Exhibit 4.1


 


SENIOR NOTES INDENTURE


 


Dated as of October 26, 2007


 


Among


 


WP PRISM MERGER SUB INC., to be merged with and into
BAUSCH & LOMB INCORPORATED,


 


the Guarantors listed herein


 


and


 


U.S. BANK NATIONAL ASSOCIATION,


 


as Trustee


 


97/8% SENIOR NOTES DUE 2015


 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  12.03

  
	
  (c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06; 7.07

  
	
  (c)

  	
   

  	
  7.06; 12.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03; 12.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  12.04

  
	
  (c)(2)

  	
   

  	
  12.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  12.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05; 12.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.14

  
	
  316(a)(last
  sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  2.12; 9.04

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.12

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  12.01

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  12.01

  



 






N.A.
means not applicable.


* This
Cross-Reference Table is not part of this Indenture.


 


i

















 


	
  ARTICLE I

  
	
  DEFINITIONS AND INCORPORATION BY
  REFERENCE

  
	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
  36

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  37

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  37

  
	
  Section 1.05.

  	
  Acts of Holders

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
  THE NOTES

  
	
   

  
	
  Section 2.01.

  	
  Form and Dating; Terms

  	
  40

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  41

  
	
  Section 2.03.

  	
  Registrar and Paying Agent

  	
  42

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  42

  
	
  Section 2.05.

  	
  Holder Lists

  	
  42

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
  43

  
	
  Section 2.07.

  	
  Replacement Notes

  	
  56

  
	
  Section 2.08.

  	
  Outstanding Notes

  	
  56

  
	
  Section 2.09.

  	
  Treasury Notes

  	
  56

  
	
  Section 2.10.

  	
  Temporary Notes

  	
  57

  
	
  Section 2.11.

  	
  Cancellation

  	
  57

  
	
  Section 2.12.

  	
  Defaulted Interest

  	
  57

  
	
  Section 2.13.

  	
  CUSIP/ISIN Numbers

  	
  58

  
	
  Section 2.14.

  	
  Calculation of Principal Amount of Securities

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
  REDEMPTION

  
	
   

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
  58

  
	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed

  	
  58

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
  59

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  60

  
	
  Section 3.05.

  	
  Deposit of Redemption Price

  	
  60

  
	
  Section 3.06.

  	
  Notes Redeemed in Part

  	
  60

  
	
  Section 3.07.

  	
  Optional Redemption

  	
  61

  
	
  Section 3.08.

  	
  Mandatory Redemption

  	
  61

  



 


ii

















 


	
  Section 3.09.

  	
  Offers to Repurchase by Application of Excess
  Proceeds

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Notes

  	
  64

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
  64

  
	
  Section 4.03.

  	
  Reports and Other Information

  	
  65

  
	
  Section 4.04.

  	
  Compliance Certificate

  	
  66

  
	
  Section 4.05.

  	
  Taxes

  	
  67

  
	
  Section 4.06.

  	
  Stay, Extension and Usury Laws

  	
  67

  
	
  Section 4.07.

  	
  Limitation on Restricted Payments

  	
  67

  
	
  Section 4.08.

  	
  Dividend and Other Payment Restrictions Affecting
  Restricted Subsidiaries

  	
  76

  
	
  Section 4.09.

  	
  Limitation on the Incurrence of Indebtedness and
  Issuance of Disqualified Stock and Preferred Stock

  	
  78

  
	
  Section 4.10.

  	
  Asset Sales

  	
  85

  
	
  Section 4.11.

  	
  Transactions with Affiliates

  	
  87

  
	
  Section 4.12.

  	
  Liens

  	
  90

  
	
  Section 4.13.

  	
  Company Existence

  	
  90

  
	
  Section 4.14.

  	
  Offer to Repurchase Upon Change of Control

  	
  90

  
	
  Section 4.15.

  	
  Limitation on Guarantees of Indebtedness by
  Restricted Subsidiaries

  	
  92

  
	
  Section 4.16.

  	
  Limitation on Sale and Lease-Back Transactions

  	
  93

  
	
  Section 4.17.

  	
  Suspension of Covenants

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
  SUCCESSORS

  
	
   

  
	
  Section 5.01.

  	
  Merger, Consolidation or Sale of All or
  Substantially All Assets

  	
  95

  
	
  Section 5.02.

  	
  Successor Person Substituted

  	
  97

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
  DEFAULTS AND REMEDIES

  
	
   

  
	
  Section 6.01.

  	
  Events of Default

  	
  97

  
	
  Section 6.02.

  	
  Acceleration

  	
  99

  
	
  Section 6.03.

  	
  Other Remedies

  	
  100

  
	
  Section 6.04.

  	
  Waiver of Past Defaults

  	
  100

  
	
  Section 6.05.

  	
  Control by Majority

  	
  100

  
	
  Section 6.06.

  	
  Limitation on
  Suits

  	
  100

  



 


iii

















 


	
  Section 6.07.

  	
  Rights of Holders to Receive Payment

  	
  101

  
	
  Section 6.08.

  	
  Collection Suit by Trustee

  	
  101

  
	
  Section 6.09.

  	
  Restoration of Rights and Remedies

  	
  101

  
	
  Section 6.10.

  	
  Rights and Remedies Cumulative

  	
  101

  
	
  Section 6.11.

  	
  Delay or Omission Not Waiver

  	
  102

  
	
  Section 6.12.

  	
  Trustee May File Proofs of Claim

  	
  102

  
	
  Section 6.13.

  	
  Priorities

  	
  102

  
	
  Section 6.14.

  	
  Undertaking for Costs

  	
  103

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
  TRUSTEE

  
	
   

  
	
  Section 7.01.

  	
  Duties of Trustee

  	
  103

  
	
  Section 7.02.

  	
  Rights of Trustee

  	
  104

  
	
  Section 7.03.

  	
  Individual Rights of Trustee

  	
  106

  
	
  Section 7.04.

  	
  Trustee’s Disclaimer

  	
  106

  
	
  Section 7.05.

  	
  Notice of Defaults

  	
  106

  
	
  Section 7.06.

  	
  Reports by Trustee to Holders

  	
  106

  
	
  Section 7.07.

  	
  Compensation and Indemnity

  	
  106

  
	
  Section 7.08.

  	
  Replacement of Trustee

  	
  107

  
	
  Section 7.09.

  	
  Successor Trustee by Merger, etc

  	
  108

  
	
  Section 7.10.

  	
  Eligibility; Disqualification

  	
  108

  
	
  Section 7.11.

  	
  Preferential Collection of Claims Against Issuer

  	
  108

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
  LEGAL DEFEASANCE AND COVENANT
  DEFEASANCE

  
	
   

  
	
  Section 8.01.

  	
  Option to Effect Legal Defeasance or Covenant
  Defeasance

  	
  109

  
	
  Section 8.02.

  	
  Legal Defeasance and Discharge

  	
  109

  
	
  Section 8.03.

  	
  Covenant Defeasance

  	
  109

  
	
  Section 8.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  110

  
	
  Section 8.05.

  	
  Deposited Money and Government Securities to Be Held
  in Trust; Other Miscellaneous Provisions

  	
  111

  
	
  Section 8.06.

  	
  Repayment to Issuer

  	
  112

  
	
  Section 8.07.

  	
  Reinstatement

  	
  112

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  
	
  Section 9.01.

  	
  Without Consent of Holders

  	
  112

  



 


iv

















 


	
  Section 9.02.

  	
  With Consent of Holders

  	
  113

  
	
  Section 9.03.

  	
  Compliance with Trust Indenture Act

  	
  115

  
	
  Section 9.04.

  	
  Revocation and Effect of Consents

  	
  115

  
	
  Section 9.05.

  	
  Notation on or Exchange of Notes

  	
  116

  
	
  Section 9.06.

  	
  Trustee to Sign Amendments, etc

  	
  116

  
	
  Section 9.07.

  	
  Payment for Consent

  	
  116

  
	
  Section 9.08.

  	
  Additional Voting Terms; Calculation of Principal
  Amount

  	
  116

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
  GUARANTEES

  
	
   

  
	
  Section 10.01.

  	
  Guarantee

  	
  116

  
	
  Section 10.02.

  	
  Limitation on Guarantor Liability

  	
  118

  
	
  Section 10.03.

  	
  Execution and Delivery

  	
  118

  
	
  Section 10.04.

  	
  Subrogation

  	
  119

  
	
  Section 10.05.

  	
  Benefits Acknowledged

  	
  119

  
	
  Section 10.06.

  	
  Release of Guarantees

  	
  119

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  
	
  Section 11.01.

  	
  Satisfaction and Discharge

  	
  120

  
	
  Section 11.02.

  	
  Application of Trust Money

  	
  121

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
  MISCELLANEOUS

  
	
   

  
	
  Section 12.01.

  	
  Trust Indenture Act Controls

  	
  121

  
	
  Section 12.02.

  	
  Notices

  	
  121

  
	
  Section 12.03.

  	
  Communication by Holders with Other Holders

  	
  122

  
	
  Section 12.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  122

  
	
  Section 12.05.

  	
  Statements Required in Certificate or Opinion

  	
  123

  
	
  Section 12.06.

  	
  Rules by Trustee and Agents

  	
  123

  
	
  Section 12.07.

  	
  No Personal Liability of Directors, Officers,
  Employees and Stockholders

  	
  123

  
	
  Section 12.08.

  	
  Governing Law

  	
  124

  
	
  Section 12.09.

  	
  Waiver of Jury Trial

  	
  124

  
	
  Section 12.10.

  	
  Force Majeure

  	
  124

  
	
  Section 12.11.

  	
  No Adverse Interpretation of Other Agreements

  	
  124

  
	
  Section 12.12.

  	
  Successors

  	
  124

  



 


v

















 


	
  Section 12.13.

  	
  Severability

  	
  124

  
	
  Section 12.14.

  	
  Counterpart Originals

  	
  124

  
	
  Section 12.15.

  	
  Table of Contents, Headings, etc

  	
  124

  
	
  Section 12.16.

  	
  Qualification of Indenture

  	
  124

  



 


	
  EXHIBITS

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Note

  	
   

  
	
  Exhibit B

  	
  Form of Certificate of
  Transfer

  	
   

  
	
  Exhibit C

  	
  Form of Certificate of
  Exchange

  	
   

  
	
  Exhibit D

  	
  Form of Supplemental
  Indenture to Be Delivered by Subsequent Guarantors

  	
   

  



 


vi

















 


SENIOR NOTES INDENTURE, dated as of October 26, 2007,
among WP Prism Merger Sub Inc., a New York corporation that shall be merged
with and into Bausch & Lomb Incorporated, a New York corporation, with
Bausch & Lomb Incorporated continuing as the surviving corporation, and the
Guarantors (as defined herein) listed on the signature pages hereto and U.S.
Bank National Association, a national banking association, as Trustee.


 


W I T N E S S E T
H


 


WHEREAS, the Issuer (as defined herein) has duly
authorized the creation of an issue of $650,000,000 aggregate principal amount
of the Issuer’s 97⁄8% senior notes due 2015 (the “Initial Notes”);


 


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


 


WHEREAS, on the date hereof, WP Prism Merger Sub Inc.
shall be merged with and into Bausch & Lomb Incorporated, with Bausch &
Lomb Incorporated continuing as the surviving corporation and assuming all of
the obligations of WP Prism Merger Sub Inc. under this Indenture;


 


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


 


ARTICLE I


 


DEFINITIONS AND
INCORPORATION BY REFERENCE 


 


SECTION 1.01.      Definitions.


 


“144A Global Note” means a Global Note,
substantially in the form of Exhibit A hereto, bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of Notes initially sold
in reliance on Rule 144A.


 


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


 


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


 


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


 


“Acquisition” means the transactions
contemplated by the Merger Agreement.


 

















 


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


 


“Additional Notes” means additional Notes (other
than the Initial Notes and Exchange Notes) issued from time to time subsequent
to the Issue Date under this Indenture.


 


“Affiliate” of any specified Person means any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For purposes of
this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise.


 


“Agent” means any Registrar or Paying Agent.


 


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


 


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


 


(1) 1.0% of the principal amount of such Note; and


 


(2) the excess, if any, of (a) the present value at
such Redemption Date of (i) the redemption price of such Note at November 1,
2011 (such redemption price being set forth in the table set forth in Section
3.07(d) hereof), plus (ii) all required interest payments due on such Note
through November 1, 2011 (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 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, Euroclear and Clearstream that apply to
such transfer or exchange.


 


2

















 


“Asset Sale” means:


 


(1) the sale, conveyance, transfer or other
disposition, whether in a single transaction or a series of related
transactions (including, but not limited to, by way of a Sale and Lease-Back
Transaction), of property or assets of the Issuer or any of its Restricted
Subsidiaries (each referred to in this definition as a “disposition”); or


 


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


 


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


 


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


 


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


 


(d) any disposition of assets or issuance or sale of
Equity Interests of any Restricted Subsidiary in any transaction or series of
related transactions with an aggregate fair market value of less than $25.0
million for any such transaction or series of related transactions;


 


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


 


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


 


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


 


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


 


(i) foreclosures, condemnation or any similar action
on assets;


 


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


 


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


 


3

















 


(l) the licensing or sub-licensing of intellectual
property or other general intangibles in the ordinary course of business, other
than the licensing of intellectual property on a long-term basis;


 


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


 


(n) the unwinding of any Hedging Obligations;


 


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


 


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


 


“Attributable Debt” in respect of a Sale and
Lease-Back Transaction means, as at the time of determination, the present
value (discounted at the interest rate borne by the Notes, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale and Lease-Back Transaction (including
any period for which such lease has been extended); provided, however,
that if such Sale and Lease-Back Transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined
in accordance with the definition of “Capital Lease Obligation.”


 


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


 


“broker-dealer” has the meaning set forth in
the Registration Rights Agreement.


 


“Business Day” means each day that is not a
Saturday, a Sunday or a day on which commercial banking institutions are not
required to be open in the State of New York or the place of payment.


 


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


 


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


 


“Capital Stock” means:


 


4

















 


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


 


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


 


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


 


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


 


“Cash Equivalents” means:


 


(1) United States dollars;


 


(2)(a) Canadian dollars, yen, pounds sterling or
euros; or


 


(b) in the case of any Foreign Subsidiary that is a
Restricted Subsidiary, such local currencies held by such Foreign Subsidiary
from time to time in the ordinary course of business;


 


(3) securities issued or directly and fully and
unconditionally guaranteed or insured by the U.S. government or any agency or
instrumentality thereof the securities of which are unconditionally guaranteed
as a full faith and credit obligation of such government with maturities of 24
months or less from the date of acquisition;


 


(4) certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers’ acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any domestic or foreign commercial
bank having capital and surplus of not less than $250.0 million in the case of
U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of
determination) in the case of non-U.S. banks;


 


(5) repurchase obligations for underlying securities
of the types described in clauses (3), (4) and (7) entered into with any
financial institution meeting the qualifications specified in clause (4) above;


 


(6) commercial paper rated at least “P-1” by Moody’s
or at least “A-1” by S&P (or, if at any time neither Moody’s nor S&P
shall be rating such obligations, an equivalent rating from another Rating
Agency) and in each case maturing within 12 months after the date of creation
thereof and Indebtedness or Preferred Stock issued by Persons (other than the
Sponsor or any of its Affiliates) with a rating of “A” or higher from S&P
or “A-2” or higher from Moody’s with maturities of 12 months or less from the
date of acquisition;


 


(7) marketable short-term money market and similar
funds having a rating of at least “P-2 or “A-2” from either Moody’s 


 


5

















 


or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from
another Rating Agency), and maturing within 12 months after the date of
creation or acquisition thereof;


 


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


 


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


 


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


 


(11) investment funds investing 90.0% of their assets
in securities of the types described in clauses (1) through (10) above.


 


In the case of Investments by any Foreign Subsidiary
that is a Restricted Subsidiary, Cash Equivalents shall also include (a)
investments of the type and maturity described in clauses (1) through (11)
above of foreign obligors, which Investments or obligors (or the parents of
such obligors) have ratings described in such clauses or equivalent ratings from
comparable foreign rating agencies and (b) other short-term investments
utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance
with normal investment practices for cash management in investments analogous
to the foregoing investments in clauses (1) through (11) and in this
definition.


 


Notwithstanding the foregoing, Cash Equivalents shall
include amounts denominated in currencies other than those set forth in clauses
(1) and (2) above; provided that such amounts are converted into any
currency listed in clauses (1) and (2) as promptly as practicable and in any
event within ten Business Days following the receipt of such amounts.


 


“Change of Control” means the occurrence of any
of the following:


 


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


 


(2) the Issuer becomes aware of (by way of a report or
any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote,
written notice or otherwise) the acquisition by any Person or group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision), including any group acting for the purpose of acquiring,
holding or disposing of securities (within the meaning of Rule 13d-5(b)(1)
under the Exchange 


 


6

















 


Act), other than one or more Permitted Holders, in a
single transaction or in a related series of transactions, by way of merger,
consolidation or other business combination or purchase of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act, or any successor
provision) of 50.0% or more of the total voting power of the Voting Stock of
the Issuer or any of its direct or indirect parent companies holding directly
or indirectly 100.0% of the total voting power of the Voting Stock of the
Issuer.


 


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


 


“Co-investors” means any Person that provides
equity commitments to, and invests directly or indirectly in, Holdings on the
Issue Date in connection with the Acquisition.


 


“Consolidated Depreciation and Amortization Expense”
means with respect to any Person for any period, the total amount of
depreciation and amortization expense of such Person, including, but not
limited to, the amortization of deferred financing fees, debt issuance costs,
commissions, fees and expenses and Capitalized Software Expenditures of such
Person and its Restricted Subsidiaries for such period on a consolidated basis
and otherwise determined in accordance with GAAP.


