receipt, execution or delivery of any Reinsurance Agreement (other than any Reinsurance Agreement entered into in the ordinary course of business for the purpose of managing insurance risk consistent with industry practice), including any proposal, binder, cover note or line slip (where the Person to be reinsured or reinsured is an Insurance Subsidiary), (i) a written notice specifying each Person party to such agreement, (ii) for each such Person, its most recently published rating, if any, (iii) the subject matter of each such agreement and (iv) if requested by the Agent or any Lender, attaching thereto, a true and complete copy of such agreement;
 
(i)            promptly after receipt of any notice of termination, cancellation (which cancellation notice is not accompanied by a corresponding request for renewal), commutation or recapture of any Reinsurance Agreement (other than any Reinsurance Agreement that was entered into in the ordinary course of business for the purpose of managing insurance risk consistent with industry practice) where the Person reinsured is an Insurance Subsidiary, a copy thereof; and
 
(j)            promptly, such additional information regarding the business, financial or corporate affairs of the Company or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Agent, for itself or at the request of any Lender, may from time to time reasonably request.
 
Documents required to be delivered pursuant to Section 6.01 , Section 6.02 or Section 6.03 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02 ; or (ii) on which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent) or (iii) on which such documents are made publicly available at www.sec.gov; provided that, with respect to clause (ii) and (iii) of this paragraph, the Company shall notify (which may be by facsimile or electronic mail) the Agent of the posting of any such documents and, solely with respect to clause (ii) , provide to the Agent by electronic mail electronic versions ( i.e ., soft copies) of such documents.  Except for Compliance Certificates, the Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

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The Company hereby acknowledges that (a) the Agent will make available information and projections (collectively, “ Company Materials ”) to the Lenders by posting the Company Materials on IntraLinks or another similar secure electronic system (the “ Platform ”) and (b) certain of the Lenders may be “public-side” Lenders ( i.e ., Lenders that do not wish to receive material non-public information with respect to the Company, its Restricted Subsidiaries or their respective securities) (each, a “ Public Lender ”).  The Company hereby agrees that (w) it will use commercially reasonable efforts to identify that portion of the Company Materials that may be distributed to the Public Lenders and that all such Company Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC,” the Company shall be deemed to have authorized the Agent and the Lenders to treat such Company Materials as not containing any material non-public information with respect to the Company, its Restricted Subsidiaries or their respective securities for purposes of United States federal and state securities laws, it being understood that such Company Materials are subject to Section 10.08 ; (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Lender”; and (z) the Agent shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Lender.”
 
Section 6.03.  Notices.
 
The Company shall promptly notify the Agent:
 
(a)           of the occurrence of any Default;
 
(b)           of any matter that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect, including any of the following that could reasonably be expected to have a Material Adverse Effect:  (i) any breach or non-performance of, or any default under, a Contractual Obligation of the Company or any Restricted Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Company or any Restricted Subsidiary and any Governmental Authority; (iii) the commencement of, or any material development in, any litigation (including any governmental proceeding or arbitration proceeding), tax audit or investigative proceeding, claim, lawsuit, and/or investigation against or involving the Company or any of its Restricted Subsidiaries or any of its or their businesses or operations, including pursuant to any applicable Environmental Laws; (iv) the expiration without renewal, revocation, suspension or restriction of, or the institution of any proceedings to revoke, suspend or restrict, any License now or hereafter held by any Insurance Subsidiary that is required to conduct insurance business in compliance with all applicable laws and regulations; (v) the institution of any disciplinary proceedings against or in respect of any Insurance Subsidiary, or the issuance of any order, the taking of any action or any request for an extraordinary audit for cause by any Governmental Authority; or (vi) the issuance or adoption of any judicial or administrative order limiting or controlling the insurance business of any Insurance Subsidiary (and not the insurance industry generally);
 
(c)           of the filing or commencement of, or the occurrence of any development in, any litigation or proceeding that seeks to enjoin, prohibit, discontinue or otherwise impacts (i) the validity or enforceability of this Agreement or any of the other Loan Documents or (ii) the transactions contemplated hereby or thereby and, in the case of clause (ii) , that could reasonably be expected to have a Material Adverse Effect;
 
(d)           of the occurrence of any of the following events affecting the Company, any of its Restricted Subsidiaries or any ERISA Affiliate (but in no event more than 10 days after such event) and deliver to the Agent and each Lender a copy of any notice with respect to such event that is filed with a Governmental Authority and any notice delivered by a Governmental Authority to the Company, any of its Restricted Subsidiaries or any ERISA Affiliate with respect to such event:

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(i)             an ERISA Event; or
 
(ii)            a material increase in the Unfunded Pension Liabilities of any Pension Plan;
 
(iii)           the adoption of or the commencement of contributions to any Plan subject to Title IV of ERISA or Section 412 of the Code by the Company, any of its Restricted Subsidiaries or any ERISA Affiliate; or
 
(iv)           the adoption of any amendment to a Plan subject to Title IV of ERISA or Section 412 of the Code, if such amendment results in a material increase in contributions or Unfunded Pension Liability;
 
provided that no such notice will be required under this Section 6.03(d) with respect to the occurrence of any such event if such occurrence does not result in, and is not reasonably expected to result in, any liability to the Company, any of its Restricted Subsidiaries or any ERISA Affiliate of more than $25,000,000 in the aggregate;
 
(e)           of any material change in accounting policies or financial reporting practices by the Company or any of its Restricted Subsidiaries; and
 
(f)            of any casualty or other insured damage to any material portion of the Collateral or the commencement of any action or proceeding for the taking of any material portion of the Collateral under power of eminent domain or by condemnation or similar proceeding.
 
Each notice under this Section shall be accompanied by a written statement by a Responsible Officer setting forth details of the occurrence referred to therein, and stating what action the Company or any affected Restricted Subsidiary proposes to take with respect thereto and at what time.  Each notice under Section 6.03(a) shall describe with particularity any and all clauses or provisions of this Agreement or other Loan Document that have been (or reasonably foreseeably will be) breached or violated.
 
Section 6.04.  Preservation of Corporate Existence, Etc.
 
The Company shall, and shall cause each Restricted Subsidiary (other than any Immaterial Subsidiary) to (except as permitted by Section 7.03 or Section 7.07 ):
 
(a)           preserve and maintain in full force and effect its existence and good standing under the laws of its state or jurisdiction of incorporation or organization, as applicable; provided no Restricted Subsidiary (other than the Company) shall be required to preserve any such existence or good standing if such Person’s board of directors (or similar governing body) shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to the Lenders; and
 
(b)           preserve and maintain in full force and effect all governmental rights, privileges, qualifications, permits, licenses and franchises necessary in the normal conduct of its business, except, in the case of this clause (b) , where such failure to preserve and maintain could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
Section 6.05.  Insurance.

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The Company shall, and shall cause each Restricted Subsidiary to, maintain with financially sound and reputable independent insurers insurance against losses or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Company and its Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons, except where such failure to maintain such insurance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
Section 6.06.  Payment of Obligations.
 
The Company shall, and shall cause each Restricted Subsidiary to, pay and discharge as the same shall become due and payable, all of the following:  all material Tax liabilities imposed upon it or its material properties or assets, unless the same (a) are not overdue for a period of more than 90 days or (b) are being contested in good faith by appropriate proceedings and adequate reserves in accordance with SAP or GAAP (as applicable) are being maintained by the Company or such Restricted Subsidiary and such contest effectively suspends collection of the same and the enforcement of any Lien securing the same.
 
Section 6.07.  Compliance with Laws.
 
The Company shall, and shall cause each Restricted Subsidiary to, comply with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business (including the Federal Fair Labor Standards Act, the Patriot Act and all applicable Environmental Laws), except (i) for such noncompliance that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (ii) as may be contested in good faith and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP.
 
Section 6.08.  Compliance with ERISA.
 
The Company shall, and shall cause each of its Restricted Subsidiaries and ERISA Affiliates to:  (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state law; (b) cause each Plan that is qualified under Section 401(a) of the Code to maintain such qualification, and (c) make all required contributions to any Plan subject to Section 412 of the Code, except where such failure to maintain as set forth in (a) or (b) or to make contributions as set forth in (c) could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
 
Section 6.09.  Inspection of Property and Books and Records.
 
The Company shall, and shall cause each Restricted Subsidiary to, maintain proper books of record and account, in which full, true and correct entries in all material respects in conformity with GAAP or SAP, as applicable, consistently applied (except as stated therein) shall be made of all financial transactions and matters involving the assets and business of the Company and such Restricted Subsidiary.  Unless an Event of Default has occurred and is continuing, not more than once per fiscal year, the Company shall permit, and shall cause each Restricted Subsidiary to permit, representatives and independent contractors of the Agent or its designees, at the Company’s expense, to visit and inspect any of their respective properties, to examine their respective corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors, officers, and independent public accountants, all at such reasonable times during normal business hours, upon reasonable advance notice to the Company; provided that members of senior management will be notified and permitted to be present during any such meetings; and provided , further , that when an Event of Default exists the Agent or any Lender (through coordination with the Agent) may do any of the foregoing at any time during normal business hours and without advance notice; provided that the Company shall not be required to reimburse the costs of any Lender for more than one visit per Fiscal Quarter.

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Section 6.10.  Information Regarding Collateral.
 
The Company will furnish to the Agent prompt written notice of any change in (i) any Obligor’s legal name or any Obligor’s location (determined as provided in Section 9-307 of the Uniform Commercial Code), (ii) any Obligor’s identity or corporate structure or (iii) any Obligor’s Federal Taxpayer Identification Number or organizational identification number.
 
Section 6.11.  Use of Proceeds.
 
The proceeds of the Term Loans shall be used, together with the proceeds from the issuance of the Senior Secured Notes, (i) to repay amounts outstanding under the Existing Credit Agreement, (ii) to fund an offer to purchase up to all of the Company’s Existing Senior Secured Notes and a concurrent solicitation of consents, and, to the extent any Existing Senior Secured Notes are not repurchased pursuant to such offer, to redeem such remaining Existing Senior Secured Notes and satisfy and discharge the indenture relating thereto, (iii) to fund the purchase of approximately $200,000,000 of aggregate principal amount of the Company’s outstanding Existing Convertible Debentures and (iv) to pay fees and expenses incurred in connection with this Agreement and the other Transactions.  The proceeds of the Revolving Loans shall be used for the working capital and general corporate purposes of the Company.
 
Section 6.12.  Additional Subsidiaries; Immaterial Subsidiaries.
 
(a)           If any additional Subsidiary is formed or acquired after the Closing Date or any Unrestricted Subsidiary is converted into a Restricted Subsidiary that is a Domestic Subsidiary after the Closing Date, the Company will, within ten (10) Business Days after such Subsidiary is formed, acquired or converted, notify the Agent thereof and cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary, whereupon such Subsidiary will become an “Obligor,” a “Subsidiary Guarantor” and “Lien Grantor” for purposes of the Loan Documents; provided that no Foreign Subsidiary, Unrestricted Subsidiary, Insurance Subsidiary, Subsidiary of a Foreign Subsidiary, Subsidiary of an Insurance Subsidiary, Foreign Subsidiary Holding Company or, subject to Section 6.12(b) , Immaterial Subsidiary shall be required to be a Subsidiary Guarantor.  Without limiting the preceding sentence, if any Domestic Immaterial Subsidiary that is not an Insurance Subsidiary or a Subsidiary of an Insurance Subsidiary loses its status as an Immaterial Subsidiary, the Company shall promptly (and in any event within ten (10) Business Days following the date on which financial statements in respect of the Fiscal Quarter following which such Subsidiary has lost its status as an Immaterial Subsidiary are required to be delivered hereunder) cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary, whereupon such Subsidiary will become an “Obligor,” a “Subsidiary Guarantor” and “Lien Grantor” for purposes of the Loan Documents.
 
(b)           If (i) the aggregate fair market value of the assets of all Immaterial Subsidiaries exceeds $40,000,000 as of the end of the most recently ended Fiscal Quarter or (ii) the aggregate revenues of all Immaterial Subsidiaries for the period of four consecutive Fiscal Quarters most recently ended exceeds $30,000,000, the Company shall promptly (and in any event within 10 Business Days following the date on which financial statements in respect of such Fiscal Quarter are required to be delivered hereunder) cause the Collateral and Guarantee Requirement to be satisfied with respect to one or more of the Immaterial Subsidiaries to the extent necessary to ensure that immediately after giving effect thereto (x) the aggregate fair market value of the assets of all Immaterial Subsidiaries shall not exceed $40,000,000 and (y) the aggregate revenues of all Immaterial Subsidiaries for the period of four consecutive Fiscal Quarters most recently ended shall not exceed $30,000,000, whereupon each such Subsidiary will become an “Obligor,” a “Subsidiary Guarantor” and “Lien Grantor” for purposes of the Loan Documents.

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Section 6.13.  Further Assurances.
 
(a)           The Company will, and will cause each other Obligor to, at the request of the Agent, execute and deliver any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents), that may be required under any applicable law to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the Company’s expense.  The Company will provide to the Agent, from time to time upon request, evidence reasonably satisfactory to the Agent as to the perfection and priority of the Transaction Liens created or intended to be created by the Security Documents.
 
(b)           [Reserved].
 
(c)           With respect to any property (including any real property or improvements thereto or any interest therein) acquired after the Closing Date by any Obligor that is intended to be subject to the Lien created by any of the Security Documents but is not so subject or ceases to be subject to Liens permitted pursuant to Section 7.02 after the Closing Date, promptly (and in any event within 30 days after the acquisition thereof or within 3 Business Days of such ceasing) (i) execute and deliver to the Agent such amendments or supplements to the relevant Security Documents or such other documents as the Agent shall reasonably deem necessary or advisable to grant to the Agent, for the benefit of the Secured Parties, a Lien on such property subject to no Liens other than Liens permitted by this Agreement, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, but not limited to, the filing of financing statements in such jurisdictions as may be reasonably requested by the Agent, at the Company’s expense.  The Company shall otherwise take such actions and execute and/or deliver to the Agent such documents as the Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Security Documents on such after-acquired properties, including actions described in Section 6.13(a) , all at the Company’s expense.
 
Section 6.14.  Maintenance of Ratings.
 
Use commercially reasonable efforts to maintain a rating of the Facilities and a corporate family credit rating of the Company by each of S&P and Moody’s.
 
Section 6.15.  Designation of Subsidiaries.
 
  The board of directors (or similar governing body) of the Company may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) immediately after giving effect to such designation, the Company and its Subsidiaries shall be in pro forma compliance with Sections 7.11 , 7.12 , 7.14 , 7.15 , and 7.16 , (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the Senior Secured Notes, (iv) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was previously designated an Unrestricted Subsidiary, (v) the Company shall deliver to the Agent at least five Business Days prior to such designation a certificate of a Responsible Officer of the Company, together with all relevant financial information reasonably requested by the Agent, demonstrating compliance with the foregoing clauses (i) through (iv) of this Section 6.15 and, if applicable, certifying that such subsidiary meets the requirements of an “Unrestricted Subsidiary” and (vi) at least ten days prior to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act, with respect to such subsidiary. The designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Company therein at the date of designation in an amount equal to the fair market value of the Company’s Investment therein.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.

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Section 6.16.  Maintenance of Properties.
 
The Company and each Restricted Subsidiary will, and will cause each of its Restricted Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of the Company and its Restricted Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof.
 
Section 6.17.  Post-Closing Matters.
 
The Company and each Restricted Subsidiary will, and will cause each of its Restricted Subsidiaries to execute and deliver the documents and complete the tasks set forth on Schedule 6.17 , in each case within the time limits specified on such schedule (unless the Agent, in its discretion, shall have agreed to any particular longer period).
 
ARTICLE 7
Negative Covenants
 
Until all principal of and interest on each Loan and all fees and other amounts payable hereunder have been paid in full (other than unmatured, surviving contingent indemnification obligations not yet due and payable), all Commitments have been terminated and all Letters of Credit have been cancelled or have expired, the Company covenants and agrees with the Lenders that:
 
Section 7.01.  Limitation on Indebtedness; Certain Capital Stock.
 
(a)           The Company shall not, and shall not permit any of its Restricted Subsidiaries to, incur or at any time be liable with respect to any Indebtedness, except:
 
 (i)             (A) Indebtedness under the Loan Documents and (B) Refinancing Indebtedness thereof that is (i) Permitted First Priority Refinancing Debt, (ii) Permitted Second Priority Refinancing Debt or (iii) Permitted Unsecured Refinancing Debt in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans;
 
 (ii)            any Surplus Debentures issued by any Insurance Subsidiary to the Company or any of its Restricted Subsidiaries that remain outstanding on the Closing Date, and extensions, renewals or replacements thereof;
 
 (iii)           (A) the Senior Secured Notes issued on the Closing Date and (B) Refinancing Indebtedness thereof; provided that the covenants, events of default and remedies applicable to such Refinancing Indebtedness shall not be more favorable taken as a whole to the holders thereof than those in the Senior Secured Notes Documents;

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(iv)           Permitted Transactions entered into by Insurance Subsidiaries or by the Company in connection with investments permitted by Section 7.16 ;
 
(v)            Permitted Swap Obligations;
 
(vi)           Indebtedness existing on the date hereof and listed in Schedule 7.01 , and Refinancing Indebtedness thereof;
 
(vii)          non-recourse Indebtedness of Insurance Subsidiaries incurred in the ordinary course of business (x) existing or arising under Swap Contracts entered into by Insurance Subsidiaries or (y) resulting from the sale or securitization of non-admitted assets, policy loans, CBOs and CMOs;
 
(viii)         (A) Capitalized Lease Liabilities and Purchase Money Debt, and Refinancing Indebtedness thereof (but disregarding the requirements of clauses (b) through (h) of the definition thereof), in an aggregate principal amount not to exceed $50,000,000 at any time outstanding and (B) Capitalized Lease Liabilities arising from the sale and leaseback of the Company’s headquarters pursuant to Section 7.03(m) , and Refinancing Indebtedness thereof (but disregarding the requirements of clauses (b) through (f) of the definition thereof);
 
(ix)            Indebtedness (including Surplus Debentures) owed by the Company or any Restricted Subsidiary (other than any Excluded Subsidiary) to the Company or any Restricted Subsidiary (other than any Excluded Subsidiary);
 
(x)             Indebtedness (x) owed by any Excluded Subsidiary to any other Excluded Subsidiary or (y) owed by any Excluded Subsidiary to the Company or any other Restricted Subsidiary that is not an Excluded Subsidiary; provided that the aggregate principal amount outstanding under this clause (y) shall not exceed $30,000,000 at any time;
 
(xi)            Indebtedness in respect of letters of credit issued in connection with reinsurance transactions entered into in the ordinary course of business;
 
(xii)           Indebtedness in respect of surety and other similar bonds in the ordinary course of business;
 
(xiii)          other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; provided that the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Obligors outstanding under this clause (xiii) , when taken together with the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Obligors outstanding under clause (xiv)  below, shall not exceed $25,000,000 at any time;
 
(xiv)          other unsecured Indebtedness in an aggregate principal amount of up to $75,000,000; provided that the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Obligors outstanding under this clause (xiv) , when taken together with the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Obligors outstanding under clause (xiii)  above, shall not exceed $25,000,000 at any time;

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(xv)          Contingent Obligations of any Person in respect of Indebtedness otherwise permitted to be incurred by such Person under this Section 7.01(a) ;
 
(xvi)         Indebtedness consisting of the deferred purchase price of equity interests (or option or warrants or similar instruments) of departing officers, directors and employees of any Obligor or any Restricted Subsidiary issued (whether in the form of notes or otherwise) for the purchase or redemption thereof pursuant to the terms of an existing compensation plan or employment contract;
 
(xvii)        Cash Management Obligations incurred in the ordinary course of business; and
 
(xviii)       Indebtedness of the Company owing to any Excluded Subsidiaries pursuant to the Tax Sharing Agreement; provided that the aggregate amount of such Indebtedness at any time outstanding, if such Indebtedness were treated as an Investment in Excluded Subsidiaries, would not, when added to actual Investments in Excluded Subsidiaries made pursuant to Section 7.09(h) , result in a breach of Section 7.09(h) .
 
(b)           The Company shall not permit any of its Restricted Subsidiaries to issue any Capital Stock other than to the Company or another Restricted Subsidiary.  The Company shall not issue any Disqualified Capital Stock.
 
(c)           The Company shall not at any time permit any Person, other than an Insurance Subsidiary or CDOC, to own any CDOC Preferred Stock.
 
Section 7.02.  Liens.
 
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, create, assume or suffer to exist any Lien on any property now owned or hereafter acquired by it, except for the following:
 
(a)           Transaction Liens;
 
(b)           Liens on assets of Insurance Subsidiaries or the Company securing obligations under transactions entered into in connection with Investments permitted by Section 7.16 ;
 
(c)           collateral consisting of cash or Cash Equivalents securing Permitted Swap Obligations in an aggregate amount not to exceed, at any time, $60,000,000; provided that, for purposes of this clause (c) , in the case of Cash Equivalents described in clauses (a) , (b) , (e) and (f) of the definition thereof, the one year (or twelve-month, as applicable) maturity limitation set forth in such clauses shall be disregarded;
 
(d)           Liens for Taxes that are not overdue for more than 90 days or for Taxes being contested in good faith and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
 
(e)           Liens existing on the date hereof and listed in Schedule 7.02 , including extensions, renewals and replacements of such Liens; provided that (i) such Lien shall not apply to any additional property (other than after acquired title in or on such property and proceeds of the existing collateral in accordance with the document creating such Lien) and (ii) the Indebtedness secured thereby is not increased except as otherwise permitted under Section 7.01 (in which case the portion representing any additional increase must be permitted by another paragraph of this Section 7.02 );

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(f)           (i) Liens incurred in the ordinary course of business in connection with worker’s compensation, unemployment insurance or other forms of governmental insurance or benefits or to secure performance of tenders, statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secure obligations on surety or appeal bonds and (ii) collateral consisting of cash or Cash Equivalents securing letters of credit issued in respect of obligations to insurers in an aggregate amount not to exceed $20,000,000 at any time outstanding;
 
(g)           (i) Liens of attorneys retained by the Company on a contingency fee basis and (ii) Liens of mechanics, carriers, and materialmen and other like Liens imposed by law and arising in the ordinary course of business in respect of obligations that in the case of clause (ii)  hereof are not overdue for more than 60 days or that are being contested in good faith and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
 
(h)           Liens arising in the ordinary course of business for sums being contested in good faith and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP, or for sums not due, and in either case not involving any deposits or advances for borrowed money or the deferred purchase price of property or services;
 
(i)            Liens securing Indebtedness permitted by Section 7.01(a)(viii) ; provided that such Liens are limited to the assets financed by the relevant Capitalized Lease Liabilities or Purchase Money Debt;
 
(j)            easements, rights-of-way, zoning restrictions, restrictions and other similar encumbrances incurred in the ordinary course of business that do not secure any monetary obligation and which do not materially interfere with the ordinary course of business of the Company and its Restricted Subsidiaries;
 
(k)           Liens on property of the Company and its Restricted Subsidiaries in favor of landlords securing licenses, subleases or leases of property not otherwise prohibited hereunder;
 
(l)            licenses, leases or subleases permitted hereunder granted to others not materially interfering in any material respect in the business of the Company and its Restricted Subsidiaries;
 
(m)          attachment or judgment Liens not constituting an Event of Default under Section 8.01(i) ;
 
(n)           Liens arising from precautionary Uniform Commercial Code financing statement filings with respect to operating leases or consignment arrangements entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;
 
(o)           Liens incurred to secure Cash Management Obligations permitted by Section 7.01(a)(xvii)  in an aggregate amount not to exceed $10,000,000 and customary set-off rights in favor of depositary banks;
 
(p)           other Liens securing obligations with respect to Indebtedness permitted by Section 7.01(a)(xiii) ; provided that, to the extent that such Liens extend to, or encumber, property which constitutes Collateral, such Liens are subject to the Intercreditor Agreement;
 
(q)           any Lien on any asset of any Person existing at the time such Person becomes a Restricted Subsidiary of the Company, is merged or consolidated with or into the Company or a Restricted Subsidiary of the Company and not created in contemplation of such event;
 
(r)            Liens attaching solely to cash earnest money deposits required to be made under the terms of any letter of intent or purchase agreement for a permitted Acquisition;

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(s)           Liens incurred in connection with the collection or disposition of delinquent accounts receivable in the ordinary course of business;
 
(t)            Liens securing Indebtedness permitted by Section 7.01(a)(i)(B) or Section 7.01(a)(iii)  and subject to the Intercreditor Agreement; and
 
(u)           Liens securing (i) Permitted First Priority Refinancing Debt and subject to the Intercreditor Agreement and (ii) Permitted Second Priority Refinancing Debt and subject to the intercreditor arrangements reasonably satisfactory to the Agent.
 
Section 7.03.  Disposition of Assets.
 
The Company shall not, and shall not permit any of its Restricted Subsidiaries to Dispose of (whether in one or a series of transactions) any property (including accounts and notes receivable with or without recourse and Capital Stock of any Restricted Subsidiary whether newly issued or otherwise), except:
 
(a)           (i) Dispositions of inventory and equipment in the ordinary course of business and (ii) Dispositions of Cash Equivalents;
 
(b)           the sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment;
 
(c)           Dispositions of Investments by any Insurance Subsidiary (other than any of its Investments in Restricted Subsidiaries engaged in insurance lines of business) and Dispositions by the Company of Investments permitted pursuant to Section 7.16 , in each case, in the ordinary course of business consistent with past practices of the Company and its Restricted Subsidiaries taken as a whole and the investment policy approved by the board of directors of such Insurance Subsidiary or the Company, as the case may be;
 
(d)           Dispositions (i) by the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary (other than any Excluded Subsidiary), (ii) by any Excluded Subsidiary to any other Excluded Subsidiary in the ordinary course of business and (iii) to Excluded Subsidiaries in an aggregate amount not to exceed $30,000,000;
 
(e)           (i) any Dispositions pursuant to a Reinsurance Agreement so long as such Disposition is entered into in the ordinary course of business for the purpose of managing insurance risk consistent with industry practice and (ii) any other Dispositions pursuant to a Reinsurance Agreement so long as the aggregate statutory profit and/or gains on insurance policy sales or other portfolio transfers resulting from all Dispositions described in this clause (ii)  consummated after the Closing Date do not exceed $400,000,000 in the aggregate during the term of this Agreement or $150,000,000 in any Fiscal Year; provided that (x) the Net Proceeds therefrom are, unless required to be retained by any Insurance Subsidiary pursuant to regulatory restrictions, applied to prepay the Loans as provided in Section 2.09 and (y) any Net Proceeds therefrom that are required to be retained by any Insurance Subsidiary pursuant to regulatory restrictions are so retained by such Insurance Subsidiary;
 
(f)            obsolete, surplus or worn out property disposed of by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with past practices of the Company and its Restricted Subsidiaries;

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(g)           transfers resulting from any casualty or condemnation of property or assets;
 
(h)           licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases of other property in the ordinary course of business and consistent with the past practices of the Company and its Restricted Subsidiaries and which do not materially interfere with the business of the Company and its Restricted Subsidiaries;
 
(i)            Dispositions consisting of mergers, amalgamations and consolidations among the Company and its Restricted Subsidiaries, or of any liquidation, winding up or dissolution of any Restricted Subsidiary, in each case to the extent permitted by Section 7.07 ;
 
(j)            Dispositions of shares of Capital Stock in order to qualify members of the board of directors or equivalent governing body of an Obligor or such other nominal shares required to be held other than by the Company or such Obligor, as required by applicable law;
 
(k)           the sale, discount, forgiveness or other compromise of notes or other accounts in the ordinary course of business or in connection with collection thereof;
 
(l)            issuances of Capital Stock (i) by the Company, (ii) by a directly or indirectly Wholly-Owned Subsidiary of the Company to the Company or to one or more Wholly-Owned Subsidiaries of the Company or (iii) by a non-Wholly-Owned Subsidiary of the Company to the respective equity holders of such non-Wholly-Owned Subsidiary, on a pro rata basis;
 
(m)          the sale and leaseback of the Company’s headquarters located in Carmel, Indiana, on fair and reasonable terms (as certified to the Agent in writing by a Responsible Officer of the Company);
 
(n)           the Designated Asset Sale; and
 
(o)           Dispositions not otherwise permitted hereunder (other than pursuant to Reinsurance Agreements, which shall be subject to the limitations in clause (e) above); provided that (w) such Dispositions shall be for fair market value (which determination must be supported by a fairness opinion in form and substance reasonably satisfactory to the Agent from a nationally-recognized investment banking firm in connection with any Disposition or series of  related Dispositions in any single Fiscal Year the aggregate consideration for which exceeds $125,000,000; provided that no fairness opinion is required in respect of any Disposition or series of  related Dispositions made at any time when (i) the Debt to Total Capitalization Ratio is equal to or less than 20% and (ii) the Financial Strength Rating Condition is satisfied) and at least 75% of the consideration received in connection therewith at closing shall consist of cash, (x) on a Pro Forma Basis after giving effect to such Disposition, the Company and its Restricted Subsidiaries would be in compliance with all of the covenants contained in the Loan Documents (including all financial and ratings covenants), (y) no such Disposition shall include the sale of any Capital Stock of any Restricted Subsidiary unless 100% of the Capital Stock of such Restricted Subsidiary owned by the Obligors is sold and (z) the Net Proceeds thereof shall be applied to prepay the Loans in accordance with Section 2.09 .
 
Upon consummation of a sale, transfer or other Disposition permitted under this Section 7.03 , Liens created under the Security Documents in respect of the assets Disposed of shall be automatically released and the Agent shall (to the extent applicable) deliver to the Company, upon the Company’s request and at the Company’s expense, such documentation as necessary to evidence the release of the Agent’s security interests, if any, in the assets being Disposed of, including amendments or terminations of Uniform Commercial Code financing statements, if any, the return of stock certificates, if any, and the release of any Restricted Subsidiary being Disposed of in its entirety from all of its obligations, if any, under the Loan Documents; provided that the Company shall have provided to the Agent such certificates evidencing compliance with the Loan Documents as the Agent shall reasonably request.

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Section 7.04.  [Reserved].
 
Section 7.05.  Transactions with Affiliates.
 
The Company shall not, and shall not suffer or permit any Restricted Subsidiary to, enter into any transaction with any Affiliate of the Company, other than (a) transactions no less favorable to the Company or such Restricted Subsidiary than would be obtained in a comparable arm’s-length transaction with a Person not an Affiliate of the Company or such Restricted Subsidiary, (b) insurance transactions, intercompany pooling and other reinsurance transactions entered into in the ordinary course of business and consistent with past practice, (c) transactions between or among the Company and its Restricted Subsidiaries (other than Excluded Subsidiaries) and between or among Restricted Subsidiaries (other than Excluded Subsidiaries); provided that any such transaction with or between Restricted Subsidiaries that are not Obligors shall be in the ordinary course of business of the respective parties, (d) transactions among Excluded Subsidiaries, (e) any Restricted Payment permitted by Section 7.08 , (f) arrangements for indemnification payments for directors and officers of the Company and its Restricted Subsidiaries, (g) intercompany transactions between or among the Company and its Restricted Subsidiaries and between or among Restricted Subsidiaries, relating to the (i) provision of management services and other corporate overhead services, (ii) provision of personnel to other locations within the Company’s consolidated group on a temporary basis and (iii) provision, purchase or lease of services, operational support, assets, equipment, data, information and technology, that, in the case of any such intercompany transaction referred to in this clause (g), are subject to reasonable reimbursement or cost-sharing arrangements (as determined in good faith by the Company), which reimbursement or cost-sharing arrangements may be effected through transfers of cash or other assets or through book-entry credits or debits made on the ledgers of each involved Subsidiary; provided that any such intercompany transaction is either (1) entered into in the ordinary course of business or (2) otherwise entered into pursuant to the reasonable requirements of the business of the Company and the Restricted Subsidiaries, (h) ordinary course business transactions (other than transactions of the type described in clause (c) or (g) above) that (A) do not involve the sale, transfer or other Disposition of operations or assets and (B) do not adversely affect the Lenders, and (i) loans, Investments and guarantees among the Company and the Restricted Subsidiaries (other than Excluded Subsidiaries) to the extent permitted under Article 7 ); provided that any such transaction with or among Restricted Subsidiaries that are not Obligors shall be in the ordinary course of business of the respective parties.
 
Section 7.06.  Change in Business.
 
The Company shall not, and shall not suffer or permit any Restricted Subsidiary to, engage in any business other than the businesses conducted by the Company and its Restricted Subsidiaries on the date of this Agreement or any business substantially related, incidental or complementary thereto as reasonably determined by the board of directors of the Company.
 
Section 7.07.  Fundamental Changes.
 
The Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, enter into any merger, consolidation, amalgamation, or sale of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), except (a) in connection with a Disposition of a Restricted Subsidiary otherwise permitted by Section 7.03 and (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any Subsidiary Guarantor may merge, consolidate or amalgamate into the Company in a transaction in which the Company is the surviving corporation, (ii) any Subsidiary Guarantor may merge, consolidate or amalgamate into any Restricted Subsidiary in a transaction in which the surviving entity is a Subsidiary Guarantor, (iii) any two Restricted Subsidiaries that are not Subsidiary Guarantors may merge, consolidate or amalgamate; provided that if either such Restricted Subsidiary is a direct Subsidiary of an Obligor, the surviving entity shall be a direct Subsidiary of an Obligor, (iv) any Restricted Subsidiary that is not a Subsidiary Guarantor may liquidate, wind up or dissolve so long as the assets of such Restricted Subsidiaries are distributed to the Company or any of its Restricted Subsidiaries, (v) any Subsidiary Guarantor may liquidate, wind up or dissolve so long as the assets of such Subsidiary Guarantor are distributed to the Company or another Subsidiary Guarantor and (vi) the Company or any Subsidiary may merge with any other Person in order to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.15 .

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Section 7.08.  Restricted Payments.
 
The Company shall not, and shall not suffer or permit any Restricted Subsidiary to, declare or pay any dividend on (or make any payment to a related trust for the purpose of paying a dividend), or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Company or such Restricted Subsidiary (or any related trust), whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company or such Restricted Subsidiary (collectively, “ Restricted Payments ”), except that:
 
(a)           (i) any Restricted Subsidiary may declare or pay dividends with respect to its Capital Stock to the Company and to any Wholly-Owned Subsidiary (and in the case of a non-Wholly-Owned Subsidiary, to the Company and any Restricted Subsidiary and to each other owner of Capital Stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests) and (ii) CDOC may from time to time redeem the CDOC Preferred Stock;
 
(b)           the Company may pay dividends solely in the form of shares of its Capital Stock (other than Disqualified Capital Stock);
 
(c)           the Company may purchase shares of Capital Stock held by employees of the Company pursuant to the Company’s Amended and Restated Long-Term Incentive Plan, as in effect on the Closing Date and any extension, renewal or replacement thereof to allow employees to meet their tax obligations;
 
(d)           the Company may make any Restricted Payment so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Debt to Total Capitalization Ratio is equal to or less than 22.5% as of the date of the making of any such Restricted Payment (calculated on a Pro Forma Basis);
 
(e)           the Company may make Restricted Payments, so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the aggregate amount of Restricted Payments pursuant to this Section 7.08(e) shall not exceed $175,000,000;
 
(f)            the Company may make cash payments in lieu of fractional shares in connection with the exercise of warrants, options or other securities, convertible or exchangeable for Capital Stock
 
(g)           the Company may pay dividends with respect to its common stock in an amount not to exceed $30,000,000 in the aggregate during any Fiscal Year;

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(h)           the Company may pay any dividend within 60 days after the date of declaration thereof; provided that on the date of declaration such payment shall comply with one of the exceptions to the Section 7.08 listed in clauses (a) through (g) thereof; and
 
(i)            the Company may repurchase shares of its common stock during the period commencing on (and including) the Closing Date and ending on (but excluding) October 1, 2012 in an aggregate amount not to exceed $5,000,000;
 
provided that payments made pursuant to Section 7.10(a)(iv)  shall reduce, dollar-for-dollar, the amount of Restricted Payments available under Section 7.08(e) and shall be included in the pro forma calculation of Debt to Total Capitalization Ratio for the purposes of Section 7.08(d) , as applicable.
 
Section 7.09.  Investments and Acquisitions.
 
The Company shall not, and shall not suffer or permit any Restricted Subsidiary to, directly or indirectly, make any Acquisition or hold or make any other Investment in any other Person, except:
 
(a)           Investments in existence on the Closing Date and commitments to make Investments existing on the Closing Date and listed on Schedule 7.09 ;
 
(b)           Investments consisting of non-cash consideration received in connection with a Disposition not prohibited by the Loan Documents;
 
(c)           Investments received in connection with the bankruptcy or reorganization of customers and suppliers in the ordinary course of business;
 
(d)           Investments consisting of Contingent Obligations permitted by Section 7.01 or Indebtedness permitted by Section 7.01 ;
 
(e)           Investments in Cash Equivalents;
 
(f)            Investments by (x) any Insurance Subsidiary (including by any Subsidiary of such Insurance Subsidiary that is not itself an Insurance Subsidiary) in the ordinary course of business in compliance with Section 7.16 and consistent with the investment policy approved by the board of directors of such Insurance Subsidiary and (y) by the Company in the ordinary course of business of the Company and its Restricted Subsidiaries taken as a whole in compliance with Section 7.16 and consistent with the investment policy approved by the board of directors of the Company;
 
(g)           (i) Investments by the Company or any Restricted Subsidiary in the Company or any Restricted Subsidiary (other than any Excluded Subsidiary); provided that any such transaction with or among Restricted Subsidiaries that are not Obligors shall be in the ordinary course of business of the respective parties and (ii) Investments by any Excluded Subsidiary in any other Excluded Subsidiary;
 
(h)           Investments in Excluded Subsidiaries in the ordinary course of business in an aggregate amount expended not to exceed $30,000,000 at any time outstanding;
 
(i)            security deposits or pledges held or made in the ordinary course of business;
 
(j)            loans and advances in the ordinary course of business to employees for moving, relocation or travel purposes, in each case subject to compliance with the Requirements of Law;

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(k)           Permitted Swap Obligations;
 
(l)            (i) Acquisitions (other than Acquisitions that constitute Investments permitted by Section 7.09(f) above or Section 7.09(m) below), for aggregate consideration in an amount not to exceed $200,000,000 in any Fiscal Year or $400,000,000 during the term of this Agreement; provided that at the time of such Acquisition no Default or Event of Default shall be continuing or shall result therefrom (including any failure to be in compliance with the financial covenants calculated on a Pro Forma Basis); and (ii) in the event (x) the Debt to Total Capitalization Ratio is equal to or less than 20% (calculated on a Pro Forma Basis), (y) the Financial Strength Rating Condition is satisfied and (z) to the extent the consideration for such Acquisitions is paid in Capital Stock of the Company (other than Disqualified Capital Stock), up to $300,000,000 of such consideration in any Fiscal Year, and up to $600,000,000 of such consideration during the term of this Agreement, shall be disregarded from the limits referred to above; and
 
(m)          Investments not otherwise permitted hereby in an aggregate amount expended not to exceed $125,000,000.
 
Section 7.10.  Prepayment of Certain Indebtedness; Modifications of Certain Agreements; Synthetic Purchase Agreements.
 
(a)           The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property, and including optional prepayments and open market purchases) of or in respect of principal of or interest on any Existing Convertible Debentures or any Refinancing Indebtedness thereof, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any Existing Convertible Debentures or any Refinancing Indebtedness thereof, other than (i) payment of regularly scheduled interest payments as and when due in respect thereof, (ii) to the extent funded with Refinancing Indebtedness thereof, (iii) to the extent the consideration thereof consists of Capital Stock (other than Disqualified Capital Stock) of the Company, (iv) to the extent the Company could make a Restricted Payment under Section 7.08(d) or (e) in an equal amount (with any payments pursuant to this clause (iv)  being deemed to be a Restricted Payment under Section 7.08(d) or (e) , as the case may be) or (v) the repurchase on or after the Closing Date of Existing Convertible Debentures outstanding on the Closing Date.
 
(b)           The Company shall not, and shall not permit any of its Restricted Subsidiaries to, amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, (i) the Senior Secured Notes Documents or the documents or instruments governing or evidencing any Indebtedness that is subordinated in right of payment to the Loans in any manner adverse in any material respect to the Secured Parties or (ii) the documents or instruments governing or evidencing any other Indebtedness or Capital Stock if such Indebtedness or Capital Stock as   such documents or instruments are   so amended, modified, waived or otherwise changed would not have been permitted to be incurred or issued under this Agreement.
 
(c)           The Company shall not, and shall not permit any of its Restricted Subsidiaries to, amend or modify its respective Organization Documents, other than any amendments or modifications which are not adverse in any material respect to the interests of the Lenders.
 
(d)           The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement.

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Section 7.11.  Debt to Total Capitalization Ratio.
 
The Company shall maintain at all times a Debt to Total Capitalization Ratio of not more than 27.5%.
 
Section 7.12.  Interest Coverage Ratio.
 
The Company shall not permit the Interest Coverage Ratio as of the end of any Fiscal Quarter for the four Fiscal Quarters then ended (or, if less, the number of full Fiscal Quarters commencing after the Closing Date) to be less than 2.50 to 1.00 for such Fiscal Quarter.
 
Section 7.13.  [Reserved.]
 
Section 7.14.  Aggregate RBC Ratio.
 
The Company shall not permit the Aggregate RBC Ratio as of the end of any Fiscal Quarter to be less than 250%.
 
Section 7.15.  Combined Statutory Capital and Surplus Level.
 
The Company shall not permit the Combined Statutory Capital and Surplus of the Insurance Subsidiaries as of the end of any Fiscal Quarter to be less than $1,300,000,000.
 
Section 7.16.  Investment Portfolio Requirement.
 
The Company shall not (except as otherwise permitted pursuant to Section 7.09 ), and shall not permit any Insurance Subsidiary to, purchase, make or otherwise acquire:
 
(a)           any Investment that is not an Investment Grade Asset, unless, after giving effect thereto, the aggregate fair market value of all Investments of the Company and the Insurance Subsidiaries, taken as a whole, that are not Investment Grade Assets (exclusive of the Investments referred to in paragraphs (b) , (c) , and (d) below and contract loans as specified on page 2, line 6 of the Company’s Annual Statements (or such other line on which the equivalent information is provided on any other such Annual Statement)) will not exceed 12% of the aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries, taken as a whole;
 
(b)           any Investment that is non-NAIC rated, unless, after giving effect thereto, the aggregate fair market value of all Investments of the Company and the Insurance Subsidiaries, taken as a whole, that are non-NAIC rated (exclusive of the Investments referred to in paragraphs (a) , (c) and (d) hereof and contract loans as specified on page 2, line 6 of the Company’s Annual Statement (or such other line on which the equivalent information is provided on any other such Annual Statement)) will not exceed 6% of the aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries, taken as a whole;
 
(c)           any Investment in real property mortgage loans classified on Schedule B-Part 1 of the Annual Statement, unless, after giving effect thereto, the aggregate fair market value of all Investments of the Company and the Insurance Subsidiaries, taken as a whole, in such loans (exclusive of Investments referred to in paragraphs (a) , (b) and (d) hereof) will not exceed 12% of the aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries, taken as a whole; and

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(d)           any Investment involving Capital Stock, unless, after giving effect thereto, the aggregate fair market value of all Investments of the Company and the Insurance Subsidiaries, taken as a whole, in Capital Stock (exclusive of Investments referred to in paragraphs (a) , (b) and (c) hereof) will not exceed 5% of the aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries, taken as a whole;
 
provided that (x) any Insurance Subsidiary shall be permitted to make any Investment that it is committed to make as of the Closing Date and listed on Schedule 7.09 (it being understood, however, that each such Investment shall be taken into account for purposes of determining whether any additional Investments may be purchased, made or otherwise acquired hereunder) and (y) if one or more of the percentage thresholds referred in clauses (a) , (b) , (c) or (d) above is exceeded solely as a result of the making of any Investment permitted to be made pursuant to the preceding clause (x) (after giving effect to any Investments made prior thereto), such event shall not constitute a Default for purposes hereof.
 
Section 7.17.  Restrictive Agreements.
 
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition on (a) the ability of the Company or any Restricted Subsidiary to create or permit to exist any Lien on any of its property to secure the Secured Obligations   or (b) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any shares of its Capital Stock or to make, repay or prepay loans or advances to the Company or any other Restricted Subsidiary or to Dispose of assets to the Company or any other Restricted Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by applicable law (including pursuant to regulatory restrictions), (ii) the foregoing shall not apply to restrictions and conditions existing on the date hereof and identified on Schedule 7.17 (but shall apply to any amendment or modification, or any extension or renewal, of any such restriction or condition that has the effect of making such restriction or condition materially more restrictive), (iii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or assets or property of the Company or any Restricted Subsidiary pending such sale; provided that such restrictions and conditions apply only to the Restricted Subsidiary or assets or property that is to be sold and such sale is permitted hereunder, (iv) the foregoing shall not apply to restrictions that are not more restrictive than those contained in this Agreement contained in any documents governing any Indebtedness permitted by this Agreement, (v)  clause (a) of this Section shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness (including Capitalized Lease Liabilities and Purchase Money Debt) permitted by this Agreement if such restrictions or conditions apply only to the collateral securing such Indebtedness, (vi)  clause (a) of this Section shall not apply to customary provisions in leases or licenses or other contracts and agreements restricting the assignment, subletting or sublicensing thereof and (vii) this Section shall not apply to (A) any Restricted Subsidiary that is not a Wholly-Owned Subsidiary with respect to restrictions and conditions imposed by such Restricted Subsidiary’s organizational documents or any related joint venture or similar agreement so long as any such restriction or condition applies only to such Subsidiary and to any Equity Interests in such Restricted Subsidiary, (B) restrictions and conditions imposed on any Restricted Subsidiary in existence at the time such Restricted Subsidiary became a Subsidiary (but shall apply to any amendment or modification expanding the scope of any such restriction or condition which makes such restrictions and conditions, taken as a whole, materially more restrictive); provided that such restrictions and conditions (i) apply only to such Restricted Subsidiary and (ii) were not imposed in anticipation of the Facilities, (C) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to Intellectual Property and other agreements, in each case entered into in the ordinary course of business; provided that such provisions apply only to the assets that are the subject of such lease, sub-lease, license, sub-license or other agreement and shall not apply to any other assets of the Company or any Restricted Subsidiary and (D) restrictions on pledging joint venture interests included in customary provisions in joint venture agreements or arrangements and other agreements and other similar agreements applicable to joint ventures.