 


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


 


(1) consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, to the extent such expense was
deducted (and not added back) in computing Consolidated Net Income (including
(a) amortization of original issue discount resulting from the issuance of
Indebtedness at less than par, (b) all commissions, discounts and other fees
and charges owed with respect to letters of credit or bankers acceptances, (c)
non-cash interest payments (but excluding any non-cash interest expense
attributable to the movement in the mark to market valuation of Hedging
Obligations or other derivative instruments pursuant to GAAP), (d) the interest
component of Capital Lease Obligations, and (e) net payments, if any, made
(less net payments, if any, received), pursuant to interest rate Hedging
Obligations with respect to Indebtedness, and excluding (u) any expense
resulting from the discounting of any Indebtedness in connection with the
application of recapitalization accounting or, if applicable, purchase
accounting in connection with the Transactions or any acquisition, (v)
penalties and interest relating to taxes with respect to matters existing on
the Issue Date, (w) any Additional Interest and any “additional interest” with
respect to other securities, (x) amortization of deferred financing fees, debt
issuance costs, commissions, fees and expenses, (y) any expensing of bridge,
commitment and other financing fees and (z) commissions, discounts, yield and
other fees and charges (including any interest expense) related to any
Qualified Securitization Facility; plus


 


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


 


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


 


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


 


7

















 


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


 


(1) any after-tax effect of extraordinary,
non-recurring or unusual gains or losses (less all fees and expenses relating
thereto) or expenses (including relating to the Transactions or any severance,
relocation costs and curtailments or modifications to pension and
post-retirement employee benefit plans) shall be excluded;


 


(2) the cumulative effect of a change in accounting
principles and changes as a result of the adoption or modification of
accounting policies during such period shall be excluded;


 


(3) any net after-tax gains or losses on disposal of
disposed, abandoned or discontinued operations shall be excluded;


 


(4) any net after-tax effect of gains or losses (less
all fees, expenses and charges relating thereto) attributable to asset
dispositions or the sale or other disposition of any Capital Stock of any
Person other than in the ordinary course of business shall be excluded;


 


(5) the Net Income for such period of any Person that
is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for
by the equity method of accounting, shall be excluded; provided that
Consolidated Net Income of the Issuer shall be increased by the amount of
dividends, distributions or other payments that are actually paid in cash (or
to the extent converted into cash) to the Issuer or a Restricted Subsidiary
thereof in respect of such period (subject in the case of dividends,
distributions or other payments constituting Net Income of a Restricted
Subsidiary that is not a Guarantor to the limitations contained in clause (6)
below);


 


(6) solely for the purpose of determining the amount
available for Restricted Payments under clause (3)(A) of Section 4.07(a)
hereof, the Net Income for such period of any Restricted Subsidiary (other than
any Guarantor) shall be excluded to the extent that the declaration or payment
of dividends or similar distributions by that Restricted Subsidiary of its Net
Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly,
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule, or governmental regulation applicable
to that Restricted Subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or similar distributions has been legally
waived; provided that Consolidated Net Income of the Issuer will be
increased by the amount of dividends or other distributions or other payments
actually paid in cash (or to the extent converted into cash) to the Issuer or a
Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein;


 


(7) any increase in amortization or depreciation or
other noncash charges resulting from the application of purchase accounting in
relation to the Transactions or any acquisition that is consummated after the
Issue Date, net of taxes, shall be excluded;


 


8

















 


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


 


(9) any impairment charge or asset write-off or
write-down, including impairment charges or asset write-offs or write-downs
related to intangible assets, long-lived assets, investments in debt and equity
securities or as a result of a change in law or regulation (excluding any such
write-off or write-down in respect of items that increased Consolidated Net
Income in a prior period), in each case, pursuant to GAAP, and the amortization
of intangibles arising pursuant to GAAP shall be excluded;


 


(10) any non-cash compensation expense recorded from
grants of stock appreciation or similar rights, stock options, restricted stock
or other rights to officers, directors, employees or consultants in connection
with the Transactions, shall be excluded;


 


(11) accruals and reserves that are established within
twelve months after the Issue Date that are so required to be established as a
result of the Transactions in accordance with GAAP shall be excluded;


 


(12) any non-cash compensation expense resulting from
the application of Statement of Financial Accounting Standards No. 123R shall
be excluded;


 


(13) to the extent covered by insurance (including,
without limitation, business interruption insurance) and actually reimbursed,
or, so long as the Issuer has made a determination that there exists reasonable
evidence that such amount will in fact be reimbursed by the insurer and only to
the extent that such amount is (a) not denied by the applicable carrier in
writing and (b) in fact reimbursed within 365 days of the date of the insurable
event (with a deduction for any amount so added back to the extent not so
reimbursed within such 365 day period), expenses with respect to liability or
casualty events or business interruption shall be excluded; provided
that any proceeds of such reimbursement when received shall be excluded to the
extent the expense reimbursed was previously excluded pursuant to this clause
(13); and


 


9

















 


(14) the following items shall be excluded:


 


(a) any net unrealized gain or loss (after any offset)
resulting in such period from Hedging Obligations and the application of
Statement of Financial Accounting Standards No. 133; and


 


(b) any net unrealized gain or loss (after any offset)
resulting in such period from currency translation gains or losses related to
currency re-measurements of Indebtedness (including any net loss or gain
resulting from Hedging Obligations for currency exchange risk).


 


In addition, to the extent not already included in the
Consolidated Net Income of such Person and its Restricted Subsidiaries,
notwithstanding anything to the contrary in the foregoing, Consolidated Net
Income shall include the amount of proceeds received from reimbursements of any
expenses and charges that are covered by indemnification or other reimbursement
provisions in connection with any Permitted Investment or any sale, conveyance,
transfer or other disposition of assets permitted under this Indenture.


 


Notwithstanding the foregoing, for the purpose of
Section 4.07 hereof only (other than clause (3)(D) of Section 4.07(a) hereof),
there shall be excluded from Consolidated Net Income any income arising from
any sale or other disposition of Restricted Investments made by the Issuer and
its Restricted Subsidiaries, any repurchases and redemptions of Restricted
Investments from the Issuer and its Restricted Subsidiaries, any repayments of
loans and advances which constitute Restricted Investments by the Issuer or any
of its Restricted Subsidiaries, any sale of the stock of an Unrestricted
Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in
each case only to the extent such amounts increase the amount of Restricted
Payments permitted under clause (3)(D) of Section 4.07(a) hereof.


 


“Consolidated Secured Leverage Ratio” means, as
of any date of determination, the ratio of (x) Consolidated Total Indebtedness
of the Issuer and its Restricted Subsidiaries that is secured by a Lien as of
such date to (y) the Issuer’s EBITDA for the most recent Test Period.


 


In the event that the Issuer or any of its Restricted
Subsidiaries incurs, assumes, guarantees, redeems, retires or extinguishes any
Consolidated Total Indebtedness (other than Consolidated Total Indebtedness
incurred under any revolving credit facility for working capital purposes
unless such Indebtedness has been permanently repaid and has not been replaced)
subsequent to the commencement of the Test Period but prior to or
simultaneously with the event for which the calculation of the Consolidated
Secured Leverage Ratio is made (the “Calculation Date”), then the Consolidated
Secured Leverage Ratio shall be calculated giving pro  forma
effect to such incurrence, assumption, guarantee, redemption, retirement or
extinguishment of such Consolidated Total Indebtedness as if the same had
occurred on the first day of the Test Period.


 


For purposes of making the computation referred to
above, Investments, acquisitions, dispositions, mergers, consolidations and
discontinued operations (as determined in accordance with GAAP) that have been
made by the Issuer or any of its Restricted Subsidiaries during the Test Period
or subsequent to such Test Period and on or prior to or simultaneously with the
Calculation Date shall be calculated on a pro  forma basis
assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations and discontinued operations (and 


 


10

















 


the change in EBITDA resulting therefrom) had occurred
on the first day of the Test Period. If since the beginning of such period any
Person that subsequently became a Restricted Subsidiary or was merged with or
into the Issuer or any of its Restricted Subsidiaries since the beginning of
such period shall have made any Investment, acquisition, disposition, merger,
consolidation or discontinued operation that would have required adjustment
pursuant to this definition, then the Consolidated Secured Leverage Ratio shall
be calculated giving pro  forma effect thereto for such period as
if such Investment, acquisition, disposition, merger, consolidation or
discontinued operation had occurred on the first day of the Test Period.


 


For purposes of this definition, whenever pro  forma
effect is to be given to an Investment, acquisition, disposition, merger or
consolidation (including the Transactions) and the amount of income or earnings
relating thereto, the pro  forma calculations shall be made in
good faith by a responsible financial or accounting officer of the Issuer (and
may include, for the avoidance of doubt, net cost savings and operating expense
reductions resulting from such Investment, acquisition, merger or consolidation
(including the Transactions) which is being given pro  forma
effect that have been or are reasonably expected to be realized and are set
forth in an Officer’s Certificate).


 


“Consolidated Total Indebtedness” means, as at
any date of determination, an amount equal to the aggregate amount of all
outstanding Indebtedness of the Issuer and its Restricted Subsidiaries on a
consolidated basis in accordance with GAAP (but excluding the effects of any
discounting of Indebtedness resulting from the application of purchase
accounting in connection with the Transactions) consisting of Indebtedness for
borrowed money, Obligations in respect of Capital Lease Obligations,
Attributable Debt in respect of Sale and Lease-Back Transactions and debt
obligations evidenced by promissory notes and similar instruments (and
excluding, for the avoidance of doubt, all amounts undrawn under revolving
credit facilities, any undrawn letters of credit and all obligations relating
to Qualified Securitization Facilities). For purposes of the definition of
Consolidated Secured Leverage Ratio only, Consolidated Total Indebtedness shall
also include the aggregate amount of all outstanding Disqualified Stock of the
Issuer and all Preferred Stock of its Restricted Subsidiaries on a consolidated
basis, with the amount of such Disqualified Stock and Preferred Stock equal to
the greater of their respective voluntary or involuntary liquidation preferences
and maximum fixed repurchase prices, in each case determined on a consolidated
basis in accordance with GAAP. For purposes hereof, the “maximum fixed
repurchase price” of any Disqualified Stock or Preferred Stock that does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or
Preferred Stock were purchased on any date on which Consolidated Total
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Stock or Preferred Stock, such fair market value shall be
determined reasonably and in good faith by the Issuer.


 


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


 


11

















 


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


 


(2) to advance or supply funds


 


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


 


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


 


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


 


“Corporate Trust Office of the Trustee” shall
be at the address of the Trustee specified in Section 12.02 hereof or such
other address as to which the Trustee may give notice to the Holders and the
Issuer.


 


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


 


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


 


“Default” means any event that is, or with the
passage of time or the giving of notice or both would be, an Event of Default.


 


“Definitive Note” means a certificated Note
registered in the name of the Holder thereof and issued in accordance with
Section 2.06(c) hereof, substantially in the form of Exhibit A 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.


 


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


 


12

















 


“Designated Non-cash Consideration” means the
fair market value of non-cash consideration received by the Issuer or a
Restricted Subsidiary in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting
forth the basis of such valuation, executed by the principal financial officer
of the Issuer, less the amount of Cash Equivalents received in connection with
a subsequent sale of or collection on such Designated Non-cash Consideration.


 


“Designated Preferred Stock” means Preferred
Stock of the Issuer or any parent company thereof (in each case other than
Disqualified Stock) that is issued for cash (other than to a Subsidiary of the
Issuer or an employee stock ownership plan or trust established by the Issuer
or any of its Subsidiaries) and is so designated as Designated Preferred Stock,
pursuant to an Officer’s Certificate executed by the principal financial
officer of the Issuer or the applicable parent company thereof, as the case may
be, on the issuance date thereof, the cash proceeds of which are excluded from
the calculation set forth in clause (3) of Section 4.07(a) hereof.


 


“Disqualified Stock” means, with respect to any
Person, any Capital Stock of such Person which, by its terms, or by the terms
of any security into which it is convertible or for which it is putable or
exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable (other than solely as a result of a change of control or asset sale)
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof (other than solely as a result of a change of control
or asset sale), in whole or in part, in each case prior to the date 91 days
after the earlier of the maturity date of the Notes or the date the Notes are
no longer outstanding; provided that if such Capital Stock is issued to
any plan for the benefit of employees of the Issuer or its Subsidiaries or by
any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the
Issuer or its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations; provided, further, that any Capital Stock
held by any future, current or former employee, director, officer, manager or
consultant (or any spouses, successors, executors, administrators, heirs or
legatees of any of the foregoing) of the Issuer or any of its Subsidiaries
pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement (including any stock
subscription or shareholder agreement) shall not constitute Disqualified Stock
solely because it may be required, upon the occurrence of certain events and
not at the election of the holder thereof, to be repurchased by the Issuer or
its Subsidiaries.


 


“Dutch Holdings” means Bausch & Lomb Dutch
Holdings C.V., a limited partnership organized under the laws of the
Netherlands.


 


“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,
in each case to the extent deducted (and not added back) in determining
Consolidated Net Income for such period:


 


(a) provision for taxes based on income or profits or
capital, including, without limitation, state, franchise and similar taxes,
foreign withholding taxes (including any future taxes or other levies which
replace or are intended to be in lieu of such taxes and any penalties 


 


13

















 


and interest related to such taxes or arising from tax
examinations) and the net tax expense associated with any adjustments made
pursuant to clauses (1) through (14) of the definition of “Consolidated Net
Income”; plus


 


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


 


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


 


(d) any expenses or charges incurred during such
period related to any issuance of Equity Interests, Permitted Investment, acquisition,
disposition, recapitalization or the incurrence of Indebtedness permitted to be
incurred by this Indenture including a refinancing thereof (whether or not
successful) and any amendment or modification to the terms of any such
transactions, including such fees, expenses or charges related to the
Transactions deducted in computing Consolidated Net Income; plus


 


(e) the amount of any restructuring charges,
integration and facilities opening costs or other business optimization
expenses or accruals or reserves deducted, including any one-time costs
incurred in connection with acquisitions after the Issue Date, project start-up
costs and costs related to the closure and/or consolidation of facilities; plus


 


(f) any other non-cash charges, including any write
offs or write downs reducing Consolidated Net Income for such period (provided
that, if any such non-cash charges represent an accrual or reserve for
potential cash items in any future period, the cash payment in respect thereof
in such future period shall be subtracted from EBITDA to such extent, and
excluding (i) amortization of a prepaid cash item that was paid in a prior
period, and (ii) any such non-cash charges in respect of items that increased
Consolidated Net Income in a prior period); plus


 


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


 


(h) the amount of net cost savings projected by the
Issuer in good faith to be realized as a result of specified actions taken
within 12 months after the end of such period (which cost savings shall be set
forth in an Officer’s Certificate and calculated on a pro  forma
basis as though such cost savings had been realized on the first day of such
period), net of the amount of actual benefits realized during such period from
such actions; provided that (x) such cost savings are reasonably
identifiable and factually supportable, (y) such actions are taken within 12
months after the Issue Date and (z) the aggregate amount of cost savings added
pursuant to this clause (h) shall not exceed $25.0 million for any four
consecutive quarter period (which adjustments may be incremental to pro  forma
cost savings adjustments made pursuant to the definition of “Fixed Charge
Coverage Ratio”); plus


 


14

















 


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


 


(j) any costs or expense incurred by the Issuer or a
Restricted Subsidiary pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan, agreement or any stock
subscription or shareholder agreement, to the extent that such cost or expenses
are funded with cash proceeds contributed to the capital of the Issuer or net
cash proceeds of an issuance of Equity Interest of the Issuer (other than
Disqualified Stock) solely to the extent that such net cash proceeds are
excluded from the calculation set forth in clause (3) of Section 4.07(a)
hereof; plus


 


(k) cash receipts (or any netting arrangements
resulting in reduced cash expenditures) not representing EBITDA or Consolidated
Net Income in any period to the extent non-cash gains relating to such receipts
were deducted in the calculation of EBITDA pursuant to clause (2) below for any
previous period and not added back; plus


 


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


 


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


 


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


 


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


 


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


 


(d) extraordinary gains and unusual or non-recurring
gains.


 


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


 


“Equity Interests” means Capital Stock and all
warrants, options or other rights to acquire Capital Stock, but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock.


 


“Equity Offering” means any public or private
sale of common stock or Preferred Stock of the Issuer or any of its direct or
indirect parent companies (excluding Disqualified Stock), other than:


 


(1) public offerings with respect to the Issuer’s or
any direct or indirect parent company’s common stock registered on Form S-4 or
Form S-8;


 


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


 


15

















 


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


 


“euro” means the single currency of
participating member states of the EMU.


 


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


 


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


 


“Exchange Notes” means the Notes issued in an
Exchange Offer pursuant to Section 2.06(f) hereof.


 


“Exchange Offer” has the meaning set forth in
the Registration Rights Agreement.


 


“Exchange Offer Registration Statement” has the
meaning set forth in the Registration Rights Agreement.


 


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


 


(1) contributions to its common equity capital; and


 


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


 


in each case designated as Excluded Contributions
pursuant to an Officer’s Certificate executed by the principal financial
officer of the Issuer on the date on which such capital contributions are made
or the date on which such Equity Interests are sold, as the case may be, which
are excluded from the calculation set forth in clause (3) of Section 4.07(a)
hereof.


 


“Fixed Charge Coverage Ratio” means, with
respect to any Person for any Test Period, the ratio of (x) EBITDA of such
Person for such Test Period to (y) the Fixed Charges of such Person for such
Test Period.


 


In the event that the Issuer or any Restricted
Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any
Indebtedness (other than Indebtedness incurred under any revolving credit
facility for working capital purposes unless such Indebtedness has been
permanently repaid and has not been replaced) or issues or redeems Disqualified
Stock or Preferred Stock subsequent to the commencement of the Test Period for
which the Fixed Charge Coverage Ratio is being calculated but prior to or
simultaneously with the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the “Fixed Charge Coverage Ratio Calculation Date”),
then the Fixed Charge Coverage Ratio shall be calculated giving pro  forma
effect to such incurrence, assumption, guarantee, redemption, retirement or
extinguishment of Indebtedness, or such issuance or redemption of Disqualified
Stock or Preferred Stock, as if the same had occurred on the first day of the Test
Period.


 


16

















 


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


 


For purposes of this definition, whenever pro  forma
effect is to be given to an Investment, acquisition, disposition, merger or
consolidation (including the Transactions) and the amount of income or earnings
relating thereto, the pro  forma calculations shall be made in
good faith by a responsible financial or accounting officer of the Issuer (and
may include, for the avoidance of doubt, net cost savings and operating expense
reductions resulting from such Investment, acquisition, merger or consolidation
(including the Transactions) which is being given pro  forma
effect that have been or are reasonably expected to be realized and are set
forth in an Officer’s Certificate). If any Indebtedness bears a floating rate
of interest and is being given pro  forma effect, the interest on
such Indebtedness shall be calculated as if the rate in effect on the Fixed
Charge Coverage Ratio Calculation Date had been the applicable rate for the
entire period (taking into account any Hedging Obligations applicable to such
Indebtedness). Interest on a Capital Lease Obligation shall be deemed to accrue
at an interest rate reasonably determined by a responsible financial or
accounting officer of the Issuer to be the rate of interest implicit in such
Capital Lease Obligation in accordance with GAAP. For purposes of making the
computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a pro  forma basis shall be computed
based upon the average daily balance of such Indebtedness during the applicable
period except as set forth in the first paragraph of this definition. Interest
on Indebtedness that may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Issuer
may designate.