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Section 7.18.  Holding Company Activities.
 
The Company shall not, and shall not permit CDOC to, engage in any business or activity except owning all the outstanding shares of Capital Stock of their respective Subsidiaries and activities related or incidental thereto and, in the case of the Company, the making and holding of Investments that are permitted under Section 7.09 to be made and held by the Company.  The Company shall not permit CDOC to own or acquire any assets (except assets owned by it on the Closing Date and shares of Capital Stock of its Subsidiaries and cash and Cash Equivalents owned by it from time to time) or incur any liabilities (except liabilities under the Loan Documents and the Senior Secured Notes Documents, liabilities imposed by law, including tax liabilities, liabilities in existence on the Closing Date and other liabilities incidental to its existence and permitted business and activities).
 
Section 7.19.  Changes in Accounting Policies; Fiscal Year.
 
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, (a) make any change to its accounting policies or reporting practices, except as required or permitted by GAAP or (b) change the last day of its fiscal year from December 31 of each year.
 
ARTICLE 8
Events of Default
 
Section 8.01.  Events of Default.
 
Each of the following shall constitute an “ Event of Default ”:
 
(a)            Non-Payment .  The Company fails to pay (i) when and as required to be paid herein, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise, any amount of principal of any Loan, or (ii) within five days after the same becomes due, any interest, fee or any other amount payable hereunder or under any other Loan Document; or
 
(b)            Representation or Warranty .  Any representation or warranty by the Company or any of its Restricted Subsidiaries made or deemed made herein or in connection with any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or contained in any certificate, document or financial or other statement by the Company, any Restricted Subsidiary or any Responsible Officer, furnished at any time in connection with this Agreement or in connection with any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, is incorrect in any material respect on or as of the date made or deemed made; or
 
(c)            Specific Defaults .  The Company fails to perform or observe any term, covenant or agreement contained in any of (i)  Section 6.03(a) , Section 6.04(a) (with respect to the Company’s corporate existence), Section 6.15 or Article 7 (other than Section 7.10 or Section 7.16 ),  (ii) Section 7.10 ; provided that in the case of any agreement to make any payments or distributions prohibited by Section 7.10 , such default shall continue unremedied for a period of ten (10) Business Days or (iii)  Section 7.16 ; provided that any such default shall continue unremedied for a period of 30-days (it being understood that if the Company takes any action during such 30 day period which action, if it had been taken on or prior to the relevant date on which compliance with Section 7.16 , as applicable, was tested, would have resulted in the Company being in compliance with such Section on such test date, such default shall be deemed to have been remedied on the date on which such action was taken); or

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(d)            Other Defaults .  The Company or any of its Restricted Subsidiaries fails to perform or observe any other term or covenant contained in this Agreement or any other Loan Document, and such default shall continue unremedied for a period of 30 days after the date upon which written notice thereof is given to the Company by the Agent or the Required Lenders; or
 
(e)            Cross-Default .  (i) The Company or any Restricted Subsidiary (A) fails to make any payment in respect of any Indebtedness or Contingent Obligation (other than in respect of Swap Contracts), having an aggregate principal amount of more than $50,000,000 (in the aggregate for all such Indebtedness and Contingent Obligations), when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise); or (B) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness (and, solely in the case of a failure to comply with any financial statement or other information delivery or reporting requirement or in the case of the entry of any judgment or decree, so long as such judgment or decree constitutes a Default but not an Event of Default under Section 8.01(i) , such failure or event continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure or event) if the effect of such failure, event or condition is to cause, or to permit (or, with the giving of notice or lapse of time or both, would permit) the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, such Indebtedness to be declared to be due and payable prior to its stated maturity, or, in the case of any such Indebtedness consisting of Contingent Obligations, to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (x) any event of default under such Swap Contract as to which the Company or any Restricted Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (y) any Termination Event (as so defined) as to which the Company or any Restricted Subsidiary is an Affected Party (as so defined), and, in either event, the Swap Termination Value owed by the Company or such Restricted Subsidiary as a result thereof is greater than $50,000,000 (in the aggregate for all such Swap Contracts); or
 
(f)            Insolvency; Voluntary Proceedings .  The Company or any Restricted Subsidiary (other than an Immaterial Subsidiary) (i) generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course; (iii) commences any Insolvency Proceeding with respect to itself; (iv) applies for or consents to the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or for a substantial part of its assets, or (v) takes any action to effectuate or authorize any of the foregoing; or
 
(g)            Involuntary Proceedings .  (i) Any involuntary Insolvency Proceeding is commenced or filed against the Company or any Restricted Subsidiary (other than an Immaterial Subsidiary), or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of the Company’s or any Restricted Subsidiary’s (other than an Immaterial Subsidiary’s) properties, and any such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within 60 days after commencement, filing or levy; (ii) the Company or any Restricted Subsidiary (other than an Immaterial Subsidiary) admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; (iii) the Company or any Restricted Subsidiary (other than an Immaterial Subsidiary) acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a substantial portion of its property or business; or (iv) any Restricted Subsidiary (other than an Immaterial Subsidiary) shall become subject to any conservation, rehabilitation or liquidation order, directive or mandate issued by any Governmental Authority; or

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(h)            Pension Plans and Welfare Plans .  With respect to any Single Employer Pension Plan or Multiemployer Plan, any ERISA Event has occurred that could reasonably be expected to result in the incurrence of liability by the Company, any of its Restricted Subsidiaries or any ERISA Affiliate or steps are taken to terminate any Multiemployer Plan and such termination could reasonably be expected to result in any liability of the Company, any of its Restricted Subsidiaries or any ERISA Affiliate, where in any event, individually or in the aggregate, the liability incurred by the Company and its Restricted Subsidiaries would have a Material Adverse Effect; or
 
(i)             Material Judgments .  One or more judgments or decrees shall be entered against the Company or any of its Restricted Subsidiaries involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has not denied coverage) of $50,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof, or any action shall be taken by a judgment creditor to attach or levy upon any asset of the Company or any of its Restricted Subsidiaries to enforce any such judgment or decree; or
 
(j)             Material Regulatory Matters .  At any time either (x) the Debt to Total Capitalization Ratio is greater than 20% or (y) the Financial Strength Rating Condition is not satisfied, (i) any Insurance Subsidiary shall not make a scheduled payment of interest or principal on any surplus note or similar form of indebtedness (due to actions of any Governmental Authority or otherwise), (ii) any Insurance Subsidiary’s ability to pay fees to its Affiliates under existing agreements (or extensions of existing agreements) shall be restricted (due to actions of any Governmental Authority or otherwise) or (iii) in any Fiscal Year, an Insurance Subsidiary’s ability to pay dividends to its stockholders is restricted in any manner (due to actions of any Governmental Authority or otherwise), other than by restrictions relating to dividends that apply generally to other insurance companies domiciled in the Insurance Subsidiary’s state of domicile under the insurance law of the state, and (1) in the cases of clauses (i)  through (iii)  above, such event or condition, together with all other such events or conditions, could reasonably be expected to have a Material Adverse Effect and (2) in each case, such event or condition was not in effect as of the date hereof; or
 
(k)            Change of Control .  There occurs any Change of Control; or
 
(l)             Invalidity of Loan Documents.   Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; or any Obligor contests in writing the validity or enforceability of any provision of any Loan Document; or any Obligor denies in writing that it has any or further liability or obligation under any material provision of any Loan Document, or purports to revoke, terminate or rescind any material provision of any Loan Document; or
 
(m)           Liens .  Any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by the Company or any Restricted Subsidiary of the Company not to be, a valid and perfected Lien on any Collateral covered thereby, with the priority required by the applicable Security Document (except as a result of a sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents or as a result of the Agent’s failure to maintain possession of any stock certificates, promissory notes or other documents or possessory collateral delivered to it under the Security Agreement), except to the extent that such cessation would not, together with all other such cessations, be with respect to Collateral having a fair market value in excess of $25,000,000.

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Section 8.02.  Remedies.
 
If any Event of Default shall have occurred and be continuing, the Agent shall, at the request of, or may, with the consent of, the Required Lenders,
 
(a)           declare the obligation of each Lender to make extensions or conversions of the Loans to be terminated;
 
(b)           declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, whereupon such Loans, all interest accrued and unpaid thereon and all other amounts owing or payable hereunder or under any other Loan Document shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Company; and
 
(c)           exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law;
 
provided that upon the occurrence of any event specified in Section 8.01(f) or Section 8.01(g) (upon the expiration of the 60-day period mentioned therein, if applicable), the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Company.
 
Section 8.03.  Rights Not Exclusive.
 
The rights provided for in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising.
 
ARTICLE 9
The Agent
 
Section 9.01.  Appointment and Authority.
 
Each of the Lenders hereby irrevocably appoints JPM to act on its behalf as the Agent hereunder and under the other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Agent and the Lenders, and neither the Company nor any other Obligor shall have rights as a third party beneficiary of any of such provisions.
 
Section 9.02.  Rights as a Lender.
 
The Person serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if such Person were not the Agent hereunder and without any duty to account therefor to the Lenders.

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Section 9.03.  Exculpatory Provisions.
 
No Agent-Related Person shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, the no Agent-Related Person:
 
(a)           shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
 
(b)           shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that, with respect to the Agent, is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that no Agent-Related Person shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent-Related Person to liability or that is contrary to any Loan Document or applicable law; and
 
(c)           shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, shall be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Agent, any Agent-Related Person or any of their respective Affiliates in any capacity.
 
No Agent-Related Person shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent-Related Person shall believe in good faith shall be necessary, under the circumstances as provided in Sections 8.02 and 10.01 ) or (ii) in the absence of such Agent-Related Person’s own gross negligence or willful misconduct.  No Agent-Related Person shall be deemed to have knowledge of any Default unless and until notice describing such Default is given to such Agent-Related Person by the Company or a Lender.
 
No Agent-Related Person shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent-Related Person.
 
Section 9.04.  Reliance by Agent.
 
The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is satisfactory to such Lender unless the Agent shall have received notice to the contrary from such Lender prior to the making of such Loan.  The Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

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Section 9.05.  Delegation of Duties.
 
The Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Agent.  The Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Facilities as well as activities as Agent.
 
Section 9.06.  Resignation of Agent.
 
The Agent may at any time give notice of its resignation to the Lenders and the Company.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the reasonable satisfaction of the Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of the Lenders, appoint a successor Agent meeting the qualifications set forth above; provided that if the Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Agent on behalf of the Lenders under any of the Loan Documents, the retiring  Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Agent, in consultation with the Company, as provided for above in this Section.  Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).  The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor.  After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Sections 10.04 and 10.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Agent.
 
Section 9.07.  Non-Reliance on Agent and Other Lenders.
 
Each Lender acknowledges that it has, independently and without reliance upon any Agent-Related Person or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon any Agent-Related Person or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

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Section 9.08.  No Other Duties, Etc.
 
Anything herein to the contrary notwithstanding, none of the Arrangers, joint bookrunners, syndication agents or documentation agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Agent or a Lender hereunder.
 
Section 9.09.  Agent May File Proofs of Claim.
 
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Obligor, the Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any demand on the Company) shall be entitled and empowered, by intervention in such proceeding or otherwise:
 
(a)           to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Agent and their respective agents and counsel and all other amounts due the Lenders and the Agent under Sections 2.10 , 10.04 and 10.05 ) allowed in such judicial proceeding; and
 
(b)           to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
 
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Agent and, in the event that the Agent shall consent to the making of such payments directly to the Lenders, to pay to the Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agent and its agents and counsel, and any other amounts due the Agent under Sections 2.10 , 10.04 and 10.05 .
 
Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Agent to vote in respect of the claim of any Lender in any such proceeding.
 
Section 9.10.  Collateral and Guaranty Matters.
 
The Lenders irrevocably authorize the Agent to:
 
(a)           release any Lien on any property granted to or held by the Agent under any Loan Document (i) upon payment in full of all Obligations (other than unmatured, surviving contingent indemnification obligations), the termination of all Commitments and the cancellation or expiration of all Letters of Credit, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of (other than to the Company or a Subsidiary Guarantor) as part of or in connection with any sale permitted hereunder or under any other Loan Document, (iii) of any Subsidiary Guarantor that becomes an Excluded Subsidiary or an Insurance Subsidiary or (iv) subject to Section 10.01 , if approved, authorized or ratified in writing by the Required Lenders;

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(b)           subordinate any Lien on any property granted to or held by the Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.02(i) ; and
 
(c)           release any Subsidiary Guarantor from its obligations under the Secured Guarantee if such Person (i) ceases to be a Subsidiary as a result of a transaction permitted hereunder or (ii) becomes an Excluded Subsidiary or an Insurance Subsidiary in accordance with the terms of this Agreement and the other Loan Documents.
 
Upon request by the Agent at any time, the Required Lenders will confirm in writing the Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Subsidiary Guarantor from its obligations under the Secured Guarantee pursuant to this Section 9.10 .
 
Section 9.11.  Indemnification of Agent-Related Persons.
 
Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of the Company and without limiting the obligation of the Company to do so), ratably according to their respective portions of the total Loans held on the date on which indemnification is sought, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the extent determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Agent-Related Person’s own gross negligence or willful misconduct; and provided, further , that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section.  Without limitation of the foregoing, each Lender shall reimburse each Agent-Related Person upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by such Agent-Related Person in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document or any document contemplated by or referred to herein, to the extent that such Agent-Related Person is not reimbursed for such expenses by or on behalf of the Company.  The undertaking in this Section shall survive the payment of all other Obligations and the resignation of the Agent or any Agent-Related Person.
 
Section 9.12.  Withholding Tax.
 
To the extent required by any applicable law, the Agent shall withhold from any payment to any Lender an amount equal to any applicable withholding Tax.  If the IRS or any Governmental Authority asserts a claim that the Agent did not properly withhold Tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Agent (to the extent that the Agent has not already been reimbursed by the Company and without limiting or expanding the obligation of the Company to do so) for all amounts paid, directly or indirectly, by the Agent as tax or otherwise, including any penalties, additions to Tax or interest thereon, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Government Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Agent under this Article 9 .  The agreements in this Article 9 shall survive the resignation and/or replacement of the Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement.  Unless required by applicable laws, at no time shall the Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender.

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ARTICLE 10
Miscellaneous
 
Section 10.01.  Amendments and Waivers.
 
No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Obligor therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Obligor, as the case may be, and acknowledged by the Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that the Agent may, with the consent of the Company only, amend, modify or supplement this Agreement or any other Loan Document to cure any ambiguity, omission, defect or inconsistency (as reasonably determined by the Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender (or Issuing Bank, if applicable) or the Lenders shall have received at least five Business Days’ prior written notice thereof and the Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment; provided , further ,   that no such amendment, waiver or consent shall:
 
(a)           extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) without the written consent of such Lender;
 
(b)           postpone or delay the maturity of the Loans, or any scheduled date of payment of the principal amount of the Loans or any reimbursement obligation in respect of any Letter of Credit, or any date for the payment of any interest, premium or fees due to the Lenders (or any of them) hereunder or under any other Loan Document, or reduce the amount of, waive or excuse any such payment, without the written consent of each Lender directly affected thereby (other than as a result of waiving (i) an Event of Default in accordance with the terms hereof, (ii) default interest hereunder to the extent a waiver of the underlying default giving rise to such default interest does not require a vote of all Lenders) or (iii) a mandatory prepayment to be made hereunder;
 
(c)           amend the definition of “Required Lenders” or “Pro Rata Share” without the consent of each Lender directly affected thereby; provided that with the consent of Required Lenders, additional extensions of credit pursuant hereto may be included in the determination of “Required Lenders” or “Pro Rata Share” on substantially the same basis as the Term Loan Commitments, the Term Loans, the Revolving Commitments and the Revolving Loans are included on the Closing Date without the written consent of each Lender;
 
(d)           amend the definition of “Interest Period” to permit Interest Periods with a duration of longer than six months without the written consent of each Lender;

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(e)           release all or substantially all of the Collateral from the Transaction Liens or all or substantially all of the Subsidiary Guarantors from the Secured Guarantee, except as expressly permitted under the Loan Documents and except in connection with a “credit bid” undertaken by the Agent at the direction of the Required Lenders pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required  Lenders will be needed for such release), without the written consent of each Lender;
 
(f)            extend the stated expiration date of any Letter of Credit beyond the Revolving Commitment Termination Date without the written consent of each Lender affected thereby and the Issuing Bank;
 
(g)           amend this Section 10.01 without the written consent of each Lender;
 
(h)           subject to Section 2.17(d) , change Section 2.14 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
 
(i)            consent to the assignment or transfer by any Obligor of any of its rights and obligations under any Loan Document without the written consent of each Lender;
 
(j)            increase any Revolving Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided that no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Revolving Commitment of any Lender;
 
(k)           amend, modify, terminate or waive any provision hereof relating to the Swing Line Sublimit or the Swing Line Loans without the consent of the Swing Line Lender;
 
(l)            alter the required application of any repayments or prepayments as between Classes pursuant to Section 2.09(e) without the consent of Lenders holding more than 50% of the aggregate Tranche B-1 Term Loan Exposure of all Lenders, Tranche B-2 Term Loan Exposure of all Lenders, Revolving Exposure of all Lenders or New Term Loan Exposure of all Lenders, as applicable, of each Class which is being allocated a lesser repayment or prepayment as a result thereof; provided that Required Lenders may waive, in whole or in part, any prepayment so long as the application, as between Classes, of any portion of such prepayment which is still required to be made is not altered;
 
(m)          amend, modify, terminate or waive any obligation of Lenders relating to the purchase of participations in Letters of Credit as provided in Section 2.04(e) without the written consent of the Agent and of Issuing Bank;
 
(n)           amend, modify or waive this Agreement or the Security Agreement so as to alter the ratable treatment of Obligations arising under the Loan Documents and Obligations arising under Secured Swap Contracts Agreements or the definition of “Secured Swap Contract,” “Obligations,” or “Secured Obligations” in each case in a manner adverse to any contractual counterparty to any such Secured Swap Contract with Obligations then outstanding without the written consent of any such contractual counterparty;
 
(o)           amend, modify, terminate or waive any provision of the Loan Documents as the same applies to the Agent or any Arranger, or any other provision hereof as the same applies to the rights or obligations of the Agent or any Arranger, in each case without the consent of the Agent or Arranger, as applicable; or

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(p)           amend, modify, eliminate or waive any provision of any of Sections 7.11 , 7.12 , 7.14 , 7.15 , and 7.16 or the Company’s and it’s Restricted Subsidiaries’ obligations to comply therewith without the written consent of the Required Revolving Lenders;
 
provided , further , that (i) no such agreement shall, unless in writing and signed by the Agent in addition to the Required Lenders or all the Lenders, as the case may be, affect the rights or duties of the Agent under this Agreement or any other Loan Document (except with respect to the removal of the Agent) and (ii) any fee agreement referred to in Section 2.11 may be amended, or rights or privileges thereunder waived, in a writing executed by the parties thereto.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except for any amendment, waiver or consent pursuant to Section 10.01(a) , (b) , (c) or (j) .
 
Section 10.02.  Notices.
 
(a)           Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile or electronic transmission).  All such written notices shall be mailed, emailed, faxed or delivered to the applicable address, facsimile number ( provided that any matter transmitted by the Company by facsimile (1) shall be immediately confirmed by a telephone call to the recipient at the number specified on Schedule 10.02 , and (2) shall be followed promptly by delivery of a hard copy original thereof) or (subject to subsection (c) below) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
 
(i)             if to the Company or the Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
 
(ii)            if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its administrative questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Company and the Agent.
 
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile or electronic mail, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of subsection (c) below), when delivered; provided that notices and other communications to the Agent pursuant to Article 2 shall not be effective until actually received by such Person.  In no event shall a voicemail message be effective as a notice, communication or confirmation hereunder.

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(b)           Electronic Communications:
 
(1)           Notices and other communications to the Agent, Lenders, Swing Line Lender and Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Agent, provided that the foregoing shall not apply to notices to the Agent, any Lender, Swing Line Lender or any applicable Issuing Bank pursuant to Article 2 if such Person has notified the Agent that it is incapable of receiving notices under such Article by electronic communication.  The Agent or the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.  Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
 
(2)           The Company and each of its Subsidiaries understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent that such losses, costs, expenses or liabilities are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the Agent.
 
(3)             The Platform and any Approved Electronic Communications are provided “as is” and “as available”.  None of the Agent-Related Persons warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic Communications.  No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects is made by the Agent-Related Persons in connection with the Platform or the Approved Electronic Communications.
 
(4)           The Company, each of its Subsidiaries, each Lender and the Issuing Bank agrees that the Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Agent’s customary document retention procedures and policies.
 
(5)           Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of written notice thereof
 
(c)           The Agent-Related Persons and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Company even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Company shall indemnify each Agent-Related Person and each Lender from all losses, costs, out-of-pocket expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Company; provided that such indemnity shall not, as to any such Person, be available to the extent that such losses, costs, expenses or liabilities are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Person.  All telephonic notices to and other communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.

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Section 10.03.  No Waiver; Cumulative Remedies.
 
No failure to exercise and no delay in exercising, on the part of the Agent or any Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
 
Section 10.04.  Costs and Expenses.
 
The Company agrees (a) to pay or reimburse each Agent-Related Person for all reasonable costs and out-of-pocket expenses incurred in connection with the development, preparation, negotiation and execution of this Agreement and the other Loan Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated hereby or thereby are consummated) and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs, which shall be limited to the reasonable fees and reasonable disbursements of (x) one primary counsel for the Agent-Related Person and (y) if reasonably required by the Agent, additional local and/or specialist counsel and (b) to pay or reimburse each Agent-Related Person and each Lender for all costs and expenses incurred in connection with the enforcement, attempted enforcement or preservation of any rights or remedies under this Agreement (including, but not limited to this Section 10.04 ) or the other Loan Documents (including all such costs and expenses incurred during any “workout” or restructuring in respect of the Obligations and during any legal proceeding, including in any Insolvency Proceeding or appellate proceeding), including all reasonable fees, expenses and disbursements of any law firm or other external legal counsel, which shall be limited to the reasonable fees and reasonable disbursements of (x) one primary counsel for the Agent-Related Persons, (y) if reasonably required by the Agent, additional local and/or specialist counsel for the Agent-Related Persons and (z) solely in the case of a conflict of interest, one additional counsel to each group of similarly situated indemnified persons, taken as a whole and (1) one additional primary counsel to the Lenders, (2) if reasonably requested by the Required Lenders, additional local and/or specialist counsel for the Lenders and (3) solely in the case of a conflict of interest, one additional counsel to each group of similarly situated indemnified persons, taken as a whole.  The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto and other out-of-pocket expenses incurred by each Agent-Related Person and the cost of independent public accountants and other outside experts (subject to the limitations above) retained by such Agent-Related Person or any Lender.  All amounts due under this Section shall be payable within ten Business Days after written demand therefor together with, if requested by the Company, backup documentation supporting such payment or reimbursement request.  The agreements in this Section shall survive the repayment of the Loans and the other Obligations.

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Section 10.05.  Company Indemnification; Damage Waiver.
 
(a)           Whether or not the transactions contemplated hereby are consummated, the Company shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, and the directors, officers, employees, counsel, agents,  partners and attorneys-in-fact of such Persons and Affiliates involved with the refinancing or the Transactions (collectively the “ Indemnified Persons ”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, charges and costs, expenses and disbursements (including reasonable Attorney Costs) of any kind or nature whatsoever (including those arising from or relating to any environmental matters) that may at any time be imposed on, incurred by or asserted against any such Indemnified Person by any third party or by the Company or any other Obligor in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (c) any Environmental Liability related to the Company or any of its Subsidiaries or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnified Person is a party thereto (all the foregoing, collectively, the “ Indemnified Liabilities ”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Person; provided that such indemnity shall not, as to any Indemnified Person, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Person or arise out of or is in connection with any claim, litigation, loss or proceeding not involving an act or omission of the Company or any of its Affiliates and that is brought by an Indemnified Person against another Indemnified person (other than against the Agent in its capacity as such) provided, further that such indemnity shall be limited, in the case of legal fees and expenses, to (a) one counsel for all Indemnified Persons, taken as a whole, and, solely in the case of a conflict of interest, one additional counsel to each group of similarly situated indemnified persons, taken as a whole, and (b) if reasonably necessary, one additional local counsel to such persons, taken as a whole, in any relevant jurisdiction and/or one additional specialty counsel to all such persons, taken as a whole, and, solely in the case of a conflict of interest, one additional local counsel in such relevant material jurisdiction and/or specialty counsel to each group of similarly situated indemnified persons, taken as a whole.  No Indemnified Person shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnified Person have any liability for any indirect, special, punitive or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date).  All amounts due under this Section shall be payable within thirty days after written demand therefor together with, if requested by the Company, backup documentation supporting such indemnification request.  The agreements in this Section shall survive the resignation of the Agent, the replacement of any Lender and the repayment, satisfaction or discharge of all the other Obligations.
 
(b)           To the extent permitted by applicable law, the Company shall not assert, and hereby waives, any claim against any Indemnified Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with or as a result of this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds.  No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
 
Section 10.06.  Marshalling; Payments Set Aside.
 
Neither the Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Obligor or any other Person or against or in payment of any or all of the Obligations.  To the extent that the Company makes a payment to the Agent, Issuing Bank or the Lenders (or to the Agent, on behalf of Lenders or Issuing Bank), or any Agent, Issuing Bank or Lender enforces any security interests or exercises any right of setoff, and such payment or the proceeds of such enforcement or the proceeds of such set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred and (b) each Lender severally agrees to pay to the Agent upon demand its pro rata share of any amount so recovered from or repaid by the Agent.

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Section 10.07.  Assignments, Successors, Participations, Etc.
 
(a)            Successors and Assigns Generally .  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 10.07(b) , or (ii) by way of participation in accordance with the provisions of Section 10.07(d) (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (as defined below) to the extent provided in Section 10.07(e) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
(b)            Assignments by Lenders .  Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it ( provided , however , that pro rata assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and any related Commitments)); provided that:
 
(i)             in the case of assignments of Term Loans and New Term Loans (or any Commitment therefor), except in the case of an assignment of the entire remaining amount of the assigning Lender’s Term Loans and New Term Loans (or any Commitment therefor) at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Term Loans and New Term Loans (or any Commitment therefor) of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $1,000,000, unless each of the Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that the Company shall be deemed to have consented unless it shall object thereto by written notice to the Agent within ten (10) Business Days after having received notice thereof;
 
(ii)            in the case of assignments of Revolving Loans or Revolving Commitments, such assignment (except in the case of assignments made by or to any Arranger), shall be consented to by each of the Company and Agent (such consent not to be (x) unreasonably withheld or delayed or, (y) in the case of the Company, required at any time an Event of Default shall have occurred and then be continuing); provided that (A) the Company shall be deemed to have consented to any such assignment of Revolving Loans or Revolving Commitments unless it shall object thereto by written notice to the Agent within ten (10) Business Days after having received notice thereof and (B) each such assignment pursuant to this Section 10.6(c)(ii)  shall be in an aggregate amount of not less than (w) $2,500,000 with respect to the assignment of the Revolving Commitments and the Revolving Loans, (x) such lesser amount as agreed to by the Company and the Agent, (y) the aggregate amount of the Loans of the assigning Lender with respect to the Class being assigned or (z) the amount assigned by an assigning Lender to an Affiliate or Approved Fund of such Lender

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(iii)           each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned under the Facilities, except that this clause (ii)  shall prohibit any Lender from assigning all or a portion of its rights and obligations under the Facilities on a non-pro rata basis;
 
(iv)           the parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption; such Assignment and Assumption to be (A) electronically executed and delivered to the Agent via an electronic settlement system then acceptable to the Agent (or, if previously agreed with the Agent, manually), and (B) delivered together with a processing and recordation fee of $3,500, unless waived or reduced by the Agent in its sole discretion; and
 
(v)            the Eligible Assignee, if it shall not be a Lender, shall deliver to the Agent an administrative questionnaire, in the form prescribed by the Agent.
 
Subject to acceptance and recording thereof by the Agent pursuant to Section 10.07(d) , from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, ( provided that, with respect to circumstances in effect on the effective date of such Assignment and Assumption, an Eligible Assignee shall not be entitled to receive any greater payment under Section 3.01 than the applicable Lender would have been entitled to receive had the assignment not taken place) and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01 , 3.03 , 3.04 , 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment).  Upon request, the Company (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(d) .
 
(c)            Assignments to Company .  Notwithstanding anything to the contrary contained in this Section 10.07 or any other provision of this Agreement, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, each Lender shall have the right at any time to sell, assign or transfer all or a portion of its Term Loan Commitment or Term Loans owing to it to the Company on a non-pro rata basis ( provided , however , that each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Term Loan and any related Term Loan Commitments), subject to the following limitations:
 
(1)           The Company may conduct one or more modified Dutch auctions (each, an “ Auction ”) to repurchase all or any portion of the Term Loans; provided that, (A) notice of the Auction shall be made to all Term Loan Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish which are consistent with this Section 10.07(c)(1) and the Auction Procedures set forth on Exhibit L and are otherwise reasonably acceptable to the Company, the Auction Manager  and the Agent;

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(2)           With respect to all repurchases made by the Company pursuant to this Section 10.07(c)(1) , (A) the Company shall deliver to the Agent and the Auction Manager a certificate of a Responsible Officer stating that (i) no Default or Event of Default has occurred and is continuing or would result from such repurchase and (ii) as of the launch date of the related Auction and the effective date of any Company Assignment and Acceptance, it is not in possession of any information regarding the Company, its Subsidiaries or its Affiliates, or their assets, the Company’s ability to perform its Obligations or any other matter that may be material to a decision by any Lender to participate in any Auction or enter into any Company Assignment and Acceptance or any of the transactions contemplated thereby that has not previously been disclosed to the Agent, the Auction Manager and the non-Public Lenders, (B) the Company shall not use the proceeds of any Revolving Loans to acquire such Term Loans and (C) the assigning Lender and the Company shall execute and deliver to the Agent and the Auction Manager a Company Assignment and Acceptance; and
 
(3)           Following repurchase by the Company pursuant to this Section 10.07(c)(1) , the Term Loans so repurchased shall, without further action by any Person, be deemed cancelled for all purposes and no longer outstanding (and may not be resold by the Company), for all purposes of this Agreement and all other Loan Documents, including, but not limited to (A) the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document, (B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document or (C) the determination of Required Lenders, or for any similar or related purpose, under this Agreement or any other Loan Document.  In connection with any Term Loans repurchased and cancelled pursuant to this Section 10.07(c)(1) , the Agent is authorized to make appropriate entries in the Register to reflect any such cancellation.
 
(d)            Register .  The Agent, acting solely for this purpose as an agent of the Company, shall maintain at the Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal and interest amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”).  The entries in the Register shall be conclusive absent manifest error, and the Company, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Company and each Lender (with respect to its own interests in the Facilities only) at any reasonable time and from time to time upon reasonable prior notice.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
 
(e)            Participations .  Any Lender may at any time, without the consent of, or notice to, the Company or the Agent, sell participations to any Person (other than a natural person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Company, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that directly affects such Participant.  Except to the extent limited by Section 10.07(f) , the Company agrees that each Participant shall be entitled to the benefits of Sections 3.01 , 3.03 and 3.04 (subject to the limitations and requirements of such Sections (including Section 3.01(e) and Section 3.01(f) ) and Section 3.07 , as if such Participant were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b) .  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section  10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.14 as though it were a Lender.

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Each Lender that sells a participation pursuant to this Section 10.07(e) shall, acting solely for U.S. federal income tax purposes as a non-fiduciary agent of the Company, maintain a register on which it records the name and address of each participant and the principal amounts of each participant’s participation interest with respect to the Loans or other obligations under the Loan Documents (each, a “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or its other obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
 
(f)             Limitations upon Participant Rights .  A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.03 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant; provided that this Section 10.07(f) shall not apply if the sale of the participation to such Participant is made with the Company’s prior written consent.
 
(g)            Certain Pledges .  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
 
(h)            Electronic Execution of Assignments .  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

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Section 10.08.  Confidentiality.
 
Each Lender shall maintain the confidentiality of all information provided to it by the Company or any Subsidiary, or by the Agent on the Company’s or such Subsidiary’s behalf, under this Agreement or any other Loan Document, it being understood and agreed by the Company that, in any event, the Agent may disclose such information to the Lenders and each Lender may make disclosures thereof to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the Company; provided that such source is not bound by a confidentiality agreement with the Company known to the Lender; provided , further , that any Lender may disclose such information (a) at the request or pursuant to any requirement of any Governmental Authority or representative thereof to which the Lender is subject (including the NAIC) or in connection with an examination of such Lender by any such authority; (b) pursuant to subpoena or other court process; (c) when required to do so in accordance with the provisions of any applicable Requirement of Law; (d) to the extent reasonably required in connection with any litigation or proceeding to which the Agent or any Lender or their respective Affiliates may be party; (e) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (f) to such Lender’s independent auditors and other professional advisors on a confidential basis; (g) to any Participant, Lender or Eligible Assignee, actual or potential; provided that such Person agrees in writing to keep such information confidential to the same extent required of the Lenders hereunder or on terms no less restrictive than those set forth in this Section 10.08 ; provided , however , that such writing may take the form of a “click-through” agreement; (h) as to any Lender or its Affiliate, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company or any Subsidiary is party with such Lender or such Affiliate; (i) to its Affiliates and to their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other advisors, experts or agents who need to know such information and on a confidential basis (and to other Persons authorized by a Lender or the Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.08 ); provided that such Affiliates and other Persons are not insurance companies; (j) to any other party to this Agreement; (k) to any pledgee referred to in Section 10.07(f) or any direct or indirect contractual counterparty or prospective counterparty (or such counterparty’s or prospective counterparty’s professional advisor) to any swap or derivative transaction relating to obligations of the Company or any of its Subsidiaries (so long as all parties, including all counterparties and advisors agree to be bound by the provisions of this Section 10.08 or other provisions at least as restrictive as this Section 10.08 ); (l) to any rating agency when required by it; provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any confidential information relating to the Company or any Subsidiary received by it from the Agent or any Lender; and (m) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans.  In addition, the Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents.  In the case of confidential information received from the Company or any Subsidiary after the date hereof, such information shall be clearly identified at the time of delivery as confidential.  In the case of clause (b) and (c) , the disclosing party shall give notice of such disclosure to the Company, to the extent not prohibited by any Requirement of Law.
 
Section 10.09.  Set-off.
 
In addition to any rights and remedies of the Lenders provided by law, if an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is authorized at any time and from time to time, without prior notice to the Company, any such notice being waived by the Company, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender or Affiliate to or for the credit or the account of the Company against any and all Obligations owing to such Lender, now or hereafter existing, irrespective of whether or not the Agent or such Lender shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured; provided that neither any Lender nor any of its Affiliates shall be entitled to exercise any such set off with respect to any trust, tax reserve or payroll account.  Each Lender agrees to promptly notify the Company and the Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application.

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Section 10.10.  Notification of Addresses, Lending Offices, Etc.
 
Each Lender shall notify the Agent in writing of any changes in the address to which notices to the Lender should be directed, of addresses of any Lending Office, of payment instructions in respect of all payments to be made to it hereunder and of such other administrative information as the Agent shall reasonably request.
 
Section 10.11.  Effectiveness; Counterparts.
 
This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by the Company and the Agent of written notification of such execution and authorization of delivery thereof. This Agreement may be executed in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile transmission or other electronic transmission (e.g., “.pdf” or “.tif”) shall be effective as delivery of a manually executed counterpart hereof.
 
Section 10.12.  Survival of Representations and Warranties.
 
All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Agent and each Lender, regardless of any investigation made by the Agent or any Lender or on their behalf, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
 
Section 10.13.  Severability.
 
If any provision of any Loan Document is invalid, illegal or unenforceable in any jurisdiction then, to the fullest extent permitted by law, (i) such provision shall, as to such jurisdiction, be ineffective to the extent (but only to the extent) of such invalidity, illegality or unenforceability, (ii) the other provisions of the Loan Documents shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Lenders in order to carry out the intentions of the parties thereto as nearly as may be possible and (iii) the invalidity, illegality or unenforceability of any such provision in any jurisdiction shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.

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Section 10.14.  Replacement of Defaulting Lenders and Non-Consenting Lenders.
 
If any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Company may, at its sole expense and effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.07 ), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
 
(a)           the Agent shall have received the assignment fee specified in Section 10.07(b) ;
 
(b)           such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Sections 2.09(c) , 3.01 , 3.03 and 3.04 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts).
 
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
 
No action by or consent of a Defaulting Lender or a Non-Consenting Lender shall be necessary in connection with such assignment, which shall be immediately and automatically effective upon payment of such purchase price. In connection with any such assignment the Company, Agent, such Defaulting Lender or such Non-Consenting Lender and the replacement Lender shall otherwise comply with this Section 10.14 ; provided that if such Defaulting Lender or such Non-Consenting Lender does not comply with this Section 10.14 within one Business Day after the Company’s request, compliance with this Section 10.14 shall not be required to effect such assignment.
 
Section 10.15.  Governing Law; Jurisdiction; Consent to Service of Process.
 
(a)           This Agreement shall be construed in accordance with and governed by the law of the State of New York.
 
(b)           Each of the parties hereto irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any relevant appellate court, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each party hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court.  Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in any Loan Document shall affect any right that any Lender or the Agent may otherwise have to bring any action or proceeding relating to any Loan Document against any Obligor or its properties in the courts of any jurisdiction.
 
(c)           Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in subsection (b) of this Section.  Each party hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such suit, action or proceeding in any such court.
 
(d)           Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 10.02 .  Nothing in any Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law.

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Section 10.16.  Waiver of Jury Trial.
 
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
 
Section 10.17.  USA PATRIOT Act Notice.
 
Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Company that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Patriot Act ”), it is required to obtain, verify and record information that identifies each Obligor, which information includes the name and address of each Obligor and other information that will allow such Lender or the Agent, as applicable, to identify each Obligor in accordance with the Patriot Act.
 
Section 10.18.  Entire Agreement.
 
This Agreement, together with the other Loan Documents and any separate agreements with respect to fees payable to the Agent, embodies the entire agreement and understanding among the Company, the Lenders and the Agent and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.
 
Section 10.19.  Independence of Covenants .
 
All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
 
Section 10.20.  Obligations Several; Independent Nature of Lenders’ Right .
 
The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder.  Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
 
Section 10.21.  No Fiduciary Duty.

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The Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Obligors, their stockholders and/or their affiliates.  Each Obligor agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Obligor, its stockholders or its affiliates, on the other.  The Obligors acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Obligors, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Obligor, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Obligor, its stockholders or its Affiliates on other matters) or any other obligation to any Obligor except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Obligor, its management, stockholders, creditors or any other Person.  Each Obligor acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.  Each Obligor agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Obligor, in connection with such transaction or the process leading thereto.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their proper and duly authorized officers as of the day and year first above written.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:  Senior Vice President, Treasury and Investor Relations	 	

 

 
 	JPMORGAN CHASE BANK, N.A.,	 	
 	as Agent and as Lender	 	
 	 	 	 	
 	By:	     /s/ Melvin Jackson	 	
 	 	Name:  Melvin Jackson	 	
 	 	Title:    Executive Director	 	

 

 
 	GOLDMAN SACHS BANK USA,	 	
 	as a Lender 	 	
 	 	 	 	
 	By:	     /s/ Meredith Mackey	 	
 	 	Name:  Meredith Mackey	 	
 	 	Title:    Authorized Signatory	 	

 

 
 	ROYAL BANK OF CANADA,	 	
 	as a Lender	 	
 	 	 	 	
 	By:	     /s/ Patricia Llyod	 	
 	 	Name:  Patricia Llyod	 	
 	 	Title:    Authorized Signatory	 	

 

 
 	THE PRIVATEBANK AND TRUST COMPANY,	 	
 	as a Lender	 	
 	 	 	 	
 	By:	     /s/ Andrew C. Haak	 	
 	 	Name:  Andrew C. Haak	 	
 	 	Title:    Managing Director	 	

 

 
 	ASSOCIATED BANK, NATIONAL ASSOCIATION,	 	
 	as a Lender	 	
 	 	 	 	
 	By:	     /s/ Liliana Huerta	 	
 	 	Name:  Liliana Huerta	 	
 	 	Title:    Vice President	 	

 

 
 	THE NORTHERN TRUST COMPANY,	 	
 	as a Lender	 	
 	 	 	 	
 	By:	     /s/ Chris McKean	 	
 	 	Name:  Chris McKean	 	
 	 	Title:    Senior Vice President	 	

 

 
Appendix A-1
 
Tranche B-1 Term Loan Commitments
 
Lender	Commitment	Percentage of Total
Commitment
 	
Goldman Sachs Bank USA	$250,000,000	100.00%

 

 
 
Appendix A-2

Tranche B-2 Term Loan Commitments
 
Lender	Commitment	Percentage of Total
Commitment
 	
Goldman Sachs Bank USA	$425,000,000	100.00%

 

 
 
Appendix A-3
 
Revolving Commitments
 
Lender	Commitment	Percentage of Total
Commitment
 	
Goldman Sachs Bank USA	$10,000,000	20.00%
 	
JPMorgan Chase Bank, N.A.	$10,000,000	20.00%
 	
Associated Bank, N.A.	$7,500,000	15.00%
 	
The PrivateBank and Trust
Company
 	$7,500,000	15.00%	
Royal Bank of Canada	$7,500,000	15.00%
 	
The Northern Trust Company	$7,500,000	15.00%

 

 

Schedule 5.05
Litigation
 
All as more fully described in the Company ’ s Form 10-Q for the fiscal quarter ended June 30, 2012:
 
A.	Cost of Insurance Litigation	
 
 	1.	Celedonia X. Yue, M. D. on behalf of the class of all others similarly situated, and on behalf of the General Public v. Conseco Life Insurance Company, successor to Philadelphia Life Insurance Company and formerly known as Massachusetts General Life Insurance Company, Cause No. CV08-01506 CAS .	
 
 	2.	Celedonia X. Yue, M. D. on behalf of the class of all others similarly situated, and on behalf of the General Public v. Conseco Life Insurance Company, Cause No. CV11-9506 AHM (SHx) .	
 
 	3.	Daniel B. Nicholas, on behalf of himself and all others similarly situated v. Conseco Life Insurance Company, Cause No. 12cv845 .	
 
 	4.	Cedric Brady, et. al. individually and on behalf of all other similarly situated v. Conseco, Inc. and Conseco Life Insurance Company Case No. 3:08-cv-05746.	
 
Bill W McFarland, and all those similarly situated v. Conseco Life Insurance Company, Case No. 3:09-cv-598-J-32MCR.
 
On February 3, 2010, the Judicial Panel on MDL ordered these two cases to be consolidated for pretrial proceedings in the Northern District of California Federal Court.
 
B.	Other Litigation	
 
 	1.	Sydelle Ruderman individually and on behalf of all other similarly situated v. Washington National Insurance Company , Case No. 08-23401-CIV-Cohn/Selzer.	
 
 	2.	Samuel Rowe and Estella Rowe, individually and on behalf of themselves and all others similarly situated v. Bankers Life & Casualty Company and Bankers Life Insurance Company of Illinois , Case No. 09CV491.	

 

 
Schedule 5.07
ERISA
 
None.

2

 
Schedule 5.13
Investment Companies
 
None.

3

 
Schedule 5.14(a)
Capital Stock
 
Warrants to purchase 5,000,000 shares of Company common stock held by investment funds and accounts managed by Paulson & Co. Inc.  The form of such warrants is filed as Exhibit 10.3 of the Company’s Current Report on Form 8-K filed October 13, 2009.
 
Stock issuable pursuant to the CNO Financial Group, Inc. Amended and Restated Long-Term Incentive Plan, filed as Exhibit 10.13 of the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2011.
 
Conversion rights under the existing 7.0% Debentures as governed by an Indenture dated as of October 16, 2009, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee, filed as Exhibit 4.1 of the Company’s Current Report on Form 8-K filed October 19, 2009, as amended by First Supplemental Indenture dated as of February 3, 2010, filed as Exhibit 4.2 of the Company’s Current Report on Form 8-K filed February 5, 2010.