 


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


 


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


 


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


 


17

















 


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


 


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


 


“Foreign Subsidiary Total Assets” means the
total assets of the Foreign Subsidiaries of the Issuer, as determined in
accordance with GAAP in good faith by the Issuer, without intercompany
eliminations.


 


“GAAP” means generally accepted accounting
principles in the United States of America which are in effect on the Issue
Date.


 


“Global Note Legend” means the legend set forth
in Section 2.06(g)(ii) hereof, which is required to be placed on all Global
Notes issued under this Indenture.


 


“Global Notes” means, individually and
collectively, each of the Restricted Global Notes and the Unrestricted Global
Notes, substantially in the form of Exhibit A hereto, issued in
accordance with Section 2.01, 2.06(b), 2.06(d) or 2.06(f) hereof.


 


“Government Securities” 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 by the United States of America,


 


which, in either case, are not callable or redeemable
at the option of the issuers thereof, and shall also include a depository
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act),
as custodian with respect to any such Government Securities or a specific
payment of principal of or interest on any such Government Securities held by
such custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or
the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.


 


“guarantee” means a guarantee (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including letters of credit and
reimbursement agreements in respect thereof), of all or any part of any Indebtedness
or other obligations.


 


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


 


18

















 


“Guarantor” means each of the U.S. Guarantors
(as defined in the Senior Credit Facilities, but excluding Holdings), if any,
that Guarantees the Notes in accordance with the terms of this Indenture.


 


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


 


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


 


“Holdings” means WP Prism Inc., a Delaware
corporation and the direct parent of the Issuer.


 


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


 


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


 


(a) in respect of borrowed money;


 


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


 


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


 


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


 


if and to the extent that any of the foregoing
Indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet (excluding the footnotes thereto) of
such Person prepared in accordance with GAAP;


 


(2) to the extent not otherwise included, any
obligation by such Person to be liable for, or to pay, as obligor, guarantor or
otherwise, on the obligations of the type referred to in clause (1) of a third
Person (whether or not such items would appear upon the balance sheet of the
such obligor or guarantor), other than by endorsement of negotiable instruments
for collection in the ordinary course of business;


 


19

















 


(3) to the extent not otherwise included, the
obligations of the type referred to in clause (1) of a third Person secured by
a Lien on any asset owned by such first Person, whether or not such
Indebtedness is assumed by such first Person; and


 


(4) Attributable Debt in respect of Sale and
Lease-Back Transactions;


 


 provided
that notwithstanding the foregoing, Indebtedness shall be deemed not to include
(a) Contingent Obligations incurred in the ordinary course of business or (b)
obligations under or in respect of any Qualified Securitization Facility.


 


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


 


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


 


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


 


“Initial Notes” has the meaning set forth in
the recitals hereto.


 


“Initial Purchasers” means each of Banc of
America Securities LLC, Citigroup Global Markets Inc., Credit Suisse Securities
(USA) LLC and J.P. Morgan Securities Inc.


 


“Interest Payment Date” means May 1 and
November 1 of each year to stated maturity.


 


“Investment Grade Rating” means a rating equal
to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the
equivalent) by S&P, or an equivalent rating by any other Rating Agency.


 


“Investment Grade Securities” means:


 


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


 


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


 


(3) investments in any fund that invests exclusively
in investments of the type described in clauses (1) and (2) which fund may also
hold immaterial amounts of cash pending investment or distribution; and


 


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


 


20


















 


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


 


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


 


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


 


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


 


(2) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its net book value at the time of
such transfer.


 


The amount of any Investment outstanding at any time
shall be the original cost of such Investment (determined, in the case of any
Investment made with assets of the Issuer or any Restricted Subsidiary, based
on the net book value of the assets invested), reduced by any dividend,
distribution, interest payment, return of capital, repayment or other amount
received in cash by the Issuer or a Restricted Subsidiary in respect of such
Investment (other than any of the foregoing to the extent such amounts increase
the amount of Restricted Payments permitted under clause (3)(D) of Section
4.07(a) hereof).


 


“Investors” means Warburg Pincus and its
Affiliates, and funds or partnerships managed by it or its Affiliates but not
including, however, any portfolio companies of any of the foregoing.


 


“Issue Date” means October 26, 2007.


 


“Issuer” means WP Prism Merger Sub Inc., a New
York corporation, prior to the Acquisition and Bausch & Lomb Incorporated,
a New York corporation, as the surviving corporation after the Acquisition, and
its successors.


 


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


 


21

















 


officer, the treasurer or the principal accounting
officer of the Issuer, and delivered to the Trustee.


 


“Letter of Transmittal” means the letter of
transmittal to be prepared by the Issuer and sent to all Holders for use by
such Holders in connection with an Exchange Offer.


 


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


 


“Management Stockholders” means the members of
management (or any spouses, successors, executors, administrators, heirs or
legatees of any of the foregoing) of the Issuer (or its direct parent) who are
holders of Equity Interests of the Issuer or any direct or indirect parent
companies thereof on the Issue Date or will become holders of such Equity
Interests in connection with the Transactions.


 


“Merger Agreement” means the Agreement and Plan
of Merger, dated as of May 16, 2007 by and among WP Prism LLC, WP Prism Merger
Sub Inc. and Bausch & Lomb Incorporated, as the same may be amended prior
to the Issue Date.


 


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


 


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


 


“Net Proceeds” means the aggregate cash
proceeds received by the Issuer or any of its Restricted Subsidiaries in
respect of any Asset Sale, including any cash received upon the sale or other
disposition of any Designated Non-cash Consideration received in any Asset
Sale, net of the direct costs relating to such Asset Sale and the sale or
disposition of such Designated Non-cash Consideration, including legal, accounting
and investment banking fees, payments made in order to obtain a necessary
consent or required by applicable law, and brokerage and sales commissions, any
relocation expenses incurred as a result thereof, other fees and expenses,
including title and recordation expenses, taxes paid or payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements), amounts required to be applied to the repayment
of principal of, premium, if any, and interest on Senior Indebtedness required
(other than required by clause (1) of Section 4.10(b) hereof) to be paid as a
result of such transaction and any deduction of appropriate amounts to be
provided by the Issuer or any of its Restricted Subsidiaries as a reserve in
accordance with GAAP against any liabilities associated with the asset disposed
of in such transaction and retained by the Issuer or any of its Restricted
Subsidiaries after such sale or other disposition thereof, including pension 


 


22

















 


and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.


 


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


 


“Notes” means the Initial Notes, any Exchange
Notes issued in exchange therefor and any Additional Notes, each authenticated
and delivered under this Indenture.


 


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


 


“Offering Memorandum” means the confidential
Offering Memorandum, dated October 16, 2007, relating to the sale of the Initial
Notes.


 


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


 


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


 


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


 


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


 


“Permitted Asset Swap” means the substantially
concurrent purchase and sale or exchange of Related Business Assets or a
combination of Related Business Assets and Cash Equivalents between the Issuer
or any of its Restricted Subsidiaries and another Person; provided that
any Cash Equivalents received must be applied in accordance with Section 4.10
hereof.


 


“Permitted Holders” means each of the Sponsor,
the Co-investors and Management Stockholders and any group (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor
provision) of which any of the foregoing are members; provided that, in
the case of such group and without giving effect to the existence of such group
or any other group, the Sponsor, the Co-investors and Management Stockholders, 


 


23

















 


collectively, have beneficial ownership of more than
50.0% of the total voting power of the Voting Stock of the Issuer or any of its
direct or indirect parent companies. Any Person or group whose acquisition of
beneficial ownership constitutes a Change of Control in respect of which a
Change of Control Offer is made in accordance with the requirements of this
Indenture will thereafter, together with its Affiliates, constitute an
additional Permitted Holder.


 


“Permitted Investments” means:


 


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


 


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


 


(3) any Investment by the Issuer or any of its
Restricted Subsidiaries in a Person that is engaged in a Similar 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 substantially all of its assets to, or is liquidated into, the Issuer
or a Restricted Subsidiary, and, in each case, any Investment held by such
Person; provided that such Investment was not acquired by such Person in
contemplation of such acquisition, merger, consolidation or transfer;


 


(4) any Investment in securities or other assets not
constituting Cash Equivalents or Investment Grade Securities and received in
connection with an Asset Sale made pursuant to the provisions described under
Section 4.10 hereof;


 


(5) any Investment existing on the Issue Date or made
pursuant to binding commitments in effect on the Issue Date or an Investment
consisting of any extension, modification or renewal of any Investment existing
on the Issue Date; provided that the amount of any such Investment may
only be increased pursuant to this clause (5) to the extent required by the
terms of such Investment as in existence on the Issue Date;


 


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


 


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


 


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


 


(7) Hedging Obligations permitted under clause (10) of
Section 4.09(b) hereof;


 


(8) [reserved];


 


24

















 


(9) Investments the payment for which consists of
Equity Interests (other than Disqualified Stock) of the Issuer, or any of its
direct or indirect parent companies; provided that such Equity Interests
will not increase the amount available for Restricted Payments under clause (3)
of Section 4.07(a) hereof;


 


(10) guarantees of Indebtedness permitted under
Sections 4.09(b) and 4.15 hereof;


 


(11) any transaction to the extent that it constitutes
an Investment that is permitted by and made in accordance with the provisions
of Section 4.11(b) hereof (except transactions described in clauses (2), (5)
and (9));


 


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


 


(13) additional Investments, taken together with all
other Investments made pursuant to this clause (13) that are at that time
outstanding (without giving effect to the sale of an Unrestricted Subsidiary to
the extent that the proceeds of such sale do not consist of cash or marketable
securities), not to exceed $200.0 million;


 


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


 


(15) advances to, or guarantees of Indebtedness of,
employees not in excess of $15.0 million outstanding at any one time, in the
aggregate;


 


(16) loans and advances to employees, directors,
officers, managers and consultants for business-related travel and
entertainment expenses, moving and relocation expenses and other analogous
business purposes or to fund such Person’s purchase of Equity Interests of the
Issuer or any direct or indirect parent company thereof;


 


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


 


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


 


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


 


(20) repurchases of the Notes.


 


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


 


(1) pledges or deposits by such Person under workmen’s
compensation laws, unemployment insurance, other social security benefits or
other insurance-related obligations 


 


25

















 


(including, but not limited to, in respect of deductibles, self-insured
retention amounts and premiums and adjustments thereto) or good faith deposits
in connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or U.S.
government bonds to secure surety or appeal bonds to which such Person is a
party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case incurred in the ordinary course of business;


 


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


 


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


 


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


 


(5) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real properties or
Liens incidental, to the conduct of the business of such Person or to the
ownership of its properties which were not incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person;


 


(6) Liens securing Indebtedness permitted to be
incurred pursuant to clause (4), (12)(B) or (13) of Section 4.09(b) hereof; provided
that (a) Liens securing Indebtedness, Disqualified Stock or Preferred Stock
permitted to be incurred pursuant to clause (13) relate only to Refinancing
Indebtedness that serves to refund or refinance Indebtedness, Disqualified
Stock or Preferred Stock incurred under clause (4) or (12)(B) of Section
4.09(b) hereof and (b) Liens securing Indebtedness, Disqualified Stock or
Preferred Stock to be incurred pursuant to clause (4) of Section 4.09(b) hereof
extend only to the assets so financed, purchased, constructed or improved;


 


(7) Liens existing on the Issue Date;


 


(8) Liens on property or shares of stock or other
assets of a Person at the time such Person becomes a Subsidiary; provided
that such Liens are not created or incurred in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; 


 


26

















 


provided, further, that such Liens may not
extend to any other property or other assets owned by the Issuer or any of its
Restricted Subsidiaries;


 


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


 


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


 


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


 


(12) 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;


 


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


 


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


 


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


 


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


 


(17) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancing, refunding,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7),
(8) and (9); provided that (a) such new Lien shall be limited to all or
part of the same property that secured the original Lien (plus improvements on
such property), and (b) the Indebtedness secured by such Lien at such time is
not increased to any amount greater than the sum of (i) the outstanding
principal amount or, if greater, committed amount of the Indebtedness described
under clauses (6), (7), (8) and (9) at the time the original Lien became a
Permitted Lien under this Indenture, and (ii) an amount necessary to pay any
fees and expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement;


 


27

















 


(18) deposits made in the ordinary course of business
to secure liability to insurance carriers;


 


(19) other Liens securing obligations incurred in the
ordinary course of business in an aggregate amount at any one time outstanding
not to exceed $35.0 million;


 


(20) Liens securing judgments for the payment of money
not constituting an Event of Default under clause (5) of Section 6.01 hereof so
long as such Liens are adequately bonded and any appropriate legal proceedings
that may have been duly initiated for the review of such judgment have not been
finally terminated or the period within which such proceedings may be initiated
has not expired;


 


(21) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods in the ordinary course of business;


 


(22) Liens (a) of a collection bank arising under Section
4-210 of the Uniform Commercial Code on items in the course of collection and
(b) encumbering reasonable customary deposits and margin deposits and similar
Liens attaching to commodity or securities trading accounts or other brokerage
accounts incurred in the ordinary course of business and not for speculative
purposes;


 


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


 


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


 


(25) Liens securing obligations owed by the Issuer or
any Restricted Subsidiary to any lender under Credit Facilities or any
Affiliate of such 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;


 


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


 


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


 


28

















 


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


 


(29) ground leases in respect of real property on
which facilities owned or leased by the Issuer or any of its Subsidiaries are
located;


 


(30) Liens on insurance policies and the proceeds
thereof securing the financing of the premiums with respect thereto;


 


(31) Liens on the assets of a Foreign Subsidiary or
any other non-guarantor Restricted Subsidiary securing Indebtedness of such
Restricted Subsidiary that is permitted by the terms of this Indenture to be
incurred; and


 


(32) Liens securing Indebtedness permitted to be
incurred under clause (25) of Section 4.09(b); provided that such Liens
only relate to property, equipment or other fixed or capital assets subject to
the Sale and Lease-Back Transactions referred to in such clause (25).


 


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


 


“Person” means any individual, corporation,
limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.


 


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


 


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


 


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


 


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


 


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


 


29

















 


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


 


“Record Date” for the interest payable on any
applicable Interest Payment Date means the April 15 and October 15 (whether or
not a Business Day) immediately preceding such Interest Payment Date.


 


“Registration Rights Agreement” means, with
respect to the Initial Notes, the Registration Rights Agreement with respect to
the Notes dated as of the Issue Date, among the Issuer, the Guarantors and the
Initial Purchasers, as such agreement may be amended, modified or supplemented
from time to time and, with respect to any Additional Notes, one or more
registration rights agreements between the Issuer and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from
time to time, relating to rights given by the Issuer to the purchasers of
Additional Notes to register such Additional Notes under the Securities Act.


 


“Regulation S” means Regulation S promulgated
under the Securities Act.


 


“Regulation S Global Note” means a Regulation S
Temporary Global Note or Regulation S Permanent Global Note, as applicable.


 


“Regulation S Permanent Global Note” means a
permanent Global Note in the form of Exhibit A hereto bearing the Global
Note Legend and the Private Placement Legend and deposited with or on behalf
of, and registered in the name of, the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Note upon expiration of the Restricted Period.


 


“Regulation S Temporary Global Note” means a
temporary Global Note in the form of Exhibit A hereto bearing the Global
Note Legend, the Private Placement Legend and the Regulation S Temporary Global
Note Legend and deposited with or on behalf of, and registered in the name of,
the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule
903.


 


“Regulation S Temporary Global Note Legend”
means the legend set forth in Section 2.06(g)(iii) hereof.


 


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


 


“Responsible Officer” means, when used with
respect to the Trustee, any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
Persons who at the time 


 


30

















 


shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.


 


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


 


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


 


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


 


“Restricted Period” means, in respect of any
Note issued pursuant to Regulation S, the 40-day distribution compliance period
as defined in Regulation S applicable to such Note.


 


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


 


“Rule 144” means Rule 144 promulgated under the
Securities Act.


 


“Rule 144A” means Rule 144A promulgated under
the Securities Act.


 


“Rule 903” means Rule 903 promulgated under the
Securities Act.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Securitization Facility” means any of one or
more receivables or securitization financing facilities as amended,
supplemented, modified, extended, renewed, restated or refunded from time to
time, the Obligations of which are non-recourse (except for customary
representations, warranties, covenants and indemnities made in connection with
such facilities) 


 


31

















 


to the Issuer or any of its Restricted Subsidiaries (other than a
Securitization Subsidiary) pursuant to which the Issuer or any of its
Restricted Subsidiaries sells or grants a security interest in its accounts
receivable or assets related thereto to either (a) a Person that is not a
Restricted Subsidiary or (b) a Securitization Subsidiary that in turn sells its
accounts receivable to a Person that is not a Restricted Subsidiary.


 


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


 


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


 


“Senior Credit Facilities” means the
term loan facilities and revolving credit facilities under the credit agreement
to be entered into as of the Issue Date by and among the Issuer, Holdings,
Bausch & Lomb BV, the lenders party thereto in their capacities as lenders
thereunder and Credit Suisse, as Administrative Agent, including any
guarantees, collateral documents, instruments and agreements executed in connection
therewith.


 


“Senior Indebtedness” means:


 


(1) all Indebtedness of the Issuer or any Guarantor
outstanding under the Senior Credit Facilities and any amendments, supplements,
modifications, extensions, renewals or restatements thereof, or Notes and related
Guarantees (including interest accruing on or after the filing of any petition
in bankruptcy or similar proceeding or for reorganization of the Issuer or any
Guarantor (at the rate provided for in the documentation with respect thereto,
regardless of whether or not a claim for post-filing interest is allowed in
such proceedings)), and any and all other fees, expense reimbursement
obligations, indemnification amounts, penalties and other amounts (whether
existing on the Issue Date or thereafter created or incurred) and all
obligations of the Issuer or any Guarantor to reimburse any bank or other
Person in respect of amounts paid under letters of credit, acceptances or other
similar instruments;


 


(2) all Hedging Obligations (and guarantees thereof)
owing to a lender under the Credit Facilities or any Affiliate of such lender
(or any Person that was a lender or an Affiliate of such lender at the time the
applicable agreement giving rise to such Hedging Obligation was entered into), provided
that such Hedging Obligations are permitted to be incurred under the terms of
this Indenture;


 


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


 


(4) all Obligations with respect to the items listed
in the preceding clauses (1), (2) and (3); 
provided that Senior Indebtedness shall not include:


 


32

















 


(a) any obligation of such Person to the Issuer or any
of its Subsidiaries;


 


(b) any liability for Federal, state, local or other
taxes owed or owing by such Person;


 


(c) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such obligations);


 


(d) any Indebtedness or other Obligation of such
Person which is subordinate or junior in any respect to any other Indebtedness
or other Obligation of such Person; or


 


(e) that portion of any Indebtedness which at the time
of incurrence is incurred in violation of this Indenture.