4

 
Schedule 5.14(b)
Subsidiaries
 
Key
 
IM = Immaterial Subsidiary
 
F = Foreign Subsidiary
 
INS = Insurance Subsidiary
 
SIS = Subsidiary of Insurance Subsidiary
 
G = Guarantor
 
Company
(Place of Incorporation)	Subsidiary
Type	Direct Beneficial Owner(s) (Place of Incorporation)	
3037953 Nova Scotia Company (NS) (Calgary)	F, IM	ResortPort Holding of Delaware, Inc. (DE)	
40|86 Advisors, Inc. (DE)	G	CNO Financial Group, Inc. (DE)	
40|86 Mortgage Capital, Inc. (DE)	G	CDOC, Inc. (DE)	
American Life and Casualty Marketing Division Co. (IA)	G	CDOC, Inc. (DE)	
Association Management Corporation (IL)	IM	CDOC, Inc. (DE)	
Bankers Conseco Life Insurance Company (NY)	INS	Conseco Life Insurance Company of Texas (TX)	
Bankers Life and Casualty Company (IL)	INS	Conseco Life Insurance Company of Texas (TX)	
BLC Financial Services, Inc. (IL)	SIS	Bankers Life and Casualty Company (IL)	
C.P. Real Estate Services Corp. (NJ)	SIS	Colonial Penn Life Insurance Company (PA)	
CDOC, Inc. (DE)	G	CNO Financial Group, Inc. (DE) Beneficial ownership (Pfd. Stock) held by Bankers Life and Casualty Company, Washington National Insurance Company, Conseco Life Insurance Company	
CNO IT Services (India) Private Limited	F, IM	CDOC, Inc. (DE) — 99.996%, CNO Financial Group, Inc. (DE) - 0.004%	
CNO Management Services Company (TX)	G	CDOC, Inc. (DE)	
CNO Services, LLC (IN)	G	CDOC, Inc. (DE) — 89.1%, CNO Financial Group, Inc. (DE) — 9.9%, CNO Management Services Company (TX) — 1%	

5

 
Company
(Place of Incorporation)	Subsidiary
Type	Direct Beneficial Owner(s) (Place of Incorporation)	
Colonial Penn Life Insurance Company (PA)	INS	Conseco Life Insurance Company of Texas (TX)	
Conseco Health Services, Inc. (PA)	IM	CDOC, Inc. (DE)	
Conseco Life Insurance Company (IN)	INS	CDOC, Inc. (DE)	
Conseco Life Insurance Company of Texas (TX)	INS	CDOC, Inc. (DE)	
Conseco Marketing, L.L.C. (IN)	IM	CNO Services, LLC (IN) — 90%, CNO Financial Group, Inc. (DE) — 9%, CNO Management Services Company (TX) — 1%	
Conseco Securities, Inc. (DE)	IM	CDOC, Inc. (DE)	
Design Benefit Plans, Inc. (IL)	IM	CNO Financial Group, Inc. (DE)	
Hawthorne Advertising Agency Incorporated (PA)	IM	CDOC, Inc. (DE)	
K.F. Agency, Inc. (IL)	G	CDOC, Inc. (DE)	
K.F. Insurance Agency of Massachusetts, Inc. (MA)	IM	CDOC, Inc. (DE)	
Performance Matters Associates of Texas, Inc. (TX)	G	Performance Matters Associates, Inc. (DE)	
Performance Matters Associates, Inc. (DE)	G	CDOC, Inc. (DE)	
ResortPort Holding of Delaware, Inc. (DE)	IM	CDOC, Inc. (DE)	
Washington National Insurance Company (IL)	INS	CDOC, Inc. (DE)	

6

 
Schedule 6.17
Post Closing Matters
 
1.	Within 30 days of the Closing Date, the Company will file a UCC termination statement in connection with a UCC-1 financing statement, dated August 22, 2008 (file number 13559023), which was filed by Bank of America, N.A. with the Office of the Secretary of State of Illinois (the debtor being Design Benefit Plans, Inc.).	
 
2.	Within 30 days of the Closing Date (or such longer period, as reasonably agreed by the Agent), the Company will cause its liability insurance policies to be endorsed in form and substance reasonably acceptable to the Agent to add the Agent as additional insured.	

7

 
Schedule 7.01
Existing Indebtedness
 
1.	Existing intercompany indebtedness involving Excluded Subsidiaries set forth on Attachment 1.	
 
2.	Bankers Life and Casualty Company guarantee of retirement benefits for former President and CEO pursuant to an employment agreement.	
 
3.	Conseco Life Insurance Company of Texas guarantee of retirement benefits for former President and CEO pursuant to employment agreement.	
 
4.	Existing Convertible Debentures, as defined in the Credit Agreement.	

8

 
Attachment 1 to SCHEDULE 7.01
 
Intercompany Indebtedness Involving Excluded Subsidiaries
as of 6/30/2012
 
Debtor	 	Owed to	 	Amount ($)	
Association Management Corporation	 	CNO Services, LLC	 	$	80	 	
CNO IT Services (India) Private Limited	 	CNO Services, LLC	 	 	3,614,044	 	
Conseco Marketing, L.L.C.	 	CNO Services, LLC	 	 	1,649,831	 	
Conseco Securities, Inc.	 	CDOC, Inc.	 	 	1,294,209	 	
Conseco Securities, Inc.	 	CNO Services, LLC	 	 	61,701	 	
Design Benefit Plans, Inc.	 	CNO Financial Group, Inc.	 	 	109,083	 	
 	 	 	 	 	 	 	
 	 	 	 	$	6,728,948	 	

9

 
Schedule 7.02
Existing Liens
 
Debtor	Jurisdiction	Type
of
filing
found	Secured
Party	Collateral	Original
File Date	Original File
Number	
Bankers Life and Casualty Company	Illinois	UCC-1	General Electric Capital Corporation	Specified Leased Equipment	12/07/05	10443849	
CNO Services, LLC	Indiana	UCC-1	Banc of America Leasing & Capital, LLC	Specified Goods	12/20/2010	201000010688783	
CNO Services, LLC	Indiana	UCC-1	IBM Credit LLC	Specified Leased Equipment	11/28/2011	201100010213536	
CNO Services, LLC	Indiana	UCC-1	IBM Credit LLC	Specified Leased
Equipment	12/29/2011	201100011281794	
Conseco Services, LLC 1	Indiana	UCC-1	Ricoh Americas Corporation	Specified Equipment	06/01/2009	2009000045
46333	
Conseco Services, LLC	Indiana	UCC-1	Oce North America, Inc.	Specified Equipment	03/11/2010	2010000020
79667	
Conseco, Inc. 2	Delaware	UCC-1	TCF Equipment Finance, Inc.	Specified Equipment	05/28/2009	2009
1773594	

1 On August 6, 2010, Conseco Services, LLC changed its name to CNO Services, LLC.
 
2 On May 11, 2010, Conseco, Inc. changed its name to CNO Financial Group, Inc.

10

 
Schedule 7.09
Existing and Committed Investments
 
Existing Investments :
 
Equity investments in Excluded Subsidiaries existing on the date hereof.
 
Committed Investments :
 
None.

11

 
Schedule 7.17
Restrictive Agreements
 
None.

12

 
Schedule 10.12
Addresses for Notices
 
CNO FINANCIAL GROUP, INC.
 
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, Indiana 46032
Attention: Erik M. Helding
Telephone: (317) 817-3228
Facsimile: (317) 817-3772
Electronic Mail: erik.helding@cnoinc.com
 
with a copy to :
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, Indiana 46032
Attention: Karl Kindig
Telephone: (317) 817-6708
Facsimile: (317) 817-5828
Electronic Mail: karl.kindig@cnoinc.com
 
JPMORGAN CHASE BANK, N.A.
 
Legal Address :
JPMorgan Chase Bank, N.A.
383 Madison Avenue
New York, NY 10179
 
Agency Address :
JPMorgan Chase Bank, N.A.
Attn:  Christina Masroor
1111 Fannin Street, Floor 10
Houston, TX  77002-6925
Tel: 713-750-7965
Fax: 713-750-2223
Email: christina.m.masroor@jpmorgan.com
 
with a copy to :
Latham & Watkins LLP
Attn:  I. Scott Gottdiener
885 Third Avenue
New York, NY 10022
Tel: 212-906-2960
Fax: 212-751-4864
Email: scott.gottdiener@lw.com

13

 

EXHIBIT A
 
FORM OF COMPLIANCE CERTIFICATE
 
Financial Statement Date:____________
To:           JPMorgan Chase Bank, N.A., as Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
The undersigned Responsible Officer of the Company hereby certifies, solely as a Responsible Officer of the Company and not in his/her individual capacity, as of the date hereof that he/she is the [            ] of the Company, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Agent on behalf of the Company, and that:
 
[Use following paragraph 1 for fiscal year-end financial statements]
 
1.            (i) Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Credit Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section and (ii) attached hereto as Schedule 2 is the certificate prepared by such independent certified public accountant with respect to such financial statements, as required by Section 6.02(b) of the Credit Agreement.
 
[Use following paragraph 1 for fiscal quarter-end financial statements]
 
1.           Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Company ended as of the above date.  Such financial statements fairly present in all material respects, in accordance with GAAP (subject to the absence of footnotes and year-end audit adjustments), the financial position, the results of operations and cash flows of the Company and its Subsidiaries as at such date and for such period.
 
2.           The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Company during the accounting period covered by the attached financial statements.
 
3.           A review of the activities of the Company during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Company performed and observed all its obligations under the Loan Documents, and

A-1

 
[select one.]
 
[during such fiscal period, to the best knowledge of the undersigned, the Company performed and observed each covenant and condition of the Loan Documents applicable to it and no Default has occurred and is continuing.]
 
--or--
 
[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
 
4.           The financial covenant analyses and information set forth on Schedule 3 attached hereto are true and accurate on and as of the date of this Compliance Certificate.
 
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

A-2

IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate in his/her capacity as Responsible Officer of the Company as of ___________
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	
 	Title:	

A-3

SCHEDULE 1
TO THE COMPLIANCE CERTIFICATE

A-4

SCHEDULE 2
TO THE COMPLIANCE CERTIFICATE

A-5

SCHEDULE 3
TO THE COMPLIANCE CERTIFICATE
 
For the Fiscal Quarter/Year ended________________(“ Statement Date ”)
 
Section 7.01 — Limitation on Indebtedness; Certain Capital Stock
 
Item	 	 	Maximum
Permitted (at
 any time
outstanding)	 	 	 	Actual
(measured as
of the
Statement
Date)	 	
(a)	Aggregate principal amount of Capitalized Lease Liabilities, Purchase Money Debt, and Refinancing Indebtedness thereof (but disregarding the requirements of clauses (b) through (h) of the definition thereof):	 	$	50,000,000	 	 	 $	____________	 	
 	 	 	 	 	 	 	 	 	 	
(b)	Aggregate principal amount of Indebtedness owed by any Excluded Subsidiary to the Company or any other Restricted Subsidiary:	 	$	30,000,000	 	 	 $	____________	 	
 	 	 	 	 	 	 	 	 	 	
(c)	Aggregate principal amount of other secured Indebtedness under Section 7.01(a)(xiii) of the Credit Agreement (including Indebtedness described in Item (e) below):	 	$	50,000,000	 	 	 $	____________	 	
 	 	 	 	 	 	 	 	 	 	
(d)	Aggregate principal amount of other unsecured Indebtedness under Section 7.01(a)(xiv) of the Credit Agreement (including Indebtedness described in Item (e) below):	 	$	75,000,000	 	 	 $	____________	 	
 	 	 	 	 	 	 	 	 	 	
(e)	Aggregate principal amount of other secured or unsecured Indebtedness of Subsidiaries that are not Obligors under Section 7.01(a)(xiii) and Section 7.01(a)(xiv) of the Credit Agreement:	 	$	25,000,000	 	 	 $	___________	 	

 

In case of any inconsistency between the provisions of this Schedule and the provisions of the Credit Agreement, the Credit Agreement shall prevail.	

A-6

Section 7.02 — Liens
 
 	 	 	Maximum
Permitted (at
 any time
outstanding)	 	 	 	Actual
(measured as
of the
Statement
Date)	 	
(a)	Aggregate amount of collateral consisting of cash or Cash Equivalents’ securing Permitted Swap Obligations under Section 7.02(c) of the Credit Agreement:	 	$	60,000,000	 	 	 	________	 	
 	 	 	 	 	 	 	 	 	 	
(b)	Aggregate amount of collateral consisting of cash or Cash Equivalents securing letters of credit issued in respect of obligations to insurers under Section 7.02(f) of the Credit Agreement:	 	$	20,000,000	 	 	 	________	 	
 	 	 	 	 	 	 	 	 	 	
(c)	Aggregate amount of Cash Management Obligations permitted by Section 7.01(a)(xvii) of the Credit Agreement secured by Liens under Section 7.02(o) of the Credit Agreement:	 	$	10,000,000	 	 	 	________	 	
 
Section 7.03 — Disposition of Assets
 
 	 	 	Maximum
Permitted
(for the
period
indicated)	 	 	 	Actual
(measured as
indicated)	 	
(a)	Aggregate amount of Dispositions to Excluded Subsidiaries under Section 7.03(d) of the Credit Agreement:	 	$30,000,000	 	 	 	through the Statement Date	 	
 	 	 	 	 	 	 	 	 	
(b)	Aggregate statutory profit and/or gains on insurance policy sales or other portfolio transfers resulting from all Dispositions pursuant to a Reinsurance Agreement consummated after the Effective Date under clause (ii) of Section 7.03(e) of the Credit Agreement, subject to the provisos in clauses (x) and (y) of such Section:	 	$400,000,000
during the
term of the
Credit
Agreement
 
$150,000,000
in any
Fiscal Year	 	 	 	 
 
through the
Statement Date
 
$ _________
for the
Fiscal Year
through the
Statement Date

 

For purposes of this Item (a), in the case of Cash Equivalents described in clauses (a), (b), (e) and (f) of the definition thereof, the one year (or twelve-month, as applicable) maturity limitation set forth in such clauses shall be disregarded.	

A-7

Section 7.08 — Restricted Payments
 
 	 	 	Maximum
Permitted
(for the
period
indicated)	 	Actual
(measured as
indicated)	 	
(  a)	Aggregate amount of Restricted Payments under Section 7.08(d) of the Credit Agreement, together with the aggregate amount of payments made pursuant to Section 7.10(a)(iv) of the Credit Agreement that could have been made as Restricted Payments under Section 7.10(d) of the Credit Agreement at the time made:	 	Pro forma
Debt to Total Capitalization
Ratio is equal
to or less than
22.5%	 	through the
Statement Date	 	
(b)	Aggregate amount of Restricted Payments under Section 7.08(e) of the Credit Agreement, together with the aggregate amount of payments made pursuant to Section 7.10(a)(iv) of the Credit Agreement (except to the extent that any such payment could have been made as a Restricted Payment under Section 7.10(d) of the Credit Agreement at the time made):	 	$175,000,000	 	 
through the
Statement Date	 	
 
(c)	Aggregate amount of dividends paid with respect to common stock during any Fiscal Year under Section 7.08(g) of the Credit Agreement	 	$30,000,000	 	through the
Statement Date	 	
 
Section 7.09 — Investments and Acquisitions
 
 	 	 	Maximum
Permitted
(for the
period
indicated)	 	Actual
(measured as
indicated)	 	
(a)	Aggregate amount expended for Investments in Excluded Subsidiaries in the ordinary course of business under Section 7.09(h) of the Credit Agreement, together with the aggregate principal amount of Indebtedness outstanding owing to any Excluded Subsidiaries pursuant to the Tax Sharing Agreement (as described in Section 7.01(a)(xviii) of the Credit Agreement):	 	$30,000,000	 	through the
Statement Date	 	
 	 	 	 	 	 	 	
(b)	Aggregate amount expended for Acquisitions (other than Acquisitions that constitute Investments permitted by Section 7.09(f) or 7.09(m) of the Credit Agreement) under Section 7.09(1)(i) of the Credit Agreement, subject to the requirements of such Section:	 	$400,000,000
during the
term of the
Credit
Agreement

$200,000,000
in any Fiscal
Year	 	 

through the
Statement Date
 
For the Fiscal
Year through
the Statement
Date	 	

A-8

 
(c)	Aggregate amount expended for Acquisitions (other than Acquisitions that constitute Investments permitted by Section 7.09(f) or 7.09(m) of the Credit Agreement) under Section 7.09(1)(ii) of the Credit Agreement, subject to the requirements of such Section:	 	$600,000,000
during the
 term of the
Credit
Agreement
 
$300,000,000 in
any Fiscal
Year	 	through the
Statement Date
 
for the Fiscal
Year through
the Statement
Date	 	
 	 	 	 	 	 	 	
(d)	Aggregate amount expended for Investments under Sec tion 7.09(m) of the Credit Agreement:	 	$125,000,000	 	through the
Statement Date	 	
 
Section 7.11 — Debt to Total Capitalization Ratio
 
(a)	Maximum permitted:	 	27.5%	 	
 	 	 	 	 	
(b)	Actual (measured as of the Statement Date):	 	 	 	
 	 	 	 	 	
 	(i)	the principal amount of and accrued but unpaid interest on all Indebtedness of the Company outstanding on such date:	 	 	 	
 	 	 	 	 	 	
 	(A)	Indebtedness owing to any Subsidiary Guarantor:	 	 	 	
 	 	 	 	 	 	
 	(B)	the liabilities (if any) of the Company in respect of Swap Contracts as determined by reference to the Swap Termination Value thereof:	 	 	 	
 	 	 	 	 	 	
 	(C)	sum of (b)(i)(A) + (b)(i)(B):	 	 	 	
 	 	 	 	 	 	
 	(D)	(b)(i) minus (b)(i)(C):	 	 	 	
 	 	 	 	 	 	
 	(ii)	Total Capitalization:	 	 	 	
 	 	 	 	 	 	
 	(A)	Total Shareholders’ Equity of the Company	 	 	 	
 	 	 	 	 	 	
 	(B)	sum of (b)(i)(D) + (b)(ii)(A):	 	 	 	
 	 	 	 	 	 	
(c)	Ratio of (b)(i)(D) to (b)(ii)(B):	 	 	 	

A-9

 
Section 7.12 — Interest Coverage Ratio
 
Calculation Period:  [Four] Fiscal Quarters ended ______________
 
(a)	Minimum required:	 	2.50:1.00	 	
 	 	 	 	 	
(b)	Actual CNO Excess Cash Flow for the Calculation Period, which shall include, without duplication:	 	 	 	
 	 	 	 	 	
 	(i)	dividends paid in cash to the Company by any Subsidiary:	 	 	 	
 	 	 	 	 	 	
 	(ii)	interest paid in cash to the Company by any Restricted Subsidiary pursuant to any Indebtedness owing by such Restricted Subsidiary to the Company:	 	 	 	
 	 	 	 	 	 	
 	(iii)	interest or principal paid in cash to the Company with respect to any Surplus Debenture:	 	 	 	
 	 	 	 	 	 	
 	(iv)	amounts paid in cash to the Company under the Tax Sharing Agreement:	 	 	 	
 	 	 	 	 	 	
 	(v)	management and other similar fees received by the Company under servicing agreements or otherwise from any Subsidiary:	 	 	 	
 	 	 	 	 	 	
 	(vi)	amounts paid in cash to the Company pursuant to a loan made to it by any Subsidiary:	 	 	 	
 	 	 	 	 	 	
 	(vii)	the Company’s Investment Income received in cash:	 	 	 	
 	 	 	 	 	 	
 	(viii)	non-recurring cash and non-cash charges (not to exceed $40,000,000 in the aggregate (of which up to $25,000,000 may be cash charges) for all Calculation Periods) related to restructuring, consolidation, severance or discontinuance of any portion of the operations, employees and/or management of the Company:	 	 	 	
 	 	 	 	 	 	
 	(ix)	sum of (b)(i) through (b)(viii) :	 	 	 	
 	 	 	 	 	 	
 	(x)	cash operating expenses of the Company, which, for the avoidance of doubt, shall exclude the redemption price, repurchase price, premiums, fees, costs and expenses paid in cash incurred in connection with (1) the redemption or repurchase of the Existing Senior Secured Notes, (2) the purchase and redemption of the Existing Convertible Debentures on or after the Closing Date, (3) any redemption or repurchase of any bonds, debentures or notes issued subsequent to the Closing Date and (4) without duplication, the Transactions:	 	 	 	

A-10

 
 	(xi)	Capital Expenditures of the Company made in cash:	 	 	 	
 	 	 	 	 	 	
 	(xii)	amounts, if any, paid by the Company in respect of interest on or in repayment of any loan made to it by any Subsidiary:	 	 	 	
 	 	 	 	 	 	
 	(xiii)	amounts paid in cash by the Company to any Insurance Subsidiary in respect of any overpayment by such Insurance Subsidiary of amounts required to be paid by such Insurance Subsidiary to the Company under the Tax Sharing Agreement:	 	 	 	
 	 	 	 	 	 	
 	(xiv)	sum of (b)(x) through (b)(xiii) :	 	 	 	
 	 	 	 	 	 	
 	(xv)	difference of (b)(ix) minus (b)(xiv) :	 	 	 	
 	 	 	 	 	 	
 	(xvi)	amounts, if any, received by the Company or any of its Subsidiaries and required to be applied to prepay the Borrowings pursuant to Section 2.09(d) (other than pursuant to Section 2.09(d)(iii) ) of the Credit Agreement, to the extent otherwise included in CNO Available Cash Flow for any Calculation Period:	 	 	 	
 	 	 	 	 	 	
 	(xvii)	difference of (b)(xv) minus (b)(xvi) :	 	 	 	
 	 	 	 	 	 	
(c)	Actual Cash Interest Expense for the Calculation Period, which shall include, without duplication:	 	 	 	
 	 	 	 	 	
 	(i)	total interest expense, to the extent paid or payable in cash, of the Company and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, excluding interest paid or, without duplication, accrued but unpaid by any Insurance Subsidiary to the extent otherwise included in total interest expense in this item for such Calculation Period:	 	 	 	
 	 	 	 	 	 	
 	(ii)	total dividends paid or payable in cash on any preferred stock issued by the Company to the extent the terms of such preferred stock require payment of cash dividends for such Calculation Period; provided, that, following the conversion of any such preferred stock into common stock, any cash dividends paid on such preferred stock during such Calculation Period shall, on a Pro Forma Basis, as if the conversion was completed on the first day of such Calculation Period, be excluded from calculations of Cash Interest Expense for such Calculation Period:	 	 	 	
 	 	 	 	 	 	
 	(iii)	sum of (c)(i) plus (c)(ii) :	 	 	 	

A-11

 
(d)	Ratio of (b)(xvii) to (c)(iii) :	 	 	 	
 
Section 7.14 — Aggregate RBC Ratio
 
(a)	Minimum required:	 	250%
 	 	
(b)	Actual (measured as of the Statement Date):	 	 	 	
 	 	 	 	 	
 	(i)	aggregate Total Adjusted Capital (as defined by each relevant Insurance Subsidiary’s Department) for all Insurance Subsidiaries taken as a whole:	 	 	 	
 	 	 	 	 	 	
 	(ii)	aggregate Authorized Control Level Risk-Based Capital (as defined by each relevant Insurance Subsidiary’s Department) for all Insurance Subsidiaries taken as a whole:	 	 	 	
 	 	 	 	 	 	
 	(iii)	ratio of (b)(i) to (b)(ii) (expressed as a percentage) :	 	 	 	
 	 	 	 	 	 	
(c)	One half of the ratio in (b)(iii) (expressed as a percentage) :	 	 	 	

Section 7.15 — Combined Statutory Capital and Surplus Level
 
(a)	Minimum required:	 	$1,300,000,000	 	
 	 	 	 	 	
(b)	Combined Statutory Capital and Surplus (measured as of the Statement Date):	 	 	 	
 	 	 	 	 	
 	(i)	amount shown on the Combined Statutory Statement of the Insurance Subsidiaries on p. 3, line 38:	 	 	 	
 	 	 	 	 	 	
 	(ii)	amount shown on the Combined Statutory Statement of the Insurance Subsidiaries on p. 3, line 24.1:	 	 	 	
 	 	 	 	 	 	
(c)	Sum of (b) (i) and (b) (ii) :	 	 	 	

 
A-12

Section 7.16 — Investment Portfolio Requirement
 
Measured as of the Statement Date:  ______________
 
(a)	Aggregate fair market value of all Investments held by the Company and the Insurance Subsidiaries:	 	 	 	
 	 	 	 	 	
(b)	Aggregate fair market value of all Investments of the Company and the Insurance Subsidiaries, taken as a whole, that are not Investment Grade Assets (exclusive of the Investments referred to in Items (c), (d) and (e) hereof and policy loans as specified on page 2, line 6 of the Company’s Annual Statements):	 	 	 	
 	 	 	 	 	
 	(i)	maximum permitted ratio of (b) to (a) (expressed as a percentage):	 	12%	 	
 	 	 	 	 	 	
 	(ii)	actual ratio of (b) to (a) (expressed as a percentage):	 	 	 	
 	 	 	 	 	 	
(c)	Aggregate fair market value of all Investments of Company and the Insurance Subsidiaries, taken as a whole, that are non-NAIC rated (exclusive of the Investments referred to in Items (b), (d) and (e) hereof and policy loans as specified on page 2, line 6 of the Company’s Annual Statement):	 	 	 	
 	 	 	 	 	
 	(i)	maximum permitted ratio of (c) to (a) (expressed as a percentage):	 	6%	 	
 	 	 	 	 	 	
 	(ii)	actual ratio of (c) to (a) (expressed as a percentage) :	 	 	 	
 	 	 	 	 	 	
(d)	Aggregate fair market value of all Investments of the Company and the Insurance Subsidiaries, taken as a whole, in real property mortgage loans classified on Schedule B-Part 1 of the Annual Statement (exclusive of Investments referred to in Items (b), (c) and (e) hereof):	 	 	 	
 	 	 	 	 	
 	(i)	maximum permitted ratio of (d) to (a) (expressed as a percentage):	 	12%	 	
 	 	 	 	 	 	
 	(ii)	actual ratio of (d) to (a) (expressed as a percentage) :	 	 	 	
 	 	 	 	 	
(e)	Aggregate fair market value of all Investments of the Company and the Insurance Subsidiaries, taken as a whole, in Capital Stock (exclusive of Investments referred to in Items (b), (c) and (d) hereof):	 	 	 	
 	 	 	 	 	
 	(i)	maximum permitted ratio of (e) to (a) (expressed as a percentage):	 	5%	 	
 	 	 	 	 	 	
 	(ii)	actual ratio of (e) to (a) (expressed as a percentage):	 	 	 	

A-13

EXHIBIT B-1
 
FORM OF TRANCHE B-1 TERM LOAN NOTE
 
$ [___ , ___ , ___]	 	
September [  ], 2012	New York, New York	
 
FOR VALUE RECEIVED , CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), promises to pay [NAME OF LENDER] (“ Payee ”) or its registered assigns the principal amount of $ [___ , ___ , ___] in the installments referred to below.
 
The Company also promises to pay interest on the unpaid principal amount hereof, from the date hereof until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
The Company shall make principal payments on this Note as set forth in Section 2.08 of the Credit Agreement.
 
This Note is one of the “Tranche B-1 Term Loan Notes” in the aggregate principal amount of $ [___ , ___ , ___] and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Term Loan evidenced hereby was made and is to be repaid.
 
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Agent’s Office or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement.  Unless and until an Assignment and Assumption effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by the Agent and recorded in the Register, the Company, the Agent and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby.  Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of the Company hereunder with respect to payments of principal of or interest on this Note.
 
This Note is subject to mandatory prepayment and to prepayment at the option of the Company, each as provided in the Credit Agreement.
 
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE COMPANY AND PAYEE HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

B-1-1

 
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
 
The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement.
 
No reference herein to the Credit Agreement and no provision of this Note or the Credit Agreement shall alter or impair the obligations of the Company, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
 
The Company promises to pay costs and expenses, including Attorney Costs, as provided in the Credit Agreement, incurred in the collection and enforcement of this Note.  The Company and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
 
[ Remainder of page intentionally left blank ]

B-1-2

 
IN WITNESS WHEREOF , the Company has caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	

B-1-3

EXHIBIT B-2
 
FORM OF TRANCHE B-2 TERM LOAN NOTE
 
$ [ ___,___,___ ]	 	
September [  ], 2012	New York, New York	
 
FOR VALUE RECEIVED , CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), promises to pay [NAME OF LENDER] (“ Payee ”) or its registered assigns the principal amount of $ [___ , ___ , ___] in the installments referred to below.
 
The Company also promises to pay interest on the unpaid principal amount hereof, from the date hereof until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
The Company shall make principal payments on this Note as set forth in Section 2.08 of the Credit Agreement.
 
This Note is one of the “Tranche B-2 Term Loan Notes” in the aggregate principal amount of $ [___ , ___ , ___] and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Term Loan evidenced hereby was made and is to be repaid.
 
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Agent’s Office or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement.  Unless and until an Assignment and Assumption effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by the Agent and recorded in the Register, the Company, the Agent and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby.  Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of the Company hereunder with respect to payments of principal of or interest on this Note.
 
This Note is subject to mandatory prepayment and to prepayment at the option of the Company, each as provided in the Credit Agreement.
 
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE COMPANY AND PAYEE HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

B-2-1

 
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
 
The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement.
 
No reference herein to the Credit Agreement and no provision of this Note or the Credit Agreement shall alter or impair the obligations of the Company, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
 
The Company promises to pay costs and expenses, including Attorney Costs, as provided in the Credit Agreement, incurred in the collection and enforcement of this Note.  The Company and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
 
[ Remainder of page intentionally left blank ]

B-2-2

 
IN WITNESS WHEREOF , the Company has caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	

B-2-3

 
EXHIBIT B-3
 
FORM OF REVOLVING LOAN NOTE
 
$ [ ___,___,___ ]	 	
September [  ], 2012	New York, New York	
 
FOR VALUE RECEIVED , CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), promises to pay [NAME OF LENDER] (“ Payee ”) or its registered assigns, on or before [ _______ ] , the lesser of (a) $ [___ , ___ , ___] and (b) the unpaid principal amount of all advances made by Payee to the Company as Revolving Loans under the Credit Agreement referred to below.
 
The Company also promises to pay interest on the unpaid principal amount hereof, from the date hereof until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
This Note is one of the “Revolving Loan Notes” in the aggregate principal amount of $ [___ , ___ , ___] and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Loans evidenced hereby were made and are to be repaid.
 
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Agent’s Office or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement.  Unless and until an Assignment and Assumption effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by the Agent and recorded in the Register, the Company, the Agent and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby.  Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of the Company hereunder with respect to payments of principal of or interest on this Note.
 
This Note is subject to mandatory prepayment and to prepayment at the option of the Company, each as provided in the Credit Agreement.
 
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE COMPANY AND PAYEE HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

B-3-1

 
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
 
The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement.
 
No reference herein to the Credit Agreement and no provision of this Note or the Credit Agreement shall alter or impair the obligations of the Company, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
 
The Company promises to pay costs and expenses, including Attorney Costs, as provided in the Credit Agreement, incurred in the collection and enforcement of this Note.  The Company and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
 
[ Remainder of page intentionally left blank ]

B-3-2

 
IN WITNESS WHEREOF , the Company has caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

B-3-3

 
TRANSACTIONS ON
REVOLVING LOAN NOTE
 
Date	 	Amount of Loan
Made This Date	 	Amount of
Principal Paid
This Date	 	Outstanding Principal
Balance This Date	 	Notation
Made By	

B-3-4

 
EXHIBIT B-4
 
FORM OF SWING LINE NOTE
 
$ [ ___,___,___ ]	 	
September [  ], 2012	New York, New York	
 
FOR VALUE RECEIVED , CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), promises to pay to JPMORGAN CHASE BANK, N.A. , as Swing Line Lender (“ Payee ”), on or before [ _______ ] , the lesser of (a) $ [ ___,___,___ ] and (b) the unpaid principal amount of all advances made by Payee to the Company as Swing Line Loans under the Credit Agreement referred to below.
 
The Company also promises to pay interest on the unpaid principal amount hereof, from the date hereof until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
This Note is the “Swing Line Note” and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Swing Line Loans evidenced hereby were made and are to be repaid.
 
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Lending Office of the Swing Line Lender or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement.
 
This Note is subject to mandatory prepayment and to prepayment at the option of the Company, each as provided in the Credit Agreement.
 
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE COMPANY AND PAYEE HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
 
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
 
The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement.

B-4-1

 
No reference herein to the Credit Agreement and no provision of this Note or the Credit Agreement shall alter or impair the obligations of the Company, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
 
The Company promises to pay costs and expenses, including Attorney Costs, as provided in the Credit Agreement, incurred in the collection and enforcement of this Note.  The Company and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
 
[ Remainder of page intentionally left blank ]

B-4-2

 
IN WITNESS WHEREOF , the Company has caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

B-4-3

 
TRANSACTIONS ON
SWING LINE NOTE
 
Date	 	Amount of Loan Made
This Date	 	Amount of Principal
Paid This Date	 	Outstanding Principal
Balance This Date	 	Notation
Made By	

B-4-4

 
EXHIBIT C-1
 
FORM OF LOAN NOTICE
 
Date:  _____________, 2012
 
To:          JPMorgan Chase Bank, N.A., as Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
Pursuant to Section  [ 2.01 ][ 2.02 ][ 2.03 ] of the Credit Agreement, the Company desires that Lenders make the following Loans to the Company in accordance with the applicable terms and conditions of the Credit Agreement on [ _____ ] (the “ Borrowing Date ”):
 
Tranche B-1 Term Loans
 
 	o	Base Rate Loans:	$ [___ , ___ , ___]	
 	 	 	 	
 	o	Eurodollar Rate Loans, with an initial Interest Period of ________ month(s):	$ [___ , ___ , ___]	
 
Tranche B-2 Term Loans
 
 	o	Base Rate Loans:	$ [___ , ___ , ___]	
 	 	 	 	
 	o	Eurodollar Rate Loans, with an initial Interest Period of ________ month(s)	$ [___ , ___ , ___]	
 
Revolving Loans
 
 	o	Base Rate Loans:	$ [___ , ___ , ___]	
 	 	 	 	
 	o	Eurodollar Rate Loans, with an initial Interest Period of ________ month(s):	$ [___ , ___ , ___]	
 	 	 	 	
 	Swing Line Loans:	$ [___ , ___ , ___]	

C-1-1

 
The Company hereby certifies that:
 
(i)            after making the Loans requested on the Borrowing Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
 
(ii)           as of the Borrowing Date, the representations and warranties contained in each of the Loan Documents are true and correct in all material respects on and as of such Borrowing Date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and
 
(iii)          as of the Borrowing Date, no event has occurred and is continuing or would result from the consummation of the borrowing contemplated hereby that would constitute an Event of Default or a Default.
 
The account of the Company to which the proceeds of the Loans requested on the Borrowing Date are to be made available by the Agent to the Company are as follows:
 
 	Bank Name:	 	 	
 	Bank Address:	 	 	
 	ABA Number:	 	 	
 	Account Number:	 	 	
 	Attention:	 	 	
 	Reference:	 	 	
 
[The Company hereby agrees that if it fails to borrow the Eurodollar Rate Loans requested hereby (including as a result of the failure of the Credit Agreement to become effective), the Company shall, after receipt of a written request by any Lender (which request shall set forth in reasonable detail the basis for requesting such amount), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses that such Lender may reasonably incur as a result of such failure, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund such Eurodollar Rate Loan] 1
 
Date:  _____________, 2012	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

1	Applicable with respect to Borrowing of Eurodollar Rate Loans only.	

C-1-2

 
EXHIBIT C-2
 
FORM OF CONVERSION/CONTINUATION NOTICE
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
Pursuant to Section 2.06 of the Credit Agreement, the Company desires to convert or to continue the following Loans, each such conversion and/or continuation to be effective as of [    ] :
 
 	1.	Tranche B-1 Term Loans:	
 
$ [___ , ___ , ___]	Eurodollar Rate Loans to be continued with Interest Period of [ ____ ]  month(s)	
 	 	
$ [___ , ___ , ___]	Base Rate Loans to be converted to Eurodollar Rate Loans with Interest Period of [ ____ ]  month(s)	
 	 	
$ [___ , ___ , ___]	Eurodollar Rate Loans to be converted to Base Rate Loans	
 
 	2.	Tranche B-2 Term Loans:	
 
$ [___ , ___ , ___]	Eurodollar Rate Loans to be continued with Interest Period of [ ____ ]  month(s)	
 	 	
$ [___ , ___ , ___]	Base Rate Loans to be converted to Eurodollar Rate Loans with Interest Period of ____ month(s)	
 	 	
$ [___ , ___ , ___]	Eurodollar Rate Loans to be converted to Base Rate Loans	
 
 	3.	Revolving Loans:	
 
$ [___ , ___ , ___]	Eurodollar Rate Loans to be continued with Interest Period of [ ____ ]  month(s)	
 	 	
$ [___ , ___ , ___]	Base Rate Loans to be converted to Eurodollar Rate Loans with Interest Period of ____ month(s)	
 	 	
$ [___ , ___ , ___]	Eurodollar Rate Loans to be converted to Base Rate Loans	

C-2-1

 
Date:   [ _______ ]	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

C-2-2

 
EXHIBIT C-3
 
FORM OF ISSUANCE NOTICE
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing, the “ Credit Agreement ”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among CNO FINANCIAL GROUP, INC. , the other parties thereto from time to time, the Lenders party thereto from time to time and JPMORGAN CHASE BANK, N.A. , as Agent.
 
Pursuant to Section 2.04 of the Credit Agreement, the Company desires a Letter of Credit to be issued in accordance with the terms and conditions of the Credit Agreement on [ _______ ] (the “ Borrowing Date ”) in an aggregate face amount of $ [___ , ___ , ___] .
 
Attached hereto for each such Letter of Credit are the following:
 
(a)           the stated amount of such Letter of Credit;
 
(b)           the name and address of the beneficiary;
 
(c)           the expiration date; and
 
(d)           either (i) the verbatim text of such proposed Letter of Credit, or (ii) a description of the proposed terms and conditions of such Letter of Credit, including a precise description of any documents to be presented by the beneficiary which, if presented by the beneficiary prior to the expiration date of such Letter of Credit, would require the Issuing Bank to make payment under such Letter of Credit.
 
The Company hereby certifies that:
 
(i)            after issuing such Letter of Credit requested on the Borrowing Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
 
(ii)           as of the Borrowing Date, the representations and warranties contained in each of the Loan Documents are true and correct in all material respects on and as of such Borrowing Date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and
 
(iii)          as of such Borrowing Date, no event has occurred and is continuing or would result from the consummation of the issuance contemplated hereby that would constitute an Event of Default or a Default.

C-3-1

 
Date:   [ _______ ]	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

C-3-2

 
EXHIBIT D
 
FORM OF ASSIGNMENT AND ASSUMPTION
 
This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”).  [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
 
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without recourse to [the][any]

1	For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors, choose the second bracketed language.	
 
2	For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees, choose the second bracketed language	
 
3	Select as appropriate.	
 
4	Include bracketed language if there are either multiple Assignors or multiple Assignees.	

D-1

 
Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the] [any] Assignor.
 
 	1.	Assignor[s]:	 	 	
 
 	2.	Assignee[s]:	 	 	
 
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
 
 	3.	Company:   CNO Financial Group, Inc.	
 
 	4.	Agent:   JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement	
 
 	5.	Credit Agreement:   Credit Agreement, dated as of September [ ], 2012, among CNO Financial Group, Inc., the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Agent.	
 
 	6.	Assigned Interest[s]:	
 
Assignor[s] 5	Assignee[s] 6	Facility
Assigned 7	Aggregate
Amount of
Commitment/
Loans
for All Lenders	Amount of
Commitment/
Assigned Loans
Assigned 8	Percentage
Assigned of
Commitment/
Loans 9	CUSIP
Number	
 	 	 	 	 	 	 	
 	 	 	$	$	%  	 	
		 	 	 	 		
 	 	 	$	$	%  	 	
		 	 	 	 		
 	 	 	$	$	%  	 	

[7.           Trade Date:      ] 10

5  List each Assignor, as appropriate.  
6  List each Assignee, as appropriate.  
7  Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment.  
8  Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.  
9  Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.

D-2

 
Effective Date:_______________________, 20__ [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
 
The terms set forth in this Assignment and Assumption are hereby agreed to:
 
 	ASSIGNOR
[NAME OF ASSIGNOR][S]	 	
 	 	 	 	
 	By:	 	 	
 	 	Title:	 	
 
 	ASSIGNEE
[NAME OF ASSIGNEE][S]	 	
 	 	 	 	
 	By:	 	 	
 	 	Title:	 	
 
[Consented to and] 11 Accepted:
 
JPMORGAN CHASE BANK, N.A., as Agent	 	
 	 	 	
By:	 	 	
 	Title:	 	
 
[Consented to:] 12
 
[CNO FINANCIAL GROUP, INC., as the Company	 	
 	 	 	
By:	 	 	
 	Title:]	 	

10	To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.	
 
11	To be added only if the consent of the Agent is required by the terms of the Credit Agreement.	
 
12	To be added only if the consent of the Company is required by the terms of the Credit Agreement	

D-3

 
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
 
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
 
1.              Representations and Warranties.
 
1.1.           Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
 
1.2.           Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements of an Eligible Assignee under the Credit Agreement (subject to such consents, if any, as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

D-4

 
2.              Payments. From and after the Effective Date, the Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
 
3.              General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be construed in accordance with and governed by the law of the State of New York.

D-5

 
EXHIBIT E
 
EURODOLLAR RATE FUNDING LOSS DETERMINATION METHODOLOGY
 
(COFO - COFBD) x P x D
360
 
COFO = COST OF FUNDS AT ORIGINATION (AS QUOTED BY THE AGENT)
 
COFBD = COST OF FUNDS AT BREAK DATE FOR THE DAYS REMAINING IN THE
ORIGINAL INTEREST PERIOD (AS QUOTED BY THE AGENT)
 
P = PRINCIPAL
 
D = NUMBER OF DAYS LEFT IN ORIGINAL INTEREST PERIOD

E-1

 
EXHIBIT F
 
FORM OF SECURITY AGREEMENT
 
[See Attached]

F-1

 
EXHIBIT G-1
 
FORM OF UNITED STATES TAX COMPLIANCE CERTIFICATE
 
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, and (iii) it is not a ten percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of the Code, and (iv) it is not a “controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code.
 
The undersigned has furnished Agent and the Company with a certificate of its non-U.S. person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Agent in writing and (2) the undersigned shall furnish the Company and the Agent a properly completed and currently effective certificate and IRS Form W-8BEN in either the calendar year in which payment is to be made by the Company or the Agent to the undersigned, or in either of the two calendar years preceding such payment.
 
[Signature Page Follows]

G-1-1

 
 	[Lender]	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
 	[Address]	 	
 	 	 	 	
Dated: _______________________, 20[  ]	 	 	 	

G-1-2

 
EXHIBIT G-2
 
FORM OF UNITED STATES TAX COMPLIANCE CERTIFICATE
 
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of the Code, and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code.
 
The undersigned has furnished the Agent and the Company with IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption; provided that, for the avoidance of doubt, the foregoing shall not limit the obligation of the Lender to provide, in the case of a partner/member not claiming the portfolio interest exemption, an IRS Form W-8ECI, Form W-9 or Form W-8IMY (including appropriate underlying certificates from each interest holder of such partner/member), in each case establishing such partner/member’s available exemption from U.S. federal withholding tax.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Agent and (2) the undersigned shall have at all times furnished the Company and the Agent in writing with a properly completed and currently effective certificate and IRS Form W-8IMY and accompanying IRS Forms W-8BEN in either the calendar year in which payment is to be made by the Company or the Agent to the undersigned, or in either of the two calendar years preceding such payment.
 
[Signature Page Follows]

G-2-1

 
 	[Lender]	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
 	[Address]	 	
 	 	 	 	
Dated: _______________________, 20[  ]	 	 	 	

G-2-2

 
EXHIBIT G-3
 
FORM OF UNITED STATES TAX COMPLIANCE CERTIFICATE
 
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
Pursuant to the provisions of Section 3.01(e) and 10.07(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of the Code, and (iv) it is not a “controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code.
 
The undersigned has furnished its participating Lender with a certificate of its non-U.S. person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate and IRS Form W-8BEN in either the calendar year in which payment is to be made to the undersigned, or in either of the two calendar years preceding such payment.
 
[Signature Page Follows]

G-3-1

 
 	[Participant]	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
 	[Address]	 	
 	 	 	 	
Dated: _______________________, 20[  ]	 	 	 	

G-3-2

 
EXHIBIT G-4
 
FORM OF UNITED STATES TAX COMPLIANCE CERTIFICATE
 
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
Pursuant to the provisions of Section 3.01(e) and 10.07(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of the Code, and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code.
 
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption; provided that, for the avoidance of doubt, the foregoing shall not limit the obligation of the undersigned to provide, in the case of a partner/member not claiming the portfolio interest exemption, an IRS Form W-8ECI, Form W-9 or Form W-8IMY (including appropriate underlying certificates from each interest holder of such partner/member), in each case establishing such partner/member’s available exemption from U.S. federal withholding tax.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate and IRS Form W-8IMY and accompanying IRS Forms W-8BEN in either the calendar year in which payment is to be made to the under-signed, or in either of the two calendar years preceding such payment.
 
[Signature Page Follows]

G-4-1

 
 	 	 	[Participant]	 	
 	 	 	 	 	 	
 	 	 	By:	 	 	
 	 	 	 	Name:	 	
 	 	 	 	Title:	 	
 	 	 	 	 	 	
 	 	 	[Address]	 	
 	 	 	 	 	 	
Dated:	 	, 20[  ]	 	 	 	

G-4-2

 
EXHIBIT H-1
 
FORM OF OPINION OF SIMPSON THACHER & BARTLETT LLP
(New York and Delaware)
 
[See Attached]

H-1-1

EXHIBIT H-2
 
FORM OF OPINION OF KARL KINDIG
 
[See Attached]

H-2-1

EXHIBIT H-3
 
FORM OF OPINION OF FAEGRE BAKER DANIELS LLP
(Indiana, Illinois and Iowa)
 
[See Attached]

H-4-1

EXHIBIT H-4
 
FORM OF OPINION OF PORTER HEDGES LLP

H-4-1

EXHIBIT I
 
FORM OF SOLVENCY CERTIFICATE
September [  ], 2012
 
The undersigned, __________________________________, the Chief Financial Officer of CNO Financial Group, Inc., a Delaware corporation (“ CNO ”), is familiar with the properties, businesses, assets and liabilities of CNO and its Subsidiaries and is duly authorized to execute this certificate (this “ Solvency Certificate ”) on behalf of CNO.
 
This Solvency Certificate is delivered pursuant to Section 4.01(h)(ii) of the Credit Agreement dated as of September [  ], 2012 (the “ Credit Agreement ”; terms defined therein unless otherwise defined herein being used herein as therein defined) among CNO, each Lender from time to time party thereto and JPMorgan Chase Bank, N.A., as Agent and the other parties thereto.
 