 


“Shelf Registration Statement” has the meaning
set forth in the Registration Rights Agreement.


 


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


 


“Similar Business” means (1) any business
engaged in by the Issuer or any of its Restricted Subsidiaries on the Issue
Date, and (2) any business or other activities that are reasonably similar,
ancillary, complementary or related to, or a reasonable extension, development
or expansion of, the businesses in which the Issuer and its Restricted
Subsidiaries are engaged on the Issue Date.


 


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


 


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


 


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


 


“Subsidiary” means, with respect to any Person:


 


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


 


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


 


33

















 


(a) more than 50.0% of the capital accounts,
distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof whether in the form of membership, general,
special or limited partnership or otherwise, and


 


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


 


“Test Period” in effect at any time means the
most recent period of four consecutive fiscal quarters of the Issuer ended on
or prior to such time (taken as one accounting period) in respect of which
internal financial statements for each quarter in such period (or, if
applicable, such fiscal year) are available.


 


“Total Assets” means the total assets of the
Issuer and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP, as shown on the most recent balance sheet of the Issuer.


 


“Transactions” means the transactions
contemplated by the Merger Agreement, the investment by the Sponsor and the
Co-investors, the issuance of the Notes and borrowings under the Senior Credit
Facilities as in effect on the Issue Date and the pledge and security
arrangements in connection with the foregoing, the refinancing or repurchase of
certain Indebtedness in connection with the foregoing and the related
transactions described in the Offering Memorandum, in particular as described
under the section thereof entitled “The Transactions”.


 


“Treasury Rate” means, as of any Redemption
Date, the yield to maturity as of such Redemption Date of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to the Redemption Date (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the period from the
Redemption Date to November 1, 2011; provided that, if the period from
the Redemption Date to such date is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year will be used.


 


“Trust Indenture Act” means the Trust Indenture
Act of 1939, as amended (15 U.S.C. §§ 77aaa-777bbbb).


 


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


 


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


 


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


 


34

















 


“Unrestricted Global Note” means a permanent
Global Note, substantially in the form of Exhibit A 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 Issuer which at the time of
determination is an Unrestricted Subsidiary (as designated by the Issuer, as
provided below); and


 


(2) any Subsidiary of an Unrestricted Subsidiary.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


35

















 


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


 


“Voting Stock” of any Person as of any date
means the Capital Stock of such Person that is at the time entitled to vote in
the election of the board of directors of such Person.


 


“Weighted Average Life to Maturity” means, when
applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case
may be, at any date, the quotient obtained by dividing:


 


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


 


(2) the sum of all such payments.


 


“Wholly-Owned Subsidiary” of any Person means a
Subsidiary of such Person, 100.0% of the outstanding Equity Interests of which
(other than directors’ qualifying shares) shall at the time be owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.


 


SECTION 1.02.      Other Definitions.


 


	
  Term

  	
   

  	
  Defined 

  in Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Asset Sale Offer”

  	
   

  	
  4.10

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Change of Control Offer”

  	
   

  	
  4.14

  
	
  “Change of Control Payment”

  	
   

  	
  4.14

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.14

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “Covenant Suspension Event”

  	
   

  	
  4.17

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “Fixed Charge Coverage Test”

  	
   

  	
  4.07

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “Note Register”

  	
   

  	
  2.03

  
	
  “Offer Amount”

  	
   

  	
  3.09

  
	
  “Offer Period”

  	
   

  	
  3.09

  
	
  “Pari Passu Indebtedness”

  	
   

  	
  4.10

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Purchase Date”

  	
   

  	
  3.09

  



 


36

















 


	
  Term

  	
   

  	
  Defined 

  in Section

  
	
   

  	
   

  	
   

  
	
  “Redemption Date”

  	
   

  	
  3.07

  
	
  “Refinancing Indebtedness”

  	
   

  	
  4.09

  
	
  “Refunding Capital Stock”

  	
   

  	
  4.07

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  
	
  “Reversion Date”

  	
   

  	
  4.17

  
	
  “Successor Company”

  	
   

  	
  5.01

  
	
  “Successor Guarantor”

  	
   

  	
  5.01

  
	
  “Successor Person”

  	
   

  	
  5.01

  
	
  “Suspended Covenants”

  	
   

  	
  4.17

  
	
  “Suspension Date”

  	
   

  	
  4.17

  
	
  “Suspension Period”

  	
   

  	
  4.17

  
	
  “Taxes”

  	
   

  	
  4.05

  
	
  “Treasury Capital Stock”

  	
   

  	
  4.07

  



 


SECTION 1.03.      Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture.


 


The
following Trust Indenture Act terms used in this Indenture have the following
meanings:


 


“indenture
securities” means the Notes and the Guarantees;


 


“indenture
security Holder” means a Holder;


 


“indenture
to be qualified” means this Indenture;


 


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


 


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


 


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


 


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


 


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


 


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


 


37

















 


(c)           “or” is not exclusive;


 


(d)           “including” means including without
limitation;


 


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


 


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


 


(g)           provisions apply to successive events
and transactions;


 


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


 


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


 


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


 


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


 


SECTION 1.05.      Acts of Holders.


 


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


 


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


 


38

















 


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


 


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


 


(e)           The Issuer may, in the circumstances
permitted by the Trust Indenture Act, set a record date for purposes of
determining the identity of Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders. Unless otherwise specified, if not set by the Issuer
prior to the first solicitation of a Holder made by any Person in respect of
any such action, or in the case of any such vote, prior to such vote, any such
record date shall be the later of (i) the Business Day which is at least 10
days prior to the first solicitation of such consent or (ii) the date of the
most recent list of Holders furnished to or maintained by the Trustee pursuant
to Section 2.05 hereof prior to such solicitation.


 


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


 


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


 


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


 


39

















 


ARTICLE II


 


THE NOTES 


 


SECTION 2.01.      Form and Dating; Terms.


 


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


 


(b)           Global Notes. Notes issued in
global form shall be substantially in the form of Exhibit A hereto
(including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Notes issued in definitive
form shall be substantially in the form of Exhibit A hereto (but without
the Global Note Legend thereon and without the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Each Global Note shall
represent such of the outstanding Notes as shall be specified in the “Schedule
of Exchanges of Interests in the Global Note” attached thereto and each shall
provide that it shall represent up to the aggregate principal amount of Notes
from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as applicable, to reflect exchanges and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Notes represented thereby shall be
made by the Trustee or the Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.


 


(c)           Temporary Global Notes. Notes
offered and sold in reliance on Regulation S shall be issued initially in the
form of the Regulation S Temporary Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Custodian
and registered in the name of the Depositary or the nominee of the Depositary
for the accounts of designated agents holding on behalf of Euroclear or
Clearstream, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided.


 


Following (i) the
termination of the Restricted Period and (ii) the receipt by the Trustee of (A)
a certification or other evidence in a form reasonably acceptable to the Issuer
of non-United States beneficial ownership of 100% of the aggregate principal
amount of each Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who shall take delivery of a beneficial ownership interest
in a 144A Global Note bearing a Private Placement Legend, all as contemplated
by Section 2.06(b) hereof) and (B) an Officer’s Certificate from the Issuer, the
Trustee shall remove the Regulation S Temporary Global Note Legend from the
Regulation S Temporary Global Note, following which temporary beneficial
interests in the Regulation S Temporary Global Note shall automatically become
beneficial interests in the Regulation S Permanent Global Note pursuant to the
Applicable Procedures.


 


40

















 


The aggregate principal amount of a Regulation S
Temporary Global Note and a Regulation S Permanent Global Note may from time to
time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.


 


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


 


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


 


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


 


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


 


(e)           Euroclear
and Clearstream Applicable Procedures. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of
Euroclear” and the “General Terms and Conditions of Clearstream Banking” and
“Customer Handbook” of Clearstream shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes that are held by Participants through
Euroclear or Clearstream and this Indenture shall not govern such transfers.


 


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


 


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


 


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


 


On the Issue Date, the Trustee shall, upon receipt of
an Issuer’s Order (an “Authentication  Order”), authenticate and deliver the Initial
Notes in the aggregate principal amount or amounts specified in such
Authentication Order.


 


41

















 


The Trustee may appoint an authenticating agent
acceptable to the Issuer to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Issuer.


 


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


 


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


 


The Issuer initially appoints the Trustee to act as
the Registrar for the Notes.


 


SECTION 2.04.      Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of,
premium, if any, or interest on the Notes, and will notify the Trustee of any
default by the Issuer in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee. The Issuer at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Issuer or a Subsidiary) shall have no further
liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Issuer, the Trustee shall serve as
Paying Agent for the Notes.


 


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


 


42

















 


SECTION 2.06.      Transfer and Exchange.


 


(a)           Transfer and Exchange of Global
Notes. Except as otherwise set forth in this Section 2.06, a Global Note
may be transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor thereto or a nominee of such successor thereto. A
beneficial interest in a Global Note may not be exchanged for a Definitive Note
unless (A) the Depositary (x) notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Global Note or (y) has ceased to be a
clearing agency registered under the Exchange Act, and, in either case, a
successor Depositary is not appointed by the Issuer within 120 days, (B) the
Issuer, at its option, notifies the Trustee in writing that it elects to cause
the issuance of Definitive Notes (although Regulation S Temporary Global Notes
at the Issuer’s election pursuant to this clause may not be exchanged for
Definitive Notes prior to (1) the expiration of the Restricted Period and (2)
the receipt of any certificate required pursuant to Rule 903(b)(3)(ii)(B)) or
(C) upon the request of a Holder if there shall have occurred and be continuing
a Default or Event of Default with respect to the Notes. Upon the occurrence of
any of the preceding events in (A) above, Definitive Notes delivered in
exchange for any Global Note or beneficial interests therein will be registered
in the names, and issued in any approved denominations, requested by or on
behalf of the Depositary (in accordance with its customary procedures). Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note, except for Definitive
Notes issued subsequent to any of the preceding events in (A), (B) or (C) above
and pursuant to Section 2.06(c) hereof. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a); provided, however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.


 


(b)           Transfer and Exchange of
Beneficial Interests in the Global Notes. The transfer and exchange of
beneficial interests in the Global Notes shall be effected through the
Depositary in accordance with the provisions of this Indenture and the
Applicable Procedures. Beneficial interests in the Restricted Global Notes
shall be subject to restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:


 


(i)            Transfer
of Beneficial Interests in the Same Global Note. Beneficial interests in any
Restricted Global Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private Placement
Legend; provided that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Regulation S Temporary Global Note may
not be made to a U.S. Person or for the account or benefit of a U.S. Person
other than pursuant to Rule 144A. Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(i).


 


43

















 


(ii)           All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are
not subject to Section 2.06(b)(i) hereof, the transferor of such beneficial
interest must deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B) (1)
a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given
by the Depositary to the Registrar containing information regarding the Person
in whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in a Regulation S Temporary Global Note prior to (A) the expiration
of the Restricted Period therefor and (B) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B). Upon consummation of
an Exchange Offer by the Issuer in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the applicable
Letter of Transmittal or in an Agent’s Message delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h) hereof.


 


(iii)          Transfer
of Beneficial Interests to Another Restricted Global 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 Section
2.06(b)(ii) hereof 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; or


 


(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.


 


(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 


 


44

















 


the form of a
beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) hereof and:


 


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


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


(2)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 


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


 


If any such transfer is effected pursuant to
subparagraph (B) or (D) above at a time when an Unrestricted Global Note has
not yet been issued, the Issuer shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (B) or (D) above.


 


Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.


 


45


















 


(c)           Transfer or Exchange of Beneficial
Interests for Definitive Notes.


 


(i)            Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes. If any
holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon the occurrence of any of the
events in subsection (A) of Section 2.06(a) hereof and receipt by the Registrar
of the following documentation:


 


(A)          if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder substantially in the form of Exhibit C
hereto, including the certifications in item (2)(a) thereof;


 


(B)           if
such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate substantially in the form of Exhibit B hereto, including
the certifications in item (1) thereof;


 


(C)           if
such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate
substantially in the form of Exhibit B hereto, including the
certifications in item (2) thereof;


 


(D)          if
such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144, a
certificate substantially in the form of Exhibit B hereto, including the
certifications in item (3)(a) thereof;


 


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


 


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


 


the
Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Issuer shall execute and the Trustee shall authenticate and mail to the Person
designated in the instructions a Definitive Note in the applicable principal
amount. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall mail such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.


 


46

















 


(ii)           Beneficial
Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in
the Regulation S Temporary Global Note may not be exchanged for a Definitive
Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to (A) the expiration of the Restricted Period therefor
and (B) the receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B), except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act other than
Rule 903 or Rule 904.


 


(iii)          Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes. A
holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only upon the occurrence of any of the events in
subsection (A) of Section 2.06(a) hereof and if:


 


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


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


(2)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of an Unrestricted Definitive Note, a certificate from such holder
substantially in the form of Exhibit B hereto, including the
certifications in item (4) thereof;


 


and,
in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar 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.


 


47

















 


(iv)          Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If
any holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon the occurrence of any of the events in subsection
(A) of Section 2.06(a) hereof and satisfaction of the conditions set forth in
Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall
authenticate and mail to the Person designated in the instructions a Definitive
Note in the applicable principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from or through the Depositary and the
Participant or Indirect Participant. The Trustee shall mail such Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iv) shall not bear the Private Placement Legend.


 


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


 


(i)            Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes. If any
Holder of a Restricted Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:


 


(A)          if
the Holder of such Restricted Definitive Note proposes to exchange such Note
for a beneficial interest in a Restricted Global Note, a certificate from such
Holder substantially in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;


 


(B)           if
such Restricted Definitive Note is being transferred to a QIB in accordance
with Rule 144A, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (1) thereof;


 


(C)           if
such Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate
substantially in the form of Exhibit B hereto, including the
certifications in item (2) thereof;


 


(D)          if
such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule 144, a certificate substantially in the form of Exhibit B hereto,
including the certifications in item (3)(a) thereof;


 


48

















 


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


 


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


 


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


 


(ii)           Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A
Holder of a Restricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:


 


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


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


(2)           if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder substantially in the
form of Exhibit B hereto, including the certifications in item (4)
thereof;


 


and, in each such case
set forth in this subparagraph (D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on 


 


49

















 


transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


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


 


(iii)          Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A
Holder of an Unrestricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer such Definitive
Notes to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a request
for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.


 


If any
such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at a time
when an Unrestricted Global Note has not yet been issued, the Issuer shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.


 


(e)           Transfer and Exchange of
Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive
Notes and such Holder’s compliance with the provisions of this Section 2.06(e),
the Registrar shall register the transfer or exchange of Definitive Notes.
Prior to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Definitive Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e):


 


(i)            Restricted
Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive
Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar
receives the following:


 


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


 


(B)           if
the transfer 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; or


 


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


 


50

















 


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


 


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


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


(2)           if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder substantially in the form of Exhibit
B hereto, including the certifications in item (4) thereof;


 


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


 


(iii)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted
Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.


 


(f)            Exchange Offer. Upon the
occurrence of an Exchange Offer in accordance with the Registration Rights
Agreement, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (i) one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal 


 


51

















 


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


 


(g)           Legends. The following legends
shall appear on the face of all Global Notes and Definitive Notes issued under
this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture:


 


(i)            Private
Placement Legend.


 


(A)          Except
as permitted by subparagraph (B) below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:


 


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


 


THE
HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY 


 


52

















 


RULE 144
THEREUNDER OR ANY SUCCESSOR PROVISION THERETO (IF AVAILABLE) OR
(IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”


 


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


 


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


 


“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE 


 


53

















 


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.”


 


(iii)          Regulation
S Temporary Global Note Legend. The Regulation S Temporary Global Note
shall bear a legend in substantially the following form:


 


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


 


(h)           Cancellation and/or Adjustment of
Global Notes. At such time as all beneficial interests in a particular
Global Note have been exchanged for Definitive Notes or a particular Global
Note has been redeemed, repurchased or cancelled in whole and not in part, each
such Global Note shall be returned to or retained and cancelled by the Trustee
in accordance with Section 2.11 hereof. At any time prior to such cancellation,
if any beneficial interest in a Global Note is exchanged for or transferred to
a Person who 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.


 


(i)            General Provisions Relating to
Transfers and Exchanges.


 


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


 


(ii)           No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14
and 9.05 hereof).


 


54

















 


(iii)          The
Issuer shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days
before the day of the electronic delivery or mailing of a notice of redemption
of Notes under Section 3.02 hereof and ending at the close of business on the
day of such electronic delivery or mailing or (B) to register the transfer of
or to exchange a Note between a Record Date with respect to such Note and the
next succeeding Interest Payment Date with respect to such Note.


 


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


 


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


 


(vi)          Prior
to due presentment for the registration of a transfer of any Note, the Trustee,
any Agent and the Issuer may deem and treat the Person in whose name any Note
is registered as the absolute owner of such Note for the purpose of receiving
payment of principal of (and premium, if any) and interest on such Notes and
for all other purposes, and none of the Trustee, any Agent or the Issuer shall
be affected by notice to the contrary.


 


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


 


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


 


(ix)           All
certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of
transfer or exchange may be submitted by facsimile.


 


(x)            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 Depositary participants or 


 


55

















 


beneficial
owners of interests in any Global Note) 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.


 


(xi)           The
Trustee shall have no responsibility for any actions taken or not taken by the
Depositary.


 


SECTION 2.07.      Replacement Notes. If any mutilated
Note is surrendered to the Trustee, the Registrar or the Issuer and the Trustee
receives evidence to its satisfaction of the ownership and destruction, loss or
theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee’s
requirements are met. An indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Issuer to protect the Issuer,
the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Issuer and the Trustee may charge
the Holder for their expenses in replacing a Note.


 


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


 


SECTION 2.08.      Outstanding Notes. The Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those cancelled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof and those described in this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Issuer or a Guarantor or an Affiliate of
the Issuer or a Guarantor holds the Note.