1.           The undersigned certifies, on behalf of each Obligor and not in his individual capacity, that he has made such investigation and inquiries as to the financial condition of each Obligor as the undersigned deems necessary and prudent for the purposes of providing this Solvency Certificate.
 
2.           The undersigned certifies, on behalf of each Obligor and not in his individual capacity, that (a) the financial information, projections and assumptions which underlie and form the basis for the representations made in this Solvency Certificate were made in good faith and were based on assumptions reasonably believed by each Obligor to be fair in light of the circumstances existing at the time made and continue to be fair as of the date hereof; and (b) for purposes of providing this Solvency Certificate, the amount of contingent liabilities has been computed as the amount that, in the light of all the facts and circumstances existing as of the date hereof, represents the amount that can reasonably be expected to become an actual or matured liability.
 
BASED ON THE FOREGOING, the undersigned certifies, on behalf of each Obligor and not in his individual capacity, that, on the date hereof, before and after giving effect to the Transactions (and the Loans made or to be made and other obligations incurred or to be incurred on the date hereof):
 
(i)           the fair value of the assets of each Obligor, at a fair valuation, exceeds its debts and liabilities, subordinated, contingent or otherwise;
 
(ii)          no Obligor intends to, and no Obligor believes that it will, incur debts or liabilities beyond such Obligor’s ability to pay such debts and liabilities as they mature;
 
(iii)         each Obligor is able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and
 
(iv)         no Obligor has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted after the date herof.

I-1

 
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate as of the first date written above, solely in his capacity as the Chief Financial Officer of CNO and not in his individual capacity.
 
 	Name: 	 	 	
 	 	Title:  Chief Financial Officer	 	

I-2

 
EXHIBIT J
 
FORM OF PARI PASSU INTERCREDITOR AGREEMENT
 
[See Attached]

J-1 

EXHIBIT K
 
FORM OF JOINDER AGREEMENT
 
THIS JOINDER AGREEMENT , dated as of September [  ], 2012 (this “ Agreement ”), by and among [ NEW LENDERS ] (each a “ Lender ” and collectively the “ Lenders ”), CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”) and JPMORGAN CHASE BANK, N.A. (“ JPM ”), as Agent.
 
RECITALS:
 
WHEREAS, reference is hereby made that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among the Company, the Lenders party thereto from time to time and JPM, as Agent; and
 
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Company may provide New Revolving Commitments and/or New Term Loan Commitments by entering into one or more Joinder Agreements with the New Term Loan Lenders and/or New Revolving Loan Lenders, as applicable.
 
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
 
Each Lender party hereto hereby agrees to commit to provide its respective Commitment as set forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth below:
 
Each Lender (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and it is sophisticated with respect to decisions to make loans similar to those contemplated to be made hereunder and it is experienced in making loans of such type; (ii) agrees that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.

K-1

 
Each Lender hereby agrees to make its Commitment on the following terms and conditions 1 :
 
1.	Applicable Margin.   The Applicable Margin for each Series [ __ ] New Term Loan shall mean, as of any date of determination, [ ___ ] % per annum	
 
2.	Principal Payments.   The   Company shall make principal payments on the Series [ __ ] New Term Loans in installments on the dates and in the amounts set forth below:	
 
(A)
Payment
Date	(B)
Scheduled
Repayment of
Series [__] New Term Loans	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
 	$__________	
TOTAL	$__________	
 
3.	Voluntary and Mandatory Prepayments.   Scheduled installments of principal of the Series [ __ ] New Term Loans set forth above shall be reduced in connection with any voluntary or mandatory prepayments of the Series [ __ ] New Term Loans in accordance with Section 2.09(e) of the Credit Agreement.	

 

1	Insert completed items 1-7 as applicable, with respect to New Term Loans with such modifications as may be agreed to by the parties hereto to the extent consistent with Section 2.15 of the Credit Agreement.	

K-2

 
4.	Prepayment Fees.   The   Company agrees to pay to each New Term Loan Lender the following prepayment fees, if any:   [ __________ ] .	
 
[Insert other additional prepayment provisions with respect to New Term Loans]
 
5.	Other Fees . The Company agrees to pay each [ New Term Loan Lender ] [ New Revolving Loan Lender ] its Pro Rata Share of an aggregate fee equal to [ ________ __, ____ ] on [ _________ __, ____ ] .	
 
6.	Proposed Borrowing .  This Agreement represents the Company’s request to borrow Series [ __ ] New Term Loans from New Term Loan Lender as follows (the “ Proposed Borrowing ”):	
 
 	a.	Business Day of Proposed Borrowing:  ___________, ____	
 	 	 	 	 	 	
 	b.	Amount of Proposed Borrowing:  $___________________	
 	 	 	 	 	 	
 	c.	Interest rate option:	o	a.	Base Rate Loan(s)	
 	 	 	o	b.	Eurodollar Rate Loans	
 	 	 	 	 	with an initial Interest	
 	 	 	 	 	Period of ____ month(s)	
 
7.	[New Lenders .  Each [ New Term Loan Lender ] [ New Revolving Loan Lender ] acknowledges and agrees that upon its execution of this Agreement [ and the making of [ New Term Loans ] Series ___ New Term Loans ] that such [ New Term Loan Lender ] [ New Revolving Loan Lender ] shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder. ] 2	
 
8.	Credit Agreement Governs.   Except as set forth in this Agreement, [ New Revolving Loans ] [ Series [ __ ] New Term Loans ] shall otherwise be subject to the provisions of the Credit Agreement and the other Loan Documents.	
 
9.	The Company’s Certifications .  By its execution of this Agreement, the undersigned officer and the Company hereby certify that:	
 
 	i.	The representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and	

2	Insert bracketed language if the lending institution is not already a Lender.	

K-3

 
 	ii.	No event has occurred and is continuing or would result from the consummation of the Proposed Borrowing contemplated hereby that would constitute a Default or an Event of Default.	
 
10.	The Company Covenants .  By its execution of this Agreement, the Company hereby covenants that:	
 
 	i.	[ The   Company shall make any payments required pursuant to Section 3.05(b) of the Credit Agreement in connection with the New Revolving Loan Commitments; ] 3	
 
 	ii.	The Company shall deliver or cause to be delivered the following legal opinions and documents:   [ ___________ ] , together with all other legal opinions and other documents reasonably requested by the Agent in connection with this Agreement; and	
 
 	iii.	Set forth on the attached officer’s certificate are the calculations (in reasonable detail) demonstrating compliance with the financial tests described in Sections 7.11 , 7.12 , 7.14 and 7.15 of the Credit Agreement.	
 
11.	Eligible Assignee.   By its execution of this Agreement, each [ New Term Loan Lender ] [ New Revolving Loan Lender ] represents and warrants that it is an Eligible Assignee.	
 
12.	Notice .  For purposes of the Credit Agreement, the initial notice address of each [ New Term Loan Lender ] [ New Revolving Loan Lender ] shall be as set forth below its signature below.	
 
13.	Foreign Lenders .  For each [ New Revolving Loan Lender ] [ New Term Loan Lender ] that is a Non-US Lender, delivered herewith to the Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such [ New Revolving Loan Lender ] [ New Term Loan Lender ] may be required to deliver to the Agent pursuant to Section 3.01(e) of the Credit Agreement.	
 
14.	Recordation of the New Loans .  Upon execution and delivery hereof, the Agent will record the [ Series [ __ ] New Term Loans ] [ New Revolving Loans ] made by [ New Term Loan Lenders ] [ New Revolving Loan Lenders ] in the Register.	
 
15.	Amendment, Modification and Waiver.   This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.	

3	Select this provision in the circumstance where the Lender is a New Revolving Lender.	

K-4

 
16.	Entire Agreement .  This Agreement, together with the Credit Agreement and the other Loan Documents, embodies the entire agreement and understanding among the parties with respect to the subject matter hereof and thereof and supersedes all other prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.	
 
17.	GOVERNING LAW.  This Agreement shall be construed in accordance with and governed by the law of the State of New York.	
 
18.	Severability .  If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction then, to the fullest extent permitted by law, (i) such provision shall, as to such jurisdiction, be ineffective to the extent (but only to the extent) of such invalidity, illegality or unenforceability, (ii) the other provisions of this Agreement shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Lenders in order to carry out the intentions of the parties thereto as nearly as may be possible and (iii) the invalidity, illegality or unenforceability of any such provision in any jurisdiction shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.	
 
19.	Counterparts .  This Agreement may be executed in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one and the same instrument.	
 
[ Remainder of page intentionally left blank ]

K-5

 
IN WITNESS WHEREOF , each of the undersigned has caused its duly authorized officer to execute and deliver this Joinder Agreement as of [ _____________, ______ ] .
 
 	[NAME OF LENDER]	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	
 	 	 	 	
 	Notice Address:	 	
 	 	 	 	
 	Attention:	 	
 	Telephone:	 	
 	Facsimile:	 	
 	 	 	 	
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

K-6

 
 	Consented to by:	 	
 	JPMORGAN CHASE BANK, N.A.,	 	
 	as Agent	 	
 	 	 	
 	By:	 	 	
 	Authorized Signatory	 	

K-7

 
EXHIBIT L
 
FORM OF MODIFIED DUTCH AUCTION PROCEDURES
 
This Outline is intended to summarize certain basic terms of the modified Dutch auction procedures pursuant to and in accordance with the terms and conditions of Section 10.07(c) of the Credit Agreement, of which this Exhibit L is a part.  It is not intended to be a definitive statement of all of the terms and conditions of a modified Dutch auction, the definitive terms and conditions for which shall be set forth in the applicable Auction Procedures set for each Auction (the “ Offer Documents ”). 1 None of the Agent, the Auction Manager and any other Agent, or any of their respective affiliates, makes any recommendation pursuant to the Offer Documents as to whether or not any Lender should sell its Term Loans to the Company pursuant to the Offer Documents, nor shall the decision by the Agent, the Auction Manager or any other Agent (or any of their affiliates) in its capacity as a Lender be deemed to constitute such a recommendation.  Each Lender should make its own decision on whether to sell any of its Term Loans and, if it decides to do so, the principal amount of and price to be sought for such Term Loans.  In addition, each Lender should consult its own attorney, business advisor or tax advisor as to legal, business, tax and related matters concerning this Auction and the Offer Documents.  Capitalized terms not otherwise defined in this Exhibit have the meanings assigned to them in the Credit Agreement.
 
Summary .  The Company may conduct one or more modified Dutch auctions in order to purchase Term Loans (each, an “ Auction ”) for a limited period commencing on, (x) with respect to the Tranche B-1 Term Loans, the Closing Date and concluding on the Maturity Date with respect to the Tranche B-1 Term Loans and (y) with respect to the Tranche B-2 Term Loans, the Closing Date and concluding on the Maturity Date with respect to the Tranche B-2 Term Loans.
 
Notice Procedures .  In connection with each Auction, the Company will provide notification to the Auction Manager (for distribution to the Lenders) of the Term Loans that will be the subject of the Auction (an “ Auction Notice ”).  Each Auction Notice shall contain (i) the maximum principal amount of Term Loans the Company is willing to purchase in the Auction (the “ Auction Amount ”), which shall be no less than $[________] or an integral multiple of $[________] in excess of thereof; (ii) the range of discounts to par (the “ Discount Range ”), expressed as a range of prices per $1,000 (in increments of $5), at which the Company would be willing to purchase Term Loans in the Auction; and (iii) the date on which the Auction will conclude, on which date Return Bids (as defined below) will be due by 1:00 p.m. New York time, as such date and time may be extended (such time, the “ Expiration Time ”) for a period not exceeding three Business Days upon notice by the Company to the Auction Manager received not less than 24 hours before the original Expiration Time; provided , however , that only one extension per Offer shall be permitted.  An Auction shall be regarded as a “Failed Auction” in the event that either (x) the Company withdraws such Auction in accordance with the terms hereof or (y) the Expiration Time occurs with no Qualifying Bids having been received.  In the event of a

1	Note: The Offer Documents are anticipated to include the form of Auction Notice, Return Bid and Form of Assignment and Acceptance and any additional documentation establishing or effecting procedures necessary for the applicable Auction.	

L-1

 
Failed Auction, the Company shall not be permitted to deliver a new Auction Notice prior to the date occurring [five (5)] Business Days after such withdrawal or Expiration Time, as the case may be.
 
Reply Procedures .  In connection with any Auction, each Lender holding Term Loans wishing to participate in such Auction shall, prior to the Expiration Time, provide the Auction Manager with a notice of participation (the “ Return Bid ”, in the form included in the Offer Document) which shall specify (i) a discount to par expressed as a price per $1,000 (in increments of $5) of Term Loans (the “ Reply Price ”) within the Discount Range and (ii) the principal amount of Term Loans, in an amount not less than US$[1,000,000] or an integral multiple in excess thereof, that such Lender is willing to offer for sale at its Reply Price (the “ Reply Amount ”); provided , that Lender may submit a Reply Amount that is less than the minimum amount and/or incremental amount requirements described above only if the Reply Amount comprises the entire amount of Term Loans held by such Lender.  Lenders may only submit one Return Bid per Auction but each Return Bid may contain up to [three] component bids, each of which may result in a separate Qualifying Bid (as defined below) and each of which will not be contingent on any other component bid submitted by such Lender resulting in a Qualifying Bid.  In addition to the Return Bid, the participating Lender must execute and deliver, to be held by the Auction Manager, an Assignment and Acceptance in the form included in the Offer Document (the “ Company Assignment and Acceptance ”).  The Company will not purchase any Term Loans at a price that is outside of the applicable Discount Range, nor will any Return Bids (including any component bids specified therein) submitted at a price that is outside such applicable Discount Range be considered in any calculation of the Applicable Threshold Price (as defined below).
 
Acceptance Procedures .  Based on the Reply Discounts and Reply Amounts received by the Auction Manager, the Auction Manager, in consultation with the Company, will calculate the lowest purchase price (the “ Applicable Threshold Price ”) for the Auction within the Discount Range for the Auction that will allow the Company to complete the Auction by purchasing the full Auction Amount (or such lesser amount of Term Loans for which the Company has received Qualifying Bids (as defined below)).  The Company shall purchase Term Loans from each Lender whose Return Bid is within the Discount Range and contains a Reply Price that is equal to or less than the Applicable Threshold Price (each, a “ Qualifying Bid ”).  All Term Loans included in Qualifying Bids (including multiple component Qualifying Bids contained in a single Return Bid) received at a Reply Price lower than the Applicable Threshold Price will be purchased at the applicable Reply Price and shall not be subject to proration.
 
Proration Procedures .  All Term Loans offered in Return Bids (or, if applicable, any component bid thereof) constituting Qualifying Bids at the Applicable Threshold Price will be purchased at the Applicable Threshold Price; provided that if the aggregate principal amount of all Term Loans for which Qualifying Bids have been submitted in any given Auction at the Applicable Threshold Price would exceed the remaining portion of the Auction Amount (after deducting all Term Loans to be purchased below the Applicable Threshold Price), the Company shall purchase the Term Loans for which the Qualifying Bids submitted were at the Applicable Threshold Price ratably based on the respective principal amounts offered and in an aggregate amount equal to the amount necessary to complete the purchase of the Auction Amount.  No Return Bids (or any component thereof) will be accepted above the Applicable Threshold Price.

L-2

 
Notification Procedures .  Auction Manager will calculate the Applicable Threshold Price and post the Applicable Threshold Price and proration factor onto an internet site (including an IntraLinks, SyndTrak or other electronic workspace) in accordance with the Auction Manager’s standard dissemination practices by 4:00 p.m. New York time on the same Business Day as the date the Return Bids were due.  The Auction Manager will insert the principal amount of Term Loans to be assigned and the applicable settlement date into each applicable Assignment and Acceptance received in connection with a Qualifying Bid.  Upon request of the submitting Lender, the Auction Manager will promptly return any Assignment and Acceptance received in connection with a Return Bid that is not a Qualifying Bid.
 
Additional Procedures .  Once initiated by an Auction Notice, the Company may withdraw an Auction only in the event that, as of such time, no Qualifying Bid has been received by the Auction Manager.  Furthermore, in connection with any Auction, upon submission by a Lender of a Return Bid, such Lender will not have any withdrawal rights.  Any Return Bid (including any component bid thereof) delivered to the Auction Manager may not be modified, revoked, terminated or cancelled by a Lender.  However, an Auction may become void if the conditions to the purchase of Term Loans by the Company required by the terms and conditions of Section 10.07(c)(3) of the Credit Agreement are not met.  The purchase price for each purchase of Term Loans by the Company shall be paid by the Company directly to the respective assigning Lender on a settlement date as determined by the Auction Manager in consultation with the Company (which shall be no later than ten (10) Business Days after the date Return Bids are due).  The Company shall execute each applicable Assignment and Acceptance received in connection with a Qualifying Bid.
 
All questions as to the form of documents and validity and eligibility of Term Loans that are the subject of an Auction will be determined by the Auction Manager, in consultation with the Company, which determination will be final and binding.  The Auction Manager’s   interpretation of the terms and conditions of the Offer Document, in consultation with the Company, will be final and binding.
 
None of the Agent, the Auction Manager, any other Agent or any of their respective affiliates assumes any responsibility for the accuracy or completeness of the information concerning the Company, any of its Subsidiaries, or any of their affiliates (whether contained in the Offer Documents or otherwise) or for any failure to disclose events that may have occurred and may affect the significance or accuracy of such information.
 
This Exhibit L shall not require the Company to initiate any Auction.

L-3

 
Annex A to Exhibit L
 
FORM OF AUCTION NOTICE
 
JPMorgan Chase Bank, N.A., as Agent for
 	the Lenders referred to below,	
[ADDRESS]
 
Attention of [ ________________ ]
 
Re:   Loan Auction
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
The Company hereby gives notice to the Lenders that it desires to conduct the following Auction:
 
 	●	Auction Amount:  $[_____________] in principal amount of Term Loans	
 
 	●	Discount Range:  Not less than $[________] or greater than $[________] per $1,000 principal amount of Term Loans.	
 
The Company acknowledges that this Auction Notice may not be withdrawn other than in accordance with the Auction Procedures.  The Auction shall be consummated in accordance with the Auction Procedures with all Return Bids due no later than [1:00] p.m. (New York time) on [_________].
 
The Company hereby represents and warrants that it is not in possession of any information regarding any Subsidiary, its assets, its ability to perform its Obligations or any other matter that may be material to a decision by any Lender to participate in any Auction or enter into any Company Assignment and Acceptance or participate in any of the transactions contemplated thereby that has not previously been disclosed to the Auction Manager, the Agent and the Lenders.
 
[ Signature Page Follows ]

L-4

 	Very truly yours,	 	
 	 	 	
 	CNO FINANCIAL GROUP, INC. ,	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

L-5

 
Annex B to Exhibit L
 
FORM OF RETURN BID
 
JPMorgan Chase Bank, N.A., as Agent for
 	the Lenders referred to below,	
[ADDRESS]
 
Attention of [ _________________ ]
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO FINANCIAL GROUP, INC. , a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A. , as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).  Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
 
The undersigned Lender hereby gives notice of its participation in the Auction by submitting the following Return Bid 1 :
 
Reply Price
(price per $1,000)	Reply Amount
(principal amount of Term Loans)	
US$__________	US$__________	
US$__________	US$__________	
US$__________	US$__________	
 
The undersigned Lender acknowledges that the submission of this Return Bid along with an executed the Company Assignment and Acceptance, to be held in escrow by the Auction Manager, obligates the Lender to sell the entirety or its pro rata portion of the Reply Amount in accordance with the Auction Procedures, as applicable.
 
[ Signature Page Follows ]

 
1	Lender may submit up to [three] component bids but need not submit more than one. The sum of Lender’s bid(s) may not exceed the aggregate principal face amount of Term Loans held by it as lender of record on the date of submission of its Return Bid.	

L-6

 	Very truly yours,	 	
 	 	 	
 	[LENDER]	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

L-7

Annex C to Exhibit L
 
FORM OF COMPANY ASSIGNMENT AND ACCEPTANCE
 
This Company Assignment and Acceptance (the “ Assignment ”) is dated as of the Company Assignment Effective Date set forth below and is entered into by and between [__________] (the “ Assignor ”) and CNO FINANCIAL GROUP, INC. (the “ Assignee ”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “ Standard Terms and Conditions ”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.
 
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Company Assignment Effective Date inserted by the Auction Manager as contemplated in the Auction Procedures, the interest in and to all of the Assignor’s rights and obligations under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor’s outstanding rights and obligations under the facility identified below (the “ Assigned Interest ”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and the Credit Agreement, without representation or warranty by the Assignor.
 
1.	Assignor:	 	 	
 
2.	Assignee:	CNO Financial Group, Inc.	
 
3.	Agent:	JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement	
 
4.	Credit Agreement:	The Credit Agreement, dated as of September [  ], 2012 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among CNO Financial Group, Inc., a Delaware corporation (the “ Company ”), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Agent ”).	

L-8

 
5.	Assignor’s Interest under the Credit Agreement:	
 
Facility	Aggregate Principal Face Amount
of Term Loans of Assignor	Percentage of Term Loans
of Assignor 1	
Term Loans	$___________	___________%	
 
6.	Assigned Interest:	
 
List below the Term Loans to be assigned by Assignor to Assignee, which shall be subject to the terms and conditions of the Auction, including, without limitation, the pro rata reduction procedures set forth in the Auction Procedures.
 
Reply Price with
respect to Term Loans
being offered for
assignment to
Assignee (price per
$1,000 principal
amount) 2	Reply Amount
(principal face
amount of Term
Loans to be Assigned
to Assignee at
relevant Reply Price)
(subject to pro rata
reduction) 3	Pro Rated Principal
Face Amount of
Term Loans
Assigned 4	Percentage
Assigned of Term
Loans 4	
$______________	$______________	$______________	____________%	
$______________	$______________	$______________	____________%	
$______________	$______________	$______________	____________%	
 
Company Assignment Effective Date:  ______________, 20__ 6

 

1 Set forth, to at least 9 decimals, as a percentage of the Loans of all Lenders thereunder. To be completed by Assignor.
 
2 To be completed by Assignor.
 
3  To be completed by Assignor. The sum of Lender’s Reply Amount(s) may not exceed the aggregate principal face amount of Term Loans held by it as lender of record on the date of submission of its Return Bid.
 
4  To be completed by the Auction Manager, if necessary, based on the proration procedures set forth in the Auction Procedures.
 
5 To be completed by the Auction Manager to at least 9 decimals as a percentage of the Term Loans of all Lenders thereunder .

L-9

 
7.	Notice and Wire Instructions:	
 
 	ASSIGNOR:
 
[NAME OF ASSIGNOR]
 
Notices :
_________________________
_________________________
_________________________
Attention:
Telecopier:
 
with a copy to:
_________________________
_________________________
_________________________
Attention:
Telecopier:
 
Wire Instructions :	 	ASSIGNEE:
 
CNO FINANCIAL GROUP, INC.
 
Notices :
 
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, Indiana 46032
Attention: Erik Helding
Telephone: (317) 817-4760
Telecopier: (317) 817-3772
Electronic   Mail: erik.helding@cnoinc.com
 
with a copy to:
 
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017-3954
Attention:  William B. Sheehan
Telephone:  (212) 455-3355
Telecopier:  (212) 455-2502
Electronic Email: wsheehan@stblaw.com
 	
8.           The Assignor acknowledges and agrees that (i) submission of a Return Bid in respect of the Term Loans will constitute a binding agreement between the Assignor and the Assignee in accordance with the terms and conditions of the Auction Procedures and the Credit Agreement; (ii) Term Loans will be deemed to have been accepted by the Assignee to the extent such Term Loans are validly offered by Assignor to Assignee in accordance with the terms and conditions of the Auction Procedures and the Credit Agreement upon notification by the Auction Manager to the Assignor that such Term Loans are part of a Qualifying Bid (subject to applicable proration in accordance with the terms and conditions of the Auction); and (iii) it does not have any withdrawal rights with respect to any offer to assign of its Term Loans.

L-10

 
Subject to and effective upon the acceptance by the Assignee for purchase of the principal amount of the Term Loans to be assigned by the Assignor to the Assignee, the Assignor hereby irrevocably constitutes and appoints the Auction Manager as the true and lawful agent and attorney-in-fact of the Assignor with respect to such Term Loans, with full powers of substitution and revocation (such power of attorney being deemed to be an irrevocable power coupled with an interest) to complete or fill-in the blanks in this Assignment and deliver the completed Assignment to the Assignee and the Assignor.

6	 To be inserted by Auction Manager and which shall be the Company Assignment Effective Date of recordation of transfer in the register therefor.	
 
[ Signature Page Follows ]

L-11

 
The Assignor acknowledges and agrees that its offer to assign Term Loans pursuant to the Auction Procedures constitute the Assignor’s acceptance of the terms and conditions (including the proration procedures) contained in the Auction Procedures, the Credit Agreement and this Assignment.
 
The terms set forth in this Assignment are hereby agreed to:
 
 	ASSIGNOR:	 	
 	 	 	
 	[NAME OF ASSIGNOR]	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	
 	 	 	
 	ASSIGNEE:	 	
 	 	 	
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	Name:	 	
 	Title:	 	

Accepted:	 	
 	 	
JPMORGAN CHASE BANK, N.A.,	 	
as Agent	 	
 	 	 	
By:	 	 	
  Name: 	 	
  Title:	 	

[______________],	 	
as Auction Manager	 	
 	 	 	
By:	 	 	
  Name: 	 	
  Title:	 	

 
L-12

 
ANNEX 1
 
STANDARD TERMS AND CONDITIONS FOR THE COMPANY
ASSIGNMENT AND ACCEPTANCE
 
1 .             Representations and Warranties.
 
 	1.1	Assignor .  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is, and on the applicable the Company Assignment Effective Date will be, free and clear of any lien, encumbrance or other adverse claim; (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (iv) it has received a copy of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own decision to enter into this Assignment and to sell and assign the Assigned Interest on the basis of which it has made such decision, (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any Loan Document or any other instrument or document delivered pursuant thereto, other than this Assignment, or any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company, any of its Subsidiaries or any other Person of any of their respective obligations under any Loan Document, and (c) has read and agrees to all of the terms and conditions (including the pro rata procedures) of the Auction Procedures set forth in the Offer Documents.  The Assignor will, upon request, execute and deliver any additional documents deemed by the Agent or the Assignee to be necessary or desirable to complete the sale, assignment and transfer of the Assigned Interest.  In the event that the Assignor has determined for itself to not access any information disclosed by Assignee in connection with the Auction or this Assignment, the Assignor acknowledges that (i) other Lenders may have availed themselves of such information and (ii) none of the Company, the Auction Manager and the Agent has any responsibility for the Assignor’s decision to limit the scope of the information it has obtained in connection with its evaluation of the Auction or its decision to enter into this Assignment.	

L-13

 
 	1.2	Assignee .  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement until such time as the Loans are automatically cancelled without further action by any Person on the Company Assignment Effective Date, (ii) it has transmitted same day funds to the Assignor on the Company Assignment Effective Date, (iii) it has received a copy of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision and (iv) it is not in possession of any information regarding any Subsidiary, its assets, its ability to perform its Obligations or any other matter that may be material to a decision by Assignor to participate in any Auction or enter into this Assignment or participate in any of the transactions contemplated hereby that has not previously been disclosed to the Auction Manager, the Agent and the Lenders; and (b) agrees that (i) it will, independently and without reliance on the Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at that time, continue to make its own credit decisions in taking or not taking action under the Loan Documents or any other instrument or document delivered pursuant thereto, and (ii) it acknowledges that the Assigned Interest shall, from and after the Company Assignment Effective Date, and without further action by any Person, be deemed cancelled for all purposes and no longer outstanding and that the Assignee shall have no ability to vote or receive payments in respect of the Assigned Interest.	
 
 	1.3	No Violation of Laws .  Each of the Assignor and Assignee acknowledges that it has not violated any applicable laws relating to this Assignment or the transactions contemplated herein.	
 
2.            Payments .  Payment to the Assignor by the Assignee in respect of the settlement of the assignment of the Assigned Interest shall be paid by Assignee directly to the Assignor and shall include all unpaid interest that has accrued in respect of the Assigned Interest through the Company Assignment Effective Date.  No interest shall accrue with respect to the Assigned Interest from and after the Company Assignment Effective Date and such Assigned Interest shall, from and after the Company Assignment Effective Date, and without further action by any Person, be deemed cancelled for all purposes and no longer outstanding.
 
3.            General Provisions .  This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment by telecopy or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Assignment.  This Assignment shall be construed in accordance with and governed by the law of the State of New York.

L-14

Exhibit 10.3

GUARANTEE AND SECURITY AGREEMENT
 
Dated as of September 28, 2012
 
among
 
CNO FINANCIAL GROUP, INC.,
 
and
 
the SUBSIDIARY GUARANTORS
 
Party Hereto
 
and
 
JPMORGAN CHASE BANK, N.A.,
as Agent
 
THIS GUARANTEE AND SECURITY AGREEMENT IS SUBJECT TO THE PROVISIONS OF THE PARI PASSU INTERCREDITOR AGREEMENT, DATED AS OF SEPTEMBER 28, 2012 (AS AMENDED, RESTATED, AMENDED AND RESTATED, REPLACED, REFINANCED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “ INTERCREDITOR AGREEMENT ”), AMONG JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS 2020 NOTES COLLATERAL AGENT, AND AS 2020 NOTES AUTHORIZED REPRESENTATIVE.

 

 
TABLE OF CONTENTS
 
 	 	Page	
 	 	 	
Section 1.	Definitions	2	
 	 	 	
Section 2.	Guarantees by Subsidiary Guarantors	9	
 	 	 	
Section 3.	Grant of Transaction Liens	13	
 	 	 	
Section 4.	General Representations and Warranties	16	
 	 	 	
Section 5.	Further Assurances; General Covenants	18	
 	 	 	
Section 6.	Reserved	20	
 	 	 	
Section 7.	Chattel Paper and Instruments	20	
 	 	 	
Section 8.	Commercial Tort Claims	21	
 	 	 	
Section 9.	Recordable Intellectual Property	22	
 	 	 	
Section 10.	Proceeds of Letters of Credit	22	
 	 	 	
Section 11.	Investment Property	23	
 	 	 	
Section 12.	Deposit Accounts	25	
 	 	 	
Section 13.	Payments upon an Event of Default	26	
 	 	 	
Section 14.	Transfer of Record Ownership	26	
 	 	 	
Section 15.	Right to Vote Securities	27	
 	 	 	
Section 16.	Remedies upon Event of Default	27	
 	 	 	
Section 17.	Application of Proceeds	29	
 	 	 	
Section 18.	Fees and Expenses; Indemnification	29	
 	 	 	
Section 19.	Authority to Administer Collateral	30	
 	 	 	
Section 20.	Limitation on Duty in Respect of Collateral	31	
 	 	 	
Section 21.	General Provisions Concerning the Agent	31	
 	 	 	
Section 22.	Termination of Transaction Liens; Release of Collateral	33	
 	 	 	
Section 23.	Additional Subsidiary Guarantors and Lien Grantors	34	
 	 	 	
Section 24.	Notices	34	

 

 
Section 25.	No Implied Waivers; Remedies Not Exclusive	36	
 	 	 	
Section 26.	Successors and Assigns	36	
 	 	 	
Section 27.	Amendments and Waivers	36	
 	 	 	
Section 28.	Choice of Law	36	
 	 	 	
Section 29.	Waiver of Jury Trial	36	
 	 	 	
Section 30.	Severability	37	
 	 	 	
Section 31.	Pari Passu Intercreditor Agreement	37	
 	 	 	
Exhibit A	Form of Security Agreement Supplement	 	
Exhibit B	Form of Copyright Security Agreement	 	
Exhibit C	Form of Patent Security Agreement	 	
Exhibit D	Form of Trademark Security Agreement	 	
Exhibit E	Form of Perfection Certificate	 	
Exhibit F	Form of Issuer Control Agreement	 	
 	 	 	
Schedule 1	Equity Interests	 	
Schedule 2	Other Securities	 	
Schedule 3	Deposit Accounts, Securities Accounts and Commodities Accounts	 	
Schedule 4	Commercial Tort Claims	 	
Schedule 5	Pledged Instruments	 	

 

 
GUARANTEE AND SECURITY AGREEMENT
 
This GUARANTEE AND SECURITY AGREEMENT (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, this “ Agreement ”)   dated as of September 28, 2012 is entered into by and among CNO FINANCIAL GROUP, INC., a Delaware corporation (the “ Company ”), the SUBSIDIARY GUARANTORS party hereto and JPMORGAN CHASE BANK, N.A., as Agent.
 
WHEREAS, the Company is entering into the Credit Agreement described in Section 1 hereof, consisting on the date hereof of (i) a revolving credit facility in an aggregate principal amount of $50,000,000, (ii) a term loan B-1 facility in an aggregate principal amount of $250,000,000 and (iii) a term loan B-2 facility in an aggregate principal amount of $425,000,000;
 
WHEREAS, the Company intends to use the proceeds of the term loan B-1 facility and term loan B-2 facility, together with the proceeds from the offering of the Senior Secured Notes (i) to repay all amounts outstanding under the Existing Credit Agreement, (ii) to fund an offer to purchase up to all of the Company’s Existing Senior Secured Notes and a concurrent solicitation of consents, and, to the extent any Existing Senior Notes are not repurchased pursuant to such offer, to redeem such remaining Existing Senior Notes and satisfy and discharge the indenture relating thereto, (iii) to fund the purchase of approximately $200 million aggregate principal amount of the Company’s outstanding Existing Convertible Debentures, (iv) to pay fees and expenses incurred in connection with the foregoing and (v) for the working capital and general corporate purposes of the Company;
 
WHEREAS, the Company is willing to secure its obligations under the Credit Agreement and certain other obligations by granting Liens on substantially all of its assets to the Agent, for the benefit of the Secured Parties, as provided in the Security Documents;
 
WHEREAS, the Company is willing to cause each of its current and future Domestic Subsidiaries (other than Insurance Subsidiaries, Subsidiaries of Insurance Subsidiaries, Unrestricted Subsidiaries and Immaterial Subsidiaries) to (i) guarantee the foregoing obligations of the Company and (ii) secure such guarantee thereof by granting Liens on substantially all of the assets of such Subsidiaries to the Agent, for the benefit of the Secured Parties, as provided herein and in the other Security Documents;
 
WHEREAS, the Lenders are not willing to enter into the Credit Agreement unless (i) the foregoing obligations of the Company are secured and guaranteed as described above and (ii) each guarantee thereof is secured by Liens on substantially all of the assets of the relevant Lien Grantor as provided herein and in the other the Security Documents;
 
WHEREAS, in order to secure the obligations under the Senior Secured Notes, the Lien Grantors are concurrently granting to the collateral agent under the Senior Secured Notes Documents, for the benefit of the holders of the Senior Secured Notes, a security interest in the Collateral ranking pari passu with the Transaction Liens, it being understood that the relative rights of the grantees in respect of the Collateral are governed by the Intercreditor Agreement; and

 

 
WHEREAS, upon any foreclosure or other enforcement of the Security Documents, the net proceeds of, or other collections on, the relevant Collateral are, subject to the terms of the Intercreditor Agreement, to be received by or paid over to the Agent and applied as provided herein;
 
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
Section 1.           Definitions .
 
(a)            Terms Defined in Credit Agreement .  Terms defined in the Credit Agreement and not otherwise defined in subsection (b) or (c) of this Section have, as used herein, the respective meanings provided for therein.
 
(b)            Terms Defined in UCC .  As used herein, each of the following terms has the meaning specified in the UCC:
 
Term	 	UCC	
Account 	 	9-102	
Authenticate 	 	9-102	
Certificated Security 	 	8-102	
Chattel Paper 	 	9-102	
Commercial Tort Claim 	 	9-102	
Commodity Account 	 	9-102	
Commodity Contract 	 	9-102	
Commodity Customer 	 	9-102	
Commodity Intermediary 	 	9-102	
Deposit Account 	 	9-102	
Document 	 	9-102	
Electronic Chattel Paper 	 	9-102	
Entitlement Holder 	 	8-102	
Equipment 	 	9-102	
Financial Asset 	 	8-102 & 103	
General Intangibles 	 	9-102	
Instrument 	 	9-102	
Inventory 	 	9-102	
Investment Property 	 	9-102	
Letter-of-Credit Right 	 	9-102	
record 	 	9-102	
Securities Account 	 	8-501	
Securities Intermediary 	 	8-102	
Security 	 	8-102 & 103	
Security Entitlement 	 	8-102	
Supporting Obligation 	 	9-102	
Tangible Chattel Paper 	 	9-102	
Uncertificated Security 	 	8-102	

2

 
(c)           Additional Definitions.  The following additional terms, as used herein, have the following meanings:
 
“ Agent ” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent under the Loan Documents, and its successors and assigns in such capacity.
 
“ Agent-Related Persons ” means the initial Agent and any successor Agent, in each case together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
 
“ Article 9 ” means Article 9 of the UCC.
 
“ Collateral ” means all property, whether now owned or hereafter acquired, on which a Lien is granted or purports to be granted to the Agent pursuant to the Security Documents.  When used with respect to a specific Lien Grantor, the term “Collateral” means all its property on which such a Lien is granted, or purports to be granted, pursuant to the Security Documents.
 
“ Collateral Account ” means an account established by the Agent or any other account identified by the Agent to the Company from time to time.
 
“ Company ” has the meaning specified in the recitals hereto.
 
“ Control ” has the following meanings:
 
(a)           when used with respect to any Security or Security Entitlement, the meaning specified in UCC Section 8-106;
 
(b)           when used with respect to any Deposit Account, the meaning specified in UCC Section 9-104;
 
(c)           when used with respect to any Electronic Chattel Paper, the meaning specified in UCC Section 9-105;
 
(d)           when used with respect to any Commodity Account or Commodity Contract, the meaning specified in UCC Section 9-106(b); and
 
(e)           when used with respect to any right to payment or performance by the issuer or a Nominated Person in respect of a letter of credit, the meaning specified in UCC Section 9-107.
 
“ Copyright License ” means any agreement now or hereafter in existence granting to any Lien Grantor, or pursuant to which any Lien Grantor grants to any other Person, any right to use, copy, reproduce, distribute, prepare derivative works of, display or publish any works of authorship on which a Copyright is in existence or may come into existence, including any agreement identified in Schedule 1 to any Copyright Security Agreement.

3

 
“ Copyright Security Agreement ” means a Copyright Security Agreement, substantially in the form of Exhibit B, executed and delivered by a Lien Grantor in favor of the Agent for the benefit of the Secured Parties.
 
“ Copyrights ” means all the following: (i) all copyrights under the laws of the United States (whether or not the underlying works of authorship have been published), all registrations and recordings thereof, all copyrightable works of authorship (whether or not published), and all applications for copyrights under the laws of the United States, including registrations, recordings and applications in the United States Copyright Office or in any similar office or agency of the United States or any State thereof, including those described in Schedule 1 to any Copyright Security Agreement, (ii) all renewals of any of the foregoing, (iii) all claims for, and rights to sue for, past, present or future infringements of any of the foregoing and (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past, present or future infringements thereof.
 
“ Credit Agreement ” means the Credit Agreement dated as of the date hereof among the Company, the Lenders party thereto, and JPMorgan Chase Bank, N.A., as Agent.
 
“ Equity Interest ” means (i) in the case of a corporation, any shares of its capital stock, (ii) in the case of a limited liability company, any membership interest therein, (iii) in the case of a partnership, any partnership interest (whether general or limited) therein, (iv) in the case of any other business entity, any participation or other interest in the equity or profits thereof, (v) any warrant, option or other right to acquire any Equity Interest described in this definition or (vi) any Security Entitlement in respect of any Equity Interest described in this definition.
 
 “ FINRA ” means the Financial Industry Regulatory Authority, Inc.
 
“ Intellectual Property ” means all rights, priorities and privileges relating to intellectual property, including Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses and trade secrets, arising under the laws of the United States, which intellectual property is owned by the Lien Grantors, together with all claims for, and rights to sue for, past, present or future infringements, misappropriations, dilutions or other violations of any of the foregoing, and all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past, present or future infringements, misappropriations, dilutions and violations thereof.
 
“ Intellectual Property Filing ” means (i) with respect to any Patent, Patent License, Trademark or Trademark License, the filing of the applicable Patent Security Agreement or Trademark Security Agreement with the United States Patent and Trademark Office, together with an appropriately completed recordation form and (ii) with respect to any Copyright or Copyright License, the filing of the applicable Copyright Security Agreement with the United States Copyright Office, together with an appropriately completed recordation form, in each case sufficient to record the Transaction Lien granted to the Agent in such Recordable Intellectual Property.
 
“ Intellectual Property Security Agreement ” means a Copyright Security Agreement, a Patent Security Agreement or a Trademark Security Agreement.

4

 
“ Intercreditor Agreement ” has the meaning specified on the cover page hereto.
 
“ Issuer Control Agreement ” means an Issuer Control Agreement substantially in the form of Exhibit F (with any changes that the Agent shall have approved, such approval to be evidenced by the Agent’s execution and delivery of such Issuer Control Agreement).
 
“ Lien Grantors ” means the Company and the Subsidiary Guarantors.
 
 “ LLC Interest ” means a membership interest or similar interest in a limited liability company.
 
“ Margin Stock ” means “margin stock” as such term is defined in Regulation U of the FRB.
 
“ Material Commercial Tort Claim ” means a Commercial Tort Claim involving a claim for more than $5,000,000.
 
“ Material Real Property ” means real property owned in fee by a Lien Grantor with a fair market value in excess of $5,000,000.
 
“ Mortgage ” means a deed of trust, trust deed, deed to secure debt or mortgage, as applicable, made by a Lien Grantor in favor or for the benefit of the Agent on behalf of the Secured Parties in respect of Material Real Property in form and substance reasonably acceptable to the Agent.
 
“ Mortgage Requirement ” means, with respect to any Material Real Property owned by a Lien Grantor, (i) provision of (a) a Mortgage encumbering such Material Real Property in favor or for the benefit of the Agent on behalf of the Secured Parties, duly executed and acknowledged by each Lien Grantor that is the owner of or holder of any interest in such Material Real Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Material Real Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Agent; (b) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies, with endorsements and in amounts reasonably acceptable to the Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Agent, insuring such Mortgage to be a valid first and subsisting Lien on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance and such coinsurance and direct access reinsurance as the Agent may deem reasonably necessary or desirable; (c) an ALTA survey in form and substance reasonably acceptable to the Agent ( provided that the Agent may waive the requirement of this clause (c) if the burden, cost or consequences of obtaining such survey is excessive in relation to the benefits to be obtained therefrom by the Secured Parties); (d) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Material Real Property (and if any building located on such Material Real Property is determined to be in a special flood hazard area, delivery of (x) a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each other applicable Lien Grantor relating thereto and (y) evidence of flood insurance in form and substance reasonably satisfactory to the Agent); (e) a local counsel opinion as to the due authorization, execution and delivery and enforceability of such Mortgage in the state in which the Material Real Property described in such Mortgage is located and other matters customarily covered in real estate enforceability opinions in form and substance reasonably acceptable to the Agent and (f) any other documents reasonably requested by the Agent; and (ii) recording of such Mortgage in the land records of the county in which such Material Real Property to be so encumbered is located.

5

 
“ Nominated Person ” means a Person whom the issuer of a letter of credit (i) designates or authorizes to pay, accept, negotiate or otherwise give value under such letter of credit and (ii) undertakes by agreement or custom and practice to reimburse.
 
“ Original Lien Grantor ” means any Lien Grantor that grants a Lien on any of its assets hereunder on the Closing Date.
 
“ own ” refers to (i) in the case of personal property, the possession of sufficient rights in property to grant a security interest therein as contemplated by UCC Section 9-203 and (ii) in the case of real property, possession of fee simple interest, and “acquire” refers to the acquisition of any such rights.
 
“ Partnership Interest ” means a partnership interest, whether general or limited.
 
“ Patent License ” means any agreement now or hereafter in existence granting to any Lien Grantor, or pursuant to which any Lien Grantor grants to any other Person, any right with respect to any Patent or any invention now or hereafter in existence, whether patentable or not, whether a patent or application for patent is in existence on such invention or not, and whether a patent or application for patent on such invention may come into existence or not, including any agreement identified in Schedule 1 to any Patent Security Agreement.
 
“ Patent Security Agreement ” means a Patent Security Agreement, substantially in the form of Exhibit C, executed and delivered by a Lien Grantor in favor of the Agent for the benefit of the Secured Parties.
 
“ Patents ” means (i) all letters patent and design letters patent of the United States and all applications for letters patent or design letters patent of the United States, including applications in the United States Patent and Trademark Office or in any similar office or agency of the United States or any State thereof, including those described in Schedule 1 to any Patent Security Agreement, (ii) all reissues, divisions, continuations, continuations in part, revisions and extensions of any of the foregoing, (iii) all claims for, and rights to sue for, past, present or future infringements of any of the foregoing and (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past, present or future infringements thereof.
 
“ Perfection Certificate ” means, with respect to any Lien Grantor, a certificate substantially in the form of Exhibit E, completed and supplemented with the schedules contemplated thereby to the satisfaction of the Agent, and signed by an officer of such Lien Grantor.

6

 
“ Permitted Liens ” means Liens (other than the Transaction Liens) on the Collateral permitted to be created or assumed or to exist pursuant to Section 7.02 of the Credit Agreement.
 
“ Permitted Priority Liens ” means inchoate tax Liens arising by operation of law.
 
“ Pledged ,” when used in conjunction with any type of asset, means at any time an asset of such type that is included (or that creates rights that are included) in the Collateral at such time.  For example, “Pledged Equity Interest” means an Equity Interest that is included in the Collateral at such time and “Pledged letter of credit” means a letter of credit that creates rights to payment or performance that are included in the Collateral at such time.
 
“ Post-Petition Interest ” means any interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of any one or more of the Lien Grantors (or would accrue but for the operation of applicable bankruptcy or insolvency laws), whether or not such interest is allowed or allowable as a claim in any such proceeding.
 
“ Proceeds ” means all Proceeds (as defined in the UCC) and, to the extent not included therein, shall also include all proceeds of, and all other profits, products, rents or receipts, in whatever form, arising from the collection, sale, lease, exchange, assignment, licensing or other disposition of, or other realization upon, any Collateral, including all claims of the relevant Lien Grantor against third parties for loss of, damage to or destruction of, or for proceeds payable under, or unearned premiums with respect to, policies of insurance in respect of, any Collateral, and any condemnation or requisition payments with respect to any Collateral.
 
“ Recordable Intellectual Property ” means (i) Patents, (ii) Patent Licenses, (iii) Trademarks, (iv) Trademark Licenses, (v) Copyrights and (vi) Copyright Licenses, and all rights in or under any of the foregoing.
 
“ Regulated Subsidiary ” means a Subsidiary as to which the consent of a governmental body or official is required for any acquisition of control or change of control thereof.
 
“ Release Conditions ” means the following conditions for releasing all the Secured Guarantees and terminating all the Transaction Liens:
 
(i)            all Commitments under the Credit Agreement shall have expired or been terminated;
 
(ii)           all Secured Obligations (other than unmatured, surviving contingent indemnification obligations not yet due and payable) shall have been paid in full; and
 
(iii)          all Letters of Credit shall have been cancelled or shall have expired.
 
“ Secured Agreement ,” when used with respect to any Secured Obligation, refers collectively to each instrument, agreement or other document that sets forth obligations of the Company, obligations of a Subsidiary Guarantor and/or rights of the holder with respect to such Secured Obligation.

7

 
“ Secured Guarantee ” means, with respect to each Subsidiary Guarantor, its guarantee of the Secured Obligations under Section 2 hereof or Section 1 of a Security Agreement Supplement.
 
“ Secured Obligations ” means all Obligations (as such term is defined in the Credit Agreement) and all obligations of any Obligor under any Secured Swap Contract.
 
“ Secured Parties ” means the holders from time to time of the Secured Obligations including the Agents and the Lenders.
 
“ Secured Party Requesting Notice ” means, at any time, a Secured Party that has, at least five Business Days prior thereto, delivered to the Agent a written notice (i) stating that it holds one or more Secured Obligations and wishes to receive copies of the notices referred to in Section 21(h) and (ii) setting forth its address, facsimile number and electronic mail address to which copies of such notices should be sent.
 
“ Security Agreement Supplement ” means a Security Agreement Supplement, substantially in the form of Exhibit A, signed and delivered to the Agent for the purpose of adding a Subsidiary as a party hereto pursuant to Section 23 and/or adding additional property to the Collateral.
 
“ Security Documents ” means this Agreement, the Security Agreement Supplements, the Issuer Control Agreements, the Mortgages, the Intellectual Property Security Agreements and all other supplemental or additional security agreements, control agreements, mortgages or similar instruments delivered pursuant to the Loan Documents.
 
“ Subsidiary Guarantor ” means each Subsidiary listed on the signature pages hereof under the caption “Subsidiary Guarantors” and each Subsidiary that shall, at any time after the date hereof, become a “Subsidiary Guarantor” pursuant to Section 23 .
 
“ Supporting Letter of Credit ” means a letter of credit that supports the payment or performance of one or more items included in the Collateral.
 
“ Trademark License ” means any agreement now or hereafter in existence granting to any Lien Grantor, or pursuant to which any Lien Grantor grants to any other Person, any right to use any Trademark, including any agreement identified in Schedule 1 to any Trademark Security Agreement.
 
“ Trademark Security Agreement ” means a Trademark Security Agreement, substantially in the form of Exhibit D, executed and delivered by a Lien Grantor in favor of the Agent for the benefit of the Secured Parties.

8

 
“ Trademarks ” means: (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, brand names, slogans, trade dress, prints and labels on which any of the foregoing have appeared or appear, package and other designs, and all other source or business identifiers, and all general intangibles of like nature, and the rights in any of the foregoing which arise under applicable law, (ii) the goodwill of the business connected with the use thereof and symbolized thereby, (iii) all registrations and applications in connection therewith, including registrations and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States or any State thereof, including those described in Schedule 1 to any Trademark Security Agreement, (iv) all renewals of any of the foregoing, (v) all claims for, and rights to sue for, past, present or future infringements and dilutions of any of the foregoing, or for unfair competition or for injury to the related goodwill associated therewith and (vi) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past, present or future infringements and dilutions thereof.
 
“ Transaction Liens ” means the Liens granted by the Lien Grantors under the Security Documents.
 
“ UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any Transaction Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
 
“ Voidable Transfer ” has the meaning specified in Section 2(j) .
 
(d)            Terms Generally .  The definitions of terms herein (including those incorporated by reference to the UCC or to another document) apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.  The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.” The word “ will ” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof’ and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement and (v) the word “ property ” shall be construed to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
 
Section 2.           Guarantees by Subsidiary Guarantors .
 
(a)            Secured Guarantees .  Each Subsidiary Guarantor unconditionally and irrevocably guarantees to the Agent for the benefit of the Secured Parties the full and punctual payment and performance of each Secured Obligation when due (whether at stated maturity, upon acceleration or otherwise).  If the Company fails to pay any Secured Obligation punctually when due, each Subsidiary Guarantor agrees that it will forthwith on demand pay the amount not so paid at the place and in the manner specified in the relevant Secured Agreement.

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(b)            Secured Guarantees Unconditional .  The obligations of each Subsidiary Guarantor under its Secured Guarantee shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
 
(i)           any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Company, any other Subsidiary Guarantor or any other Person under any Secured Agreement, by operation of law or otherwise;
 
(ii)          any modification or amendment of or supplement to any Secured Agreement;
 
(iii)         any release, impairment, non-perfection or invalidity of any direct or indirect security for any obligation of the Company, any other Subsidiary Guarantor or any other Person under any Secured Agreement;
 
(iv)         any change in the corporate existence, structure or ownership of the Company, any other Subsidiary Guarantor or any other Person or any of their respective subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company, any other Subsidiary Guarantor or any other Person or any of their assets or any resulting release or discharge of any obligation of the Company, any other Subsidiary Guarantor or any other Person under any Secured Agreement;
 
(v)          the existence of any claim, set-off or other right whatsoever (in any case, whether based on contract, tort or any other theory) that such Subsidiary Guarantor may have at any time against the Company, any other Subsidiary Guarantor, any Secured Party or any other Person, whether in connection with the Loan Documents or any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
 
(vi)         any invalidity or unenforceability relating to or against the Company, any other Subsidiary Guarantor or any other Person for any reason of any Secured Agreement, or any provision of applicable law or regulation purporting to prohibit the payment of any Secured Obligation by the Company, any other Subsidiary Guarantor or any other Person;
 
(vii)        any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Secured Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Secured Obligations or any other Obligations of any Obligor under the Loan Documents or any other assets of any Obligor or any of its Subsidiaries;
 
(viii)       any failure of any Secured Party to disclose to any Subsidiary Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligor now or hereafter known to such Secured Party (each Subsidiary Guarantor waiving any duty on the part of the Secured Parties to disclose such information); or

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(ix)         other than satisfaction in full of the Release Conditions, any other act or omission to act or delay of any kind by the Company, any other Subsidiary Guarantor, any other party to any Secured Agreement, any Secured Party or any other Person, or any other circumstance whatsoever that might, but for the provisions of this clause (ix), constitute a legal or equitable discharge of or defense to any obligation of any Subsidiary Guarantor hereunder.
 
(c)            Release of Secured Guarantees .  (i) All the Secured Guarantees will be released when all the Release Conditions are satisfied.  If at any time any payment of a Secured Obligation is rescinded or must be otherwise restored or returned upon the insolvency or receivership of the Company or otherwise, the Secured Guarantees shall be reinstated with respect thereto as though such payment had been due but not made at such time.
 
(ii)           If all the capital stock of a Subsidiary Guarantor or all the assets of a Subsidiary Guarantor are sold to a Person other than the Company or one of its Subsidiaries in a transaction permitted by the Credit Agreement (any such sale, a “ Sale of Subsidiary Guarantor ”), the Secured Guarantee of such Subsidiary Guarantor shall automatically be discharged and released without any further action by the Agent or any other Secured Party effective as of the time of such Sale of Subsidiary Guarantor; provided that, if such sale is an Asset Sale, arrangements reasonably satisfactory to the Agent have been made to apply the Net Proceeds thereof as (and to the extent) required by the Credit Agreement.  Such release shall not require the consent of any Secured Party, and the Agent shall be fully protected in relying on a certificate of the Company as to whether any particular sale constitutes a Sale of Subsidiary Guarantor.
 
(iii)         In addition to any release permitted by subsection (ii) , the Agent may release any Secured Guarantee with the prior written consent of the Required Lenders; provided that any release of all or substantially all the Secured Guarantees shall require the consent of all the Lenders.
 
(d)            Waiver by Subsidiary Guarantors .  Each Subsidiary Guarantor irrevocably waives acceptance hereof, presentment, diligence, marshaling, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Company, any other Subsidiary Guarantor or any other Person.  For the avoidance of doubt, the Secured Guarantee shall not be subject to any revocation, limitation, impairment, set-off, defense, counterclaim, discharge or termination for any reason other than full satisfaction of the Release Conditions as provided in clause (c) above.
 
(e)            Subrogation .  A Subsidiary Guarantor that makes a payment with respect to a Secured Obligation hereunder shall be subrogated to the rights of the payee against the Company with respect to such payment; provided that no Subsidiary Guarantor shall enforce any payment by way of subrogation against the Company, or by reason of contribution against any other Subsidiary Guarantor of such Secured Obligation, until all of the Release Conditions have been satisfied in full.  If any amount shall be paid to any Subsidiary Guarantor in violation of the immediately preceding sentence at any time prior to the satisfaction in full of the Release Conditions, such amount shall be received and held in trust for the benefit of the Secured Parties, shall be segregated from other property and funds of such Subsidiary Guarantor and shall forthwith be paid or delivered to the Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Secured Obligations and all other amounts payable under this Agreement in accordance with the terms of the Loan Documents, or to be held as Collateral for any Secured Obligations or other amounts payable under this Agreement thereafter arising.

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(f)            Stay of Acceleration .  If acceleration of the time for payment of any Secured Obligation by the Company is stayed by reason of the insolvency or receivership of the Company or otherwise, all Secured Obligations otherwise subject to acceleration under the terms of any Secured Agreement shall nonetheless be payable by the Subsidiary Guarantors hereunder forthwith on demand by the Agent.
 
(g)            Right of Set-Off .  In addition to any rights and remedies of the Secured Parties provided by applicable law, if any Secured Obligation is not paid promptly when due (after the passage of any applicable cure period as set forth in the Loan Documents), each of the Secured Parties and their respective Affiliates is authorized at any time and from time to time, without prior notice to any Subsidiary Guarantor, any such notice being waived by each Subsidiary Guarantor, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Secured Party or Affiliate to or for the credit or the account of any Subsidiary Guarantor against the obligations of such Subsidiary Guarantor under its Secured Guarantee, irrespective of whether or not such Secured Party shall have made any demand thereunder and although such obligations may be contingent or unmatured; provided that neither any Secured Party nor any of its Affiliates shall be entitled to exercise any such set off with respect to any trust or payroll account.  Each Secured Party agrees to promptly notify the Company and the Agent after any such set off and application made by such Secured Party; provided that the failure to give such notice shall not affect the validity of such set off and application.
 
(h)            Continuing Guarantee .  Each Secured Guarantee is a continuing guarantee, shall be binding on the relevant Subsidiary Guarantor and its successors and assigns, and shall inure to the benefit of and be enforceable by the Agent or the Secured Parties and their successors, transferees and assigns.  If all or part of any Secured Party’s interest in any Secured Obligation is assigned or otherwise transferred, the transferor’s rights under each Secured Guarantee, to the extent applicable to the obligation so transferred, shall automatically be transferred with such obligation.  No Subsidiary Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Secured Parties.
 
(i)             Limitation on Obligations of Subsidiary Guarantor .  Notwithstanding anything to the contrary herein, it is the intention of the parties hereto that the Secured Guarantee of each Subsidiary Guarantor not constitute a fraudulent conveyance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of applicable state law.  To effectuate that intention, the parties hereto hereby agree that the obligations of each Subsidiary Guarantor under its Secured Guarantee are limited to the maximum amount that would not render such Subsidiary Guarantor’s obligations subject to avoidance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of applicable state law.

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(j)             Reinstatement .  If at any time payment of any of the Secured Obligations or any portion thereof is rescinded, disgorged or must otherwise be restored or returned by any Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or any other Subsidiary Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any other Subsidiary Guarantor or any substantial part of its property, or otherwise, or if any Secured Party repays, restores, or returns, in whole or in part, any payment or property previously paid or transferred to the Secured Party in full or partial satisfaction of any Secured Obligation, because the payment or transfer or the incurrence of the obligation is so satisfied, is declared to be void, voidable, or otherwise recoverable under any state or federal law (collectively a “ Voidable Transfer ”), or because such Secured Party elects to do so on the reasonable advice of its counsel in connection with an assertion that the payment, transfer or incurrence is a Voidable Transfer, then, as to any such Voidable Transfer and as to all reasonable costs, expenses and attorney’s fees of the Secured Party related thereto, the liability of each Subsidiary Guarantor hereunder will automatically and immediately be revived, reinstated, and restored and will exist as though the Voidable Transfer had never been made.
 
Section 3.             Grant of Transaction Liens .
 
(a)           The Company, in order to secure the Secured Obligations, and each Subsidiary Guarantor listed on the signature pages hereof, in order to secure its Secured Guarantee, grants to the Agent for the benefit of the Secured Parties a continuing security interest in all right, title and interest of the Company or such Subsidiary Guarantor, as the case may be, in, to and under the following property of the Company or such Subsidiary Guarantor, as the case may be, whether now owned or existing or hereafter acquired or arising and regardless of where located:
 
(i)          all Accounts;
 
(ii)         all Chattel Paper;
 
(iii)        the Commercial Tort Claims described in Schedule 4 ;
 
(iv)        all Deposit Accounts;
 
(v)         all Documents;
 
(vi)        all Equipment;
 
(vii)      all General Intangibles (including any Equity Interests in other Persons that do not constitute Investment Property);
 
(viii)     all Instruments;
 
(ix)        all Inventory;

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(x)         all Investment Property;
 
(xi)        all Letter-of-Credit Rights with respect to Specified Letters of Credit;
 
(xii)       all Intellectual Property;
 
(xiii)     all books and records (including customer lists, credit files, computer programs, printouts and other computer materials and records) of such Original Lien Grantor pertaining to any of its Collateral;
 
(xiv)      such Original Lien Grantor’s ownership interest in (1) its Commodity Accounts, Deposit Accounts and Securities Accounts, (2) all Financial Assets credited to such accounts from time to time and all Security Entitlements in respect thereof, (3) all cash held in its such accounts from time to time and (4) all other money in the possession of the Agent; and
 
(xv)      all Supporting Obligations and Proceeds of the Collateral described in the foregoing clauses (i) through (xiv);
 
provided that the following property is excluded from the foregoing security interests (“ Excluded Property ”): (A) motor vehicles and other assets subject to certificates of title, (B) voting Equity Interests in any first-tier Foreign Subsidiary, to the extent (but only to the extent) required to prevent the Collateral from including more than 65% of all voting Equity Interests in such first-tier Foreign Subsidiary, (C) Capital Stock of any Foreign Subsidiary that is not a first-tier Foreign Subsidiary, (D) Equipment leased by an Original Lien Grantor under a lease that prohibits the granting of a Lien on such Equipment, (E) cash and Cash Equivalents maintained in any trust or payroll account, so long as such account are maintained as a trust or payroll account respectively, (F) Cash and Cash Equivalents maintained in any account of any Lien Grantor that is an investment adviser registered under the Investment Advisers Act of 1940, as amended, so long as (x) such account is maintained to satisfy qualified professional asset manager requirements under ERISA and (y) the aggregate amount of cash and Cash Equivalents in all such accounts does not exceed $2,000,000 at any time, (G) cash and Cash Equivalents maintained in any account of any Lien Grantor that is a broker-dealer registered under the Exchange Act and a member of FINRA so long as (x) such account is maintained to satisfy minimum net regulatory capital requirements imposed by FINRA regulations pursuant to the Exchange Act and (y) the aggregate amount of cash and Cash Equivalents in all such accounts does not exceed $10,000,000 at any time, (H) intent-to-use Trademark applications solely to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent to use Trademark applications or any registrations that issue therefrom under applicable United States federal law, (I) any contract, permit, lease, license or other agreement to the extent that the grant of a security interest therein would result in a breach or default under such contract, permit, lease, license or other agreement (in each case, after giving effect to applicable provisions of the UCC), (J) any leasehold improvements to the extent that the grant of a security interest therein would violate the related lease, (K) assets located outside the United States to the extent a Lien on such assets cannot be perfected by the filing of UCC financing statements (or Personal Property Security Act (PPSA) statements), (L) assets subject to a purchase money lien, capitalized lease obligation or similar arrangement, in each case as permitted by the Senior Secured Notes Indenture and the Credit Agreement, to the extent that the contract or other agreement in which such Lien is granted (or the documentation providing for such capitalized lease obligation or similar arrangement) prohibits such assets from being Collateral and only for so long as such Lien remains outstanding, (M) any real property or real property interests (including leasehold interests) other than Material Real Property, (N) Margin Stock and Equity Interests in any Person other than Wholly-Owned Subsidiaries to the extent not permitted by the terms of such Person’s organizational or joint venture documents, (O) any assets to the extent a security interest in such assets would result in material adverse tax consequences as reasonably determined by the Company and the Agent, (P) pledges and security interests prohibited or restricted by applicable law (including any requirement to obtain the consent of any Governmental Authority or third party), in each case, after giving effect to applicable provisions of the UCC and (Q) proceeds and products of any and all of the foregoing excluded assets described in clauses (A) through (P) above only to the extent such proceeds and products would constitute property or assets of the type described in clauses (A) through (P) above.  Each Original Lien Grantor shall use commercially reasonable efforts to obtain any consent that is reasonably obtainable and required for any property described in clause (D) , (I) , (J) or (L) above to cease to constitute Excluded Property.  Notwithstanding the foregoing, (i) property in which a security interest is granted pursuant to Section 5(g) shall not constitute Excluded Property for so long as the Other First Lien Obligations are secured by such property and (ii) all assets of Insurance Subsidiaries (including cash and Cash Equivalents temporarily held by Lien Grantors on behalf of, and for the benefit of, Insurance Subsidiaries) shall be Excluded Property.  In addition, (a) no actions in any non-U.S. jurisdiction shall be required in order to create any security interests in assets located outside the United States or to perfect any security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (b) no control agreements shall be required with respect to Deposit Accounts, Securities Accounts or Commodity Accounts, (c) the Company and the Subsidiary Guarantors shall not be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar agreement and (d) assets will be excluded from the Collateral in circumstances where the cost of obtaining a security interest in such assets exceed the practical benefit to the Lenders afforded thereby (as reasonably determined by the Company and the Agent).

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(b)           With respect to each right to payment or performance included in the Collateral from time to time, the Transaction Lien granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or performance and (ii) any Lien that (x) secures such right to payment or performance or (y) secures any such Supporting Obligation.
 
(c)           The Transaction Liens are granted as security only and shall not subject the Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Lien Grantor with respect to any of the Collateral or any transaction in connection therewith.
 
(d)           Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the governmental body or official having jurisdiction over any Regulated Subsidiary determines that the pledge of the shares of capital stock of such Regulated Subsidiary hereunder constitutes the acquisition of or a change of control with respect to such Regulated Subsidiary as to which the prior approval of such governmental body or official was required, then, immediately upon the relevant Lien Grantor’s (1) written memorialization of oral notice or (2) receipt of written notice from such governmental body or official of such determination and without any action on the part of the Agent or any other Person, such pledge shall be rendered void ab initio and of no effect.  Upon any such occurrence, (i) the Agent shall, at such Lien Grantor’s written request and expense, return all certificates representing such capital stock to such Lien Grantor and execute and deliver such documents as such Lien Grantor shall reasonably request to evidence such Lien Grantor’s retention of all rights in such capital stock and (ii) such Lien Grantor shall, if requested by the Agent or the Required Lenders, promptly submit a request to the relevant governmental body or official for approval of the pledge of such shares to the Agent hereunder and, upon receipt of such approval, shall forthwith deliver to the Agent certificates representing all the outstanding shares of capital stock of such Regulated Subsidiary (subject to the limitation in Section 11(m) if such Regulated Subsidiary is a Foreign Subsidiary) to be held as Collateral hereunder.

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Section 4.                 General Representations and Warranties .  Each Original Lien Grantor represents and warrants that:
 
(a)           Such Lien Grantor is duly organized, validly existing and in good standing under the laws of the jurisdiction identified as its jurisdiction of organization in its Perfection Certificate.
 
(b)            Schedule 1 lists all Equity Interests in Subsidiaries and Affiliates owned by such Lien Grantor as of the Closing Date.  Such Lien Grantor holds all such Equity Interests directly ( i.e. , not through a Subsidiary, a Securities Intermediary or any other Person).
 
(c)            Schedule 2 lists, as of the Closing Date, all Securities owned by such Lien Grantor (except Securities evidencing Equity Interests in Subsidiaries and Affiliates).
 
(d)            Schedule 3 lists, as of the Closing Date, (i) all Securities Accounts to which Financial Assets are credited in respect of which such Lien Grantor owns Security Entitlements, (ii) all Commodity Accounts in respect of which such Lien Grantor is the Commodity Customer and (iii) all Deposit Accounts in the name of such Lien Grantor.
 
(e)           All Pledged Equity Interests owned by such Lien Grantor are owned by it free and clear of any Lien other than Permitted Liens.  All shares of capital stock included in such Pledged Equity Interests (including shares of capital stock in respect of which such Lien Grantor owns a Security Entitlement) have been duly authorized and validly issued and are fully paid and non-assessable.  None of such Pledged Equity Interests is subject to any option to purchase or similar right of any Person.  Such Lien Grantor is not and will not become a party to or otherwise bound by any agreement (except as permitted by the Credit Agreement) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest with respect thereto.
 
(f)           Such Lien Grantor has good and marketable title to, a right to use, or a valid leasehold interest in, all its Collateral, except for such defects in title or interests as could not, individually or in the aggregate with respect to all Lien Grantors, reasonably be expected to have a Material Adverse Effect.  The property of such Lien Grantor is subject to no Liens, other than Permitted Liens.

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(g)           Such Lien Grantor has not performed any acts that could reasonably be expected to prevent the Agent from enforcing any of the provisions of the Security Documents or that would limit the Agent in any such enforcement.  No authorized financing statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Collateral owned by such Lien Grantor is on file or of record in any jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, mortgages or other similar or equivalent documents with respect to Permitted Liens.  After the Closing Date, no Collateral owned by such Lien Grantor will be in the possession or under the Control of any other Person having a claim thereto or security interest therein, other than a Permitted Lien.
 
(h)           The Transaction Liens on all Collateral owned by such Lien Grantor (i) have been validly created, (ii) will attach to each item of such Collateral on the Closing Date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date) and (iii) when so attached, will secure all the Secured Obligations or such Lien Grantor’s Secured Guarantee, as the case may be.
 
(i)           Such Lien Grantor has delivered a Perfection Certificate to the Agent.  The information set forth therein is correct and complete as of the Closing Date.  Within 60 days after the Closing Date, such Lien Grantor will furnish (or cause to be furnished) to the Agent a file search report from each UCC filing office listed in its Perfection Certificate, showing the filing made at such filing office to perfect the Transaction Liens on its Collateral.
 
(j)           When UCC financing statements describing the Collateral as set forth in the Perfection Certificate have been filed in the offices specified in such Perfection Certificate, the Transaction Liens will constitute perfected security interests in the Collateral owned by such Lien Grantor to the extent that a security interest therein may be perfected by filing pursuant to the UCC, prior to all Liens and rights of others therein except Permitted Liens that have priority over the Transaction Liens by operation of law.  When, in addition to the filing of such UCC financing statements, the applicable Intellectual Property Filings have been made with respect to such Lien Grantor’s Recordable Intellectual Property (including any future filings required pursuant to Sections 5(a) and 9(a) ), the Transaction Liens will constitute perfected security interests in all right, title and interest of such Lien Grantor in its Recordable Intellectual Property to the extent that security interests therein may be perfected by such filings, prior to all Liens and rights of others therein except Permitted Liens.  Except for (i) the filing of such UCC financing statements and (ii) such Intellectual Property Filings, no registration, recordation or filing with, and no authorization or approval or other action by, any governmental body, agency or official is required in connection with the execution or delivery of the Security Agreement or is necessary for the validity or enforceability thereof or for the perfection or due recordation of the Transaction Liens or (except with respect to the capital stock of any Regulated Subsidiary) for the enforcement of the Transaction Liens.

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(k)           If such Lien Grantor is also a Subsidiary Guarantor, in executing and delivering this Agreement (including providing its Secured Guarantee), such Lien Grantor has (i) without reliance on the Agent or any other Secured Party or any information received from the Agent or any other Secured Party and based upon such documents and information it deems appropriate, made an independent investigation of the transactions contemplated by the Loan Documents and the Company, the Company’s business, assets, operations, prospects and condition, financial or otherwise, and any circumstances which may bear upon such transactions, the Company or the obligations and risks undertaken herein with respect to the Secured Obligations, (ii) adequate means to obtain from the Company on a continuing basis information concerning the Company, (iii) full and complete access to the Loan Documents and any other documents executed in connection with the Loan Documents and (iv) not relied and will not rely upon any representations or warranties of the Agent or any other Secured Party not embodied herein or any acts heretofore or hereafter taken by the Agent or any other Secured Party (including any review by the Agent or any other Secured Party of the affairs of the Company).
 
Section 5.                Further Assurances; General Covenants .  Each Lien Grantor covenants as follows:
 
(a)           Such Lien Grantor will at the Company’s expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including any Intellectual Property Filing and any filing of financing or continuation statements under the UCC) that from time to time may be necessary, or that the Agent may reasonably request, in order to:
 
(i)           create, preserve, perfect or confirm the Transaction Liens on such Lien Grantor’s Collateral;
 
(ii)          in the case of Pledged Letter-of-Credit Rights, Pledged Electronic Chattel Paper and Pledged Investment Property, cause the Agent to have Control thereof; or
 
(iii)         enable the Agent to exercise and enforce any of its rights, powers and remedies with respect to any of such Lien Grantor’s Collateral.
 
In furtherance of the foregoing, in respect of the insurance policies required by Section 6.05 of the Credit Agreement relating to any property or business of such Lien Grantor, such Lien Grantor shall deliver to the Agent, on the Closing Date (with respect to existing polices) and promptly following the entry into new policies or the renewal, extension or modification of existing policies, a copy of, or a certificate as to coverage under such policies, each of which shall (i) within 30 days of the date of such delivery, be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable) naming the Agent as mortgagee or loss payee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance), as applicable and (ii) to the extent available, provide that no cancellation, material addition in amount or material change in coverage shall be effective until after 30 days’ notice thereof to the Agent, in form and substance reasonably acceptable to the Agent.

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To the extent permitted by applicable law, such Lien Grantor authorizes the Agent to execute and file such financing statements or continuation statements, and amendments thereto, including, without limitation, one or more financing statements indicating that such financing statements cover all assets or all personal property (or words of similar effect) of such Lien Grantor, in each case without such Lien Grantor’s signature appearing thereon, and regardless of whether any particular asset described in such financing statement falls within the scope of the UCC or the granting clause of this Agreement.  A photographic, photostatic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.  Such Lien Grantor constitutes the Agent its attorney-in-fact to execute and file, in the event such Lien Grantor fails to do so promptly, all Intellectual Property Filings and other filings required or so requested for the foregoing purposes, all such acts of such attorney being hereby ratified and confirmed; and such power, being coupled with an interest, shall be irrevocable until all the Transaction Liens granted by such Lien Grantor terminate pursuant to Section 22 .  The Company will pay the reasonable costs of, or incidental to, any Intellectual Property Filings and any recording or filing of any financing or continuation statements or other documents recorded or filed pursuant hereto.
 
(b)           Such Lien Grantor will (x) furnish to the Agent prompt written notice of any (i) change of its name or corporate structure or (ii) change of its location (determined as provided in UCC Section 9-307) and (y) take all actions that are necessary or required by the Agent for the purpose of perfecting or protecting the security interest granted by this Agreement.
 
(c)           Such Lien Grantor will not sell, lease, license, exchange, assign or otherwise dispose of, or grant any option with respect to, any of its Collateral; provided that such Lien Grantor may do any of the foregoing unless (i) doing so would violate a covenant in the Credit Agreement or (ii) an Event of Default shall have occurred and be continuing and the Agent shall have notified such Lien Grantor that its right to do so is terminated, suspended or otherwise limited.
 
(d)           Such Lien Grantor will, promptly upon request, provide to the Agent all information and evidence concerning such Lien Grantor’s Collateral that the Agent may reasonably request to enable it to enforce the provisions of the Security Documents.
 
(e)           Upon the acquisition of any Material Real Property by any Lien Grantor or any real property owned by any Lien Grantor becoming Material Real Property (as of the end of any Fiscal Quarter), such Lien Grantor will cause such Material Real Property to be subjected to a Lien securing the Secured Obligations and will take such actions as shall be necessary or reasonably requested by the Agent to grant and perfect or record such Lien in accordance with the Mortgage Requirement and to satisfy the other conditions of the Mortgage Requirement within ninety (90) days of the requirement becoming applicable (or such longer period as the Agent may agree in its discretion).

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(f)           Such Lien Grantor shall not incur or suffer to exist any Lien (the “ Initial Lien ”) on any property (including any property that would otherwise be Excluded Property) to secure any Other First Lien Obligations (as defined in the Intercreditor Agreement) or take any action to perfect any such security interest, unless such Lien Grantor concurrently grants a Lien to the Agent to secure the Secured Obligations ranking pari passu with such Initial Lien securing such Other First Lien Obligations and takes such action to perfect such Lien; provided that any such Lien on property that would otherwise be Excluded Property created to secure the Secured Obligations pursuant to this clause (g) shall provide by its terms that upon the release and discharge of the Initial Lien on such property by the Collateral Agent (as defined in the Intercreditor Agreement) for such Other First Lien Obligations, the Lien on such property securing the Secured Obligations shall be automatically and unconditionally released and discharged and such Lien Grantor may take any action necessary to memorialize such release or discharge.
 
Section 6.                Reserved .
 
Section 7.                Chattel Paper and Instruments .  Except as to actions to be taken by the Agent, each Lien Grantor represents, warrants and covenants as follows:
 
(a)           On the Closing Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will deliver to the Agent as Collateral hereunder (i) all Pledged Tangible Chattel Paper, provided that delivery of the Pledged Tangible Chattel Paper shall be required pursuant to this paragraph only to the extent that the aggregate value of all Pledged Tangible Chattel Paper that has not been delivered would exceed $5,000,000 and (ii) each Pledged Instrument having a value in excess of $2,000,000 then owned by such Lien Grantor.  Thereafter, whenever such Lien Grantor acquires any other Pledged Tangible Chattel Paper or Pledged Instrument having a value in excess of $2,000,000, such Lien Grantor will immediately deliver such Pledged Tangible Chattel Paper or Pledged Instrument to the Agent as Collateral hereunder.  Notwithstanding the foregoing, all debt owing by the Company or any of its Subsidiaries to a Lien Grantor (regardless of the value thereof) shall be pledged by delivery to the Agent of an intercompany note in form and substance reasonably acceptable to the Agent.
 
(b)           So long as no Event of Default shall have occurred and be continuing, the Agent will, promptly upon request by the relevant Lien Grantor, make appropriate arrangements for making any Pledged Tangible Chattel Paper or Pledged Instrument available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate by the Agent, against trust receipt or like document).
 
(c)            Schedule 5 lists, as of the Closing Date, all Pledged Instruments.

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(d)           All Pledged Tangible Chattel Paper and Pledged Instruments owned by such Lien Grantor, when delivered to the Agent (to the extent such delivery is required), will be indorsed to the order of the Agent, or accompanied by duly executed instruments of assignment, all in form and substance reasonably satisfactory to the Agent.
 
(e)           Upon the delivery of any Pledged Tangible Chattel Paper or Pledged Instrument owned by such Lien Grantor to the Agent, the Transaction Lien on such Collateral will be perfected, subject to no prior Liens or rights of others.
 
(f)           Each Lien Grantor will take (or cause others to take) all actions required under UCC Section 9-105 to cause the Agent to obtain and maintain Control of any and all Electronic Chattel Paper owned by such Lien Grantor from time to time, provided that such Lien Grantor’s actions to cause the Agent to obtain and maintain Control of such Electronic Chattel shall be required pursuant to this paragraph only to the extent that the aggregate value of all Electronic Chattel Paper then owned by such Lien Grantor and not subject to the Agent’s Control would exceed $5,000,000.
 
Section 8.                Commercial Tort Claims .  Each Lien Grantor represents, warrants and covenants as follows:
 
(a)           In the case of an Original Lien Grantor, Schedule 4 accurately describes, with the specificity required to satisfy Official Comment 5 to UCC Section 9-108, each Material Commercial Tort Claim with respect to which such Original Lien Grantor is the claimant as of the Closing Date.  In the case of any other Lien Grantor, Schedule 4 to its first Security Agreement Supplement will accurately describe, with the specificity required to satisfy said Official Comment 5, each Material Commercial Tort Claim with respect to which such Lien Grantor is the claimant as of the date on which it signs and delivers such Security Agreement Supplement.
 
(b)           If any Lien Grantor acquires a Material Commercial Tort Claim after the Closing Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will promptly sign and deliver to the Agent a Security Agreement Supplement granting a security interest in such Commercial Tort Claim (which shall be described therein with the specificity required to satisfy said Official Comment 5) to the Agent for the benefit of the Secured Parties.
 
(c)           Upon the filing of a UCC financing statement in the jurisdiction under the laws of which the relevant Lien Grantor is organized, the Transaction Lien on each Commercial Tort Claim described pursuant to subsection (a) or (b) above will be perfected, subject to no prior Liens or rights of others, except for Permitted Liens that have priority over the Transaction Liens by operation of law.

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Section 9.                 Recordable Intellectual Property .  Each Lien Grantor covenants as follows:
 
(a)           On the Closing Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will sign and deliver to the Agent Intellectual Property Security Agreements with respect to all Recordable Intellectual Property then owned by it.  Concurrently with (or prior to) each delivery of annual financial statements pursuant to Section 6.01(a) of the Credit Agreement, it will sign and deliver to the Agent any Intellectual Property Security Agreement necessary to grant Transaction Liens on all Recordable Intellectual Property owned by it on December 31st of the most recently ended year covered by such financial statements that is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it.  In each case, it will promptly make all Intellectual Property Filings necessary to record the Transaction Liens on such Recordable Intellectual Property.
 
(b)           Such Lien Grantor will notify the Agent promptly if it knows that any application or registration relating to any Recordable Intellectual Property owned or licensed by it may become abandoned or dedicated to the public, or of any adverse determination or development (including the institution of, or any adverse determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office or any court) regarding such Lien Grantor’s ownership of such Recordable Intellectual Property, its right to register or patent the same, or its right to keep and maintain the same; provided that the foregoing shall not apply to the extent that any such event, individually or together with all such events, could not reasonably be expected to have a Material Adverse Effect.
 
Section 10.              Proceeds of Letters of Credit .  Except as to actions to be taken by the Agent, each Lien Grantor represents, warrants and covenants as follows:
 
(a)           On the Closing Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will deliver to the Agent each letter of credit having a face amount in excess of $2,500,000 (the “ Specified Letters of Credit ”).
 
(b)           Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Agent will, promptly upon request by any Lien Grantor, make appropriate arrangements for making any Specified Letter of Credit delivered to the Agent pursuant to subsection (a) above available to such Lien Grantor to facilitate the administration thereof or the exercise of its rights thereunder (any such arrangement to be effected, to the extent deemed appropriate by the Agent, against trust receipt or like document).
 
(c)           Such Lien Grantor, by granting a security interest in its Letter-of-Credit Rights to the Agent, intends to (and hereby does) assign to the Agent its rights (including its contingent rights) to the proceeds of all letters of credit of which it is or hereafter becomes a beneficiary.  If any such letter of credit is not a Supporting Letter of Credit, such Lien Grantor will (i) use commercially reasonable efforts to cause the issuer of such letter of credit and each Nominated Person (if any) with respect thereto to consent to such assignment of the proceeds thereof and (ii) deliver written evidence of any such consent obtained to the Agent.

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(d)           The Transaction Lien on the relevant Lien Grantor’s rights to the proceeds of each letter of credit under which such Lien Grantor is a beneficiary will be perfected, subject to no prior Liens or rights of others, if either (i) such letter of credit is a Supporting Letter of Credit and the Transaction Lien on the item of Collateral supported thereby has been perfected or (ii) the relevant issuing bank and each relevant Nominated Person (if any) shall have consented to the assignment of the proceeds thereof set forth in subsection (c) above.
 
(e)           If an Event of Default shall have occurred and be continuing, such Lien Grantor will, promptly upon request by the Agent, notify (and in the event such Lien Grantor fails to do so promptly, such Lien Grantor authorizes the Agent to notify) the issuer and each Nominated Person with respect to each of its Pledged letters of credit that (i) the proceeds thereof have been assigned to the Agent hereunder and (ii) any payments due or to become due in respect thereof are to be made directly to the Agent or its designee for the period during which such Event of Default is continuing.
 
Section 11.              Investment Property .  Each Lien Grantor represents, warrants and covenants as follows:
 
(a)            Certificated Securities .  On the Closing Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will deliver to the Agent as Collateral hereunder all certificates representing Pledged Certificated Securities then owned by such Lien Grantor.  Thereafter, whenever such Lien Grantor acquires any other certificate representing a Pledged Certificated Security, such Lien Grantor will promptly deliver such certificate to the Agent as Collateral hereunder.  The provisions of this subsection are subject to the limitation in Section 11(m) in the case of voting Equity Interests in a Foreign Subsidiary.
 
(b)            Uncertificated Securities .
 
(i)           On the Closing Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will enter into (and, if the relevant issuer is a Subsidiary, cause, or if the relevant issuer is not a Subsidiary, use commercially reasonable efforts to cause, the relevant issuer to enter into) an Issuer Control Agreement in respect of each Pledged Uncertificated Security then owned by such Lien Grantor and deliver such Issuer Control Agreement to the Agent (which shall enter into the same).  Thereafter, whenever such Lien Grantor acquires any other Pledged Uncertificated Security, such Lien Grantor will enter into (and, if the relevant issuer is a Subsidiary, cause, or if the relevant issuer is not a Subsidiary, use commercially reasonable efforts to cause, the relevant issuer to enter into) an Issuer Control Agreement in respect of such Pledged Uncertificated Security and deliver such Issuer Control Agreement, if any, to the Agent (which shall enter into the same).  The provisions of this subsection are subject to (i) the limitation in Section 11(m) in the case of voting Equity Interests in a Foreign Subsidiary and (ii)  Section 14(c) .

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(ii)           If any Pledged Uncertificated Partnership Interest or any Pledged Uncertificated LLC Interest that was not considered a security under the UCC as of the Closing Date becomes a security under the UCC thereafter, the Lien Grantor that originally pledged such interest shall promptly after the date on which such interest becomes an uncertificated security enter into (and, if the relevant issuer is a Subsidiary, cause, or if the relevant issuer is not a Subsidiary, use commercially reasonable efforts to cause, the relevant issuer to enter into) an Issuer Control Agreement in respect of each such Pledged Uncertificated Security then owned by such Lien Grantor and deliver such Issuer Control Agreement to the Agent (which shall enter into the same).
 
(c)            Security Entitlements .  Each Lien Grantor agrees that it will provide the Agent with prompt written notice (and in any case within 20 days) of the opening of any new Securities Accounts and any such notice shall be deemed to be an automatic amendment to Schedule 3 hereto to include such account.
 
(d)           Commodity Accounts .  Each Lien Grantor agrees that it will provide the Agent with prompt written notice (and in any case within 20 days) of the opening of any new Commodity Accounts and any such notice shall be deemed to be an automatic amendment to Schedule 3 hereto to include such account.
 
(e)            Regulated Subsidiaries .  If the Collateral includes any capital stock of a Regulated Subsidiary that is not represented by certificates, the relevant Lien Grantor shall exercise its commercially reasonable efforts to cause such capital stock to be represented by certificates and, promptly upon receipt thereof, comply with Section 11(a) with respect thereto.  No Lien Grantor shall hold any capital stock of a Regulated Subsidiary in a Securities Account.
 
(f)            Perfection as to Certificated Securities .  When such Lien Grantor delivers the certificate representing any Pledged Certificated Security owned by it to the Agent and complies with Section 11(k) in connection with such delivery, (i) the Transaction Lien on such Pledged Certificated Security will be perfected, subject to no prior Liens or rights of others, (ii) the Agent will have Control of such Pledged Certificated Security and (iii) the Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.
 
(g)           Perfection as to Uncertificated Securities .  When such Lien Grantor, the Agent and the issuer of any Pledged Uncertificated Security owned by such Lien Grantor enter into an Issuer Control Agreement with respect thereto, (i) the Transaction Lien on such Pledged Uncertificated Security will be perfected, subject to no prior Liens or rights of others (except Permitted Priority Liens), (ii) the Agent will have Control of such Pledged Uncertificated Security and (iii) the Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.
 
(h)           Negative Pledge as to Security Entitlements .  The Transaction Lien on any Security Entitlement will be subject to no prior Liens or rights of others (except (x) Liens and rights of the relevant Securities Intermediary that are Permitted Liens and (y) Permitted Priority Liens) and (ii) no action based on an adverse claim to such Security Entitlement or such Financial Asset, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may be asserted against the Agent or any other Secured Party.

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(i)           Negative Pledge as to Commodity Accounts .  The Transaction Liens on each Commodity Account and all Commodity Contracts carried therein will be subject to no prior Liens or rights of others (except (x) Liens and rights of the relevant Commodity Intermediary permitted by the Credit Agreement or any Security Document and (y) Permitted Priority Liens).
 
(j)           Agreement as to Applicable Jurisdiction .  In respect of all Security Entitlements owned by such Lien Grantor, and all Securities Accounts to which the related Financial Assets are credited, the Securities Intermediary’s jurisdiction (determined as provided in UCC Section 8-110(e)) will at all times be located in the United States.  In respect of all Commodity Contracts owned by such Lien Grantor and all Commodity Accounts in which such Commodity Contracts are carried, the Commodity Intermediary’s jurisdiction (determined as provided in UCC Section 9-305(b)) will at all times be located in the United States.
 
(k)            Delivery of Pledged Certificates .  All Pledged Certificates, when delivered to the Agent, will be in suitable form for transfer by delivery, or accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance reasonably satisfactory to the Agent.
 
(l)            Communications .  Each Lien Grantor will promptly give to the Agent copies of any notices and other communications received by it with respect to (i) Pledged Securities registered in the name of such Lien Grantor or its nominee and (ii) Pledged Security Entitlements as to which such Lien Grantor is the Entitlement Holder, in each case (x) while an Event of Default has occurred and is continuing or (y) relating to any matter that could reasonably be expected to have a Material Adverse Effect.
 
(m)           Foreign Subsidiaries .  A Lien Grantor will not be obligated to comply with the provisions of this Section at any time with respect to any voting Equity Interest in a Foreign Subsidiary if and to the extent (but only to the extent) that such voting Equity Interest is excluded from the Transaction Liens at such time pursuant to clause (B) of the proviso at the end of Section 3(a) and/or the comparable provisions of one or more Security Agreement Supplements.
 
Section 12.             Deposit Accounts .  Each Lien Grantor represents, warrants and covenants that (i) all cash owned by each Lien Grantor shall be deposited, upon or promptly after the receipt thereof, in one or more Deposit Accounts, (ii) the Transaction Liens on each Deposit Account will be subject to no prior Liens or rights of others (except (x) Liens and rights of the relevant financial institution at which such Deposit Account is maintained that are permitted by the Credit Agreement or any Security Document and (y) Permitted Priority Liens) and (iii) each Lien Grantor will provide the Agent with prompt written notice (and in any case within 20 days) of the opening of any new Deposit Account and any such notice shall be deemed to be an automatic amendment to Schedule 3 hereto.

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Section 13.             Payments upon an Event of Default .  Each Lien Grantor represents, warrants and covenants that if an Event of Default shall have occurred and be continuing, such Lien Grantor will, if requested to do so by the Agent, promptly notify (and to the extent it fails to do so promptly, such Lien Grantor authorizes the Agent so to notify) and instruct each Person obligated at any time to make any payment to such Lien Grantor for any reason (including each account debtor in respect of any of its Accounts) that any payments due or to become due are to be made directly to the Collateral Account for the period during which such Event of Default is continuing.
 
Section 14.             Transfer of Record Ownership .
 
(a)           At any time when an Event of Default shall have occurred and be continuing, the Agent may (and to the extent that action by it is required, the relevant Lien Grantor, if directed to do so by the Agent, will as promptly as practicable) cause each of the Pledged Securities (or any portion thereof specified in such direction) to be (x) transferred of record into the name of the Agent or its nominee or (y) credited to the Collateral Account; provided that no such action shall be taken with respect to any capital stock of any Regulated Subsidiary unless any and all regulatory approvals required under applicable law shall have been obtained; and provided further that (i) to the extent any of the Pledged Securities (or a portion thereof) have been transferred of record into the name of the Agent or its nominee and (ii) no Event of Default is continuing, the Agent will cooperate reasonably with the relevant Lien Grantor to cause such Pledged Security (or a portion thereof) to be re-registered (as promptly as practicable) in the name of such Lien Grantor.  Each Lien Grantor will take any and all actions reasonably requested by the Agent to facilitate compliance with this subsection.
 