 


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


 


If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.


 


If the Paying Agent (other than the Issuer or a
Guarantor or an Affiliate of the Issuer or a Guarantor) holds, on a Redemption
Date or maturity date, money sufficient to pay Notes (or portions thereof)
payable on that date, then on and after that date such Notes (or portions
thereof) shall be deemed to be no longer outstanding and shall cease to accrue
interest.


 


SECTION 2.09.      Treasury Notes. In determining
whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Issuer or a Guarantor or
by any Affiliate of the Issuer or a Guarantor, shall be considered as though
not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee 


 


56

















 


establishes
to the satisfaction of the Trustee the pledgee’s right to deliver any such
direction, waiver or consent with respect to the Notes and that the pledgee is
not the Issuer or a Guarantor or any Affiliate of the Issuer or a Guarantor.


 


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


 


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


 


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


 


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


 


Subject to the foregoing provisions of this Section
2.12 and for greater certainty, each Note delivered under this Indenture upon
registration of transfer of or in exchange for or in 


 


57

















 


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/ISIN Numbers. The Issuer in
issuing the Notes may use CUSIP and ISIN numbers (in each case, if then
generally in use) and, if so, the Trustee shall use CUSIP and ISIN numbers in
notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer will as promptly as
practicable notify the Trustee in writing of any change in the CUSIP and ISIN
numbers.


 


SECTION 2.14.      Calculation of Principal Amount of
Securities. With respect to any matter requiring consent, waiver, approval
or other action of the Holders of a specified percentage of the principal
amount of all the Notes, such percentage shall be calculated, on the relevant
date of determination, by dividing (a) the principal amount, as of such date of
determination, of Notes, the Holders of which have so consented by (b) the
aggregate principal amount, as of such date of determination, of the Notes then
outstanding, in each case, as determined in accordance with Section 2.08 and
Section 2.09 of this Indenture. Any such calculation made pursuant to this
Section 2.14 shall be made by the Issuer and delivered to the Trustee pursuant
to an Officer’s Certificate.


 


ARTICLE III


 


REDEMPTION


 


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


 


SECTION 3.02.      Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee shall
select the Notes to be redeemed (a) if the Notes are listed on an exchange, in
compliance with the requirements of such exchange or (b) on a pro rata basis to the extent practicable, or,
if the pro rata basis is not practicable
for any reason, by lot or by such other method the Trustee shall deem fair and
appropriate. In the event of partial redemption by lot, the particular Notes to
be redeemed shall be selected, unless otherwise provided herein, not less than
30 nor more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Notes not previously called for redemption.


 


The Trustee shall promptly notify the Issuer in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
No Notes of $2,000 or less can be redeemed in part, except that if all of 


 


58

















 


the Notes of a Holder are to be redeemed, the entire outstanding amount
of Notes held by such Holder shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.


 


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


 


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


 


(a)           the Redemption Date;


 


(b)           the redemption price;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


59

















 


Officer’s Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.


 


If any Notes are listed on an exchange, and the rules
of such exchange so require, the Issuer will notify the exchange of any such
redemption and, if applicable, of the principal amount of any Notes outstanding
following any partial redemption of Notes.


 


SECTION 3.04.      Effect of Notice of Redemption.
Once notice of redemption is delivered in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the
Redemption Date at the redemption price (except as provided for in Section
3.07(b) hereof). The notice, if delivered in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to deliver such notice or any defect in the
notice to the Holder of any Note designated for redemption in whole or in part
shall not affect the validity of the proceedings for the redemption of any
other Note. Subject to Section 3.05 hereof, on and after the Redemption Date,
interest ceases to accrue on Notes or portions of Notes called for redemption.


 


SECTION 3.05.      Deposit of Redemption Price.


 


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


 


(b)           If the Issuer complies with the
provisions of the preceding paragraph (a), on and after the Redemption Date,
interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after a Record Date but on or prior to the
related Interest Payment Date, then any accrued and unpaid interest to the
Redemption Date shall be paid to the Person in whose name such Note was
registered at the close of business on such Record Date. If any Note called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Issuer to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the Redemption Date until such principal is
paid, and to the extent lawful on any interest accrued to the Redemption Date
not paid on such unpaid principal, in each case at the rate provided in the
Notes and in Section 4.01 hereof.


 


SECTION 3.06.      Notes Redeemed in Part. Upon
surrender of a Definitive Note that is redeemed in part, the Issuer shall issue
and the Trustee shall authenticate for the Holder at the expense of the Issuer
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered representing the same indebtedness to the extent not redeemed; provided
that each new Note will be in a principal amount of $2,000 and any integral
multiple of $1,000 in excess of $2,000. It is understood that, notwithstanding
anything in this Indenture to the contrary, only an Authentication Order and
not an Opinion of Counsel or Officer’s Certificate is required for the Trustee
to authenticate such new Note.


 


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SECTION 3.07.      Optional Redemption.


 


(a)           At any time prior to November 1,
2011, the Issuer may redeem all or a part of the Notes upon notice in
accordance with Section 3.03 hereof, at a redemption price equal to 100.0% of
the principal amount of such Notes redeemed plus the Applicable Premium as of, plus accrued and unpaid interest, if any,
to, the date of redemption (the “Redemption Date”), subject to the right
of Holders of record on the relevant record date to receive interest due on the
relevant interest payment date.


 


(b)           Until November 1, 2010, the Issuer
may, at its option, redeem up to 35.0% of the aggregate principal amount of
Notes issued under this Indenture at a redemption price equal to 109.875% of
the aggregate principal amount thereof, plus accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date) with the net cash proceeds received by the Issuer from one or more Equity
Offerings; provided that (i) at least 50.0% of the aggregate principal
amount of the Notes issued under this Indenture remains outstanding immediately
after the occurrence of each such redemption; and (ii) each such redemption
occurs within 90 days of the date of closing of each such Equity Offering.
Notice of any redemption upon any Equity Offering may be given prior to the
redemption thereof, and any such redemption or notice may, at the Issuer’s
discretion, be subject to one or more conditions precedent, including, but not
limited to, completion of the related Equity Offering.


 


(c)           Except pursuant to clause (a) or (b)
of this Section 3.07, the Notes will not be redeemable at the Issuer’s option
prior to November 1, 2011.


 


(d)           On and after November 1, 2011, the
Issuer may redeem the Notes, in whole or in part, upon notice in accordance
with Section 3.03 hereof at the redemption prices (expressed as percentages of
principal amount of the Notes to be redeemed) set forth below, plus accrued and
unpaid interest, if any, to the Redemption Date, subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date, if redeemed during the twelve-month period
beginning on November 1 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2011

  	
   

  	
  104.938

  	
  %

  
	
  2012

  	
   

  	
  102.469

  	
  %

  
	
  2013 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


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


 


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


 


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SECTION 3.09.      Offers to Repurchase by Application of
Excess Proceeds.


 


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


 


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


 


(c)           If the Purchase Date is on or after a
Record Date and on or before the related Interest Payment Date, any accrued and
unpaid interest, up to but excluding the Purchase Date, shall be paid to the
Person in whose name a Note is registered at the close of business on such
Record Date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.


 


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


 


(i)            that
the Asset Sale Offer is being made pursuant to this Section 3.09 and Section
4.10 hereof and the length of time the Asset Sale Offer shall remain open;


 


(ii)           the
CUSIP and ISIN numbers of the Notes, the Offer Amount, the purchase price and
the Purchase Date;


 


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


 


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


 


(v)           that
any Holder electing to have less than all of the aggregate principal amount of
its Notes purchased pursuant to an Asset Sale Offer may elect to have Notes
purchased in an amount equal to $2,000 or an integral multiple of $1,000 in
excess of $2,000;


 


(vi)          that
Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall be required to surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” attached to the Note completed, or transfer by
book-entry transfer, to the 


 


62

















 


Issuer,
the Depositary, if appointed by the Issuer, or a Paying Agent at the address
specified in the notice at least two Business Days before the Purchase Date;


 


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


 


(viii)        that,
if the aggregate principal amount of Notes and Pari Passu Indebtedness
surrendered by the holders thereof exceeds the Offer Amount, the Trustee shall
select the Notes and the Issuer shall select such Pari Passu Indebtedness to be
purchased on a pro rata basis based on the
accreted value or principal amount of the Notes or such Pari Passu Indebtedness
tendered (with such adjustments as may be deemed appropriate by the Trustee so
that only Notes in an amount equal to $2,000 or an integral multiple of $1,000
in excess of $2,000 are purchased); and


 


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


 


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


 


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


 


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


 


63

















 


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


 


ARTICLE IV


 


COVENANTS


 


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


 


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


 


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


 


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


 


The Issuer may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain such offices or
agencies as required by Section 2.03 hereof for such purposes. The Issuer shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.


 


The Issuer hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Issuer in accordance
with Section 2.03 hereof.


 


64

















 


SECTION 4.03.      Reports and Other Information.


 


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


 


(1)           within
90 days (or any other time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 10-K by a
non-accelerated filer) after the end of each fiscal year, annual reports on
Form 10-K, or any successor or comparable form, containing the information
required to be contained therein, or required in such successor or comparable
form;


 


(2)           within
45 days (or any other time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 10-Q by a
non-accelerated filer) after the end of each of the first three fiscal quarters
of each fiscal year, reports on Form 10-Q containing all quarterly information
that would be required to be contained in Form 10-Q, or any successor or
comparable form;


 


(3)           promptly
from time to time after the occurrence of an event required to be therein
reported, such other reports on Form 8-K, or any successor or comparable form;
and


 


(4)           any
other information, documents and other reports which the Issuer would be
required to file with the SEC if it were subject to Section 13 or 15(d) of the
Exchange Act;


 


in each case, in a manner that complies in all
material respects with the requirements specified in such form; provided
that the Issuer shall not be so obligated to file such reports with the SEC if
the SEC does not permit such filing, in which event the Issuer shall make
available such information to prospective purchasers of Notes, in addition to
providing such information to the Trustee and the Holders, in each case within
15 days after the time the Issuer would be required to file such information
with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act. In
addition, to the extent not satisfied by the foregoing, for so long as any
Notes are outstanding, the Issuer shall furnish to Holders and to securities
analysts and prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) of the Securities Act.


 


(b)           In the event that any direct or
indirect parent company of the Issuer becomes a guarantor of the Notes, the
Issuer shall be permitted to satisfy its obligations under this Section 4.03
with respect to financial information relating to the Issuer by furnishing
financial information relating to such parent; provided that the same is
accompanied by consolidating information that explains in reasonable detail the
differences between the information relating to such parent, on the one hand,
and the information relating to the Issuer and its Restricted Subsidiaries on a
standalone basis, on the other hand.


 


65

















 


(c)           Notwithstanding the foregoing, the
requirements of this Section 4.03 shall be deemed satisfied prior to the
commencement of the Exchange Offer or the effectiveness of the Shelf
Registration Statement by (1) the filing with the SEC of the Exchange Offer
Registration Statement or Shelf Registration Statement (or any other similar
registration statement), and any amendments thereto, with such financial
information that satisfies Regulation S-X of the Securities Act, subject to
exceptions consistent with the presentation of financial information in the
Offering Memorandum, to the extent filed within the time specified above, or
(2) posting on its website or providing to the Trustee within 15 days of the
time periods after the Issuer would have been required to file annual and
interim reports with the SEC (which for the first quarterly report required to
be posted or provided after the Issue Date shall be 60 days after the end of
the applicable fiscal quarter), the financial information (including a
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” section) that would be required to be included in such reports,
subject to exceptions consistent with the presentation of financial information
in the Offering Memorandum, to the extent filed within the times specified
above.


 


(d)           At any time that any of the Issuer’s
Subsidiaries are Unrestricted Subsidiaries, then any “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” or other
comparable section shall provide, to the extent permitted by the rules and
regulations of the SEC, an analysis and discussion of the material differences
with respect to the financial condition and results of operations of the Issuer
and its Restricted Subsidiaries as compared to the Issuer and it Subsidiaries
(including such Unrestricted Subsidiaries).


 


(e)           Notwithstanding anything to the
contrary in this Indenture, the Issuer will not be deemed to have failed to
comply with any of its obligations under this Section 4.03 for purposes of
clause (3) of Section 6.01 hereof until 90 days after the date on which any
report is due under this Section 4.03.


 


SECTION 4.04.      Compliance Certificate.


 


(a)           The Issuer shall deliver to the
Trustee, within 90 days after the end of each fiscal year ending after the
Issue Date, a certificate from the principal executive officer, principal
financial officer or principal accounting officer stating that a review of the
activities of the Issuer and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officer with a
view to determining whether the Issuer and its Restricted Subsidiaries have
kept, observed, performed and fulfilled their obligations under this Indenture,
and further stating, as to such Officer signing such certificate, that to the
best of his or her knowledge the Issuer and its Restricted Subsidiaries have
kept, observed, performed and fulfilled each and every condition and covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this
Indenture (or, if a Default shall have occurred, describing all such Defaults
of which he or she may have knowledge and what action the Issuer is taking or
proposes to take with respect thereto).


 


(b)           When any Default has occurred and is
continuing under this Indenture, or if the Trustee or the holder of any other
evidence of Indebtedness of the Issuer or any Subsidiary gives any notice or
takes any other action with respect to a claimed Default, the Issuer shall 


 


66

















 


promptly (which shall be no more than five Business
Days after becoming aware of such Default) deliver to the Trustee by registered
or certified mail or by facsimile transmission an Officer’s Certificate
specifying such event and what action the Issuer proposes to take with respect
thereto.


 


SECTION 4.05.      Taxes.


 


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


 


SECTION 4.06.      Stay, Extension and Usury Laws. The
Issuer and each of the Guarantors covenant (to the extent that they may
lawfully do so) that they shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture and the
Notes; and the Issuer and each of the Guarantors (to the extent that they may
lawfully do so) hereby expressly waive all benefit or advantage of any such
law, and covenant that they shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.


 


SECTION 4.07.      Limitation on Restricted Payments.


 


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


 


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


 


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


 


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


 


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


 


67

















 


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


 


(A)          Indebtedness
permitted under clauses (7) and (8) of Section 4.09(b) hereof; or


 


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


 


(IV)         make
any Restricted Investment


 


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


 


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


 


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


 


(3)           such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Issuer and its Restricted Subsidiaries after the Issue
Date (including Restricted Payments permitted by clauses (1), (2) (with respect
to the payment of dividends on Refunding Capital Stock pursuant to clause (b)
thereof only), (6)(C), (9) and (14) of Section 4.07(b) hereof, but excluding
all other Restricted Payments permitted by Section 4.07(b) hereof), is less
than the sum of (without duplication):


 


(A)          50.0%
of the Consolidated Net Income of the Issuer for the period (taken as one
accounting period and including the predecessor) beginning on September 30,
2007 to the end of the Issuer’s most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted
Payment, or, in the case that such Consolidated Net Income for such period is a
deficit, minus 100.0% of such deficit; plus


 


(B)           100.0%
of the aggregate net cash proceeds and the fair market value of marketable securities
or other property received by the Issuer since immediately after the Issue Date
(other than net cash proceeds to the extent that such net cash proceeds have
been used to incur Indebtedness or issue Disqualified Stock or Preferred Stock
pursuant to clause (12)(A) of Section 4.09(b) hereof) from the issue or
sale of:


 


68

















 


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


 


(x) Equity Interests to
any future, present or former employees, directors, officers, managers or
consultants (or any spouses, successors, executors, administrators, heirs or
legatees of any of the foregoing) of the Issuer (or any direct or indirect
parent company of the Issuer) or any of the Issuer’s Subsidiaries after the
Issue Date to the extent that such amounts have been applied to Restricted
Payments made in accordance with clause (4) of Section 4.07(b) hereof; and


 


(y) Designated Preferred
Stock; and


 


(B) to
the extent that such net cash proceeds are actually contributed to the Issuer,
Equity Interests of any direct or indirect parent company of the Issuer
(excluding contributions of the proceeds from the sale of Designated Preferred
Stock of such company or contributions to the extent that such amounts have
been applied to Restricted Payments made in accordance with clause (4) of
Section 4.07(b) hereof); or


 


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


 


(C)           100.0%
of the aggregate amount of cash and the fair market value of marketable
securities or other property contributed to the capital of the Issuer following
the Issue Date (other than net cash proceeds to the extent that such net cash
proceeds have been used to incur Indebtedness or issue Disqualified Stock or
Preferred Stock pursuant to clause (12)(A) of Section 4.09(b) hereof)
(other than by a Restricted Subsidiary and other than any Excluded
Contributions); plus


 


(D)          100.0%
of the aggregate amount received in cash and the fair market value of
marketable securities or other property received by the Issuer or any
Restricted Subsidiary by means of:


 


69

















 


(i) the sale or
other disposition (other than to the Issuer or a Restricted Subsidiary) of
Restricted Investments made by the Issuer or its Restricted Subsidiaries and
repurchases and redemptions of such Restricted Investments from the Issuer or
its Restricted Subsidiaries (other than by the Issuer or a Restricted
Subsidiary) and repayments of loans or advances, and releases of guarantees,
which constitute Restricted Investments made by the Issuer or its Restricted
Subsidiaries, in each case after the Issue Date; or


 


(ii) the sale
(other than to the Issuer or a Restricted Subsidiary) of the stock of an
Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary
(other than, in each case, to the extent that the Investment in such
Unrestricted Subsidiary was made by the Issuer or a Restricted Subsidiary
pursuant to clause (7) of Section 4.07(b) hereof or to the extent that
such Investment constituted a Permitted Investment) or a dividend from an
Unrestricted Subsidiary after the Issue Date; plus


 


(E)           in
the case of the redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary after the Issue Date, the fair market value of the Investment in
such Unrestricted Subsidiary (which, if the fair market value of such
Investment shall exceed $25.0 million, shall be determined by the board of
directors of the Issuer, a copy of the resolution of which with respect thereto
shall be delivered to the Trustee) at the time of the redesignation of such
Unrestricted Subsidiary as a Restricted Subsidiary, other than to the extent
the Investment in such Unrestricted Subsidiary was made by the Issuer or a
Restricted Subsidiary pursuant to clause (7) of Section 4.07(b) hereof or
to the extent such Investment constituted a Permitted Investment.