(b)            Ownership upon Transfer of Record Ownership .  If and when any Pledged Security (whether certificated or uncertificated) owned by such Lien Grantor is transferred of record into the name of the Agent or its nominee pursuant to Section 14(a) , (i) the Agent shall be the holder of record with respect to such Pledged Security, (ii) the Agent will have Control of such Pledged Security and (iii) the Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.
 
(c)            Provisions Inapplicable after Transfer of Record Ownership .  If the provisions of Section 14(a) are implemented, Sections 11(b) and 11(c) shall not thereafter apply to (i) any Pledged Security that is registered in the name of the Agent or its nominee or (ii) any Security Entitlement in respect of which the Agent or its nominee is the Entitlement Holder.
 
(d)            Communications after Transfer of Record Ownership .  The Agent will promptly give to the relevant Lien Grantor copies of any notices and other communications received by the Agent with respect to (i) Pledged Securities registered in the name of the Agent or its nominee and (ii) Pledged Security Entitlements as to which the Agent or its nominee is the Entitlement Holder.

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Section 15.             Right to Vote Securities .
 
(a)           Unless an Event of Default shall have occurred and be continuing, each Lien Grantor will have the right, from time to time, to vote and to give consents, ratifications and waivers with respect to any Pledged Security owned by it and the Financial Asset underlying any Pledged Security Entitlement owned by it, and the Agent will, upon receiving a written request from such Lien Grantor, promptly deliver (or cause to be delivered) to such Lien Grantor or as specified in such request such proxies, powers of attorney, consents, ratifications and waivers in respect of any such Pledged Security that is registered in the name of the Agent or its nominee or any such Pledged Security Entitlement as to which the Agent or its nominee is the Entitlement Holder, in each case as shall be specified in such request and be in form and substance reasonably satisfactory to the Agent.  Unless an Event of Default shall have occurred and be continuing, the Agent will have no right to take any action which the owner of a Pledged Partnership Interest or Pledged LLC Interest is entitled to take with respect thereto, except the right to receive payments and other distributions to the extent provided herein.
 
(b)           If an Event of Default shall have occurred and be continuing, and after written notice from the Agent to such Lien Grantor, the Agent will have the right to the extent permitted by law (and, in the case of a Pledged Partnership Interest or Pledged LLC Interest, by the relevant partnership agreement, limited liability company agreement, operating agreement or other governing document) to vote, to give consents, ratifications and waivers and to take any other action with respect to the Pledged Investment Property, the other Pledged Equity Interests (if any) and the Financial Assets underlying the Pledged Security Entitlements, with the same force and effect as if the Agent were the absolute and sole owner thereof, and each Lien Grantor will take all such action as the Agent may reasonably request from time to time to give effect to such right; provided that the Agent will not have the right to vote, to give consents, ratifications or waivers or to take any other action with respect to the capital stock of any Regulated Subsidiary, in each case to the extent that such action would require prior regulatory approval under applicable law, unless such approval shall have been granted.
 
Section 16.             Remedies upon Event of Default .
 
(a)           If an Event of Default shall have occurred and be continuing, the Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Security Documents.
 
(b)           Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Agent may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect to any Collateral and, in addition, the Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, withdraw all cash held in the Collateral Account and apply such cash as provided in Section 17 and, if there shall be no such cash or if such cash shall be insufficient to pay all the Secured Obligations in full, sell, lease, license or otherwise dispose of the Collateral or any part thereof; provided that the right of the Agent to sell or otherwise dispose of the capital stock of any Regulated Subsidiary shall be subject to the Agent or the relevant Lien Grantor obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the governmental body or official having jurisdiction with respect to such Regulated Subsidiary.  Notice of any such sale or other disposition shall be given to the relevant Lien Grantor(s) as required by Section 19 .

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(c)           Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing:
 
(i)           the Agent may license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Pledged Intellectual Property (including any Pledged Recordable Intellectual Property) for such term or terms, on such conditions and in such manner as the Agent shall in its reasonable discretion determine; provided that such licenses or sublicenses do not conflict with any existing license of which the Agent shall have received a copy;
 
(ii)           the Agent may (without assuming any obligation or liability thereunder), at any time and from time to time, in its sole and reasonable discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of any Lien Grantor in, to and under any of its Pledged Intellectual Property and take or refrain from taking any action under any thereof, and each Lien Grantor releases the Agent and each other Secured Party from liability for, and agrees to hold the Agent and each other Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from the Agent’s or such Secured Party’s gross negligence or willful misconduct; and
 
(iii)         upon request by the Agent (which shall not be construed as implying any limitation on its rights or powers), each Lien Grantor will execute and deliver to the Agent a power of attorney, in form and substance reasonably satisfactory to the Agent, for the implementation of any sale, lease, license or other disposition of any of such Lien Grantor’s Pledged Intellectual Property or any action related thereto.  In connection with any such disposition, but subject to any confidentiality restrictions imposed on such Lien Grantor in any license or similar agreement, such Lien Grantor will supply to the Agent its know-how and expertise relating to the relevant Intellectual Property or the products or services made or rendered in connection with such Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the manufacture, distribution, advertising and sale of said products or services.
 
(d)           For the purpose of enabling the Agent to exercise rights and remedies under this Section 16 (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, license out, convey, transfer or grant options to purchase any Collateral) at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, each Lien Grantor hereby grants to the Agent, for the benefit of the Secured Parties, (i) a nonexclusive license (exercisable without payment of royalty or other compensation to such Lien Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of such Lien Grantor to avoid the risk of invalidation of such Trademarks, to use, practice, sublicense and otherwise exploit any and all Intellectual Property now owned or held or hereafter acquired or held by such Lien Grantor (which license shall include access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof).

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Section 17.              Application of Proceeds .
 
(a)           If an Event of Default shall have occurred and be continuing, the Agent may apply (i) any cash held in the Collateral Account and (ii) the proceeds of any sale or other disposition of, or any collections (including in the form of interest, dividends, redemption payments and other distributions in respect of any Equity Interests) on, all or any part of the Collateral, in the following order of priorities:
 
first , to pay the expenses of such sale or other disposition or collection, including reasonable compensation to agents of and counsel for the Agent, and all expenses, liabilities and advances incurred or made by the Agent in connection with the Security Documents, and any other amounts then due and payable to the Agent pursuant to Section 18 or pursuant to Sections 10.04 or 10.05 of the Credit Agreement;
 
second , to pay ratably all interest (including Post-Petition Interest) on the Secured Obligations;
 
third , to pay the unpaid principal of the Secured Obligations ratably, until payment in full of the principal of all Secured Obligations shall have been made;
 
fourth , to pay all other Secured Obligations then due and payable ratably, until payment in full of all such other Secured Obligations shall have been made; and
 
finally , to pay to the relevant Lien Grantor, or as a court of competent jurisdiction may direct, any surplus then remaining from the proceeds of the Collateral owned by it;
 
provided that Collateral owned by a Subsidiary Guarantor and any proceeds thereof shall be applied pursuant to the foregoing clauses first, second, third and fourth, only to the extent permitted by the limitation in Section 2(i) .  The Agent may make such distributions hereunder in cash or in kind or, on a ratable basis, in any combination thereof.
 
(b)           In making the payments and allocations required by this Section, the Agent may rely upon information supplied to it pursuant to Section 21(g) .  All distributions made by the Agent pursuant to this Section shall be final (except in the event of manifest error) and the Agent shall have no duty to inquire as to the application by any Secured Party of any amount distributed to it.
 
Section 18.              Fees and Expenses; Indemnification .
 
(a)           The Company will within ten Business Days following written demand (together with, in the case of clauses (i) and (ii) below, if requested by the Company, backup documentation supporting such written demand) pay to the Agent:
 
(i)           the amount of any taxes that the Agent may have been required to pay by reason of the Transaction Liens or to free any Collateral from any other Lien thereon;

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(ii)          the amount of any and all reasonable out-of-pocket expenses, including transfer taxes and reasonable fees and expenses of counsel and other outside experts, that the Agent may incur in connection with (x) the administration or enforcement of the Security Documents, including such expenses as are incurred to preserve the value of the Collateral or the validity, perfection, rank or value of any Transaction Lien, (y) the collection, sale or other disposition of any Collateral or (z) the exercise by the Agent of any of its rights or powers under the Security Documents; and
 
(iii)         the amount of any fees that the Company shall have agreed in writing to pay to the Agent and that shall have become due and payable in accordance with such written agreement.
 
(b)           If any transfer tax, documentary stamp tax or other tax is payable in connection with any transfer or other transaction provided for in the Security Documents, the Company will pay such tax and provide any required tax stamps to the Agent or as otherwise required by law.
 
(c)           Each Lien Grantor waives all rights for contribution and all other rights of recovery with respect to liabilities, losses, damages, costs and expenses arising under or related to Environmental Laws that it might have by statute or otherwise against any Indemnified Person.
 
Section 19.               Authority to Administer Collateral .  Each Lien Grantor irrevocably appoints the Agent its true and lawful attorney, with full power of substitution, in the name of such Lien Grantor, any Secured Party or otherwise, for the sole use and benefit of the Secured Parties, but at the Company’s expense, to the extent permitted by law to exercise, at any time and from time to time while an Event of Default shall have occurred and be continuing, all or any of the following powers with respect to all or any of such Lien Grantor’s Collateral:
 
(a)           to demand, sue for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,
 
(b)           to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
 
(c)           to sell, lease, license or otherwise dispose of the same or the proceeds or avails thereof, as fully and effectually as if the Agent were the absolute owner thereof, and
 
(d)           to extend the time of payment of any or all thereof and to make any allowance or other adjustment with reference thereto;
 
provided that, except in the case of Collateral that is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Agent will give the relevant Lien Grantor at least ten days’ prior written notice of the time and place of any public sale thereof or the time after which any private sale or other intended disposition thereof will be made.  Any such notice shall (i) contain the information specified in UCC Section 9-613, (ii) be Authenticated and (iii) be sent to the parties required to be notified pursuant to UCC Section 9-611(c); provided that, if the Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC.

30

 
Section 20.              Limitation on Duty in Respect of Collateral .  Beyond the exercise of reasonable care in the custody and preservation thereof and accounting for monies received therefrom, the Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any subagent or bailee or any income therefrom or as to the preservation of rights against prior parties or any other rights pertaining thereto.  The Agent will be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equal to that which it accords its own property, and will not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of any act or omission of any sub-agent or bailee selected by the Agent in good faith, except to the extent that such liability arises from the Agent’s gross negligence or willful misconduct.
 
Section 21.              General Provisions Concerning the Agent .
 
(a)            Appointment and Authorization; “Agent.”   The Agent is hereby irrevocably appointed, designated and authorized to take such actions under the provisions of this Agreement and each other Security Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Security Document, together with such actions and powers as are reasonably incidental thereto.  In furtherance of the foregoing, the Agent is hereby authorized to serve as Applicable Authorized Representative and Applicable Collateral Agent (each as defined in the Intercreditor Agreement) in accordance with the terms of the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to it by the terms of the Intercreditor Agreement, together with such actions and powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary contained elsewhere herein or in any other Security Document, the Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Agent have or be deemed to have any fiduciary relationship with any Secured Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Security Document or otherwise exist against the Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Security Documents with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
 
(b)            Delegation of Duties .  The Agent may execute any of its duties under this Agreement or any other Security Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties.  The Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.  The exculpatory provisions of Section 20 and this Section shall apply to any such agent, employee or attorney-in-fact.

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(c)            Liability of Agent .  No Agent-Related Person shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Security Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein or required by applicable law) or (ii) be responsible in any manner to any Secured Party for any recital, statement, representation or warranty made by the Company or any Subsidiary or Affiliate thereof, or any officer thereof, contained herein or in any other Security Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under or in connection with, this Agreement or any other Security Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Security Document, or for any failure of the Company or any Subsidiary or Affiliate thereof or any other party to any Security Document to perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Security Document, or to inspect the properties, books or records of the Company or any Subsidiary or Affiliate thereof.  The Agent shall not be responsible for the existence, genuineness or value of any Collateral or for the validity, perfection, priority or enforceability of any Transaction Lien, whether impaired by operation of law or by reason of any action or omission to act on its part under the Security Documents.
 
(d)            Reliance by Agent .  The Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company or any Subsidiary), independent accountants and other experts selected by the Agent.  The Agent shall be fully justified in failing or refusing to take any action under any Security Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Secured Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  The Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Security Document in accordance with a request or consent of the Required Lenders (or such other number of Lenders as may be expressly required hereby or by the Credit Agreement in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties.
 
(e)            Notice of Default .  The Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Agent for the account of the Lenders, unless the Agent shall have received written notice from a Secured Party or the Company referring to the Credit Agreement, describing such Default and stating that such notice is a “notice of default.” The Agent will notify the Secured Parties of its receipt of any such notice.  The Agent shall take such action with respect to such Default as may be directed by the Required Lenders in accordance with Article 8 of the Credit Agreement; provided , however , that unless and until the Agent has received any such direction, the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default as it shall deem advisable or in the best interest of the Secured Parties.

32

 
(f)             Agent in Individual Capacity .  JPM and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Company or any of its Subsidiaries and their respective Affiliates as though JPM were not the Agent hereunder and without notice to or consent of the Secured Parties.  The Secured Parties acknowledge that, pursuant to such activities, JPM or its Affiliates may receive information regarding the Company or its Subsidiaries or Affiliates (including information that may be subject to confidentiality obligations in favor of the Company, such Subsidiary or such Affiliate) and acknowledge that the Agent shall be under no obligation to provide such information to them.  With respect to its Loans and Commitments, JPM shall have the same rights and powers under this Agreement as any other Secured Party and may exercise such rights and powers as though it were not the Agent, and the terms “Secured Party” and “Secured Parties” include JPM in its individual capacity.
 
(g)            Information as to Secured Obligations and Actions by Secured Parties .   For all purposes of the Security Documents, including determining the amounts of the Secured Obligations or whether any action has been taken under any Secured Agreement, the Agent will be entitled to rely on information from (i) its own records for information as to the Lenders, their Secured Obligations and actions taken by them; (ii) any Secured Party for information as to its Secured Obligations and actions taken by it, to the extent that the Agent has not obtained such information from the foregoing sources; and (iii) the Company, to the extent that the Agent has not obtained information from the foregoing sources.
 
(h)           Within two Business Days after it receives or sends any notice referred to in this subsection, the Agent shall send to each Secured Party Requesting Notice, copies of any notice given by the Agent to any Lien Grantor, or received by it from any Lien Grantor, pursuant to Sections 16 , 17 , 19 or 22 .
 
(i)           The Agent may refuse to act on any notice, consent, direction or instruction from any Secured Parties or any agent, trustee or similar representative thereof that, in the Agent’s opinion, (i) is contrary to law or the provisions of any Security Document, (ii) may expose the Agent to liability (unless the Agent shall have been indemnified, to its reasonable satisfaction, for such liability by the Secured Parties that gave such notice, consent, direction or instruction) or (iii) is unduly prejudicial to Secured Parties not joining in such notice, consent, direction or instruction.
 
Section 22.             Termination of Transaction Liens; Release of Collateral .
 
(a)           The Transaction Liens granted by each Subsidiary Guarantor shall terminate when its Secured Guarantee is released pursuant to Section 2(c) .
 
(b)           The Transaction Liens granted by the Company shall terminate when all the Release Conditions are satisfied in full.

33

 
(c)           Concurrently with any sale, lease or other disposition (except a sale or disposition to another Lien Grantor or a lease) permitted by the proviso to Section 5(d) or release of any Transaction Lien in accordance with Section 9.10(a) of the Credit Agreement, the Transaction Liens on the assets sold or disposed of (but not in any Proceeds arising from such sale or disposition) or so released will cease immediately without any action by the Agent or any other Secured Party.
 
(d)           Upon any termination of a Transaction Lien or release of Collateral, the Agent will, at the expense of the relevant Lien Grantor, execute and deliver to such Lien Grantor such documents as such Lien Grantor shall reasonably request to evidence the termination of such Transaction Lien or the release of such Collateral, as the case may be; provided that if the Agent does not file a UCC termination statement within 20 days after the Agent receives an authenticated demand for such termination from the relevant Lien Grantor, then such Lien Grantor may file such UCC termination statement in accordance with Section 9-509(d)(2) of the UCC.
 
Section 23.             Additional Subsidiary Guarantors and Lien Grantors .  Any Subsidiary may become a party hereto by signing and delivering to the Agent a Security Agreement Supplement, whereupon such Subsidiary shall become a “Subsidiary Guarantor” and a “Lien Grantor” as defined herein.
 
Section 24.             Notices .
 
(a)           Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission).  All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number ( provided that any matter transmitted by the Company by facsimile (1) shall be immediately confirmed by a telephone call to the recipient at the number specified below and (2) shall be followed promptly by delivery of a hard copy original thereof) or (subject to subsection (c) below) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
 
(i)            if to the Company or the Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 of the Credit Agreement or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties;
 
(ii)           if to any Lender, to the Agent to be forwarded to such Lender at its address, facsimile number, electronic mail address or telephone number specified in its administrative questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Company and the Agent;
 
(iii)          if to any Subsidiary Guarantor listed on the signature pages hereof, to the Company as set forth above to be forwarded to such Subsidiary Guarantor at its address, facsimile number, electronic mail address or telephone number designated by such party in a notice to the Company;

34

 
(iv)         if to any other Subsidiary Guarantor, to the address, facsimile number, electronic mail address or telephone number specified for such Person in its first Security Agreement Supplement or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
 
(v)           if to any Secured Party Requesting Notice, to such address, facsimile number, electronic mail address or telephone number as such party may hereafter specify for the purpose by notice to the Agent.
 
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of subsection (c) below), when delivered.  In no event shall a voicemail message be effective as a notice, communication or confirmation hereunder.
 
(b)           This Agreement and the other Security Documents may be transmitted and/or signed by facsimile or PDF delivered by electronic mail.  The effectiveness of any such documents and signatures shall, subject to applicable law, have the same force and effect as manually-signed originals and shall be binding on the Company, all Subsidiary Guarantors, the Secured Parties and the Agent.  The Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof; provided , that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.
 
(c)           Electronic mail and Internet and intranet websites may be used only to distribute routine communications and to distribute this Agreement and other Security Documents for execution by the parties thereto, and may not be used for any other purpose.
 
(d)           The Agent and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Company or any Subsidiary Guarantor even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Company and the Subsidiary Guarantors shall jointly and severally indemnify each Agent-Related Person and each Secured Party and each Related Party thereto from all losses, costs, out-of-pocket expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Company or any Subsidiary Guarantor; provided that such indemnity shall not, as to any Person, be available to the extent that such losses, costs, out-of-pocket expenses or liabilities are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Person.  All telephonic notices to and other communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.

35

 
Section 25.             No Implied Waivers; Remedies Not Exclusive .  No failure by the Agent or any Secured Party to exercise, and no delay in exercising and no course of dealing with respect to, any right or remedy under any Security Document shall operate as a waiver thereof; nor shall any single or partial exercise by the Agent or any Secured Party of any right or remedy under any Loan Document preclude any other or further exercise thereof or the exercise of any other right or remedy.  The rights and remedies specified in the Loan Documents are cumulative and are not exclusive of any other rights or remedies provided by law.
 
Section 26.             Successors and Assigns .  This Agreement is for the benefit of the Agent and the Secured Parties.  If all or any part of any Secured Party’s interest in any Secured Obligation is assigned or otherwise transferred, the transferor’s rights hereunder, to the extent applicable to the obligation so transferred, shall be automatically transferred with such obligation.  This Agreement shall be binding on the Lien Grantors and their respective successors and assigns.
 
Section 27.             Amendments and Waivers .  Neither this Agreement nor any provision hereof may be waived, amended, modified or terminated except pursuant to an agreement or agreements in writing entered into by the parties hereto, with the consent of such Lenders as are required to consent thereto under Section 10.01 of the Credit Agreement.
 
Section 28.             Choice of Law .  This Agreement shall be construed in accordance with and governed by the laws of the State of New York.
 
Section 29.             Waiver of Jury Trial .  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY SECURITY DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY SECURITY DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER SECURITY DOCUMENTS.

36

 
Section 30.             Severability .  If any provision of any Security Document is invalid or unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (i) the other provisions of the Security Documents shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Agent and the Secured Parties in order to carry out the intentions of the parties thereto as nearly as may be possible and (ii) the invalidity or unenforceability of such provision in such jurisdiction shall not affect the validity or enforceability thereof in any other jurisdiction.
 
Section 31.             Pari Passu Intercreditor Agreement .  Notwithstanding anything herein to the contrary, the Liens and security interests granted to the Agent pursuant to this Agreement, the exercise of any right or remedy by the Agent hereunder and the obligations of the Lien Grantors hereunder, in each case, with respect to the Collateral are subject to the limitations and provisions of the Intercreditor Agreement.  In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement with respect to the Collateral, the terms of the Intercreditor Agreement shall govern and control.  For the avoidance of doubt, at any time that the Agent is not the Applicable Collateral Agent (as defined in the Intercreditor Agreement), the Lien Grantors shall be deemed to have complied with any obligation hereunder to deliver any possessory collateral (or other Collateral that can be held by only one person) to the Agent by delivering such possessory collateral to the Applicable Collateral Agent (as defined in the Intercreditor Agreement).
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

37

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
 
 	CNO FINANCIAL GROUP, INC.	
 	CNO SERVICES, LLC	
 	 	 	 	 	
 	By: 	    /s/ Erik M. Helding	 	
 	Name:	Erik M. Helding	 	
 	Title:	Senior Vice President, Treasury and Investor Relations	 	
 
 	Subsidiary Guarantors:	
 	 	 	 	 	
 	AMERICAN LIFE AND CASUALTY MARKETING DIVISION CO.	 	
 	CDOC, INC.	 	
 	CNO MANAGEMENT SERVICES COMPANY	 	
 	40|86 ADVISORS, INC.	 	
 	40|86 MORTGAGE CAPITAL, INC.	 	
 	PERFORMANCE MATTERS ASSOCIATES, INC.	 	
 	PERFORMANCE MATTERS ASSOCIATES OF TEXAS, INC.	 	
 	K.F. AGENCY, INC.	 	
 
 	By: 	   /s/ Erik M. Helding	 	
 	Name:	Erik M. Helding	 	
 	Title:	Senior Vice President and Treasurer		

 

 
[Signature Page to the Guarantee and Security Agreement]

 

 
 	JPMORGAN CHASE BANK, N.A.,	 	
 	as Agent	 	
 	 	 	 	 	
 	By: 	  /s/ Melvin Jackson	 	
 	 	Name: Melvin Jackson	 	
 	 	Title: Executive Director		

39

 
Exhibit A to
Guarantee and Security Agreement
 
SECURITY AGREEMENT SUPPLEMENT
 
This SECURITY AGREEMENT SUPPLEMENT dated as of _______________ is entered into by and   between [NAME OF LIEN GRANTOR] (the “ Lien Grantor ”) and JPMorgan Chase Bank, N.A., as Agent.
 
WHEREAS, CNO Financial Group, Inc., the Subsidiary Guarantors party thereto and JPMorgan Chase Bank, N.A., as Agent, are parties to a Guarantee and Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) under which CNO Financial Group, Inc. secures certain of its obligations (the “ Secured Obligations ”) and the Subsidiary Guarantors guarantee the Secured Obligations and secure their respective guarantees thereof;
 
WHEREAS, [name of Lien Grantor] [desires to become][is] a party to the Security Agreement as a Subsidiary Guarantor and Lien Grantor thereunder; and
 
WHEREAS, terms defined in the Security Agreement (or whose definitions are incorporated by reference in Section 1 of the Security Agreement) and not otherwise defined herein have, as used herein, the respective meanings provided for therein;
 
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.              Secured Guarantee . 1 The Lien Grantor unconditionally guarantees the full and punctual payment of each Secured Obligation when due (whether at stated maturity, upon acceleration or otherwise).  The Lien Grantor acknowledges that, by signing this Security Agreement Supplement and delivering it to the Agent, the Lien Grantor becomes a “Subsidiary Guarantor” and “Lien Grantor” for all purposes of the Security Agreement and that its obligations under the foregoing Secured Guarantee are subject to all the provisions of the Security Agreement (including those set forth in Section 2 thereof) applicable to the obligations of a Subsidiary Guarantor thereunder.
 
2.              Grant of Transaction Liens .  (a) In order to secure [its Secured Guarantee] 2 [the Secured Obligations] 3 , the Lien Grantor grants to the Agent for the benefit of the Secured Parties a continuing security interest in all the following property of the Lien Grantor, whether now or owned or existing or hereafter acquired or arising and regardless of where located (the “ New Collateral ”):
 
If the Lien Grantor is the Company, delete this recital and Section 1 hereof.

1 Delete this Section if the Lien Grantor is the Company or a Subsidiary Guarantor that is already a party to the Security Agreement.
2 Delete bracketed words if the Lien Grantor is the Company.
3 Delete bracketed words if the Lien Grantor is a Subsidiary Guarantor.

 

 
[describe property being added to the Collateral] 4
 
(b)           With respect to each right to payment or performance included in the Collateral from time to time, the Transaction Lien granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or performance and (ii) any Lien that (x) secures such right to payment or performance or (y) secures any such Supporting Obligation.
 
(c)           The foregoing Transaction Liens are granted as security only and shall not subject the Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Lien Grantor with respect to any of the New Collateral or any transaction in connection therewith.
 
3.              Delivery of Collateral .  Concurrently with delivering this Security Agreement Supplement to the Agent, the Lien Grantor is complying with the provisions of Section 7 of the Security Agreement with respect to Chattel Paper and Instruments, Section 10 of the Security Agreement with respect to rights to the proceeds of letters of credit, and either Section 11 or Section 14(a) (whichever is applicable) of the Security Agreement with respect to Investment Property, in each case if and, to the extent included in the New Collateral at such time.
 
4.              Party to Security Agreement .  Upon delivering this Security Agreement Supplement to the Agent, the Lien Grantor will become a party to the Security Agreement and will thereafter have all the rights and obligations of a Subsidiary Guarantor and a Lien Grantor thereunder and be bound by all the provisions thereof as fully as if the Lien Grantor were one of the original parties thereto. 5
 
5.              Address of Lien Grantor .  The address, facsimile number, electronic mail address and telephone number of the Lien Grantor for purposes of Section 29 of the Security Agreement are:
 
[address]
 
[facsimile number]
 
[e-mail address]
 
[telephone number]
 
6.              Representations and Warranties .  (a) The Lien Grantor is a corporation 6 duly organized, validly existing and in good standing under the laws of [jurisdiction of organization].

4 If the Lien Grantor is not already a party to the Security Agreement, clauses (i) through (xv) of, and the proviso to, Section 3(a) of the Security Agreement may be appropriate.
5 Delete Sections 4 and 5 if the Lien Grantor is already a party to the Security Agreement.
6 Modify as need if not a corporation.

A-2

 
(b)           The Lien Grantor has delivered a Perfection Certificate to the Agent.  The information set forth therein is correct and complete as of the date hereof.  Within 60 days after the date hereof, the Lien Grantor will furnish (or cause to be furnished) to the Agent a file search report from each UCC filing office listed in such Perfection Certificate, showing the filing made at such filing office to perfect the Transaction Liens on the New Collateral.
 
(c)           The execution and delivery of this Security Agreement Supplement by the Lien Grantor and the performance by it of its obligations under the Security Agreement as supplemented hereby are within its corporate or other powers, have been duly authorized by all necessary corporate or other action, require no action by or in respect of, or filing with, any governmental body, agency or official (except (i) such as have been obtained on or prior to the date hereof and (ii) filings necessary to perfect the Transactions Liens) and do not contravene, or constitute a default under, any provision of applicable law or regulation (except to the extent that such contraventions or defaults, in the aggregate, could not reasonably be expected to have a Material Adverse Effect) or of its Organization Documents, or of any material agreement, judgment, injunction, order, decree or other instrument binding upon it or result in the creation or imposition of any Lien (except a Transaction Lien) on any of its assets.
 
(d)           The Security Agreement as supplemented hereby constitutes a valid and binding agreement of the Lien Grantor, enforceable in accordance with its terms, except as limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting creditors’ rights generally and (ii) general principles of equity.
 
(e)           Each of the representations and warranties set forth in the Security Agreement is true as applied to the Lien Grantor and the New Collateral.  For purposes of the foregoing sentence, references in said Sections to a “Lien Grantor” shall be deemed to refer to the Lien Grantor, references to Schedules to the Security Agreement shall be deemed to refer to the corresponding Schedules to this Security Agreement Supplement, references to “Collateral” shall be deemed to refer to the New Collateral, and references to the “Closing Date” shall be deemed to refer to the date on which the Lien Grantor signs and delivers this Security Agreement Supplement.
 
7.             Governing Law .  This Security Agreement Supplement shall be construed in accordance with and governed by the laws of the State of New York.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

A-3

IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement Supplement to be duly executed by their respective authorized officers as of the day and year first above written.
 
 	[NAME OF LIEN GRANTOR]	 	
 	 	 	 	 	
 	By: 	 	 	
 	 	Name:	 	
 	 	Title:		
 
 	JPMORGAN CHASE BANK, N.A.,	 	
 	as Agent	 	
 	 	 	 	 	
 	By: 	 	 	
 	 	Name:
Title: 	 	

A-4

 
Schedule 1
to Security Agreement
Supplement
 
EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES
OWNED BY LIEN GRANTOR
 
Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent Pledged	

 	 	 	 	 	

 
A-5

Schedule 2
to Security Agreement
Supplement
 
OTHER SECURITIES
(OTHER THAN EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES)
 
Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent Pledged	

 	 	 	 	 	

 
A-6

 
Schedule 3
                                                                                                                                          to Security Agreement
Supplement
 
DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS
 
PART 1 — Securities Accounts
 
The Lien Grantor owns Security Entitlements with respect to Financial Assets credited to the following Securities Accounts:
 
Owner	 	Type Of
Account	 	Intermediary	 	Account
Numbers	

 

PART 2 — Commodity Accounts
 
The Lien Grantor is the Commodity Customer with respect to the following Commodity Accounts:
 
Owner	 	Type Of
Account	 	Intermediary	 	Account
Numbers	

 

PART 3 — Deposit Accounts
 
The Lien Grantor is the Customer with respect to the following Deposit Accounts:
 
Owner	 	Type Of
Account	 	Intermediary	 	Account
Numbers	

 

 
A-7

 
Schedule 4
                                                                                                                                          to the Security Agreement
Supplement
 
COMMERCIAL TORT CLAIMS
 
 	Description
 
 	 	 	Pledged
(Yes/No)	 	

 	 	 	 	 	 	

 
A-8

 
Schedule 5
                                                                                                                                          to Security Agreement
Supplement

PLEDGED INSTRUMENTS
1.            Promissory Notes :
 
Entity	Principal
Amount
 	Date of
Issuance	Interest Rate	Maturity Date	Pledged
(Yes/No)	

 	 	 	 	 	 	
 
2.            Chattel Paper :
 
 	Description
 
 	 	 	Pledged
(Yes/No)	 	

 	 	 	 	 	 	

A-9

 
EXHIBIT B
to Security Agreement
 
COPYRIGHT SECURITY AGREEMENT
 
(Copyrights, Copyright Registrations, Copyright
Applications and Copyright Licenses)
 
WHEREAS, [name of Lien Grantor], a [_____] corporation 7 (herein referred to as the “ Lien Grantor ”) owns, or in the case of licenses is a party to, the Copyright Collateral (as defined below);
 
WHEREAS, CNO Financial Group, Inc. (the “ Company ”), the lenders party thereto, and JPMorgan Chase Bank, N.A., as Agent, are parties to a Credit Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”);
 
WHEREAS, pursuant to (i) a Guarantee and Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) among the Company, the Subsidiary Guarantors party thereto and JPMorgan Chase Bank, N.A., as Agent for the Secured Parties referred to therein (in such capacity, together with its successors and assigns in such capacity, the “ Grantee ”), and (ii) certain other Security Documents (including this Copyright Security Agreement), the Lien Grantor has [secured certain of its obligations (the “ Secured Obligations ”)] 8 [guaranteed certain obligations of the Company and secured such guarantee (the “ Lien Grantor’s Secured Guarantee of the Secured Obligations ”)] 9 by granting to the Grantee for the benefit of the Secured Parties a continuing security interest in personal property of the Lien Grantor, including all right, title and interest of the Lien Grantor in, to and under the Copyright Collateral (as defined below); and
 
WHEREAS, capitalized terms used but not defined herein shall have the meanings given to them in the Security Agreement.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lien Grantor grants to the Grantee for the benefit of the Secured Parties, to secure the [Secured Obligations] [Lien Grantor’s Secured Guarantee of the Secured Obligations], a continuing security interest in all of the Lien Grantor’s right, title and interest in, to and under the following (all of the following items or types of property being herein collectively referred to as the “ Copyright Collateral ”), whether now owned or existing or hereafter acquired or arising:
 
(i)           each Copyright (as defined in the Security Agreement) owned by the Lien Grantor, including, without limitation, each Copyright registration or application therefor referred to in Schedule 1 hereto;

7 Modify as needed if the Lien Grantor is not a corporation.
 
8 Delete these bracketed words if the Lien Grantor is a Subsidiary Guarantor.
 
9 Delete these bracketed words if the Lien Grantor is the Company.

 

 
(ii)           each Copyright License (as defined in the Security Agreement) to which the Lien Grantor is a party, including, without limitation, each Copyright License identified in Schedule 1 hereto; and
 
(iii)           all proceeds of, revenues from, and accounts and general intangibles arising out of, the foregoing, including, without limitation, all proceeds of and revenues from any claim by the Lien Grantor against third parties for past, present or future infringement of any Copyright (including, without limitation, any Copyright owned by the Lien Grantor and identified in Schedule 1 hereto), and all rights and benefits of the Lien Grantor under any Copyright License (including, without limitation, any Copyright License identified in Schedule 1 hereto).
 
The Lien Grantor irrevocably constitutes and appoints the Grantee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of the Lien Grantor or in the Grantee’s name, from time to time, in the Grantee’s reasonable discretion, so long as any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing, to take with respect to the Copyright Collateral, in accordance with the Security Agreement, any and all appropriate action which the Lien Grantor might take with respect to the Copyright Collateral and to execute any and all documents and instruments which may be necessary or desirable to carry out the terms of this Copyright Security Agreement and to accomplish the purposes hereof.
 
Except to the extent expressly permitted in the Security Agreement or the Credit Agreement, the Lien Grantor agrees not to sell, license, exchange, assign or otherwise transfer or dispose of, or grant any rights with respect to, or mortgage or otherwise encumber, any of the Copyright Collateral.
 
The foregoing security interest is granted in conjunction with the security interests granted by the Lien Grantor to the Grantee pursuant to the Security Agreement.  The Lien Grantor acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Copyright Collateral granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  In the event that any provision of this Copyright Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

B-2

 
IN WITNESS WHEREOF, the Lien Grantor has caused this Copyright Security Agreement to be duly executed by its officer thereunto duly authorized as of the  _____ day of _____________.
 
 	[NAME OF LIEN GRANTOR]	 	

 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 
Acknowledged	 	
 	 	
JPMORGAN CHASE BANK, N.A.,	 	
as Agent	 	
 	 	
By:	 	 	
 	Name:	 	
 	Title: 	 	

 

 
STATE OF ____________________                                          
 ) ss.:
COUNTY OF ___________________                                          
 
I, ________________________, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY, that _______________, of [NAME OF LIEN GRANTOR] (the “Lien Grantor”), personally known to me to be the same person whose name is subscribed to the foregoing instrument as such _______________, appeared before me this day in person and acknowledged that (s)he signed, executed and delivered said instrument as her/his own free and voluntary act and as the free and voluntary act of said Lien Grantor, for the uses and purposes therein set forth being duly authorized so to do.
 
GIVEN under my hand and Notarial Seal this _____day of _______________
 
 [Seal]
 
 ___________________________________________Signature of notary public
 
My Commission expires ______________

 

 
Schedule 1
to Copyright
Security Agreement
 
[NAME OF LIEN GRANTOR]
 
COPYRIGHT REGISTRATIONS
 
Registration. No	 	Registration Date	 	Title	

 
 
COPYRIGHT APPLICATIONS
 
Case No.	 	Filing Date	 	Filing Title	

 

COPYRIGHT LICENSES
 
Name of
Agreement	 	Parties
Licensor/Licensee	 	Date of
Agreement	 	Subject
Matter	

 

 

 
EXHIBIT C
Security Agreement
 
PATENT SECURITY AGREEMENT
 
(Patents, Patent Applications and Patent Licenses)
 
WHEREAS, [name of Lien Grantor], a [_______] corporation 10 (herein referred to as the “ Lien Grantor ”) owns, or in the case of licenses is a party to, the Patent Collateral (as defined below);
 
WHEREAS, CNO Financial Group, Inc. (the “ Company ”), the lenders party thereto, and JPMorgan Chase Bank, N.A., as Agent, are parties to a Credit Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “Credit Agreement”);
 
WHEREAS, pursuant to (i) a Guarantee and Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) among the Company, the Subsidiary Guarantors party thereto and JPMorgan Chase Bank, N.A., as Agent for the Secured Parties referred to therein (in such capacity, together with its successors and assigns in such capacity, the “ Grantee ”), and (ii) certain other Security Documents (including this Patent Security Agreement), the Lien Grantor has [secured certain of its obligations (the “ Secured Obligations ”)] 11 [guaranteed certain obligations of the Company and secured such guarantee (the “ Lien Grantor’s Secured Guarantee of the Secured Obligations ”)] 12 by granting to the Grantee for the benefit of the Secured Parties a continuing security interest in personal property of the Lien Grantor, including all right, title and interest of the Lien Grantor in, to and under the Patent Collateral (as defined below); and
 
WHEREAS, capitalized terms used but not defined herein shall have the meanings given to them in the Security Agreement.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lien Grantor grants to the Grantee for the benefit of the Secured Parties, to secure the [Secured Obligations] [Lien Grantor’s Secured Guarantee of the Secured Obligations], a continuing security interest in all of the Lien Grantor’s right, title and interest in, to and under the following (all of the following items or types of property being herein collectively referred to as the “ Patent Collateral ”), whether now owned or existing or hereafter acquired or arising:
 
(i)           each Patent (as defined in the Security Agreement) owned by the Lien Grantor, including, without limitation, each Patent referred to in Schedule 1 hereto;

10 Modify as needed if the Lien Grantor is not a corporation.
 
11 Delete these bracketed words if the Lien Grantor is a Subsidiary Guarantor.
 
12 Delete these bracketed words if the Lien Grantor is the Company.

 

 
(ii)          each Patent License (as defined in the Security Agreement) to which the Lien Grantor is a party, including, without limitation, each Patent License identified in Schedule 1 hereto; and
 
(iii)         all proceeds of and revenues from the foregoing, including, without limitation, all proceeds of and revenues from any claim by the Lien Grantor against third parties for past, present or future infringement of any Patent owned by the Lien Grantor (including, without limitation, any Patent identified in Schedule 1 hereto) and all rights and benefits of the Lien Grantor under any Patent License (including, without limitation, any Patent License identified in Schedule 1 hereto).
 
The Lien Grantor irrevocably constitutes and appoints the Grantee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of the Lien Grantor or in the Grantee’s name, from time to time, in the Grantee’s reasonable discretion, so long as any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing, to take with respect to the Patent Collateral, in accordance with the Security Agreement, any and all appropriate action which the Lien Grantor might take with respect to the Patent Collateral and to execute any and all documents and instruments which may be necessary or desirable to carry out the terms of this Patent Security Agreement and to accomplish the purposes hereof.
 
Except to the extent expressly permitted in the Security Agreement or the Credit Agreement, the Lien Grantor agrees not to sell, license, exchange, assign or otherwise transfer or dispose of, or grant any rights with respect to, or mortgage or otherwise encumber, any of the Patent Collateral.
 
The foregoing security interest is granted in conjunction with the security interests granted by the Lien Grantor to the Grantee pursuant to the Security Agreement.  The Lien Grantor acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Patent Collateral granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  In the event that any provision of this Patent Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

C-2

 
IN WITNESS WHEREOF, the Lien Grantor has caused this Patent Security Agreement to be duly executed by its officer thereunto duly authorized as of the _____ day of _______________.
 
 	[NAME OF LIEN GRANTOR]	 	

 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 
Acknowledged:	 	
 	 	
JPMORGAN CHASE BANK, N.A.,	 	
as Agent	 	
 	 	
By:	 	 	
 	Name:	 	
 	Title: 	 	

C-3

 
STATE OF _____________	 	
 	) ss.:	
COUNTY OF _____________	 	
 
I, ________________________, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY, that ___________________________________, of [NAME OF LIEN GRANTOR] (the “ Lien Grantor ”), personally known to me to be the same person whose name is subscribed to the foregoing instrument as such _______________, appeared before me this day in person and acknowledged that (s)he signed, executed and delivered said instrument as her/his own free and voluntary act and as the free and voluntary act of said Lien Grantor, for the uses and purposes therein set forth being duly authorized so to do.
 
GIVEN under my hand and Notarial Seal this _____day of _______________
 
  [Seal]
 
____________________________________________Signature of notary public
 
My Commission expires ______________

C-4

 
Schedule 1
to Patent
Security Agreement
 
[NAME OF LIEN GRANTOR]
 
PATENTS AND DESIGN PATENTS
 
Patent No.	Issued   	 Expiration 	Title	

 

PATENT APPLICATIONS
 
Case No.	Serial No.	Filing Date	Filing Title	

 

PATENT LICENSES
 
Name of
Agreement	 	Parties Licensor/Licensee	 	Date of
Agreement	 	Subject
Matter	

 

C-5

 
EXHIBIT D
to Security Agreement
 
TRADEMARK SECURITY AGREEMENT
 
(Trademarks, Trademark Registrations, Trademark
Applications and Trademark Licenses)
 
WHEREAS, [name of Lien Grantor], a [_______] corporation 13 (herein referred to as the “ Lien Grantor ”) owns, or in the case of licenses is a party to, the Trademark Collateral (as defined below);
 
WHEREAS, CNO Financial Group, Inc. (the “ Company ”), the lenders party thereto, and JPMorgan Chase Bank, N.A., as Agent, are parties to a Credit Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”);
 
WHEREAS, pursuant to (i) a Guarantee and Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) among the Company, the Subsidiary Guarantors party thereto and JPMorgan Chase Bank, N.A., as Agent for the Secured Parties referred to therein (in such capacity, together with its successors and assigns in such capacity, the “ Grantee ”), and (ii) certain other Security Documents (including this Trademark Security Agreement), the Lien Grantor has [secured certain of its obligations (the “ Secured Obligations ” )] 14 [guaranteed certain obligations of the Company and secured such guarantee (the “ Lien Grantor’s Secured Guarantee of the Secured Obligations ”)] 15 by granting to the Grantee for the benefit of the Secured Parties a continuing security interest in personal property of the Lien Grantor, including all right, title and interest of the Lien Grantor in, to and under the Trademark Collateral (as defined below); and
 
WHEREAS, capitalized terms used but not defined herein shall have the meanings given to them in the Security Agreement.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lien Grantor grants to the Grantee for the benefit of the Secured Parties, to secure the [Secured Obligations] [Lien Grantor’s Secured Guarantee of the Secured Obligations], a continuing security interest in all of the Lien Grantor’s right, title and interest in, to and under the following (all of the following items or types of property being herein collectively referred to as the “ Trademark Collateral ”), whether now owned or existing or hereafter acquired or arising:
 
(i)           each Trademark (as defined in the Security Agreement) owned by the Lien Grantor, including, without limitation, each Trademark registration and application referred to in Schedule 1 hereto, and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark;

13 Modify as needed if the Lien Grantor is not a corporation.
 
14 Delete these bracketed words if the Lien Grantor is a Subsidiary Guarantor.
 
15 Delete these bracketed words if the Lien Grantor is the Company.

 

 
(ii)          each Trademark License (as defined in the Security Agreement) to which the Lien Grantor is a party, including, without limitation, each Trademark License identified in Schedule 1 hereto, and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark licensed pursuant thereto; and
 
(iii)         all proceeds of and revenues from the foregoing, including, without limitation, all proceeds of and revenues from any claim by the Lien Grantor against third parties for past, present or future unfair competition with, or violation of intellectual property rights in connection with or injury to, or infringement or dilution of, any Trademark owned by the Lien Grantor (including, without limitation, any Trademark identified in Schedule 1 hereto), and all rights and benefits of the Lien Grantor under any Trademark License (including, without limitation, any Trademark License identified in Schedule 1 hereto), or for injury to the goodwill associated with any of the foregoing;
 
provided that intent-to-use Trademark applications are excluded from the Trademarks Collateral solely to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use Trademark applications or any registrations that issue therefrom under applicable United States federal law.
 
The Lien Grantor irrevocably constitutes and appoints the Grantee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of the Lien Grantor or in the Grantee’s name, from time to time, in the Grantee’s reasonable discretion, so long as any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing, to take with respect to the Trademark Collateral, in accordance with the Security Agreement, any and all appropriate action which the Lien Grantor might take with respect to the Trademark Collateral and to execute any and all documents and instruments which may be necessary or desirable to carry out the terms of this Trademark Security Agreement and to accomplish the purposes hereof.
 
Except to the extent expressly permitted in the Security Agreement or the Credit Agreement, the Lien Grantor agrees not to sell, license, exchange, assign or otherwise transfer or dispose of, or grant any rights with respect to, or mortgage or otherwise encumber, any of the Trademark Collateral.
 
The foregoing security interest is granted in conjunction with the security interests granted by the Lien Grantor to the Grantee pursuant to the Security Agreement.  The Lien Grantor acknowledges and affirms that the rights and remedies of the Grantee with respect to the security interest in the Trademark Collateral granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  In the event that any provision of this Trademark Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

D-2

 
IN WITNESS WHEREOF, the Lien Grantor has caused this Trademark Security Agreement to be duly executed by its officer thereunto duly authorized as of the ____ day of _____________.
 
 	 [NAME OF LIEN GRANTOR]	 	

 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 
Acknowledged:	 	
 	 	
JPMORGAN CHASE BANK, N.A.,	 	
as Agent	 	
 	 	
By:	 	 	
 	Name:	 	
 	Title: 	 	

D-3

 
STATE OF _____________	 	
 	) ss.:	
COUNTY OF _____________	 	
 
I, ____________________, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY, that ________________________________, of [NAME OF LIEN GRANTOR] (the “Lien Grantor”), personally known to me to be the same person whose name is subscribed to the foregoing instrument as such _______________, appeared before me this day in person and acknowledged that (s)he signed, executed and delivered said instrument as her/his own free and voluntary act and as the free and voluntary act of said Lien Grantor, for the uses and purposes therein set forth being duly authorized so to do.
 
GIVEN under my hand and Notarial Seal this _____day of _______________

 

 
   [Seal]
 
_______________________________________Signature of notary public
 
My Commission expires ______________

D-4

Schedule 1
to Trademark
Security Agreement
 
[NAME OF LIEN GRANTOR]
 
U.S. TRADEMARK REGISTRATIONS
 
TRADEMARK	 	REG. NO.	 	REG. DATE	

 
 
U.S. TRADEMARK APPLICATIONS
 
TRADEMARK	 	SERIAL NO.	 	FILING DATE	

 
 
TRADEMARK LICENSES
 
Name of
Agreement	 	Parties
Licensor/Licensee	 	Date of
Agreement	 	Subject
Matter	

 

 
 
D-5

EXHIBIT E
to Security Agreement
 
PERFECTION CERTIFICATE
[SEE ATTACHED]

D-6

 
EXHIBIT F to
Security Agreement
 
ISSUER CONTROL AGREEMENT
 
ISSUER CONTROL AGREEMENT dated as of _______________among [NAME OF LIEN GRANTOR] (the “ Lien Grantor ”), JPMorgan Chase Bank, N.A., as Agent (the “ Secured Party ”), and [NAME OF ISSUER] (the “ Issuer ”).  All references herein to the “UCC” refer to the Uniform Commercial Code as in effect from time to time in [Issuer’s jurisdiction of incorporation].
 
WITNESSETH:
 
WHEREAS, the Lien Grantor is the registered holder of [specify Pledged Uncertificated Securities issued by the Issuer] issued by the Issuer (the “ Securities ”);
 
WHEREAS, pursuant to a Guarantee and Security Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”), the Lien Grantor has granted to the Secured Party a continuing security interest (the “ Transaction Lien ”) in all right, title and interest of the Lien Grantor in, to and under the Securities, whether now existing or hereafter arising; and
 
WHEREAS, the parties hereto are entering into this Agreement in order to perfect the Transaction Lien on the Securities;
 
NOW, THEREFORE, the parties hereto agree as follows:
 
Section 1.           Nature of Securities .  The Issuer confirms that (i) the Securities are “uncertificated securities” (as defined in Section 8-102 of the UCC) and (ii) the Lien Grantor is registered on the books of the Issuer as the registered holder of the Securities.
 
Section 2.           Instructions .  The Issuer agrees to comply with any “instruction” (as defined in Section 8-102 of the UCC) originated by the Secured Party and relating to the Securities without further consent by the Lien Grantor or any other person.  The Lien Grantor consents to the foregoing agreement by the Issuer.
 
Section 3.           Waiver of Lien; Waiver of Set-off .  The Issuer waives any security interest, lien or right of set-off that it may now have or hereafter acquire in or with respect to the Securities.  The Issuer’s obligations in respect of the Securities will not be subject to deduction, set-off or any other right in favor of any person other than the Secured Party.
 
Section 4.           Choice of Law .  This Agreement shall be governed by the laws of [Issuer’s jurisdiction of incorporation].
 
Section 5.           Conflict with Other Agreements .  There is no agreement (except this Agreement) between the Issuer and the Lien Grantor with respect to the Securities [except for [identify any existing other agreements] (the “ Existing Other Agreements ”)].  In the event of any conflict between this Agreement (or any portion hereof) and any other agreement [(including any Existing Other Agreement)] between the Issuer and the Lien Grantor with respect to the Securities, whether now existing or hereafter entered into, the terms of this Agreement shall prevail.

D-7

 
Section 6.           Amendments .  No amendment or modification of this Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all the parties hereto.
 
Section 7.           Notice of Adverse Claims .  As of the date hereof, except for the claims and interests of the Secured Party and the Lien Grantor in the Securities, the Issuer does not know of any claim to, or interest in, the Securities.  When the Issuer knows of any person asserting any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, attachment, execution or similar process) against the Securities, the Issuer will promptly notify the Secured Party and the Lien Grantor thereof.
 
Section 8.           Maintenance of Securities .  In addition to, and not in lieu of, the obligation of the Issuer to honor instructions as agreed in Section 2 hereof, the Issuer agrees as follows:
 
(i)         Lien Grantor Instructions; Notice of Exclusive Control .  So long as the Issuer has not received a Notice of Exclusive Control (as defined below), the Issuer may comply with instructions of the Lien Grantor or any duly authorized agent of the Lien Grantor in respect of the Securities.  After the Issuer receives a written notice from the Secured Party that it is exercising exclusive control over the Securities (a “ Notice of Exclusive Control ”) and until such Notice of Exclusive Control is rescinded by the Secured Party, the Issuer will cease complying with instructions of the Lien Grantor or any of its agents.
 
(ii)        Dividends and Distributions .  So long as the Issuer has not received a Notice of Exclusive Control, the Issuer shall deliver to the Lien Grantor all dividends, interest and other distributions paid or made upon or with respect to the Securities.  After the Issuer receives a Notice of Exclusive Control (and until such Notice of Exclusive Control is rescinded by the Secured Party), the Issuer shall deliver to the Secured Party all dividends, interest and other distributions paid or made upon or with respect to the Securities.
 
(iii)      Voting Rights .  Until the Issuer receives a Notice of Exclusive Control, the Lien Grantor shall be entitled to direct the Issuer with respect to voting the Securities.
 
(iv)       Statements and Confirmations .  The Issuer will promptly send copies of all statements and other correspondence concerning the Securities simultaneously to each of the Lien Grantor and the Secured Party at their respective addresses specified in Section 11 hereof.
 
(v)        Tax Reporting .  All items of income, gain, expense and loss recognized in respect of the Securities shall be reported to the Internal Revenue Service and all state and local taxing authorities under the name and taxpayer identification number of the Lien Grantor.

D-8

 
Section 9.           Representations, Warranties and Covenants of the Issuer .  The Issuer makes the following representations, warranties and covenants:
 
(i)        This Agreement is a valid and binding agreement of the Issuer enforceable in accordance with its terms, except as limited by (A) applicable bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting creditors’ rights generally and (B) general principles of equity.
 
(ii)       The Issuer has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other person relating to the Securities pursuant to which it has agreed, or will agree, to comply with instructions (as defined in Section 8-102 of the UCC) of such person.
 
(iii)      The Issuer has not entered into any other agreement with the Lien Grantor or the Secured Party purporting to limit or condition the obligation of the Issuer to comply with instructions as agreed in Section 2 hereof.
 
Section 10.         Successors .  This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
 
Section 11.         Notices .  Each notice, request or other communication given to any party hereunder shall be in writing (which term includes facsimile or other electronic transmission) and shall be effective (i) when delivered to such party at its address specified below, (ii) when sent to such party by facsimile or other electronic transmission, addressed to it at its facsimile number or electronic mail address specified below, and such party sends back an electronic confirmation of receipt or (iv) ten days after being sent to such party by certified or registered United States mail, addressed to it at its address specified below, with first class or airmail postage prepaid:
 
Lien Grantor:  [INSERT NOTICE ADDRESS]
 
 	Secured Party:   JPMorgan Chase Bank, N.A., as Agent for the Secured Parties	
 	      1111 Fannin Street, Floor 10	
 	      Houston, TX  77002-6925	
 	      Attention:  Christina Masroor	
 	      TEL: 713-750-7965	
 	      FAX: 713-750-2223	
 	       EMAIL: christina.m.masroor@jpmorgan.com	
 
 	Issuer:   [INSERT NOTICE ADDRESS]	
 
Any party may change its address, facsimile number and/or electronic mail address for purposes of this Section by giving notice of such change to the other parties in the manner specified above.

D-9

 
Section 12.         Termination .  The rights and powers granted herein to the Secured Party (i) have been granted in order to perfect the Transaction Lien, (ii) are powers coupled with an interest and (iii) will not be affected by any bankruptcy of the Lien Grantor or any lapse of time.  The obligations of the Issuer hereunder shall continue in effect until the Secured Party has notified the Issuer in writing that the Transaction Lien has been terminated pursuant to the Security Agreement.
 
Section 13.         Counterparts .  This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of an original executed counterpart of this Agreement.
 
[ SIGNATURE PAGES FOLLOW ON NEXT PAGE ]

D-10

 
IN WITNESS WHEREOF, the parties hereto have each caused this Issuer Control Agreement to be duly executed by its officer thereunto duly authorized as of the date hereof.
 
 	[NAME OF LIEN GRANTOR]	 	
 	 	 	 	
 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 
 	JPMORGAN CHASE BANK, N.A.,	 	
 	as Agent	 	
 	 	 	 	
 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		
 
 	[NAME OF ISSUER]	 	
 	 	 	 	
 	By:	 	 	
 	 	  Name: 	 	
 	 	  Title:		

D-11

Schedule 1
 
EQUITY INTERESTS
 
Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent
Pledged	
40|86 Advisors, Inc.	CNO Financial Group, Inc.	5	100	100	
40|86 Mortgage Capital, Inc.	CDOC, Inc.	4	100	100	
American Life and Casualty Marketing Division Co.	CDOC, Inc.	5	1,000	100	
CDOC, Inc.	CNO Financial Group, Inc.	5
4	100
900	100
100	
CNO Management Services Company	CDOC, Inc.	30	48,150	100	
CNO Services, LLC	CNO Financial Group, Inc.	n/a	9.9%	100	
CNO Services, LLC	CDOC, Inc.	n/a	89.1%	100	
CNO Services, LLC	CNO Management Services Company	n/a	1%	100	
Performance Matters Associates, Inc.	CDOC, Inc.	008	1,000	100	
Performance Matters Associates of Texas, Inc.	Performance Matters Associates, Inc.	007	1,000	100	
CNO IT Services (India) Private Limited	CDOC, Inc.	8	324,987	100	
CNO IT Services (India) Private Limited	CNO Financial Group, Inc.	10	13	100	
CNO IT Services (India) Private Limited	CDOC, Inc.	7	174,793	0	
CNO IT Services (India) Private Limited	CNO Financial Group, Inc.	9	7	0	
Conseco Life Insurance Company of Texas	CDOC, Inc.	3	700,000	100	
Conseco Health Services, Inc.	CDOC, Inc.	6	100	100	

 

Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent
Pledged	
Conseco Securities, Inc.	CDOC, Inc.	4	1,500	100	
Hawthorne Advertising Agency Incorporated	CDOC, Inc.	3	1,000	100	
K.F. Agency, Inc.	CDOC, Inc.	3	500	100	
K.F. Insurance Agency of Massachusetts, Inc.	CDOC, Inc.	3	1,000	100	
Resortport Holding of Delaware, Inc.	CDOC, Inc.	2	100	100	
Design Benefit Plans, Inc.	CNO Financial Group, Inc.	9	1,000,000	100	
Washington National Insurance Company	CDOC, Inc.	C25881	5,007,370	100	
Association Management Corporation	CDOC, Inc.	5	1,000	100	
Conseco Life Insurance Company	CDOC, Inc.	U36846	4,178,222	100	
Conseco Marketing, L.L.C.	CNO Financial Group, Inc.
 	n/a
 	9%
 	100
 	
Conseco Marketing, L.L.C.	CNO Services, LLC	n/a	90%	100	
Conseco Marketing, L.L.C.	CNO Management Services Company	n/a	1%	100	

 

 
Schedule 2
 
OTHER SECURITIES
 
None.

 

 
Schedule 3
 
DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS
 
PART 1— Securities Accounts
 
The following Lien Grantors own Security Entitlements with respect to Financial Assets credited to the following Securities Accounts:
 
Owner	Intermediary	Description
of Account	Account
Numbers	
40|86 Advisors, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
40|86 Mortgage Capital, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
40|86 Mortgage Capital, Inc.	Bank of New
York Mellon	Custody -
Origination	[intentionally
  omitted]	
40|86 Mortgage Capital, Inc.	Bank of New
York Mellon	Custody - Rep.
Reserves	[intentionally
  omitted]	
40|86 Mortgage Capital, Inc.	Bank of New
York Mellon	Custody -
Comm. Fees	[intentionally
  omitted]	
American Life & Casualty
Marketing Division Co.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CDOC, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CNO Services, LLC	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Custody	[intentionally
  omitted]	
 
PART 2 — Commodity Accounts
 
The following Lien Grantors are the Commodity Customers with respect to the following Commodity Accounts:
 
None.

 

PART 3 — Deposit Accounts
 
Owner	Intermediary	Description
of Account	Account
Numbers	
40|86 Advisors, Inc.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
40|86 Mortgage Capital, Inc.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
40|86 Mortgage Capital, Inc.	Bank of New
York Mellon	Checking -
Escrow	[intentionally
  omitted]	
40|86 Mortgage Capital, Inc.	Bank of New
York Mellon	Lockbox	[intentionally
  omitted]	
40|86 Mortgage Capital, Inc.	JP Morgan Chase	ACH Business	[intentionally
  omitted]	
American Life & Casualty
Marketing Division Co.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
CDOC, Inc.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
CDOC, Inc.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
CNO Services, LLC	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
CNO Services, LLC	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
CNO Services, LLC	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
CNO Services, LLC	Bank of New
York Mellon	Lockbox	[intentionally
  omitted]	
CNO Services, LLC	Huntington Bank	Checking -
Payroll	[intentionally
  omitted]	
CNO Services, LLC	JP Morgan Chase	Checking	[intentionally
  omitted]	
CNO Services, LLC	JP Morgan Chase	ACH Business	[intentionally
  omitted]	
CNO Services, LLC	JP Morgan Chase	ACH Business	[intentionally
  omitted]	
CNO Services, LLC	State Street Bank	Retained
Assets	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
CNO Financial Group, Inc.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
Performance Matters
Associates of Texas, Inc.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
Performance Matters
Associates of Texas, Inc.	Bank of New
York Mellon	Checking	[intentionally
  omitted]	
Performance Matters
Associates of Texas, Inc.	Compass Bank	Checking	[intentionally
  omitted]	
Performance Matters
Associates of Texas, Inc.	Compass Bank	Money
Market	[intentionally
  omitted]	

 

 
Schedule 4
 
COMMERCIAL TORT CLAIMS
 
None.

 

 
Schedule 5
 
PLEDGED INSTRUMENTS
 
 	1.	Promissory Notes:	
 
 	(a)	Global Intercompany Note, dated September 28, 2012 which will be pledged hereunder.	
 
 	(b)	 	
 
No.	Entity	Principal
Amount	Date of
Issuance	Interest Rate	Maturity
Date Pledged	[Yes/No]	
Surplus Debenture No. 2009-1	CDOC, Inc.	$50,000,000	July 1, 2009	Offshore Rate + 4 %	December 31, 2030	Yes	
Surplus Debenture No. 2009-2	CDOC, Inc.	$58,250,000	July 1, 2009	Offshore Rate + 4 %	December 31, 2030	Yes	
Surplus Debenture No. 2009-3	CDOC, Inc.	$305,000,000	July 1, 2009	Offshore Rate + 4%	December 31, 2030	Yes	
Surplus Debenture No. 2009-4	CDOC, Inc.	$336,300,000	July 1, 2009	Offshore Rate + 4%	December 31, 2030	Yes	
Surplus Note No. 2006-2	CDOC, Inc.	$160,000,000	October 31, 2006	Offshore Rate + 4%	December 31, 2036	Yes	
 
Offshore Rate = Eurodollar Base Rate ÷ (1.00 — Eurodollar Reserve Percentage)
 
 	2.	Chattel Paper:	
 
None.

Exhibit 10.4
 
PARI PASSU INTERCREDITOR AGREEMENT
 
dated as of
 
September 28, 2012
 
among
 
JPMORGAN CHASE BANK, N.A.
as Administrative Agent for the Credit Agreement Secured Parties,
 
Wilmington Trust, National Association,
as the 2020 Notes Collateral Agent,
 
Wilmington Trust, National Association,
as the 2020 Notes Authorized Representative,
 
and
 
each additional Collateral Agent and Authorized Representative from time to time party hereto

 

 
TABLE OF CONTENTS
 
 	 	 	Page	
 	 	 	 	
ARTICLE I	
 	 	 	 	
DEFINITIONS	
 	 	 	 	
SECTION 1.01	Construction; Certain Defined Terms	 	1	
 	 	 	 	
ARTICLE II	
 	 	 	 	
PRIORITIES AND AGREEMENTS WITH RESPECT TO SHARED COLLATERAL	
 	 	 	 	
SECTION 2.01	Priority of Claims	 	9	
SECTION 2.02	Actions with Respect to Shared Collateral; Prohibition on Contesting Liens	 	10	
SECTION 2.03	No Interference; Payment Over; Exculpatory Provisions	 	12	
SECTION 2.04	Automatic Release of Liens	 	12	
SECTION 2.05	Certain Agreements with Respect to Bankruptcy or Insolvency Proceedings	 	13	
SECTION 2.06	Reinstatement	 	14	
SECTION 2.07	Insurance	 	14	
SECTION 2.08	Refinancings	 	14	
SECTION 2.09	Possessory Collateral Agent as Gratuitous Bailee for Perfection	 	14	
SECTION 2.10	Amendments to First Lien Security Documents	 	15	
SECTION 2.11	Identical Collateral	 	15	
 	 	 	 	
ARTICLE III	
 	 	 	 	
EXISTENCE AND AMOUNTS OF LIENS AND OBLIGATIONS	
 	 	 	 	
ARTICLE IV	
 	 	 	 	
THE APPLICABLE COLLATERAL AGENT	
 	 	 	 	
SECTION 4.01	Authority	 	16	
 	 	 	 	
ARTICLE V	
 	 	 	 	
MISCELLANEOUS	
 	 	 	 	
SECTION 5.01	Notices	 	17	
SECTION 5.02	Waivers; Amendment; Joinder Agreements	 	18	
SECTION 5.03	Parties in Interest	 	18	
SECTION 5.04	Survival of Agreement	 	18	
SECTION 5.05	Counterparts	 	18	
SECTION 5.06	Severability	 	19	
SECTION 5.07	Governing Law	 	19	
SECTION 5.08	Submission to Jurisdiction; Waivers	 	19	
SECTION 5.09	WAIVER OF JURY TRIAL	 	19	

i

 
SECTION 5.10	Headings	 	20	
SECTION 5.11	Conflicts	 	20	
SECTION 5.12	Provisions Solely to Define Relative Rights	 	20	
SECTION 5.13	Integration	 	20	
SECTION 5.14	Other First Lien Obligations	 	20	
SECTION 5.15	Agent Capacities	 	21	
SECTION 5.16	Termination	 	21	

ii

 
PARI PASSU INTERCREDITOR AGREEMENT (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, this “ Agreement ”)   dated as of September 28, 2012, among JPMORGAN CHASE BANK, N.A., as administrative agent for the Credit Agreement Secured Parties (as defined below) under the Credit Agreement Documents (as defined below) (in such capacity and together with its successors in such capacity, the “ Administrative Agent ”) , Wilmington Trust, National Association, as collateral agent for the 2020 Notes First Lien Secured Parties (as defined below) (in such capacity and together with its successors in such capacity, the “ 2020 Notes Collateral Agent ”) , the Trustee (defined below) as Authorized Representative for the 2020 Notes First Lien Secured Parties (in such capacity and together with its successors in such capacity, the “ 2020 Notes Authorized Representative ”)   and each additional Collateral Agent and Authorized Representative from time to time party hereto for the Other First Lien Secured Parties of the Series (as defined below) with respect to which it is acting in such capacity.
 
Reference is made to (i) the Credit Agreement dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) , among CNO Financial Group, Inc., a Delaware corporation (the “ Borrower ”) , the Lenders party thereto from time to time, the Administrative Agent and the other parties named therein; (ii) the Guarantee and Security Agreement dated as of  September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Security Agreement ”) , among the Borrower, each Subsidiary of the Borrower party thereto from time to time and the Administrative Agent; (iii) the 6.375% Senior Secured Notes due 2020 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ 2020 Notes ”)   issued pursuant to an Indenture (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ 2020 Notes Indenture ”)   dated as of September 28, 2012 among the Borrower, each Subsidiary of the Borrower identified therein and Wilmington Trust, National Association, as trustee (in such capacity and together with its successors in such capacity, the “ Trustee ”) and as 2020 Notes Collateral Agent;   and (iv) the Security Agreement, dated as of September 28, 2012 (as amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ 2020 Notes Security Agreement ”) , by and among the Borrower, each Subsidiary of the Borrower party thereto from time to time, and the 2020 Notes Collateral Agent.
 
In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Administrative Agent (for itself and on behalf of the Credit Agreement Secured Parties), the 2020 Notes Collateral Agent (for itself and on behalf of the 2020 Notes First Lien Secured Parties), the 2020 Notes Authorized Representative (for itself and on behalf of the 2020 Notes First Lien Secured Parties) and each additional Authorized Representative and Collateral Agent (for itself and on behalf of the Other First Lien Secured Parties of the applicable Series) agree as follows:
 
ARTICLE I
 
DEFINITIONS
 
SECTION 1.01           Construction; Certain Defined Terms .
 
(a)            The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term “or” is not exclusive.

 

 
(b)            Without limiting the provisions of Section 2.03 , it is the intention of the First Lien Secured Parties of each Series that the holders of First Lien Obligations of such Series (and not the First Lien Secured Parties of any other Series) bear the risk of (i) any determination by a court of competent jurisdiction that (x) any of the First Lien Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of First Lien Obligations), (y) any of the First Lien Obligations of such Series are not secured by a valid and perfected security interest in any of the Collateral securing any other Series of First Lien Obligations and/or (z) any intervening security interest exists securing any other obligations (other than another Series of First Lien Obligations) on a basis ranking prior to the security interest of such Series of First Lien Obligations but junior to the security interest of any other Series of First Lien Obligations or (ii) the existence of any Collateral for any other Series of First Lien Obligations that is not Shared Collateral (any such condition referred to in the foregoing clauses (i) or (ii) with respect to any Series of First Lien Obligations, an “ Impairment ”   of such Series); provided that the existence of a maximum claim with respect to any real property subject to a mortgage which applies to all First Lien Obligations shall not be deemed to be an Impairment of any Series of First Lien Obligations.  In the event of any Impairment with respect to any Series of First Lien Obligations, the results of such Impairment shall be borne solely by the holders of such Series of First Lien Obligations, and the rights of the holders of such Series of First Lien Obligations (including, without limitation, the right to receive distributions in respect of such Series of First Lien Obligations pursuant to Section 2.01 ) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such First Lien Obligations subject to such Impairment.  Additionally, in the event the First Lien Obligations of any Series are modified pursuant to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to such First Lien Obligations or the Secured Credit Documents governing such First Lien Obligations shall refer to such obligations or such documents as so modified.
 
(c)            Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.  As used in this Agreement, the following terms have the meanings specified below:
 
“ 2020 Notes ”   has the meaning assigned to such term in the recitals of this Agreement.
 
“ 2020 Notes Authorized Representative ”   shall have the meaning assigned to such term in the introductory paragraph to this Agreement.
 
“ 2020 Notes Collateral Agent ”   shall have the meaning assigned to such term in the introductory paragraph to this Agreement.
 
“ 2020 Notes Indenture ”   has the meaning assigned to such term in the recitals of this Agreement.

2

 
“ 2020 Notes First Lien Documents ”   means the 2020 Notes Indenture, the 2020 Notes issued thereunder, the 2020 Notes Security Agreement and any security documents and other operative agreements evidencing or governing the Indebtedness thereunder, and the liens securing such Indebted ness, including any agreement entered into for the purpose of securing the 2020 Notes First Lien Obligations.
 
“ 2020 Notes First Lien Obligations ”   means the Other First Lien Obligations pursuant to the 2020 Notes First Lien Documents.
 
“ 2020 Notes First Lien Secured Parties ”   means the 2020 Notes Collateral Agent, the 2020 Notes Authorized Representative and the holders of the 2020 Notes First Lien Obligations.
 
“ 2020 Notes Security Agreement ”   has the meaning assigned to such term in the recitals of this Agreement.
 
“ Additional Senior Class Debt ”   shall have the meaning assigned to such term in Section  5.14 .
 
“ Additional Senior Class Debt Collateral Agent ”   shall have the meaning assigned to such term in Section 5.14 .
 
“ Additional Senior Class Debt Parties ”   shall have the meaning assigned to such term in Section 5.14 .
 
“ Additional Senior Class Authorized Representative ”   shall have the meaning assigned to such term in Section 5.14 .
 
“ Administrative Agent ”   shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
 
“ Agreement ”   shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
 
“ Applicable Authorized Representative ”   means (i) until the earlier of (x) the Discharge of Credit Agreement Obligations, (y) the Outstanding Loan Threshold Date and (z) the Non-Controlling Authorized Representative Enforcement Date, the Administrative Agent and (ii) from and after the earlier of (x) the Discharge of Credit Agreement Obligations, (y) the Outstanding Loan Threshold Date and (z) the Non-Controlling Authorized Representative Enforcement Date, the Major Non-Controlling Authorized Representative; provided that, in each case, that if there shall occur one or more Non-Controlling Authorized Representative Enforcement Dates, the Applicable Authorized Representative shall be the Authorized Representative that is the Major Non-Controlling Authorized Representative in respect of the most recent Non-Controlling Authorized Representative Enforcement Date.
 
“ Applicable Collateral Agent ”   means (i) until the earliest of (x) Discharge of Credit Agreement Obligations, (y) the Outstanding Loan Threshold Date and (z) the Non-Controlling Authorized Representative Enforcement Date, the Administrative Agent and (ii) from and after the earliest of (x) the Discharge of Credit Agreement Obligations, (y) the Outstanding Loan Threshold Date and (z) the Non-Controlling Authorized Representative Enforcement Date, the Collateral Agent for the Series of First Lien Obligations represented by the Major Non-Controlling Authorized Representative; provided that, in each case, that if there shall occur one or more Non-Controlling Authorized Representative Enforcement Dates, the Applicable Collateral Agent shall be the Collateral Agent for the Series of First Lien Obligations represented by the Major Non-Controlling Authorized Representative in respect of the most recent Non-Controlling Authorized Representative Enforcement Date.

3

 
“ Authorized Representative ”   means, at any time, (i) in the case of any Credit Agreement Obligations or the Credit Agreement Secured Parties, the Administrative Agent, (ii) in the case of the 2020 Notes First Lien Obligations or the 2020 Notes First Lien Secured Parties, the 2020 Notes Authorized Representative and (iii) in the case of any other Series of Other First Lien Obligations or Other First Lien Secured Parties that become subject to this Agreement after the date hereof, the Additional Senior Class Authorized Representative for such Series.
 
“ Bankruptcy Case ”   shall have the meaning assigned to such term in Section 2.05(b) .
 
“ Bankruptcy Code ”   shall mean Title 11 of the United States Code, as amended.
 
“ Bankruptcy Law ”   shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.
 
“ Collateral ”   means all assets and properties subject to Liens created pursuant to any First Lien Security Document to secure one or more Series of First Lien Obligations.
 
“ Collateral Agent ”   means (i) in the case of any Credit Agreement Obligations, the Administrative Agent, (ii) in the case of the 2020 Notes First Lien Obligations, the 2020 Notes Collateral Agent, and (iii) in the case of any other Series of Other First Lien Obligations that become subject to this Agreement after the date hereof, the Additional Senior Class Debt Collateral Agent named for such Series.
 
“ Controlling Secured Parties ”   means (i) at any time when the Administrative Agent is the Applicable Collateral Agent, the Credit Agreement Secured Parties and (ii) at any other time, the Series of First Lien Secured Parties whose Authorized Representative is the Applicable Authorized Representative.
 
“ Credit Agreement ”   shall have the meaning assigned to such term in the introductory paragraph to this Agreement and shall also include any agreement that Refinances the Credit Agreement in accordance with Section 2.08 hereto so long as, after giving effect to such agreement, the agreement that was the Credit Agreement immediately prior to such Refinancing is no longer secured, or required to be secured, by the Shared Collateral.
 
“ Credit Agreement Collateral Documents ”   means the Security Agreement, the other Security Documents (as defined in the Credit Agreement) and each other agreement entered into in favor of the Administrative Agent for the purpose of securing any Credit Agreement Obligations.
 
“ Credit Agreement Documents ”   mean the Credit Agreement, Credit Agreement Collateral Documents and the Loan Documents (as defined in the Credit Agreement).
 
“ Credit Agreement Obligations ”   means all amounts owing to any party pursuant to the terms of any Credit Agreement Document, including, without limitation, all amounts in respect of any principal, premium, interest (including any interest and fees accruing subsequent to the commencement of a Bankruptcy Case at the rate provided for in the Credit Agreement, whether or not such interest or fees are allowed claims under any such proceeding or under applicable state, federal or foreign law), penalties, fees, expenses (including, without limitation, fees, expenses and disbursements of agents, professional advisors and legal counsel), indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts and including, without limitation, the “Obligations” as defined in the Credit Agreement and the “Secured Obligations” as defined in the Credit Agreement Collateral Documents.

4

 
“ Credit Agreement Secured Parties ”   means the holders of Credit Agreement Obligations, including the “Secured Parties” as defined in the Security Agreement.
 
“ DIP Financing ”   shall have the meaning assigned to such team in Section 2.05(b) .
 
“ DIP Financing Liens ”   shall have the meaning assigned to such term in Section 2.05(b) .
 
“ DIP Lenders ”   shall have the meaning assigned to such term in Section 2.05(b) .
 
“ Discharge ”   means, with respect to any Series of First Lien Obligations, the date on which such Series of First Lien Obligations is no longer secured by, or required to be secured by, Shared Collateral in accordance with the terms of the Secured Credit Documents of such Series.  The term “ Discharged ”   shall have a corresponding meaning.
 
“ Discharge of Credit Agreement Obligations ”   means the Discharge of the Credit Agreement Obligations with respect to Shared Collateral; provided that the Discharge of Credit Agreement Obligations shall not be deemed to have occurred in connection with a Refinancing of such Credit Agreement Obligations with additional First Lien Obligations secured by Shared Collateral under an Other First Lien Document which has been designated in writing by the Borrower to each Other First Lien Collateral Agent and each other Authorized Representative as the “Credit Agreement” for purposes of this Agreement.
 
“ Event of Default ”   means an “Event of Default” (or similarly defined term) as defined in any Secured Credit Document.
 
“ Excess Other First Lien Obligations ”   shall have the meaning assigned to such term in the definition of Other First Lien Obligations.
 
“ First Lien Documents ”   means, with respect to the Credit Agreement Obligations, the Credit Agreement Documents, and with respect to the 2020 Notes First Lien Obligations or any Series of Additional Senior Class Debt, the Other First Lien Documents.
 
“ First Lien Obligations ”   means, collectively, (i) the Credit Agreement Obligations and (ii) each Series of Other First Lien Obligations.
 
“ First Lien Secured Parties ”   means (i) the Credit Agreement Secured Parties and (ii) the Other First Lien Secured Parties with respect to each Series of Other First Lien Obligations (including the 2020 Notes First Lien Secured Parties).
 
“ First Lien Security Documents ”   means, collectively, (i) the Credit Agreement Collateral Documents and (ii) the Other First Lien Security Documents, including the 2020 Notes Security Agreement.
 
“ Grantors ”   means the Borrower and each Subsidiary or direct or indirect parent company of the Borrower which has granted a security interest pursuant to any First Lien Security Document to secure any Series of First Lien Obligations.
 
“ Impairment ”   shall have the meaning assigned to such term in Section 1.01(b) .

5

 
“ Indebtedness ” means debt for borrowed money.
 
“ Insolvency or Liquidation Proceeding ” means:
 
(1)            any case commenced by or against the Borrower or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Borrower or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Borrower or any other Grantor or any similar case or proceeding relative to the Borrower or any other Grantor or its creditors, as such, in each case whether or not voluntary;
 
(2)           any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Borrower or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
 
(3)           any other proceeding of any type or nature in which substantially all claims of creditors of the Borrower or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
 
“ Intervening Creditor ”   shall have the meaning assigned to such term in Section 2.01(a) .
 
“ Joinder Agreement ”   means the document in the form of Exhibit A to this Agreement required to be delivered by an Authorized Representative to each Collateral Agent and each Authorized Representative pursuant to Section 5.14 of this Agreement in order to create an additional Series of Other First Lien Obligations or a Refinancing of any Series of First Lien Obligations and add Other First Lien Secured Parties hereunder.
 
“ Lien ”   shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).
 
“ Major Non-Controlling Authorized Representative ”   means the Authorized Representative of the Series of Other First Lien Obligations that constitutes the largest outstanding principal amount of any then outstanding Series of First Lien Obligations; provided, however , that if there are two outstanding Series of Other First Lien Obligations which have an equal outstanding principal amount, the Series of Other First Lien Obligations with the earlier maturity date shall be considered to have the larger outstanding principal amount for purposes of this definition.
 
“ New York UCC ”   shall mean the Uniform Commercial Code as from time to time in effect in the State of New York.
 
“ Non-Controlling Authorized Representative ”   means any Authorized Representative that is not the Applicable Authorized Representative at such time.
 
“ Non-Controlling Authorized Representative Enforcement Date ”   means, with respect to any Non-Controlling Authorized Representative, the date which is 180 days (throughout which 180 day period such Non-Controlling Authorized Representative was the Major Non-Controlling Authorized Representative) after the occurrence of both (i) an Event of Default (under and as defined in the First Lien Documents under which such Non-Controlling Authorized Representative is the Authorized Representative) and (ii) each Collateral Agent’s and each other Authorized Representative’s receipt of written notice from such Non-Controlling Authorized Representative certifying that (x) such Non-Controlling Authorized Representative is the Major Non-Controlling Authorized Representative and that an Event of Default (under and as defined in the First Lien Documents under which such Non-Controlling Authorized Representative is the Authorized Representative) has occurred and is continuing and (y) the First Lien Obligations of the Series with respect to which such Non-Controlling Authorized Representative is the Authorized Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Other First Lien Document; provided that the Non-Controlling Authorized Representative Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred (1) at any time the Applicable Authorized Representative has commenced and is diligently pursuing any enforcement action with respect to Shared Collateral or (2) at any time the Grantor that has granted a security interest in Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.

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“ Non-Controlling Secured Parties ”   means the First Lien Secured Parties which are not Controlling Secured Parties.
 
“ Other First Lien Agreement ”   means any indenture, including the 2020 Notes Indenture and the 2020 Notes, credit agreement (excluding the Credit Agreement) or other agreement, document or instrument, pursuant to which any Grantor has or will incur Other First Lien Obligations; provided that, in each case, the Indebtedness thereunder (other than the 2020 Notes First Lien Obligations) has been designated as Other First Lien Obligations pursuant to and in accordance with Section 5.14 .
 
“ Other First Lien Collateral Agents ”   means each of the Collateral Agents other than the Administrative Agent.
 
“ Other First Lien Documents ”   means, with respect to the 2020 Notes First Lien Obligations or any Series of Additional Senior Class Debt, the Other First Lien Agreements, including the 2020 Notes First Lien Documents and the Other First Lien Security Documents and each other agreement entered into for the purpose of securing the 2020 Notes First Lien Obligations or any Series of Additional Senior Class Debt; provided that, in each case, the Indebtedness thereunder (other than the 2020 Notes First Lien Obligations) has been designated as Other First Lien Obligations pursuant to Section 5.14 hereto.
 
“ Other First Lien Obligations ”   means all amounts owing to any Other First Lien Secured Party (including the 2020 Notes First Lien Secured Parties) pursuant to the terms of any Other First Lien Documents (including the 2020 Notes First Lien Documents), including, without limitation, all amounts in respect of any principal, premium, interest (including any interest and fees accruing subsequent to the commencement of a Bankruptcy Case at the rate provided for in the respective Other First Lien Agreement, whether or not such interest or fees are allowed claims under any such proceeding or under applicable state, federal or foreign law), penalties, fees, expenses (including, without limitation, fees, expenses and disbursements of agents, professional advisors and legal counsel), indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts; provided that the aggregate principal amount of Other First Lien Obligations in excess of the lowest amount of Indebtedness permitted by (x) the Credit Agreement to be secured on a pari passu basis with the Credit Agreement Obligations and (y)  the 2020 Notes Indenture to be secured on a pari passu basis with the 2020 Notes First Lien Obligations and, in each case, any fees, interest and expenses related to such excess amount pursuant to the applicable Other First Lien Agreement (such excess amount together with the related fees, interest and expenses, the “ Excess Other First Lien Obligations ”)   shall not constitute Other First Lien Obligations or First Lien Obligations for purposes of this Agreement.  For the avoidance of doubt, obligations in respect of the 2020 Notes outstanding on the date hereof shall constitute Other First Lien Obligations.

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“ Other First Lien Secured Party ”   means the holders of any Other First Lien Obligations and any Authorized Representative with respect thereto and shall include the 2020 Notes First Lien Secured Parties.
 
“ Other First Lien Security Documents ”   means any security agreement or any other document now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure the Other First Lien Obligations.
 
“ Outstanding Loan Threshold Date ”   means the earlier of (x) the date on which the outstanding principal amount of Loans and Commitments (each as defined in the Credit Agreement) under the Credit Agreement (and any replacement thereof) is less than $25,000,000 and (y) the date on which the outstanding principal amount of another tranche of First Lien Obligations exceeds the principal amount of Loans and Commitments under the Credit Agreement.
 
“ Possessory Collateral ”   means any Shared Collateral in the possession of any Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction or otherwise.  Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments, and Tangible Chattel Paper, in each case, delivered to or in the possession of any Collateral Agent under the terms of the First Lien Security Documents.  All capitalized terms used in this definition and not defined elsewhere in this Agreement have the meaning assigned to them in the New York UCC.
 
“ Proceeds ”   shall have the meaning assigned to such term in Section 2.01(a) .
 
“ Refinance ”   means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement.  “ Refinanced ”   and “ Refinancing ”   have correlative meanings.
 
“ Secured Credit Document ”   means (i) the Credit Agreement Documents, (ii) the 2020 Notes First Lien Documents and (iii) each other Other First Lien Document.
 
“ Security Agreement ”   has the meaning assigned to such term in the recitals of this Agreement.
 
“ Series ”   means (a) with respect to the First Lien Secured Parties, each of (i) the Credit Agreement Secured Parties (in their capacities as such), (ii) the 2020 Notes First Lien Secured Parties (in their capacities as such), and (iii) the Other First Lien Secured Parties that become subject to this Agreement after the date hereof that are represented by a common Authorized Representative (in its capacity as such for such Other First Lien Secured Parties) and (b) with respect to any First Lien Obligations, each of (i) the Credit Agreement Obligations, (ii) the 2020 Notes First Lien Obligations and (iii) the Other First Lien Obligations incurred pursuant to any Other First Lien Document, which pursuant to any Joinder Agreement, are to be represented hereunder by a common Authorized Representative (in its capacity as such for such Other First Lien Obligations).

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“ Shared Collateral ”   means, at any time, Collateral in which the holders of two or more Series of First Lien Obligations (or their respective Authorized Representatives or Collateral Agents on behalf of such holders) hold a valid security interest or Lien at such time.  If more than two Series of First Lien Obligations are outstanding at any time and the holders of less than all Series of First Lien Obligations hold a valid security interest or Lien in any Collateral at such time, then such Collateral shall constitute Shared Collateral for those Series of First Lien Obligations that hold a valid security interest or Lien in such Collateral at such time and shall not constitute Shared Collateral for any Series which does not have a valid security interest or Lien in such Collateral at such time.
 
“ Trustee ”   has the meaning assigned to such term in the recitals of this Agreement.
 
ARTICLE II
 
PRIORITIES AND AGREEMENTS WITH RESPECT TO SHARED COLLATERAL
 
SECTION 2.01            Priority of Claims .
 
(a)            Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.01(b) ), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of any Grantor or any First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral received by any First Lien Secured Party or received by the Applicable Collateral Agent or any First Lien Secured Party pursuant to any such intercreditor agreement or otherwise with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution and any proceeds of insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under the applicable Secured Credit Document being collectively referred to as “ Proceeds ”) , shall be applied by the Applicable Collateral Agent in the following order:
 
(i)             FIRST, to the payment of all reasonable fees, costs and expenses incurred by each Collateral Agent (in its capacity as such) in connection with such collection or sale or otherwise in connection with this Agreement, any other Secured Credit Documents or any of the First Lien Obligations, including all court costs and the reasonable fees, costs and expenses of its agents, professional advisors and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Secured Credit Documents;
 
(ii)            SECOND, subject to Section 1.01(b) , to the extent Proceeds remain after the application pursuant to preceding clause (i) , to the Authorized Representative of each Series secured by such Shared Collateral for application to payment in full of the First Lien Obligations of each such Series secured by such Shared Collateral and, if the amount of such Proceeds are insufficient to pay in full the First Lien Obligations of each Series secured by such Shared Collateral then such Proceeds shall be allocated among the Authorized Representatives of each Series secured by such Shared Collateral pro rata according to the amounts of such First Lien Obligations owing to each such respective Authorized Representative and the other First Lien Secured Parties represented by it for distribution by such Authorized Representative in accordance with its respective Secured Credit Documents; and

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(iii)           THIRD, any balance of such Proceeds remaining after the application pursuant to preceding clauses (i) and (ii) , to the Grantors, their successors or assigns, to whomever may be lawfully entitled to receive the same (including pursuant to any intercreditor agreement with respect to any Indebtedness junior to the First Lien Obligations).
 
If, despite the provisions of this Section 2.01(a)(ii) , any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a) , such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a) .
 
(b)            Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First Lien Obligations (such third party an “ Intervening Creditor ”) , the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First Lien Obligations with respect to which such Impairment exists.
 
(c)            It is acknowledged that the First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First Lien Secured Parties of any Series.
 
(d)            Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.01(b) ), each First Lien Secured Party hereby agrees that the Liens securing each Series of First Lien Obligations on any Shared Collateral shall be of equal priority.
 
SECTION 2.02           Actions with Respect to Shared Collateral; Prohibition on Contesting Liens .
 
(a)            Notwithstanding Section 2.01 , only the Applicable Collateral Agent shall act or refrain from acting with respect to Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral).  At any time when the Administrative Agent is the Applicable Collateral Agent, no Other First Lien Secured Party shall or shall instruct any Collateral Agent to, and no such Other First Lien Secured Party shall, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, Shared Collateral (including with respect to any intercreditor agreement with respect to Shared Collateral), whether under any Other First Lien Security Document, applicable law or otherwise, it being agreed that only the Administrative Agent, acting in accordance with the Credit Agreement Collateral Documents, shall be entitled to take any such actions or exercise any remedies with respect to Shared Collateral at such time.

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(b)            At any time when any Other First Lien Collateral Agent is the Applicable Collateral Agent, (i) such Other First Lien Collateral Agent shall act only on the instructions of the Applicable Authorized Representative with respect to Shared Collateral, (ii) such Other First Lien Collateral Agent shall not follow any instructions with respect to Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Authorized Representative (or any other First Lien Secured Party other than the Applicable Authorized Representative) and (iii) no Non-Controlling Authorized Representative or other First Lien Secured Party (other than the Applicable Authorized Representative) shall, or shall instruct such Other First Lien Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, Shared Collateral (including with respect to any intercreditor agreement with respect to Shared Collateral), whether under any First Lien Security Document, applicable law or otherwise, it being agreed that only such Other First Lien Collateral Agent, acting on the instructions of the Applicable Authorized Representative and in accordance with the Other First Lien Security Documents applicable to it, shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral.
 
(c)            Each Non-Controlling Authorized Representative and Collateral Agent that is not the Applicable Collateral Agent hereby appoints the Applicable Collateral Agent as its agent and authorizes the Applicable Collateral Agent to exercise any and all remedies under each First Lien Collateral Document with respect to Shared Collateral and to execute releases in connection therewith.
 
(d)            Notwithstanding the equal priority of the Liens on the Shared Collateral securing each Series of First Lien Obligations, the Applicable Collateral Agent (acting on the instructions of the Applicable Authorized Representative) may deal with the Shared Collateral as if such Applicable Collateral Agent had a senior and exclusive Lien on such Shared Collateral.  No Non-Controlling Authorized Representative or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought by the Applicable Collateral Agent, the Applicable Authorized Representative or the Controlling Secured Party or any other exercise by the Applicable Collateral Agent, the Applicable Authorized Representative or the Controlling Secured Party of any rights and remedies relating to the Shared Collateral, or to cause the Applicable Collateral Agent to do so.  The foregoing shall not be construed to limit the rights and priorities of any First Lien Secured Party, the Applicable Collateral Agent or any Authorized Representative with respect to any Collateral not constituting Shared Collateral.
 
(e)            Each of the Collateral Agents (other than the Administrative Agent and the 2020 Notes Collateral Agent) and the Authorized Representatives (other than the Administrative Agent and the 2020 Notes Authorized Representative) agrees that it will not accept any Lien on any Collateral for the benefit of any Series of Other First Lien Obligations (other than funds deposited for the discharge or defeasance of any Other First Lien Agreement) other than pursuant to the First Lien Security Documents, and by executing this Agreement (or a Joinder Agreement), each such Collateral Agent and each such Authorized Representative and the Series of First Lien Secured Parties for which it is acting hereunder agree to be bound by the provisions of this Agreement and the other First Lien Security Documents applicable to it.
 