 


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


 


(1)           the
payment of any dividend or other distribution within 60 days after the
date of declaration of the dividend or other distribution, as the case may be,
if on the date of declaration, the dividend or other distribution would have
complied with the provisions of this Indenture;


 


(2)           (a) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
(“Treasury Capital Stock”) or Subordinated Indebtedness of the Issuer or
any Equity Interests of any direct or indirect parent company of the Issuer, in
exchange for, or out of the proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Issuer) of, Equity Interests of the Issuer
or any direct or indirect parent company of the Issuer to the extent
contributed to the Issuer (in each case, other than any Disqualified Stock) (“Refunding
Capital Stock”) and (b) if immediately prior to the retirement of
Treasury Capital Stock, the declaration and payment of dividends thereon was
permitted under clause (6) of this Section 4.07(b), the declaration and
payment of dividends on the Refunding Capital Stock (other than Refunding
Capital Stock the proceeds of which were 


 


70


















 


used
to redeem, repurchase, retire or otherwise acquire any Equity Interests of any
direct or indirect parent company of the Issuer) in an aggregate amount per
year no greater than the aggregate amount of dividends per annum that were
declarable and payable on such Treasury Capital Stock immediately prior to such
retirement;


 


(3)           the
defeasance, redemption, repurchase or other acquisition or retirement of (i)
Subordinated Indebtedness of the Issuer or a Guarantor made by exchange for, or
out of the proceeds of the substantially concurrent sale of, new Indebtedness
of the Issuer or a Guarantor or (ii) Disqualified Stock of the Issuer or a
Guarantor made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Disqualified Stock of the Issuer or a Guarantor, that, in
each case, is incurred in compliance with Section 4.09 hereof so long as:


 


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


 


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


 


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


 


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


 


(4)           a
Restricted Payment to pay for the repurchase, retirement or other acquisition
or retirement for value of Equity Interests (other than Disqualified Stock) of
the Issuer or any direct or indirect parent company of the Issuer held by any
future, present or former employee, director, officer, manager or consultant
(or any spouses, successors, executors, administrators, heirs or legatees of
any of the foregoing) of the Issuer, any of its Subsidiaries or any of its
direct or indirect parent companies pursuant to any management equity plan or
stock option plan or any other management or employee benefit plan or agreement
(including any stock subscription or shareholder agreement); 


 


71

















 


provided that the aggregate
amount of Restricted Payments made under this clause (4) does not exceed
$15.0 million in the first fiscal year following the Issue Date (which
amount shall be increased by $5.0 million each fiscal year thereafter and, if
applicable, will be increased to $25.0 million following the consummation
of an underwritten public Equity Offering) (with unused amounts in any fiscal
year being carried over to succeeding fiscal years subject to a maximum
(without giving effect to the following proviso) of $25.0 million in any
fiscal year (which shall increase to $35.0 million subsequent to the
consummation of an underwritten public Equity Offering)); provided,  further,
that such amount in any fiscal year may be increased by an amount not to
exceed:


 


(A)          the
cash proceeds from the sale of Equity Interests (other than Disqualified Stock)
of the Issuer and, to the extent contributed to the Issuer, Equity Interests of
any direct or indirect parent company of the Issuer, in each case to any
future, present or former employees, directors, officers, managers or
consultants (or any spouses, successors, executors, administrators, heirs or
legatees of any of the foregoing) of the Issuer, any of its Subsidiaries or any
of its direct or indirect parent companies that occurs after the Issue Date, to
the extent that the cash proceeds from the sale of such Equity Interests have
not otherwise been applied to the payment of Restricted Payments by virtue of
clause (3) of Section 4.07(a) hereof; plus


 


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


 


(C)           the
amount of any Restricted Payments previously made with the cash proceeds
described in clauses (A) and (B) of this clause (4);


 


and provided, further, that cancellation of Indebtedness owing to
the Issuer from any future, present or former employees, directors, officers,
managers or consultants (or any spouses, successors, executors, administrators,
heirs or legatees of any of the foregoing) of the Issuer, any direct or
indirect parent company of the Issuer or any of the Issuer’s Restricted
Subsidiaries in connection with a repurchase of Equity Interests of the Issuer
or any of its direct or indirect parent companies will not be deemed to
constitute a Restricted Payment for purposes of this Section 4.07 or any other
provision of this Indenture;


 


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


 


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


 


(B)           the
declaration and payment of dividends to any direct or indirect parent company
of the Issuer, the proceeds of which will be used to fund the 


 


72

















 


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


 


(C)           the
declaration and payment of dividends on Refunding Capital Stock that is
Preferred Stock in excess of the dividends declarable and payable thereon
pursuant to clause (2) of this Section 4.07(b);


 


provided
that, in the case of each of (A), (B) and (C) of this
clause (6), for the Test Period immediately preceding the date of issuance
of such Designated Preferred Stock or the declaration of such dividends on
Refunding Capital Stock that is Preferred Stock, after giving effect to such
issuance or declaration on a pro  forma  basis,
the Issuer would have had a Fixed Charge Coverage Ratio of at least 2.00 to
1.00;


 


(7)           Investments
in joint ventures and Unrestricted Subsidiaries, taken together with all other
Investments made pursuant to this clause (7) that are at the time
outstanding, without giving effect to the sale of an Unrestricted Subsidiary or
the sale of equity interests in a joint venture to the extent that the proceeds
of such sale do not consist of cash or marketable securities, not to exceed
$200.0 million;


 


(8)           repurchases
of Equity Interests of the Issuer or any Restricted Subsidiary or any direct or
indirect parent of the Issuer deemed to occur upon exercise of stock options or
warrants to the extent that such Equity Interests represent a portion of the
exercise price of such options or warrants or required withholding taxes;


 


(9)           the
declaration and payment of dividends on the Issuer’s common stock (or the
payment of dividends to any direct or indirect parent company of the Issuer to
fund a payment of dividends on such company’s common stock), following the
first public offering of the Issuer’s common stock or the common stock of any
direct or indirect parent company of the Issuer after the Issue Date, of up to
6.0% per annum of the net cash proceeds received by or contributed to the
Issuer in or from any such public offering, other than public offerings with
respect to the Issuer’s common stock, or common stock of any direct or indirect
parent company of the Issuer, registered on Form S-4 or Form S-8 and other
than any public sale constituting an Excluded Contribution;


 


(10)         Restricted
Payments that are made with Excluded Contributions;


 


(11)         other
Restricted Payments (provided that no dividends may be paid pursuant to
this clause (11) in respect of the Issuer’s or any Restricted Subsidiary’s
Equity Interests prior to the first anniversary of the Issue Date) in an
aggregate amount taken together with all other Restricted Payments made
pursuant to this clause (11) not to exceed $150.0 million;


 


(12)         distributions
or payments of Securitization Fees;


 


73

















 


(13)         any
Restricted Payment made in connection with the Transactions and the fees and
expenses related thereto or owed to Affiliates, in each case to the extent
permitted by Section 4.11 hereof;


 


(14)         the
repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness pursuant to provisions similar to those described
under Section 4.10 and Section 4.14 hereof; provided that, prior to such repurchase, redemption or other
acquisition, the Issuer (or a third party to the extent permitted by this Indenture)
shall have made a Change of Control Offer or Asset Sale Offer, as applicable,
with respect to the Notes and shall have repurchased, redeemed, acquired or
retired for value all Notes validly tendered and not withdrawn by Holders in
connection with such Change of Control Offer or Asset Sale Offer;


 


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


 


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


 


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


 


(C)           customary
salary, bonus and other benefits payable to employees, directors, officers and
managers of any direct or indirect parent company of the Issuer to the extent
that such salaries, bonuses and other benefits are attributable to the
ownership or operation of the Issuer and its Restricted Subsidiaries;


 


(D)          general
corporate operating and overhead costs and expenses of any direct or indirect
parent company of the Issuer to the extent that such costs and expenses are
attributable to the ownership or operation of the Issuer and its Restricted
Subsidiaries (including payments pursuant to tax sharing agreements among the
Issuer (and any such parent company) and its Subsidiaries and in each case to
the extent the amount of such payments in any fiscal year, taken together with
the amount of payments in such fiscal year pursuant to clause (B) above, does
not exceed the amount that the Issuer, its Restricted Subsidiaries and its
Unrestricted Subsidiaries (to the extent of the amount received from
Unrestricted Subsidiaries) would be required to pay in respect of foreign,
federal, state and local taxes for such fiscal year were the Issuer, its
Restricted Subsidiaries and its 


 


74

















 


Unrestricted
Subsidiaries (to the extent described above) to pay such taxes separately from
any such parent entity);


 


(E)           reasonable
fees and expenses other than to Affiliates of the Issuer incurred in connection
with any unsuccessful equity or debt offering of such parent company;


 


(F)           [reserved];


 


(G)           [reserved];


 


(H)          cash
payments in lieu of issuing fractional shares in connection with the exercise
of warrants, options or other securities convertible into or exchangeable for
Equity Interests of the Issuer or any direct or indirect parent company of the
Issuer; and


 


(I)            to
finance Investments otherwise permitted to be made pursuant to this Section
4.07;  provided that (i) such Restricted Payment shall be made
substantially concurrently with the closing of such Investment, (ii) such
direct or indirect parent company shall, immediately following the closing
thereof, cause (A) all property acquired (whether assets or Equity
Interests) to be contributed to the capital of the Issuer or one of its
Restricted Subsidiaries or (B) the merger of the Person formed or acquired
into the Issuer or one of its Restricted Subsidiaries (to the extent not
prohibited by Section 5.01 hereof) in order to consummate such Investment,
(iii) such direct or indirect parent company and its Affiliates (other
than the Issuer or a Restricted Subsidiary) receives no consideration or other
payment in connection with such transaction except to the extent the Issuer or
a Restricted Subsidiary could have given such consideration or made such
payment in compliance with this Indenture, (iv) any property received by
the Issuer shall not increase amounts available for Restricted Payments
pursuant to clause (3) of Section 4.07(a) hereof and (v) such Investment
shall be deemed to be made by the Issuer or such Restricted Subsidiary pursuant
to another provision of this Section 4.07(b) (other than pursuant to clause (10)
of this Section 4.07(b)) or pursuant to the definition of “Permitted
Investments” (other than clause (9) thereof); or


 


(16)         the
distribution, by dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Issuer or a Restricted Subsidiary by, Unrestricted
Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which
are Cash Equivalents);


 


provided
that at the time of, and after giving effect to, any Restricted Payment
permitted under clause (11) or (16) of this Section 4.07(b), no Default shall
have occurred and be continuing or would occur as a consequence thereof.


 


(c)           As of the Issue Date, all of the
Issuer’s Subsidiaries will be Restricted Subsidiaries. The Issuer will not
permit any Unrestricted Subsidiary to become a Restricted Subsidiary except
pursuant to the penultimate sentence of the definition of “Unrestricted
Subsidiary.” For purposes of designating any Restricted Subsidiary as an
Unrestricted Subsidiary, all outstanding Investments by the Issuer and its
Restricted Subsidiaries in the 


 


75

















 


Subsidiary
so designated will be deemed to be Restricted Payments in an amount determined
as set forth in the penultimate sentence of the definition of “Investments.” Such
designation will be permitted only if a Restricted Payment in such amount would
be permitted at such time, whether pursuant to Section 4.07(a) hereof or under
clause (7), (10) or (11) of this Section 4.07(b), or pursuant to
the definition of “Permitted Investments,” and if such Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries
will not be subject to any of the restrictive covenants set forth in this
Indenture.


 


SECTION 4.08.      Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.


 


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


 


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


 


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


 


(2)           make
loans or advances to the Issuer or any of its Restricted Subsidiaries; or


 


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


 


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


 


(1)           contractual
encumbrances or restrictions in effect on the Issue Date, including pursuant to
the Senior Credit Facilities and the related documentation, and Hedging
Obligations;


 


(2)           this
Indenture, the Notes and the guarantees thereof;


 


(3)           purchase
money obligations for property acquired in the ordinary course of business and
Capital Lease Obligations that impose restrictions of the nature discussed in
clause (3) of Section 4.08(a) hereof on the property so acquired;


 


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


 


(5)           any
agreement or other instrument of a Person acquired by the Issuer or any of its
Restricted Subsidiaries in existence at the time of such acquisition or assumed
in connection with the acquisition of assets from such Person (but, in any such
case, not created in contemplation thereof), which encumbrance or restriction
is not applicable to 


 


76

















 


any
Person, or the properties or assets of any Person, other than the Person so
acquired and its Subsidiaries, or the property or assets of the Person so
acquired and its Subsidiaries;


 


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


 


(7)           Secured
Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 and
Section 4.12 hereof that limit the right of the debtor to dispose of the assets
securing such Indebtedness;


 


(8)           restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;


 


(9)           other
Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries
permitted to be incurred subsequent to the Issue Date pursuant to the
provisions of Section 4.09 hereof;


 


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


 


(11)         customary
provisions contained in leases, licenses or similar agreements, including, but
not limited to, with respect to intellectual property, in each case, entered
into in the ordinary course of business;


 


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


 


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


 


(14)         any
encumbrances or restrictions of the type referred to in clauses (1),
(2) and (3) of Section 4.08(a) hereof imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (13) of this Section 4.08(b); provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith
judgment of the Issuer, no more restrictive with respect to such encumbrance
and other 


 


77

















 


restrictions
taken as a whole than those prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.


 


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


 


(a)           The Issuer will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise (collectively, “incur” and
collectively, an “incurrence”) with respect to any Indebtedness
(including Acquired Indebtedness) and the Issuer will not issue any shares of
Disqualified Stock and will not permit any Restricted Subsidiary to issue any
shares of Disqualified Stock or Preferred Stock; provided that the Issuer may incur Indebtedness (including
Acquired Indebtedness) or issue shares of Disqualified Stock, and any
Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness),
issue shares of Disqualified Stock and issue shares of Preferred Stock, if the
Fixed Charge Coverage Ratio for the Issuer for the Test Period immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or Preferred Stock is issued would have been at least 2.00
to 1.00, determined on a pro  forma basis (including a pro  forma application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred, or the Disqualified Stock or
Preferred Stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such Test Period; provided
that the amount of Indebtedness (including Acquired Indebtedness), Disqualified
Stock and Preferred Stock that may be incurred or issued, as applicable,
pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors
shall not exceed $100.0 million at any one time outstanding.


 


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


 


(1)           the
incurrence of Indebtedness under Credit Facilities by the Issuer or any Restricted
Subsidiary and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being
deemed to have a principal amount equal to the face amount thereof); provided
that immediately after giving effect to any such incurrence, the aggregate
principal amount of all Indebtedness incurred under this clause (1) and then
outstanding does not exceed $2,925.0 million less up to $250.0 million
in the aggregate of all principal payments with respect to such Indebtedness
made pursuant to clause (1) of Section 4.10(b) hereof;


 


(2)           the
incurrence by the Issuer and any Guarantor of Indebtedness represented by the
Notes (including any Guarantee) and the Exchange Notes and the Guarantees
thereof pursuant to the Registration Rights Agreement (but excluding any
Additional Notes);


 


(3)           Indebtedness
of the Issuer and its Restricted Subsidiaries in existence on the Issue Date
(other than Indebtedness described in clauses (1) and (2) of this Section
4.09(b));


 


(4)           Indebtedness
(including Capital Lease Obligations) and Disqualified Stock incurred or issued
by the Issuer or any of its Restricted Subsidiaries and Preferred Stock 


 


78

















 


issued
by any Restricted Subsidiaries, to finance the purchase, lease (other than the
lease, pursuant to Sale and Lease-Back Transactions, of property (real or
personal), equipment or other fixed or capital assets owned by the Issuer or
any of its Restricted Subsidiaries as of the Issue Date or acquired by the
Issuer or any of its Restricted Subsidiaries after the Issue Date in exchange
for, or with the proceeds of the sale of, such assets owned by the Issuer or
any of its Restricted Subsidiaries as of the Issue Date) or improvement of property
(real or personal) or equipment that is used or useful in a Similar Business,
whether through the direct purchase of assets or the Capital Stock of any
Person owning such assets in an aggregate principal amount, together with any
Refinancing Indebtedness in respect thereof and all other Indebtedness,
Disqualified Stock and Preferred Stock incurred or issued and outstanding under
this clause (4), not to exceed the greater of (a) $150.0 million and
(b) 2.0% of Total Assets (determined at the date of incurrence) at any time
outstanding, so long as such Indebtedness, Disqualified Stock or Preferred
Stock is incurred or issued at the date of such purchase, lease or improvement
or within 270 days thereafter;


 


(5)           Indebtedness
incurred by the Issuer or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including letters of credit in respect of workers’
compensation claims, or other Indebtedness with respect to reimbursement type
obligations regarding workers’ compensation claims; provided that upon the drawing of such letters of credit or
the incurrence of such Indebtedness, such obligations are reimbursed within
30 days following such drawing or incurrence;


 


(6)           Indebtedness
arising from agreements of the Issuer or its Restricted Subsidiaries providing
for indemnification, adjustment of purchase price, earnouts or similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary for the purpose of financing such acquisition;
provided that such
Indebtedness is not reflected on the balance sheet of the Issuer or any of its
Restricted Subsidiaries (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this
clause (6));


 


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


 


(8)           Indebtedness
of a Restricted Subsidiary to the Issuer or another Restricted Subsidiary; provided that if a Guarantor
incurs such Indebtedness to a Restricted Subsidiary that is not a Guarantor,
such Indebtedness is expressly subordinated in right of 


 


79

















 


payment
to the Notes or the Guarantee of the Notes of such Guarantor, as applicable; provided, further, that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness of such
Restricted Subsidiary (except to the Issuer or another Restricted Subsidiary)
shall be deemed, in each case, to be an incurrence of such Indebtedness not
permitted by this clause;


 


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


 


(10)         Hedging
Obligations (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting interest rate risk with respect to any
Indebtedness permitted to be incurred pursuant to this Indenture, exchange rate
risk or commodity pricing risk;


 


(11)         obligations
in respect of self-insurance and obligations in respect of performance, bid,
appeal and surety bonds and completion guarantees and similar obligations
provided by the Issuer or any of its Restricted Subsidiaries in the ordinary
course of business;


 


(12)         (A)
Indebtedness or Disqualified Stock of the Issuer and Indebtedness, Disqualified
Stock or Preferred Stock of the Issuer or any Restricted Subsidiary in an
aggregate principal amount or liquidation preference up to 100.0% of the net
cash proceeds received by the Issuer since immediately after the Issue Date
from the issue or sale of Equity Interests of the Issuer or cash contributed to
the capital of the Issuer (in each case, other than proceeds of Disqualified
Stock or sales of Equity Interests to the Issuer or any of its Subsidiaries) as
determined in accordance with clauses (3)(B) and (3)(C) of Section
4.07(a) hereof to the extent such net cash proceeds or cash have not been
applied pursuant to such clauses to make Restricted Payments or to make other
Investments, payments or exchanges pursuant to Section 4.07(b) hereof or to
make Permitted Investments (other than Permitted Investments specified in
clause (1) or (3) of the definition thereof) and (B) Indebtedness
or Disqualified Stock of the Issuer and Indebtedness, Disqualified Stock or
Preferred Stock of any Restricted Subsidiary not otherwise permitted hereunder
in an aggregate principal amount or liquidation preference which, when
aggregated with the principal amount and liquidation preference of all other
Indebtedness, Disqualified Stock and Preferred Stock then outstanding and
incurred pursuant to this clause (12)(B), does not at any one time
outstanding exceed $150.0 million (it being understood that any Indebtedness, Disqualified
Stock or Preferred Stock incurred pursuant to this clause (12)(B) shall
cease to be deemed incurred or outstanding for purposes of this
clause (12)(B) but shall be deemed incurred for the purposes of the first
paragraph of this covenant from and after the first date on which the Issuer or
such 


 


80

















 


Restricted
Subsidiary could have incurred such Indebtedness, Disqualified Stock or
Preferred Stock under Section 4.09(a) hereof without reliance on this
clause (12)(B));


 


(13)         the
incurrence by the Issuer or any Restricted Subsidiary of Indebtedness, the
issuance by the Issuer or any Restricted Subsidiary of Disqualified Stock or
the issuance by any Restricted Subsidiary of Preferred Stock which serves to
extend, replace, refund, refinance, renew or defease any Indebtedness incurred
or Disqualified Stock or Preferred Stock issued as permitted under Section
4.09(a) hereof and clauses (2), (3), (4) and (12)(A) of this Section
4.09(b), this clause (13) and clauses (14) and (24) of this Section
4.09(b) or any Indebtedness incurred or Disqualified Stock or Preferred Stock
issued to so extend, replace, refund, refinance, renew or defease such
Indebtedness, Disqualified Stock or Preferred Stock including additional
Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums
(including reasonable tender premiums), defeasance costs and fees in connection
therewith (the “Refinancing Indebtedness”) prior to its respective
maturity; provided  that such Refinancing Indebtedness:


 


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


 


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


 


(C)           shall
not include:


 


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


 


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


 


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


 


81

















 


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


 


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


 


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


 


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


 


(16)         Indebtedness
of the Issuer or any of its Restricted Subsidiaries supported by a letter of
credit issued pursuant to the Credit Facilities, in a principal amount not in
excess of the stated amount of such letter of credit;


 


(17)         (A)
any guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or other
obligations of any Restricted Subsidiary so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of this Indenture (provided that in the case of any such guarantee
by the Issuer or a Guarantor of Indebtedness that is subordinated to the Notes
or the Guarantee of such Guarantor, the guarantee by the Issuer or such
Guarantor shall be subordinated to the same extent as the Indebtedness being
guaranteed); or


 


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


 


(18)         Indebtedness
consisting of Indebtedness issued by the Issuer or any of its Restricted
Subsidiaries to future, present or former employees, directors, officers,
managers and consultants thereof (or any spouses, successors, executors,
administrators, heirs or legatees of any of the foregoing), in each case to
finance the purchase or redemption of Equity Interests of the Issuer or any
direct or indirect parent company of the Issuer to the extent described in
clause (4) of Section 4.07(b) hereof ;


 


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


 


(20)         Indebtedness
owed on a short-term basis of no longer than 30 days to banks and other
financial institutions incurred in the ordinary course of business of the
Issuer and its Restricted Subsidiaries with such banks or financial
institutions that arises 


 


82

















 


in
connection with ordinary banking arrangements to manage cash balances of the
Issuer and its Restricted Subsidiaries;


 


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


 


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


 


(23)         the
incurrence of Indebtedness of Foreign Subsidiaries of the Issuer in an amount
not to exceed at any one time outstanding and together with any other
Indebtedness incurred under this clause (23) 5.0% of the Foreign
Subsidiary Total Assets (it being understood that any Indebtedness incurred
pursuant to this clause (23) shall cease to be deemed incurred or outstanding
for the purpose of this clause (23) but shall be deemed incurred for the
purposes of Section 4.09(a) hereof from and after the first date on which such
Foreign Subsidiaries could have incurred such Indebtedness under Section
4.09(a) hereof without reliance on this clause (23));


 


(24)         Indebtedness,
Disqualified Stock or Preferred Stock of a Restricted Subsidiary incurred to
finance or assumed in connection with an acquisition in a principal amount not
to exceed $50.0 million in the aggregate at any one time outstanding
together with all other Indebtedness, Disqualified Stock and/or Preferred Stock
issued under this clause (24) (it being understood that any Indebtedness,
Disqualified Stock or Preferred Stock incurred pursuant to this clause (24)
shall cease to be deemed incurred or outstanding for purposes of this clause
(24) but shall be deemed incurred for the purposes of Section 4.09(a) hereof
from and after the first date on which such Restricted Subsidiary could have
incurred such Indebtedness, Disqualified Stock or Preferred Stock pursuant to
Section 4.09(a) hereof without reliance on this clause (24)) ; and


 


(25)         Attributable
Debt incurred by the Issuer or any of its Restricted Subsidiaries pursuant to
Sale and Lease-Back Transactions of property (real or personal), equipment or
other fixed or capital assets owned by the Issuer or any of its Restricted
Subsidiaries as of the Issue Date or acquired by the Issuer or any of its
Restricted Subsidiaries thereafter in exchange for, or with the proceeds of the
sale of, such assets owned by the Issuer or any of its Restricted Subsidiaries
as of the Issue Date; provided that the aggregate amount of Attributable
Debt incurred under this clause (25) does not exceed the greater of $75.0
million and 1.0% of Total Assets (determined at the date of incurrence) at any
time outstanding.


 


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


 


(1) in the event that an item of Indebtedness,
Disqualified Stock or Preferred Stock (or any portion thereof) meets the
criteria of more than one of the categories of Permitted Indebtedness,
Disqualified Stock or Preferred Stock described in clauses (1) through
(25) of 


 


83

















 


Section 4.09(b) hereof or is entitled to be incurred
pursuant to Section 4.09(a) hereof, the Issuer, in its sole discretion, will
classify or reclassify such item of Indebtedness, Disqualified Stock or
Preferred Stock (or any portion thereof) and will only be required to include
the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock
in one of the above clauses or under Section 4.09(a) hereof; provided
that (x) all Indebtedness outstanding under the Senior Credit Facilities on the
Issue Date will be treated as incurred on the Issue Date under clause (1)
of Section 4.09(b) hereof and (y) the Issuer shall not be permitted to
reclassify any Indebtedness originally incurred under clause (1) of Section
4.09(b) hereof as incurred under Section 4.09(a) hereof; and


 


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


 


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


 


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


 


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


 


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


 


For the purposes of this Indenture (1) unsecured
Indebtedness is not deemed to be subordinated or junior to Secured Indebtedness
merely because it is unsecured and (2) Senior 


 


84

















 


Indebtedness is not deemed to be subordinated or
junior to any other Senior Indebtedness merely because it has a junior priority
with respect to the same collateral.


 


SECTION 4.10.      Asset Sales.


 


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


 


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


 


(2)           except
in the case of a Permitted Asset Swap, at least 75.0% of the consideration
therefor received by the Issuer or such Restricted Subsidiary, as the case may
be, is in the form of Cash Equivalents; provided that the following
items shall be deemed to be Cash Equivalents for purposes of this provision and
for no other purpose:


 


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


 


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


 


(C)           any
Designated Non-cash Consideration received by the Issuer or such Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Non-cash Consideration received pursuant to
this clause (c) that is at that time outstanding, not to exceed the
greater of (x) $100.0 million and (y) 2.0% of Total Assets 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.


 


(b)           Within 450 days after the
receipt of any Net Proceeds of any Asset Sale, the Issuer or such Restricted
Subsidiary, at its option, may apply or cause to be applied the Net Proceeds
from such Asset Sale,


 


(1)           to
permanently reduce:


 


(A)          Obligations
under the Senior Credit Facilities, and, in the case of Obligations under
revolving credit facilities or other similar Indebtedness, to correspondingly
reduce commitments with respect thereto;


 


85

















 


(B)           Obligations
under Senior Indebtedness that is secured by a Lien, which Lien is permitted by
this Indenture, and, in the case of Obligations under revolving credit
facilities or other similar Indebtedness, to correspondingly reduce commitments
with respect thereto;


 


(C)           Obligations
under other Senior Indebtedness (and, in the case of Obligations under
revolving credit facilities or other similar Indebtedness, to correspondingly
reduce commitments with respect thereto); provided that the Issuer shall
equally and ratably reduce Obligations under the Notes by, at its option, (i)
redeeming Notes as provided under Section 3.07 hereof, (ii) making an offer (in
accordance with the procedures set forth in Section 3.09 and Section 4.10(d)
hereof) to all Holders to purchase their Notes at 100.0% of the principal
amount thereof, plus the amount of accrued but unpaid interest, if any, on the
principal amount of Notes to be repurchased; or (iii) purchasing Notes through
open market purchases (to the extent that such purchases are at a price equal
to or higher than 100.0% of the principal amount thereof) in a manner that
complies with this Indenture and applicable securities laws; or


 


(D)          Indebtedness
of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness
owed to the Issuer or another Subsidiary; or


 


(2)           to
make (a) an Investment in any one or more businesses, provided that such Investment in
any business is in the form of the acquisition of Capital Stock and results in
the Issuer or any of its Restricted Subsidiaries, as the case may be, owning an
amount of the Capital Stock of such business such that it constitutes a
Restricted Subsidiary, (b) an acquisition of properties, (c) capital expenditures
or (d) acquisitions of other assets, that, in each of (a), (b), (c)
and (d), are used or useful in a Similar Business or replace the businesses,
properties and/or assets that are the subject of such Asset Sale.


 


(c)           Any Net Proceeds from the Asset Sale
that are not invested or applied as provided and within the time period set
forth in Section 4.10(b) hereof will be deemed to constitute “Excess
Proceeds”; provided that if during such 450-day period the Issuer or
a Restricted Subsidiary enters into a definitive binding agreement committing
it to apply such Net Proceeds in accordance with the requirements of clause (2)
of Section 4.10(b) hereof after such 450th day, such 450-day period
will be extended with respect to the amount of Net Proceeds so committed until
such Net Proceeds are required to be applied in accordance with such agreement
(but such extension will in no event be for a period longer than 180 days) (or,
if earlier, the date of termination of such agreement). When the aggregate
amount of Excess Proceeds exceeds $50.0 million, the Issuer shall make an
offer to all Holders and, if required by the terms of any Indebtedness that is pari
passu  with the Notes (“Pari
Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset
Sale Offer”), to purchase the maximum aggregate principal amount of the
Notes and such Pari Passu Indebtedness that is in an amount equal to $2,000 or
an integral multiple of $1,000 in excess of $2,000 that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of
the principal amount thereof (or accreted value thereof, if less), plus accrued
and unpaid interest, if any, to the date fixed for the closing of such offer,
in accordance with the procedures set forth in this Indenture. The Issuer will
commence an Asset Sale Offer within ten Business Days after the date on which
the 


 


86

















 


aggregate amount of Excess Proceeds exceeds
$50.0 million by delivering the notice required pursuant to the terms of
this Indenture, with a copy to the Trustee. The Issuer may satisfy the
foregoing obligations with respect to any Net Proceeds from an Asset Sale by
making an Asset Sale Offer with respect to such Net Proceeds prior to the
expiration of the relevant 450-day period (or such longer period as provided
above) or with respect to Excess Proceeds of $50.0 million or less.


 


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


 


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


 


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


 


SECTION 4.11.      Transactions with Affiliates.


 


(a)           The Issuer will not, and will not
permit any of its Restricted Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Issuer (each of the
foregoing, an “Affiliate
Transaction”) involving aggregate payments or consideration in
excess of $10.0 million, unless:


 


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


 


(2)           the
Issuer delivers to the Trustee with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or
consideration 


 


87

















 


in
excess of $30.0 million, a resolution adopted by the majority of the board
of directors of the Issuer approving such Affiliate Transaction and set forth
in an Officer’s Certificate certifying that such Affiliate Transaction complies
with clause (1) of this Section 4.11(a).


 


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


 


(1)           transactions
between or among the Issuer or any of its Restricted Subsidiaries;


 


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


 


(3)           [reserved];


 


(4)           the
payment of reasonable and customary fees paid to, and indemnities provided for
the benefit of, current or former employees, directors, officers, managers or
consultants of the Issuer, any of its direct or indirect parent companies or any
of its Restricted Subsidiaries;


 


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


 


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


 


(7)           the
existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date and any similar agreements
which it may enter into thereafter; provided that the existence of, or
the performance by the Issuer or any of its Restricted Subsidiaries of
obligations under any future amendment to any such existing agreement or under
any similar agreement entered into after the Issue Date shall only be permitted
by this clause (7) to the extent that the terms of any such amendment or
new agreement are not otherwise disadvantageous in the good faith judgment of
the board of directors of the Issuer to the Holders when taken as a whole;


 


(8)           the
Transactions and the payment of all fees and expenses related to the
Transactions, in each case as contemplated by the Offering Memorandum;


 


(9)           transactions
with customers, clients, suppliers, contractors, joint venture partners or
purchasers or sellers of goods or services that are Affiliates of the Issuer,
in 


 


88

















 


each
case in the ordinary course of business and otherwise in compliance with the
terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries,
in the reasonable determination of the board of directors of the Issuer or the
senior management thereof, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party;


 


(10)         the
issuance of Equity Interests (other than Disqualified Stock) of the Issuer to
any Permitted Holder or to any employee, director, officer, manager or
consultant (or any spouses, successors, executors, administrators, heirs or
legatees of any of the foregoing) of the Issuer, any of its direct or indirect
parent companies or any of its Restricted Subsidiaries;


 


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


 


(12)         payments
by the Issuer or any of its Restricted Subsidiaries to the Sponsor made for any
financial advisory, financing, underwriting or placement services or in respect
of other investment banking activities, including, without limitation, in
connection with acquisitions or divestitures, which payments are approved by a
majority of the board of directors of the Issuer in good faith;


 


(13)         payments
or loans (and cancellation of any thereof) to any employee, director, officer,
manager or consultant (or any spouses, successors, executors, administrators,
heirs or legatees of any of the foregoing) of the Issuer, any of its
Subsidiaries or any of its direct or indirect parent companies pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement and any employment agreements, stock option plans and
other compensatory arrangements (and any successor plans thereto) and any
supplemental executive retirement benefit plans or arrangements with any such
employees, directors, officers, managers or consultants that are, in each case,
approved by the Issuer in good faith;


 


(14)         investments
by the Sponsor in securities of the Issuer or any of its Restricted
Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by the
Sponsor in connection therewith) so long as (a) the investment is being
offered generally to other investors on the same or more favorable terms and
(b) the investment constitutes less than 5.0% of the proposed or
outstanding issue amount of such class of securities;


 


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


 


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(16)         intellectual
property licenses in the ordinary course of business.


 


SECTION 4.12.      Liens. The Issuer will not, and
will not permit any Guarantor to, directly or indirectly, create, incur, assume
or suffer to exist any Lien (except Permitted Liens) that secures Obligations
under any Indebtedness or any related Guarantee, on any asset or property of
the Issuer or any Guarantor, or any income or profits therefrom, or assign or
convey any right to receive income therefrom, unless:


 


(1)           in
the case of Liens securing Subordinated Indebtedness, the Notes and related
Guarantees are secured by a Lien on such property, assets or proceeds that is
senior in priority to such Liens; and


 


(2)           in
all other cases, the Notes or the Guarantees are equally and ratably secured,
except that the foregoing shall not apply to (A) Liens securing the Notes
and the related Guarantees, (B) Liens securing Indebtedness permitted to
be incurred under Credit Facilities, including, but not limited to, any letter
of credit facility relating thereto, that was permitted by the terms of this
Indenture to be incurred pursuant to clause (1) of Section 4.09(b) hereof
and (C) Liens securing Indebtedness permitted to be incurred pursuant to
Section 4.09 hereof; provided that, with respect to Liens securing
Indebtedness permitted under this subclause (C), at the time of incurrence and
after giving pro  forma effect thereto, the Consolidated Secured
Leverage Ratio would be no greater than 4.50 to 1.00.


 


SECTION 4.13.      Company Existence. Subject to
Article V hereof, the Issuer shall do or cause to be done all things necessary
to preserve and keep in full force and effect (i) its company existence, and
the corporate, partnership or other existence of each of its Restricted Subsidiaries,
in accordance with the respective organizational documents (as the same may be
amended from time to time) of the Issuer or any such Restricted Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Issuer
and its Restricted Subsidiaries; provided that the Issuer shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of its Restricted Subsidiaries, if the Issuer in
good faith shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and its Restricted Subsidiaries,
taken as a whole.


 


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


 


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(1)           that
a Change of Control has occurred or will occur (together with the
identification of the transaction or transactions that constitute such Change
of Control) and that a Change of Control Offer is being made pursuant to this
Section 4.14 and that all Notes properly tendered pursuant to such Change of
Control Offer will be accepted for payment by the Issuer;


 


(2)           the
CUSIP and ISIN numbers of the Notes;


 


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


 


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


 


(5)           that
unless the Issuer defaults on 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;


 


(6)           that
Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender such Notes, with the form entitled “Option
of Holder to Elect Purchase” on the reverse of such Notes completed, to the
paying agent specified in the notice at the address specified in the notice
prior to the close of business on the third Business Day preceding the Change
of Control Payment Date;


 


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


 


(8)           that
Holders whose Notes are being purchased only in part will be issued new Notes
and such new Notes will be equal in principal amount to the unpurchased portion
of the Notes surrendered. The unpurchased portion of the Notes must be equal to
at least $2,000;


 


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


 


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


 


The
Issuer will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent that
such laws or regulations are applicable in connection with the repurchase of
Notes pursuant to a Change of Control Offer. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of 


 


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this Indenture,
the Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Indenture by
virtue thereof.


 


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


 


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


 


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


 


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


 


(c)           The Issuer shall not be required to
make a Change of Control Offer following a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Issuer and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.


 


(d)           Notwithstanding anything to the
contrary herein, a Change of Control Offer may be made in advance of a Change
of Control, conditional upon such Change of Control, if a definitive agreement
is in place for the Change of Control at the time of making of the Change of
Control Offer.