(f)            Each of the First Lien Secured Parties agrees that it will not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity or enforceability of a Lien held by or on behalf of any of the First Lien Secured Parties in all or any part of the Collateral, or the provisions of this Agreement; provided   that nothing in this Agreement shall be construed to prevent or impair (i) the rights of any Collateral Agent or any Authorized Representative to enforce this Agreement or (ii) the rights of any First Lien Secured Party from contesting or supporting any other Person in contesting the enforceability of any Lien purporting to secure obligations not constituting First Lien Obligations.

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SECTION 2.03            No Interference; Payment Over; Exculpatory Provisions .
 
(a)            Except, in each case, with respect to any Excess Other First Lien Obligations or any Security Document or Lien securing the Excess Other First Lien Obligations, to the extent of such Excess Other First Lien Obligations, each First Lien Secured Party agrees that (i) it will not challenge or question, or support any other Person in challenging or questioning, in any proceeding the validity or enforceability of any First Lien Obligations of any Series or any First Lien Security Document or the validity, attachment, perfection or priority of any Lien under any First Lien Security Document or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any First Lien Secured Party from challenging or questioning the validity or enforceability of any First Lien Obligations constituting unmatured interest or the validity of any Lien relating thereto pursuant to Section 502(b)(2) of the Bankruptcy Code, (ii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Shared Collateral by the Applicable Collateral Agent, (iii) except as provided in Section 2.02 , it shall have no right to (A) direct the Applicable Collateral Agent or any other First Lien Secured Party to exercise any right, remedy or power with respect to any Shared Collateral (including pursuant to any other intercreditor agreement) or (B) consent to or object to the exercise by, or any forebearance from exercising by, the Applicable Collateral Agent or any other First Lien Secured Party represented thereby of any right, remedy or power with respect to any Shared Collateral, (iv) it will not institute any suit or assert in any suit, bankruptcy, insolvency or other proceeding any claim against the Applicable Collateral Agent or any other First Lien Secured Party represented thereby seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Shared Collateral, (v) it will not seek, and hereby waives any right, to have any Shared Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral and (vi) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any Applicable Collateral Agent or any other First Lien Secured Party to enforce this Agreement.
 
(b)            Each First Lien Secured Party hereby agrees that if it shall obtain possession of any Shared Collateral or shall realize any proceeds or payment in respect of any such Shared Collateral, pursuant to any First Lien Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies (including pursuant to any intercreditor agreement), at any time prior to the Discharge of each of the First Lien Obligations, then it shall hold such Shared Collateral, proceeds or payment in trust for the other First Lien Secured Parties having a security interest in such Shared Collateral and promptly transfer any such Shared Collateral, proceeds or payment, as the case may be, to the Applicable Collateral Agent for such Shared Collateral, to be distributed by such Applicable Collateral Agent in accordance with the provisions of Section 2.01(a) hereof.
 
(c)            None of the Applicable Collateral Agent, any Applicable Authorized Representative or any other First Lien Secured Party shall be liable for any action taken or omitted to be taken by such Applicable Collateral Agent, Applicable Authorized Representative or other First Lien Secured Party with respect to any Shared Collateral in accordance with the provisions of this Agreement.
 
SECTION 2.04            Automatic Release of Liens .

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(a)            If, at any time any Shared Collateral is transferred to a third party or otherwise disposed of, in each case, in connection with any enforcement by the Applicable Collateral Agent in accordance with the provisions of this Agreement, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of the other Collateral Agents for the benefit of each Series of First Lien Secured Parties upon such Shared Collateral will automatically be released and discharged upon final conclusion of foreclosure proceeding as and when, but only to the extent, such Liens of the Applicable Collateral Agent on such Shared Collateral are released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01 hereof.  If in connection with any such foreclosure or exercise of remedies by the Applicable Collateral Agent, the Applicable Collateral Agent or related Applicable Authorized Representative of such Series of First Lien Obligations releases any guarantor from its obligation under a guarantee of the Series of First Lien Obligations for which it serves as agent, such guarantor also shall be released from its guarantee of all other First Lien Obligations.
 
(b)            Each Collateral Agent and each Authorized Representative agrees to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested in writing by the Applicable Collateral Agent to evidence and confirm any release of Shared Collateral or guarantee provided for in this Section.
 
SECTION 2.05           Certain Agreements with Respect to Bankruptcy or Insolvency Proceedings .
 
(a)            This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law by or against any Grantor or any of its subsidiaries.
 
(b)            If any Grantor shall become subject to a case (a “ Bankruptcy Case ”)   under the Bankruptcy Code and shall, as debtor(s)-in-possession, move for approval of financing (“ DIP   Financing ”)   to be provided by one or more lenders (the “ DIP Lenders ”)   under Section 364 of the Bankruptcy Code or the use of cash collateral under Section 363 of the Bankruptcy Code, each First Lien Secured Party (other than any Controlling Secured Party (to the extent part of the majority or such greater amount referred to below) or any Authorized Representative of any Controlling Secured Party) agrees that it will raise no objection to any such financing or to the Liens on the Shared Collateral securing the same (“ DIP   Financing Liens ”)   or to any use of cash collateral that constitutes Shared Collateral, unless a majority in interest of the Controlling Secured Parties (or such greater amount as is necessary to take action under the applicable Loan Document or Other First Lien Documents), or an Authorized Representative of any Controlling Secured Party, shall then oppose or object to such DIP Financing or such DIP Financing Liens or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party will subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Parties (other than any Liens of any First Lien Secured Parties constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the First Lien Obligations of the Controlling Secured Parties, each Non-Controlling Secured Party will confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the First Lien Secured Parties of each Series retain the benefit of their Liens on all such Shared Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-à-vis all the other First Lien Secured Parties (other than any Liens of the First Lien Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the First Lien Secured Parties of each Series are granted Liens on any additional collateral pledged to any First Lien Secured Parties as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, with the same priority vis-à-vis the First Lien Secured Parties as set forth in this Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the First Lien Obligations, such amount is applied pursuant to Section 2.01(a) of this Agreement, and (D) if any First Lien Secured Parties are granted adequate protection with respect to the First Lien Obligations subject hereto, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01(a) of this Agreement; provided that the First Lien Secured Parties of each Series shall have a right to object to the grant of a Lien to secure the DIP Financing over any Collateral subject to Liens in favor of the First Lien Secured Parties of such Series or its Authorized Representative that shall not constitute Shared Collateral; and provided , further , that the First Lien Secured Parties receiving adequate protection shall not object to any other First Lien Secured Party receiving adequate protection comparable to any adequate protection granted to such First Lien Secured Parties in connection with a DIP Financing or use of cash collateral.

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SECTION 2.06           Reinstatement .  In the event that any of the First Lien Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under Title 11 of the Bankruptcy Code, or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such First Lien Obligations shall again have been paid in full in cash.
 
SECTION 2.07           Insurance .  As between the First Lien Secured Parties, the Applicable Collateral Agent (acting at the direction of the Applicable Authorized Representative), shall have the right, but no obligation, to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral.  To the extent any Collateral Agent receives proceeds of such insurance policy, and such proceeds are not permitted or required to be returned to any Grantor under the applicable First Lien Documents, such proceeds shall be turned over to the Applicable Collateral Agent for application as provided in Section 2.01 hereof.
 
SECTION 2.08           Refinancings .  The First Lien Obligations of any Series may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the Refinancing transaction under any Secured Credit Document) of any First Lien Secured Party of any other Series, all without affecting the priorities provided for herein or the other provisions hereof; provided that the Authorized Representative of the holders of any such Refinancing indebtedness shall have executed a Joinder Agreement on behalf of the holders of such Refinancing indebtedness and the other requirements of Section 5.14 are complied with.
 
SECTION 2.09           Possessory Collateral Agent as Gratuitous Bailee for Perfection .
 
(a)            The Possessory Collateral shall be delivered to the Administrative Agent and the Administrative Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) and any other Shared Collateral under its “control” within the meaning of the UCC as gratuitous bailee for the benefit of each other First Lien Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in each case, subject to the terms and conditions of this Section 2.09 ; provided that at any time the Administrative Agent is not the Applicable Collateral Agent, the Administrative Agent shall, at the request of the Applicable Collateral Agent, promptly deliver all Possessory Collateral to the Applicable Collateral Agent together with any necessary endorsements (or otherwise allow the Applicable Collateral Agent to obtain control of such Possessory Collateral).  The Borrower shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify each Collateral Agent for loss or damage suffered by such Collateral Agent as a result of such transfer except for loss or damage suffered by such Collateral Agent as a result of its own willful misconduct, gross negligence or bad faith.

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(b)            Each Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its possession, as gratuitous bailee for the benefit of each other First Lien Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in each case, subject to the terms and conditions of this Section 2.09 .
 
(c)            The duties or responsibilities of each Collateral Agent under this Section 2.09 shall be limited solely to holding any Shared Collateral constituting Possessory Collateral as gratuitous bailee for the benefit of each other First Lien Secured Party for purposes of perfecting the Lien held by such First Lien Secured Parties therein.
 
SECTION 2.10           Amendments to First Lien Security Documents .
 
(a)            Without the prior written consent of the Administrative Agent and each Other First Lien Collateral Agent, each Other First Lien Collateral Agent agrees that no Other First Lien Security Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Other First Lien Security Document would be prohibited by, or would require any Grantor to act or refrain from acting in a manner that would violate, any of the terms of this Agreement.
 
(b)            Without the prior written consent of each Other First Lien Collateral Agent, the Administrative Agent agrees that no Credit Agreement Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Credit Agreement Collateral Document would be prohibited by, or would require any Grantor to act or refrain from acting in a manner that would violate, any of the terms of this Agreement.
 
(c)            In determining whether an amendment to any First Lien Security Document is permitted by this Section 2.10 , each Collateral Agent may conclusively rely on an officer’s certificate of the Borrower stating that such amendment is permitted by this Section 2.10 .
 
SECTION 2.11          Identical Collateral . The parties hereto intend that the Collateral in favor of the Administrative Agent for itself and on behalf of the Credit Agreement Secured Parties for the Credit Agreement Obligations and the Collateral in favor of the 2020 Notes Collateral Agent for itself and on behalf of the 2020 Notes First Lien Secured Parties for the 2020 Notes First Lien Obligations be identical.  Accordingly, subject to the other provisions in this Agreement, the parties hereto will cooperate (i) to determine the specific items included in the Collateral in favor of the Administrative Agent for itself and on behalf of the Credit Agreement Secured Parties for the Credit Agreement Obligations and the Collateral in favor of the 2020 Notes Collateral Agent for itself and on behalf of the 2020 Notes First Lien Secured Parties for the 2020 Notes First Lien Obligations, the steps taken to perfect the Liens thereon, and the identity of the Person having the Credit Agreement Obligations and the 2020 Notes First Lien Obligations and (ii) to make the forms, documents and agreements creating or evidencing the Collateral in favor of the Administrative Agent for itself and on behalf of the Credit Agreement Secured Parties for the Credit Agreement Obligations and the Collateral in favor of the 2020 Notes Collateral Agent for itself and on behalf of the 2020 Notes First Lien Secured Parties for the 2020 Notes First Lien Obligations reasonably similar, other than with respect to differences inherent in the nature of the obligations secured thereby and differences resulting from the nature of the 2020 Notes Collateral Agent as indenture trustee and the inclusion of guarantee provisions.

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ARTICLE III
 
EXISTENCE AND AMOUNTS OF LIENS AND OBLIGATIONS
 
Whenever a Collateral Agent or any Authorized Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First Lien Obligations of any Series, or the Shared Collateral subject to any Lien securing the First Lien Obligations of any Series, it may request that such information be furnished to it in writing by each other Authorized Representative or each other Collateral Agent and shall be entitled to make such determination or not make any determination on the basis of the information so furnished; provided , however , that if an Authorized Representative or a Collateral Agent shall fail or refuse reasonably promptly to provide the requested information, the requesting Collateral Agent or Authorized Representative shall be entitled to conclusively rely upon an officer’s certificate of the Borrower.  Each Collateral Agent and each Authorized Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any First Lien Secured Party or any other person as a result of such determination.
 
ARTICLE IV
 
THE APPLICABLE COLLATERAL AGENT
 
SECTION 4.01           Authority .
 
(a)            Notwithstanding any other provision of this Agreement, nothing herein shall be construed to impose any fiduciary or other duty on any Applicable Collateral Agent to any Non-Controlling Secured Party or give any Non-Controlling Secured Party the right to direct any Applicable Collateral Agent, except that each Applicable Collateral Agent shall be obligated to distribute proceeds of any Shared Collateral in accordance with Section 2.01 hereof.
 
(b)            In furtherance of the foregoing, each Non-Controlling Secured Party acknowledges and agrees that the Applicable Collateral Agent shall be entitled, for the benefit of the First Lien Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the First Lien Security Documents, as applicable, for which the Applicable Collateral Agent is the collateral agent for such Shared Collateral, without regard to any rights to which the Non-Controlling Secured Parties would otherwise be entitled as a result of the First Lien Obligations held by such Non-Controlling Secured Parties.  Without limiting the foregoing, each Non-Controlling Secured Party agrees that none of the Applicable Collateral Agent, the Applicable Authorized Representative or any other First Lien Secured Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the First Lien Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First Lien Obligations), in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation.  Each of the First Lien Secured Parties waives any claim it may now or hereafter have against any Collateral Agent or the Authorized Representative of any other Series of First Lien Obligations or any other First Lien Secured Party of any other Series arising out of (i) any actions which such Collateral Agent, Authorized Representative or the First Lien Secured Parties represented thereby take or omit to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the First Lien Obligations from any account debtor, guarantor or any other party) in accordance with the First Lien Security Documents or any other agreement related thereto or to the collection of the First Lien Obligations or the valuation, use, protection or release of any security for the First Lien Obligations, (ii) any election by any Applicable Authorized Representative or any holders of First Lien Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05 , any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, by the Borrower or any of its Subsidiaries, as debtor-in-possession.

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ARTICLE V
 
MISCELLANEOUS
 
SECTION 5.01           Notices .  All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, sent by facsimile, or sent to the e-mail address of the applicable recipient specified below (or the e-mail address of a representative of the applicable recipient designated by such recipient from time to time to the parties hereto) or sent by telecopy, as follows:
 
(a)            if to the Administrative Agent, to it at:
 
JPMorgan Chase Bank, N.A., as Agent for the Secured Parties
1111 Fannin Street, Floor 10
Houston, TX  77002-6925
Attention:  Christina Masroor
TEL: 713-750-7965
FAX: 713-750-2223
EMAIL: christina.m.masroor@jpmorgan.com
 
(b)            if to the 2020 Notes Collateral Agent or the 2020 Notes Authorized Representative, to it at:
 
Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street/Suite 1290
Minneapolis, MN  55402
Attention: CNO Financial Administrator
Telephone:  (612) 217-5632
Facsimile:  (612) 217-5651
Electronic Mail:   jschweiger@WilmingtonTrust.com
 
(c)            if to any other Authorized Representative or Collateral Agent, to it at the address set forth in the applicable Joinder Agreement.
 
Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.  All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by facsimile or e-mail or on the date that is five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 5.01 .

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SECTION 5.02           Waivers; Amendment; Joinder Agreements .
 
(a)            No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
 
(b)           Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified (other than pursuant to any Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each Authorized Representative and each Collateral Agent (and with respect to any such termination, waiver, amendment or modification to Section 2.10 or which otherwise by the terms of this Agreement requires the Borrower’s consent or which increases the obligations or reduces the rights of the Borrower or any other Grantor, with the consent of the Borrower).
 
(c)            Notwithstanding the foregoing, without the consent of any First Lien Secured Party, any Authorized Representative may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 5.14 of this Agreement and upon such execution and delivery, such Authorized Representative and the Other First Lien Secured Parties and Other First Lien Obligations of the Series for which such Authorized Representative is acting shall be subject to the terms hereof and the terms of the Other First Lien Security Documents applicable thereto.
 
(d)           Notwithstanding the foregoing, without the consent of any other Authorized Representative or First Lien Secured Party, the Collateral Agents may effect amendments and modifications to this Agreement to the extent necessary to reflect any incurrence of any Other First Lien Obligations in compliance with the Credit Agreement and the other Secured Credit Documents.
 
SECTION 5.03           Parties in Interest .  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other First Lien Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.
 
SECTION 5.04            Survival of Agreement .  All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
 
SECTION 5.05           Counterparts .  This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract.  Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

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SECTION 5.06           Severability .  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.  The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
 
SECTION 5.07           Governing Law .  This Agreement shall be construed in accordance with and governed by the laws of the State of New York.
 
SECTION 5.08           Submission to Jurisdiction; Waivers .  The Borrower, each Grantor, each Collateral Agent and each Authorized Representative, on behalf of itself and the First Lien Secured Parties of the Series for whom it is acting, irrevocably and unconditionally:
 
(a)            submits for itself and its property in any legal action or proceeding relating to this Agreement and the First Lien Security Documents, or for recognition and enforcement of any judgment in respect thereof, to the general jurisdiction of the state and federal courts located in New York County and appellate courts from any thereof;
 
(b)            consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
 
(c)            agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Authorized Representative) at the address referred to in Section 5.01 ;
 
(d)            agrees that nothing herein shall affect the right of any other party hereto (or any First Lien Secured Party) to effect service of process in any other manner permitted by law or shall limit the right of any party hereto (or any First Lien Secured Party) to sue in any other jurisdiction; and
 
(e)            waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 5.08 any special, exemplary, punitive or consequential damages.
 
SECTION 5.09           WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.09 .

19

 
SECTION 5.10           Headings .  Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
 
SECTION 5.11           Conflicts . In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the other Secured Credit Documents or First Lien Security Documents, the provisions of this Agreement shall control.
 
SECTION 5.12           Provisions Solely to Define Relative Rights .  The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties in relation to one another.  None of the Borrower, any other Grantor or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement and none of the Borrower or any other Grantor may rely on the terms hereof (other than Sections 2.04 , 2.05 , 2.08 , 2.09 and Article V ).  Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the First Lien Obligations as and when the same shall become due and payable in accordance with their terms.
 
SECTION 5.13           Integration .  This Agreement together with the other Secured Credit Documents and the First Lien Security Documents represents the agreement of each of the Grantors and the First Lien Secured Parties with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by any Grantor, the Administrative Agent, any or any other First Lien Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Secured Credit Documents or the First Lien Security Documents.
 
SECTION 5.14           Other First Lien Obligations .  To the extent, but only to the extent not prohibited by the provisions of the Credit Agreement or the Other First Lien Documents, the Borrower may incur additional Indebtedness (including any Indebtedness in connection with a Refinancing) after the date hereof that is secured on an equal and ratable basis with the liens securing the Credit Agreement Obligations and the Other First Lien Obligations (such Indebtedness referred to as “ Additional Senior Class Debt ”) .   Any such Additional Senior Class Debt may be secured by a Lien on a ratable basis, in each case under and pursuant to the Other First Lien Documents, if and subject to the condition that the Collateral Agent and Authorized Representative of any such Additional Senior Class Debt (an “ Additional Senior Class Debt Collateral Agent ”   and an “ Additional Senior Class Authorized Representative, ”   respectively), acting on behalf of the holders of such Additional Senior Class Debt (such Additional Senior Class Debt Collateral Agent, Additional Senior Class Authorized Representative and holders in respect of any Additional Senior Class Debt being referred to as the “ Additional Senior Class Debt Parties ”) , become a party to this Agreement by satisfying the conditions set forth in clauses (i) through (iv) of the immediately succeeding paragraph.
 
In order for an Additional Senior Class Authorized Representative and Additional Senior Class Debt Collateral Agent to become a party to this Agreement,
 
(i)            such Additional Senior Class Authorized Representative, such Additional Senior Class Debt Collateral Agent, each Collateral Agent, each Authorized Representative and the Borrower shall have executed and delivered an instrument substantially in the form of Exhibit A (with such changes as may be reasonably approved by each Collateral Agent and such Additional Senior Class Authorized Representative) pursuant to which such Additional Senior Class Authorized Representative becomes an Authorized Representative hereunder, and such Additional Senior Class Debt Collateral Agent becomes a Collateral Agent hereunder, and the Additional Senior Class Debt in respect of which such Additional Senior Class Authorized Representative is the Authorized Representative and the related Additional Senior Class Debt Parties become subject hereto and bound hereby;

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(ii)            the Borrower shall have (x) delivered to each Collateral Agent true and complete copies of each of the Other First Lien Documents relating to such Additional Senior Class Debt, certified as being true and correct by a Responsible Officer of the Borrower and (y) identified in a certificate of an authorized officer the obligations to be designated as Other First Lien Obligations and the initial aggregate principal amount or face amount thereof;
 
(iii)            all First Lien Security Documents, filings and recordations necessary or desirable in the reasonable judgment of the Additional Senior Class Debt Collateral Agent to create and perfect the Liens securing the relevant obligations relating to such Additional Senior Class Debt shall have been made, executed and/or delivered (or, with respect to any such filings or recordations, acceptable provisions to perform such filings or recordings have been taken in the reasonable judgment of the Additional Senior Class Debt Collateral Agent), and all fees and taxes in connection therewith shall have been paid (or acceptable provisions to make such payments have been taken in the reasonable judgment of the Additional Senior Class Debt Collateral Agent); and
 
(iv)            the Other First Lien Documents, as applicable, relating to such Additional Senior Class Debt shall provide, in a manner reasonably satisfactory to each Collateral Agent, that each Additional Senior Class Debt Party with respect to such Additional Senior Class Debt will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Additional Senior Class Debt.
 
(v)            The Borrower shall certify in an officer’s certificate that no Event of Default shall have occurred and be continuing under any Secured Credit Document.
 
Upon the execution and delivery of a Joinder Agreement by an Additional Senior Class Authorized Representative and an Additional Collateral Agent in accordance with this Section 5.14 , each other Authorized Representative and Collateral Agent and the Borrower shall acknowledge such execution and delivery thereof, subject to the terms of this Section 5.14 ; provided that the failure of any Authorized Representative or Collateral Agent to so acknowledge any such execution and delivery shall not affect the standing of any additional Indebtedness incurred by the Borrower as Additional Senior Class Debt if the other requirements of this Section 5.14 have been complied with.
 
SECTION 5.15           Agent Capacities .  Except as expressly provided herein, J.P. Morgan Chase Bank, N.A. is acting in the capacity of Administrative Agent solely for the Credit Agreement Secured Parties.  Except as expressly provided herein, Wilmington Trust, National Association is acting in the capacity of 2020 Notes Collateral Agent solely for the 2020 Notes First Lien Secured Parties.
 
SECTION 5.16           Termination .  This Agreement shall terminate and be of no further force and effect with respect to any Series of First Lien Secured Parties and any Series of First Lien Obligations on the date of the Discharge of such Series of First Lien Obligations.
 
[Remainder of this page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION,	 	
 	as 2020 Notes Collateral Agent	 	
 	 	 	 	
 	By:	     /s/ Jane Schweiger	 	
 	 	Name:  Jane Schweiger	 	
 	 	Title:    Vice President	 	
 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION,	 	
 	as 2020 Notes Authorized Representative	 	
 	 	 	 	
 	By:	     /s/ Jane Schweiger	 	
 	 	Name:  Jane Schweiger	 	
 	 	Title:    Vice President	 	
 
[Signature Page to Intercreditor Agreement]

 

 
 	JPMORGAN CHASE BANK, N.A.	 	
 	as Administrative Agent	 	

 	By:	     /s/ Melvin Jackson	 	
 	 	Name:  Melvin Jackson	 	
 	 	Title:    Executive Director	 	
 
[Signature Page to Intercreditor Agreement]

 

 
CONSENT OF GRANTORS
Dated:  September 28, 2012
 
Reference is made to the Pari Passu Intercreditor Agreement dated as of the date hereof between JPMorgan Chase Bank, N.A., as Administrative Agent, Wilmington Trust, National Association, as 2020 Notes Collateral Agent, and Wilmington Trust, National Association, as 2020 Notes Authorized Representative (as the same may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Intercreditor Agreement ”) .   Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
 
The Borrower has read the foregoing Intercreditor Agreement and consents thereto.  The Borrower agrees that it will not, and will cause each of the other Grantors to not, take any action that would be contrary to the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees that, except as otherwise provided therein, no First Lien Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the foregoing Intercreditor Agreement.  The Borrower confirms on behalf of each Grantor that the foregoing Intercreditor Agreement is for the sole benefit of the First Lien Secured Parties and their respective successors and assigns, and that no Grantor is an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein.
 
Notwithstanding anything to the contrary in the Intercreditor Agreement or provided herein, each party hereto agrees that the Borrower and the other Grantors shall not have any right to consent to or approve any amendment, modification or waiver of any provision of the Intercreditor Agreement except to the extent expressly set forth therein.
 
Without limitation to the foregoing, the Borrower agrees to take, and to cause each other Grantor to take, such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as the Applicable Collateral Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor Agreement.
 
This Consent shall be governed and construed in accordance with the laws of the State of New York.  Notices delivered to the Borrower pursuant to this Consent shall be delivered to it at the following address:
 
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, Indiana 46032
Attention: Erik Helding
Telephone: (317) 817-4760
Facsimile: (317) 817-3772
Electronic Mail: erik.helding@cnoinc.com
 
with a copy to :
CNO Financial Group, Inc.
11825 North Pennsylvania Street
Carmel, Indiana 46032
Attention: Karl Kindig
Telephone: (317) 817-6708
Facsimile: (317) 817-5828
Electronic Mail: karl.kindig@cnoinc.com
 
 [Remainder of this page intentionally left blank]

 

 
IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	CNO SERVICES, LLC	 	
 	 	 	 	
 	By:	      /s/ Erik M. Helding	 	
 	Name: Erik M. Helding	 	
 	Title:   Senior Vice President, Treasury and Investor  Relations	 	
 	 	 	
 	AMERICAN LIFE AND CASUALTY	 	
 	MARKETING DIVISION CO.	 	
 	CDOC, INC.	 	
 	CNO MANAGEMENT SERVICES COMPANY	 	
 	40|86 ADVISORS, INC.	 	
 	40|86 MORTGAGE CAPITAL, INC.	 	
 	PERFORMANCE MATTERS ASSOCIATES, INC.	 	
 	PERFORMANCE MATTERS ASSOCIATES OF TEXAS, INC.	 	
 	K.F. AGENCY, INC.	 	
 	 	 	
 	By :	       /s/ Erik M. Helding	 	
 	Name:  Erik M. Helding	 	
 	Title:    Senior Vice President and Treasurer	 	

 

 
Exhibit A
to Pari Passu Intercreditor Agreement
 
[ FORM OF ] JOINDER NO. [      ] dated as of [             ] , 20 [      ] (the “ Joinder Agreement ”)   to the PARI PASSU INTERCREDITOR AGREEMENT dated as of September 28, 2012, (the “ Pari Passu Intercreditor Agreement ”) , among JPMorgan Chase Bank, N.A., as Administrative Agent, Wilmington Trust, National Association, as 2020 Notes Collateral Agent, and Wilmington Trust, National Association, as 2020 Notes Authorized Representative, and the additional Authorized Representatives from time to time a party thereto. 1
 
A.           Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Pari Passu Intercreditor Agreement.
 
B.           As a condition to the ability of the Borrower to incur Other First Lien Obligations and to secure such Additional Senior Class Debt with the liens and security interests created by the Other First Lien Security Documents, the Additional Senior Class Authorized Representative in respect of such Additional Senior Class Debt is required to become an Authorized Representative, and the Additional Senior Class Debt Collateral Agent is required to become a Collateral Agent, and such Additional Senior Class Debt and the Additional Senior Class Debt Parties in respect thereof are required to become subject to and bound by, the Pari Passu Intercreditor Agreement.   Section 5.14 of the Pari Passu Intercreditor Agreement provides that such Additional Senior Class Authorized Representative may become an Authorized Representative, such Additional Senior Class Debt Collateral Agent may become a Collateral Agent, and such Additional Senior Class Debt and such Additional Senior Class Debt Parties may become subject to and bound by, the Pari Passu Intercreditor Agreement, pursuant to the execution and delivery by the Additional Senior Debt Class Representative of an instrument in the form of this Joinder and the satisfaction of the other conditions set forth in Section 5.14 of the Pari Passu Intercreditor Agreement.  The undersigned Additional Senior Class Authorized Representative (the “ New Representative ”)   and Additional Senior Class Debt Collateral Agent (the “ New Collateral Agent ”)   are executing this Joinder Agreement in accordance with the requirements of the Pari Passu Intercreditor Agreement and the First Lien Security Documents.
 
Accordingly, the New Representative and the New Collateral Agent agree as follows:
 
SECTION 1. In accordance with Section 5.14 of the Pari Passu Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become an Authorized Representative and a Collateral Agent, respectively, under, and the related Additional Senior Class Debt and Additional Senior Class Debt Parties become subject to and bound by, the Pari Passu Intercreditor Agreement with the same force and effect as if the New Representative and New Collateral Agent had originally been named therein as an Authorized Representative or a Collateral Agent, respectively, and the New Representative and the New Collateral Agent, on their behalf and on behalf of such Additional Senior Class Debt Parties, hereby agree to all the terms and provisions of the Pari Passu Intercreditor Agreement applicable to them as Authorized Representative and Collateral Agent, respectively, and to the Additional Senior Class Debt Parties that they represent as Other First Lien Secured Parties.  Each reference to an “ Authorized Representative ”   in the Pari Passu Intercreditor Agreement shall be deemed to include the New Representative, and each reference to a “ Collateral Agent ”   in the Pari Passu Intercreditor Agreement shall be deemed to include the New Collateral Agent.  The Pari Passu Intercreditor Agreement is hereby incorporated herein by reference.

1	In the event of the Refinancing of the Credit Agreement Obligations, this Joinder will be revised to reflect joinder by a new Administrative Agent.	

Exhibit A-1

 
SECTION 2. Each of the New Representative and New Collateral Agent represent and warrant to each Collateral Agent, each Authorized Representative and the other First Lien Secured Parties, individually, that (i) it has full power and authority to enter into this Joinder Agreement, in its capacity as [ agent ] [ trustee ] , (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, and (iii) the Other First Lien Documents relating to such Additional Senior Class Debt provide that, upon the New Representative’s and the New Collateral Agent’s entry into this Joinder Agreement, the Additional Senior Class Debt Parties in respect of such Additional Senior Class Debt will be subject to and bound by the provisions of the Pari Passu Intercreditor Agreement as Other First Lien Secured Parties.
 
SECTION 3. This Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Joinder Agreement shall become effective when each Collateral Agent shall have received a counterpart of this Joinder Agreement that bears the signatures of the New Representative and the New Collateral Agent.  Delivery of an executed signature page to this Joinder Agreement by facsimile transmission shall be effective as delivery of a manually signed counterpart of this Joinder Agreement.
 
SECTION 4. Except as expressly supplemented hereby, the Pari Passu Intercreditor Agreement shall remain in full force and effect.
 
SECTION 5. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
SECTION 6. In case any one or more of the provisions contained in this Joinder Agreement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Pari Passu Intercreditor Agreement shall not in any way be affected or impaired.  The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
 
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the Pari Passu Intercreditor Agreement.  All communications and notices hereunder to the New Representative and the New Collateral Agent shall be given to them at their respective addresses set forth below their signatures hereto.
 
SECTION 8. The Borrower agrees to reimburse each Collateral Agent and each Authorized Representative for its reasonable out-of-pocket expenses in connection with this Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel.
 
[Remainder of this page intentionally left blank]

Exhibit A-2

 
IN WITNESS WHEREOF, the New Representative and New Collateral Agent have duly executed this Joinder Agreement to the Pari Passu Intercreditor Agreement as of the day and year first above written.
 
 	[ NAME OF NEW REPRESENTATIVE ] , as [         ] for
the holders of [                           ]	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
 	Address for notices:	 	

 	attention of:	 	 	
 	Telecopy:	 	 	
 
 	[ NAME OF NEW COLLATERAL AGENT ] , as [         ] for
the holders of [            ]	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
 	Address for notices:	 	

 	attention of:	 	 	
 	Telecopy:	 	 	

Exhibit A-3

 
 	Acknowledged by:	 	
 	 	 	
 	JPMorgan Chase Bank, N.A.,	 	
 	as Administrative Agent	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION, as	 	
 	2020 Notes Collateral Agent	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION,	 	
 	as 2020 Notes Authorized Representative	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	

 
Exhibit A-4

 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	

Exhibit A-5

Exhibit 10.5
 
CNO FINANCIAL GROUP, INC.
 
as Issuer,
 
THE SUBSIDIARY GUARANTORS PARTIES HERETO
 
and
 
WILMINGTON TRUST, NATIONAL ASSOCIATION,
 
as Trustee
 
and
 
Collateral Agent

 
FIRST SUPPLEMENTAL INDENTURE
 
Dated as of September 28, 2012
 
TO
 
INDENTURE
 
Dated as of December 21, 2010

 
9.00% SENIOR SECURED NOTES DUE 2018

 

FIRST SUPPLEMENTAL INDENTURE dated as of September 28, 2012 (this “Supplemental Indenture”), to the Indenture dated as of December 21, 2010 (the “Indenture”) among CNO FINANCIAL GROUP, INC., a corporation duly organized and existing under the laws of the state of Delaware (the “Company”), certain subsidiaries of the Company from time to time parties hereto (the “Subsidiary Guarantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION (as successor by merger to Wilmington Trust FSB), as trustee (together with its successors and assigns, in such capacity, the “Trustee”) and as collateral agent (together with its successors and assigns, in such capacity, the “Collateral Agent”).
 
W I T N E S S E T H
 
WHEREAS, the Company, the Subsidiary Guarantors, the Trustee and the Collateral Agent have heretofore executed and delivered the Indenture, and the Company has issued pursuant to the Indenture its 9.00% Senior Secured Notes due 2018 (the “Notes”);
 
WHEREAS, Section 9.2 of the Indenture provides that with the consent of the Holders (as defined in the Indenture) of a majority in principal amount of the Notes outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), the Company, the Subsidiary Guarantors, the Trustee and the Collateral Agent may amend or supplement the Indenture, subject to certain limitations set forth in the Indenture;
 
WHEREAS, the Company has solicited the consents of the Holders of the Notes pursuant to the offer to purchase and consent solicitation statement dated September 4, 2012 (as the same may be amended or supplemented from time to time, the “Offer to Purchase”), and the related letter of transmittal and consent dated September 4, 2012 (as the same may be amended or supplemented from time to time, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offering Documents”), to the proposed amendments to the Indenture upon the terms and conditions set forth therein (the “Amendments”);
 
WHEREAS, the Company has received and delivered or caused to be delivered to the Trustee the consents of the Holders of at least a majority in outstanding principal amount of the Notes to the Amendments in accordance with the Offering Documents;
 
WHEREAS, the execution and delivery of this Supplemental Indenture has been duly authorized by a Board Resolution (as defined in the Indenture) of the Company;
 
WHEREAS, the Company has requested that the Trustee and the Collateral Agent join with the Company and the Subsidiary Guarantors in the execution and delivery of this Supplemental Indenture;
 
WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto and the execution and delivery thereof have been in all respects duly authorized by the parties hereto; and
 
WHEREAS, the Amendments contained herein will become operative (the “Operative Date”) upon the initial acceptance for payment by the Company of the Notes validly tendered (and not validly withdrawn), following satisfaction or waiver of the conditions to the tender offer and consent solicitation contemplated by the Offering Documents.

 

 
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration the receipt of which is hereby acknowledged, each party hereby agrees as follows:
 
ARTICLE 1
 
Section 1.1      Definitions .
 
Capitalized terms used in this Supplemental Indenture and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture.
 
ARTICLE 2
 
Section 2.1      Amendments to Table of Contents .
 
The Table of Contents of the Indenture is amended by deleting the titles to Section 3.2, Section 3.3, Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8, Section 3.9, Section 3.10, Section 3.11, Section 3.13, Section 3.15 and Article 4 and inserting, in each case, in lieu thereof the phrase “[intentionally omitted]”.
 
ARTICLE 3
 
Section 3.1      Elimination of Certain Definitions in Article 1 of the Indenture .
 
Section 1.1 of the Indenture is amended by deleting all definitions of terms, and references to definitions of terms, that are used exclusively in the text of the Indenture and in the text of the Notes that are being otherwise eliminated by this Supplemental Indenture.
 
Section 3.2      Elimination of Certain Provisions in Article 3 of the Indenture .
 
(a) Section 3.2 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(b) Section 3.3 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(c) Section 3.4 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(d) Section 3.5 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.

 

 
(e) Section 3.6 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(f) Section 3.7 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(g) Section 3.8 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(h) Section 3.9 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(i) Section 3.10 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(j) Section 3.11 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(k) Section 3.13 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
(l) Section 3.15 of the Indenture is amended by deleting the text of such Section in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
Section 3.3      Elimination of Article 4 of the Indenture .
 
Article 4 of the Indenture is amended by deleting the text of such Article in its entirety and inserting in lieu thereof the phrase “[intentionally omitted]”.
 
Section 3.4      Elimination of Certain Provisions in Article 6 of the Indenture .
 
(a) Section 6.1 of the Indenture is amended by deleting the text of clauses (a)(iii), (iv), (v), (vi) and (ix) in their entirety and inserting, in each case, in lieu thereof the phrase “[intentionally omitted]”.
 
ARTICLE 4
 
Section 4.1      Effectiveness of Amendments to Indenture .
 
Following the execution and delivery by the parties hereto of this Supplemental Indenture, the Amendments shall not be operative until the Operative Date.  Effective as of the Operative Date, this Supplemental Indenture hereby amends the Indenture and Notes as provided for herein. In case of conflict between the terms and conditions contained in the Notes and those contained in the Indenture, as modified by this Supplemental Indenture, the provisions of the Indenture, as modified by this Supplemental Indenture, shall control.

 

 
Section 4.2      Continuing Effect of Indenture .
 
Except as expressly provided herein, all of the terms, provisions and conditions of the Indenture and the Notes shall remain in full force and effect.
 
Section 4.3      Construction of Supplemental Indenture .
 
This Supplemental Indenture is executed as and shall constitute an indenture supplemental to the Indenture and shall be construed in connection with and as part of the Indenture for all purposes with respect to the Notes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound by the Indenture as amended by this Supplemental Indenture.  THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
 
Section 4.4      Trustee and Collateral Agent Disclaimer .
 
The recitals contained in this Supplemental Indenture shall be taken as the statements of the Company and each of the Trustee and Collateral Agent assumes no responsibility for their correctness.  The Trustee and the Collateral Agent make no representations as to the validity or sufficiency of this Supplemental Indenture.  All rights, protections, privileges, indemnities and benefits granted or afforded to the Trustee and the Collateral Agent under the Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted by the Trustee and the Collateral Agent under this Supplemental Indenture.
 
Section 4.5      Counterparts .
 
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy (including facsimile copies) shall be an original, but all of them together represent the same agreement.
 
Section 4.6      Severability .
 
In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected.
 
[Remainder of Page Intentionally Left Blank]

 

 
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed as of the date first written above.
 
 	CNO FINANCIAL GROUP, INC.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President, Treasury and Investor
            Relations	 	
 
[Signature Page to Supplemental Indenture]

 

 
 	40|86 ADVISORS, INC.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President and Treasurer	 	
 
 	40|86 MORTGAGE CAPITAL, INC.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President and Treasurer	 	
 
 	AMERICAN LIFE AND CASUALTY MARKETING DIVISION CO.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President and Treasurer	 	
 
 	CDOC, INC.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President and Treasurer	 	
 
 	CNO MANAGEMENT SERVICES COMPANY	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President and Treasurer	 	
 
[Signature Page to Supplemental Indenture]

 

 
 	CNO SERVICES, LLC	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President, Treasury and Investor
            Relations	 	
 
 	K.F. AGENCY, INC.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President and Treasurer	 	
 
 	PERFORMANCE MATTERS ASSOCIATES, INC.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President and Treasurer	 	
 
 	PERFORMANCE MATTERS ASSOCIATES OF TEXAS, INC.	 	
 	 	 	 	
 	By:	     /s/ Erik M. Helding	 	
 	 	Name: Erik M. Helding	 	
 	 	Title:   Senior Vice President and Treasurer	 	
 
[Signature Page to Supplemental Indenture]

 

 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION, as
    Trustee	 	
 	 	 	 	
 	By	    /s/ Jane Schweiger	 	
 	 	Name: Jane Schweiger	 	
 	 	Title:   Vice President	 	
 
 	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent	
 	 	 	 	
 	By	    /s/ Jane Schweiger	 	
 	 	Name: Jane Schweiger	 	
 	 	Title:   Vice President	 	
 
[Signature Page to Supplemental Indenture]

Exhibit 99.1

                      For Immediate Release	
 	
Contact:	(News Media) Tony Zehnder +1.312.396.7086	
 	(Investors) Erik Helding +1.317.817.4760	
 
CNO Financial Group Announces Completion of Recapitalization and Third Quarter Share Repurchases
 
Carmel, Ind. September 28, 2012 – CNO Financial Group, Inc. (NYSE: CNO) announced today that it has entered into a new senior secured credit agreement consisting of a $250 million four-year term loan facility and a $425 million six-year term loan facility and closed its private offering of $275 million aggregate principal amount of 6.375% senior secured notes due October 2020 (the “Notes”).  In addition, CNO obtained a $50 million three-year, unfunded revolving credit facility that will be available for general corporate purposes.
 
CNO used the net proceeds from the borrowings under the new term loan facilities and issuance of the Notes to repay all $224 million outstanding borrowings under its existing senior secured credit agreement; repurchase and fund the redemption of all $275 million outstanding aggregate principal amount of its 9.0% Senior Secured Notes due 2018 for aggregate consideration of approximately $323 million; repurchase approximately $200 million aggregate principal amount of its 7.0% Convertible Senior Debentures due 2016 (the “Convertible Debentures”) from entities affiliated with Paulson & Co. Inc. for aggregate consideration of approximately $355 million; and pay fees and expenses related to the recapitalization transactions, with remaining proceeds held as excess holding company liquidity available for general corporate purposes.
 
CEO Ed Bonach said, “We are extremely pleased with the success of the recapitalization.   The positive reception resulted in favorable pricing and terms.  As a result, we were able to upsize the overall transaction by $50 million while further decreasing the weighted average cost of debt.  The completion of the recapitalization provides us with an improved cost of capital, increased financial flexibility, and an improved debt maturity profile, as well as meaningful accretion to both EPS and ROE, while maintaining our positive ratings profile, previously announced share repurchase plans and business momentum.”
 
In connection with the recapitalization transactions, CNO expects to record a one-time charge of approximately $180 million in the third quarter of 2012, consisting of costs associated with repurchasing the $200 million aggregate principal amount of Convertible Debentures, a redemption premium on the 9.0% Senior Secured Notes and the write-off of unamortized discount and issuance costs.  In addition, shareholders’ equity is expected to be further reduced by approximately $24 million related to the cost of extinguishing the beneficial conversion feature related to the Convertible Debentures that were repurchased.
 
As a result of the completed transaction, on a pro forma basis, the debt-to-total capital ratio, excluding accumulated other comprehensive income, increased by 520 basis points (1) (rather than the estimated 440 basis points previously announced) and the weighted average cost of debt decreased by approximately 210 basis points (rather than the 160 basis points previously announced), in each case as compared to CNO’s actual capital structure at June 30, 2012.
 
-more-

 

 
CNO Financial (2)
September 28, 2012
 
In addition to completing the recapitalization, CNO also announced that during the third quarter of 2012 it repurchased 4,804,630 shares of its common stock for an aggregate purchase price of $41.4 million under its share repurchase program.  The shares were repurchased at an average cost of $8.62 per share.  Total shares repurchased under the program year-to-date total 12,894,178 shares for an aggregate purchase price of $99.5 million, at an average cost of $7.72 per share.  Total shares repurchased year-to-date represent 5.3% of the approximately 241.3 million shares outstanding at December 31, 2011.  CNO anticipates repurchasing approximately $150 million to $170 million of common stock during 2012.
 
The Notes were offered and sold to “qualified institutional buyers” as defined under Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), in accordance with Rule 144A and to non-U.S. Persons in transactions outside the United States in reliance on Regulation S under the Securities Act.
 
 This press release does not constitute an offer to sell or the solicitation of an offer to buy the Notes or any other securities.
 
About CNO
CNO is a holding company. Our insurance subsidiaries – principally Bankers Life and Casualty Company, Washington National Insurance Company and Colonial Penn Life Insurance Company – serve pre-retiree and retired Americans by helping them protect against financial adversity and provide for a more secure retirement.  For more information, visit CNO online at www.CNOinc.com .
 
-more-

 

CNO Financial (3)
September 28, 2012
 
Notes
 
(1)    Pro forma debt to total capital ratio
 
The following summarizes the impact of our recapitalization on the debt to total capital ratio calculated in accordance with generally accepted accounting principles (“GAAP”) and debt to total capital ratio, excluding accumulated other comprehensive income (a non-GAAP measure).  A reconciliation of these ratios as reported and on a pro forma basis is as follows (dollars in millions):
 
 	 	Actual
June 30, 2012	 	 	Adjustments	 	 	Pro forma
June 30, 2012	 	
 	 	 	 	 	 	 	 	 	 	
Corporate notes payable	 	$	778.2	 	 	$	255.3	 	 	$	1,033.5	 	
Total shareholders’ equity	 	 	4,893.1	 	 	 	(204.0	)	 	 	4,689.1	 	
Total capital	 	$	5,671.3	 	 	$	51.3	 	 	$	5,722.6	 	
Debt to total capital ratio	 	 	13.7	%	 	 	 	 	 	 	18.1	%	
 	 	 	 	 	 	 	 	 	 	 	 	 	
Non-GAAP measures:	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	
Corporate notes payable	 	$	778.2	 	 	$	255.3	 	 	$	1,033.5	 	
Total shareholders’ equity	 	 	4,893.1	 	 	 	(204.0	)	 	 	4,689.1	 	
Less accumulated other comprehensive income	 	 	(990.8	)	 	 	  -	 	 	 	 (990.8	)	
Total capital	 	$	4,680.5	 	 	$	51.3	 	 	$	4,731.8	 	
Debt to total capital ratio, excluding accumulated other comprehensive income	 	 	16.6	%	 	 	 	 	 	 	21.8	%	
 
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