 


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


 


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


 


(1)           such
Restricted Subsidiary within 30 days executes and delivers a supplemental
indenture to this Indenture, the form of which is attached as Exhibit D hereto,
providing for a Guarantee by such Restricted Subsidiary, except that with
respect to a guarantee of Indebtedness of the Issuer or any Guarantor, if such
Indebtedness is by its express terms subordinated in right of payment to the
Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted
Subsidiary with respect to such Indebtedness shall be subordinated in right of
payment to such Guarantee substantially to the same extent as such Indebtedness
is subordinated to the Notes;


 


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


 


(3)           such
Restricted Subsidiary shall deliver to the Trustee an Opinion of Counsel to the
effect that:


 


(a)           such Guarantee has been duly executed
and authorized; and


 


(b)           such Guarantee constitutes a valid,
binding and enforceable obligation of such Restricted Subsidiary, except
insofar as enforcement thereof may be limited by bankruptcy, insolvency or
similar laws (including, without limitation, all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity;


 


provided
that this covenant shall not be applicable to (i) any guarantee of any
Restricted Subsidiary that existed at the time such Person became a Restricted
Subsidiary and was not incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary, (ii) the guarantee by Dutch
Holdings of the obligations of the Issuer or any other Restricted Subsidiary
under the Credit Facilities, any cash management obligations or Hedging
Obligations, provided that such guarantee shall be limited to the
collateral securing such guarantee pursuant to the Credit Facilities and (iii)
guarantees of any Qualified Securitization Facility by any Securitization
Subsidiary.


 


SECTION 4.16.      Limitation on Sale and Lease-Back
Transactions. The Issuer will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction with respect to
any property unless:


 


(1)           the
Issuer or such Restricted Subsidiary would be entitled to (A) incur
Indebtedness in an amount equal to the Attributable Debt with respect to such
Sale and Lease-Back Transaction pursuant to Section 4.09 hereof and (B) create
a Lien on such property securing such Attributable Debt without equally and ratably
securing the Notes pursuant to Section 4.12 hereof;


 


(2)           the
consideration received by the Issuer or any Restricted Subsidiary in connection
with such Sale and Lease-Back Transaction is at least equal to the fair market
value of such property; and


 


(3)           the
Issuer applies the proceeds of such transaction in compliance with the terms
set forth in Section 4.10 hereof.


 


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SECTION 4.17.      Suspension of Covenants.


 


(a)           During any period of time that (i)
the Notes have Investment Grade Ratings from both Rating Agencies and (ii) no
Default has occurred and is continuing under this Indenture (the occurrence of
the events described in the foregoing clauses (i) and (ii) being collectively
referred to as a “Covenant Suspension Event” and the date thereof being
referred to as the “Suspension Date”) then, Section 4.07 hereof, Section
4.08 hereof, Section 4.09 hereof, Section 4.10 hereof, Section 4.11 hereof,
Section 4.15 hereof and clause (4) of Section 5.01(a) hereof shall not be
applicable to the Notes (collectively, the “Suspended Covenants”).


 


(b)           During any period that the foregoing
covenants have been suspended, the Issuer may not designate any of its
Subsidiaries as Unrestricted Subsidiaries pursuant to the second sentence of
the definition of “Unrestricted Subsidiary.”


 


(c)           In the event that the Issuer and its
Restricted Subsidiaries are not subject to the Suspended Covenants under this
Indenture for any period of time as a result of the foregoing, and on any subsequent
date (the “Reversion Date”) one or both of the Rating Agencies withdraw
their Investment Grade Rating or downgrade the rating assigned to the Notes
below an Investment Grade Rating, then the Issuer and its Restricted
Subsidiaries will thereafter again be subject to the Suspended Covenants under
this Indenture with respect to future events. The period of time between the
Suspension Date and the Reversion Date is referred to in this Section 4.17 as
the “Suspension Period.”  The
Guarantees of the Guarantors will be suspended during the Suspension Period but
will be reinstated on the Reversion Date. Additionally, upon the occurrence of
a Covenant Suspension Event, the amount of Excess Proceeds from Net Proceeds
shall be reset to zero.


 


(d)           Notwithstanding the foregoing, in the
event of any such reinstatement, no action taken or omitted to be taken by the
Issuer or any of its Restricted Subsidiaries prior to such reinstatement that
otherwise would have violated a Suspended Covenant will give rise to a Default
or Event of Default under this Indenture with respect to the Notes; provided that (1) with respect to
Restricted Payments made after such reinstatement, the amount available to be
made as Restricted Payments will be calculated as though Section 4.07 hereof
had been in effect prior to, but not during, the Suspension Period; and (2) all
Indebtedness incurred, or Disqualified Stock issued, during the Suspension
Period will be classified to have been incurred or issued pursuant to clause
(3) of Section 4.09(b) hereof. In addition, for purposes of clause (3) of
Section 4.07(a) hereof, all events set forth in such clause (3) occurring
during a Suspension Period shall be disregarded for purposes of determining the
amount of Restricted Payments the Issuer or any Restricted Subsidiary is
permitted to make pursuant to such clause (3).


 


(e)           The Issuer shall deliver promptly to
the Trustee an Officer’s Certificate notifying it of any event set forth under
this Section 4.17.


 


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ARTICLE V


 


SUCCESSORS


 


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


 


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


 


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


 


(2)           the
Successor Company, if other than the Issuer, expressly assumes all the
obligations of the Issuer under the Notes pursuant to supplemental indentures
or other documents or instruments;


 


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


 


(4)           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 Test Period,


 


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


 


(B)           the
Fixed Charge Coverage Ratio of the Successor Company is greater than the Fixed
Charge Coverage Ratio of the Issuer immediately prior to such transactions;


 


(5)           each
Guarantor, unless it is the other party to the transactions described above, in
which case clause (1)(B) of Section 5.01(c) hereof shall apply, shall have
by supplemental indenture confirmed that its Guarantee shall apply to such
Person’s obligations under this Indenture and the Notes; and


 


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


 


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(b)           The Successor Company
will succeed to, and be substituted for the Issuer under this Indenture, the
Guarantees and the Notes, as applicable. Notwithstanding clauses (3) and
(4) of Section 5.01(a) hereof,


 


(1)           any
Restricted Subsidiary may consolidate with or merge into or transfer all or
part of its properties and assets to the Issuer, and


 


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


 


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


 


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


 


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


 


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


 


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


 


(2)           the
transaction is made in compliance with Section 4.10 hereof.


 


(d)           Subject to Section
10.06 hereof, the Successor Person will succeed to, and be substituted for,
such Guarantor under this Indenture and such Guarantor’s Guarantee. Notwithstanding
the foregoing, any Guarantor may (1) merge into or transfer all or part of
its properties and assets to another Guarantor or the Issuer, (2) merge
with an Affiliate of the Issuer solely for the purpose of reincorporating the
Guarantor in the United States, any state thereof, the District of Columbia or
any territory thereof so long as the amount of Indebtedness of the Issuer and
the Restricted Subsidiaries is not increased thereby or (3) convert into a
corporation,


 


96

















 


partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of organization of such Guarantor.


 


(e)           Notwithstanding anything
to the contrary, the merger contemplated by the Merger Agreement shall be
permitted without compliance with this Section 5.01.


 


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


 


ARTICLE VI


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.      Events of Default.


 


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


 


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


 


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


 


(3)           failure
by the Issuer or any Guarantor for 60 days after receipt of written notice
given by the Trustee or the Holders of not less than 30.0% in principal amount
of the then outstanding Notes to comply with any of its obligations, covenants
or agreements (other than a default referred to in clause (1) or
(2) above) contained in this Indenture or the Notes;


 


(4)           default
under any mortgage, indenture or instrument under which there is issued or by
which there is secured or evidenced any Indebtedness for money borrowed by the
Issuer or any of its Restricted Subsidiaries or the payment of which is
guaranteed


 


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by
the Issuer or any of its Restricted Subsidiaries, other than Indebtedness owed
to the Issuer or a Restricted Subsidiary, whether such Indebtedness or
guarantee now exists or is created after the issuance of the Notes, if both:


 


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


 


(B)           the
principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness in default for failure to pay principal at stated
final maturity (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $50.0 million or more
at any one time outstanding;


 


(5)           failure
by the Issuer or any Significant Subsidiary (or any group of Subsidiaries that
together would constitute a Significant Subsidiary) to pay final judgments
aggregating in excess of $50.0 million, which final judgments remain
unpaid, undischarged and unstayed for a period of more than 60 days after
such judgment becomes final, and in the event such judgment is covered by
insurance, an enforcement proceeding has been commenced by any creditor upon
such judgment or decree which is not promptly stayed;


 


(6)           the
Issuer or any of its Subsidiaries that is a Significant Subsidiary (or any
group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary), pursuant to or within the meaning of any Bankruptcy Law:


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)            is for relief against
the Issuer or any of its Subsidiaries that is a Significant Subsidiary (or any
group of Subsidiaries that, taken together, would


 


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constitute a Significant Subsidiary), in a proceeding
in which the Issuer or any such Subsidiary, that is a Significant Subsidiary
(or any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary), is to be adjudicated bankrupt or insolvent;


 


(ii)           appoints a receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Issuer or any of its Subsidiaries that is a Significant Subsidiary (or any
group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary), or for all or substantially all of the property of the Issuer or
any of its Subsidiaries that is a Significant Subsidiary (or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary);
or


 


(iii)          orders the liquidation
of the Issuer or any of its Subsidiaries that is a Significant Subsidiary (or
any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary);


 


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


 


(8)           the
Guarantee of any Significant Subsidiary (or any group of Subsidiaries that
together would constitute a Significant Subsidiary) shall for any reason cease
to be in full force and effect or be declared null and void or any responsible
officer of any Guarantor that is a Significant Subsidiary (or the responsible
officers of any group of Subsidiaries that together would constitute a Significant
Subsidiary), as the case may be, denies that it has any further liability under
its Guarantee or gives notice to such effect, other than by reason of the
termination of this Indenture or the release of any such Guarantee in
accordance with this Indenture.


 


SECTION 6.02.      Acceleration. If any
Event of Default (other than an Event of Default specified in clause (6) or (7)
of Section 6.01 hereof) occurs and is continuing under this Indenture, the
Trustee or the Holders of at least 30.0% in principal amount of the then total
outstanding Notes may declare the principal of, premium, if any, interest and
any other monetary obligations on all the then outstanding Notes to be due and
payable immediately. Upon the effectiveness of such declaration, such principal
of and premium, if any, and interest shall be due and payable immediately. The
Trustee shall have no obligation to accelerate the Notes if in the best
judgment of the Trustee acceleration is not in the best interests of the
Holders.


 


Notwithstanding the foregoing, in the case of an Event
of Default arising under clause (6) or (7) of Section 6.01 hereof, all
outstanding Notes shall be due and payable immediately without further action
or notice.


 


The Holders of a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes rescind any acceleration with respect to the
Notes and its consequences if such rescission would not conflict with any
judgment of a court of competent jurisdiction and if all existing Events of
Default (except nonpayment of principal of, premium, if any, or interest on any
Note held by a non-consenting Holder that has become due solely because of the
acceleration) have been cured or waived.


 


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In the event of any Event of Default specified in
clause (4) of Section 6.01 hereof, such Event of Default and all consequences
thereof (excluding any resulting payment default, other than as a result of
acceleration of the Notes) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders, if within
20 days after such Event of Default arose:


 


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


 


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


 


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


 


SECTION 6.03.      Other Remedies. If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal of, premium, if any, and interest on
the Notes or to enforce the performance of any provision of the Notes or this
Indenture.


 


The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.


 


SECTION 6.04.      Waiver of Past Defaults.
Subject to Section 6.02 hereof, Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences hereunder (except a continuing Default in the payment
of the principal of, premium, if any, or interest on, any Note held by a
non-consenting Holder) (including in connection with an Asset Sale Offer or a
Change of Control Offer). Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.


 


SECTION 6.05.      Control by Majority. Holders
of a majority in principal amount of the then total outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines is unduly
prejudicial to the rights of any other Holder or that would involve the Trustee
in personal liability.


 


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


 


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


 


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(2)           Holders
of at least 30.0% in principal amount of the total outstanding Notes have
requested the Trustee to pursue the remedy;


 


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


 


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


 


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


 


A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder (it being understood that the Trustee does not have an affirmative duty
to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders).


 


SECTION 6.07.      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, and
interest on the Note, on or after the respective due dates expressed in the
Note (including in connection with an Asset Sale Offer or a Change of Control
Offer), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.


 


SECTION 6.08.      Collection Suit by
Trustee. If an Event of Default specified in Section 6.01(1) or (2) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Issuer for the whole
amount of principal of, premium, if any, and interest remaining unpaid on the
Notes and interest on overdue principal and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


SECTION 6.09.      Restoration of Rights and
Remedies. If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceedings, the Issuer, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.


 


SECTION 6.10.      Rights and Remedies
Cumulative. Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in Section 2.07 hereof,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The


 


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assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.


 


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


 


SECTION 6.12.      Trustee May File Proofs
of Claim. The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders allowed in any judicial proceedings relative to the Issuer (or
any other obligor upon the Notes including the Guarantors), its creditors or
its property and shall be entitled and empowered to participate as a member in
any official committee of creditors appointed in such matter and to collect,
receive and distribute any money or other property payable or deliverable on
any such claims; any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.


 


SECTION 6.13.      Priorities. If the
Trustee or any Agent collects any money or property pursuant to this Article
VI, it shall pay out the money in the following order:


 


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


 


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


 


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


 


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


 


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


 


ARTICLE VII


 


TRUSTEE


 


SECTION 7.01.      Duties of Trustee.


 


(a)           If an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


(b)           Except during the
continuance of an Event of Default:


 


(i)            the
duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


(ii)           in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


(c)           The Trustee may not be
relieved from liabilities for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:


 


(i)            this
paragraph does not limit the effect of paragraph (b) of this Section 7.01;


 


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(ii)           the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved in a court of competent jurisdiction
that the Trustee was negligent in ascertaining the pertinent facts; and


 


(iii)          the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.02, 6.04 or 6.05 hereof.


 


(d)           Whether or not therein
expressly so provided, every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section 7.01.


 


(e)           The Trustee shall be
under no obligation to exercise any of its rights or powers under this
Indenture at the request or direction of any of the Holders unless the Holders
have offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.


 


(f)            The Trustee shall not
be liable for interest on any money received by it except as the Trustee may
agree in writing with the Issuer. Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by law.


 


SECTION 7.02.      Rights of Trustee.


 


(a)           The Trustee may
conclusively rely upon any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate
any fact or matter stated in the document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Issuer and its Subsidiaries, personally or by agent or attorney
at the sole cost of the Issuer and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.


 


(b)           Before the Trustee acts
or refrains from acting, it may require an Officer’s Certificate or an Opinion
of Counsel or both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officer’s Certificate or
Opinion of Counsel. The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.


 


(c)           The Trustee may act
through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.


 


(d)           The Trustee shall not
be liable for any action it takes or omits to take in good faith that it
believes to be authorized or within the rights or powers conferred upon it by
this Indenture.


 


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(e)           Unless otherwise
specifically provided in this Indenture, any demand, request, direction or
notice from the Issuer shall be sufficient if signed by an Officer of the
Issuer.


 


(f)            None of the provisions
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise to incur any liability, financial or otherwise, in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or indemnity satisfactory to it against such risk or liability is not assured
to it.


 


(g)           The Trustee shall not
be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a Default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Notes and this Indenture.


 


(h)           In no event shall the
Trustee be responsible or liable for special, indirect, punitive, incidental or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


(i)            The rights,
privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act hereunder.


 


(j)            In the event the
Issuer is required to pay Additional Interest, the Issuer will provide written
notice to the Trustee of the Issuer’s obligation to pay Additional Interest no
later than 15 days prior to the next Interest Payment Date, which notice shall
set forth the amount of the Additional Interest to be paid by the Issuer. The
Trustee shall not at any time be under any duty or responsibility to any
Holders to determine whether the Additional Interest is payable and the amount
thereof.


 


(k)           Delivery of reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuer’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates).


 


(l)            The permissive rights
of the Trustee to take certain actions under this Indenture shall not be construed
as a duty unless so specified herein.


 


(m)          The Trustee shall not be
required to give any bond or surety in respect of the performance of its powers
and duties hereunder.


 


(n)           The Trustee may request
that the Issuer 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.


 


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SECTION 7.03.      Individual Rights of
Trustee. The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuer or any of its
Affiliates with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days or resign. Any Agent may do the same
with like rights and duties. The Trustee is also subject to Sections 7.10 and
7.11 hereof.


 


SECTION 7.04.      Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuer’s use of the proceeds from the Notes or any money
paid to the Issuer or upon the Issuer’s direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.


 


SECTION 7.05.      Notice of Defaults. If
a Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall deliver to Holders a notice of the Default within 90 days after
it occurs. Except in the case of a Default relating to the payment of principal
of, premium, if any, or interest on any Note, the Trustee may withhold from the
Holders notice of any continuing Default if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders.


 


SECTION 7.06.      Reports by Trustee to
Holders. Within 60 days after each May 15, beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders a brief report dated as of such reporting
date that complies with Trust Indenture Act Section 313(a) (but if no event
described in Trust Indenture Act Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with Trust Indenture Act Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by Trust Indenture
Act Section 313(c).


 


A copy of each report at the time of its mailing to
the Holders shall be mailed to the Issuer and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with Trust Indenture Act
Section 313(d). The Issuer shall promptly notify the Trustee in writing when
the Notes are listed on any stock exchange and any delisting thereof.


 


SECTION 7.07.      Compensation and
Indemnity. The Issuer shall pay to the Trustee from time to time such compensation
for its acceptance of this Indenture and services hereunder as the parties
shall agree in writing from time to time. The Trustee’s compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Issuer shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


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The Issuer and the Guarantors, jointly and severally,
shall indemnify the Trustee and its officers, directors, employees, agents and
any predecessor trustee and its officers, directors, employees and agents for,
and hold the Trustee harmless against, any and all loss, damage, claims,
liability or expense (including attorneys’ fees and any expenses) incurred by
it in connection with the acceptance or administration of this trust and the
performance of its duties hereunder (including the costs and expenses of
enforcing this Indenture against the Issuer or any of the Guarantors (including
this Section 7.07) or defending itself against any claim whether asserted by
any Holder, the Issuer or any Guarantor, or liability in connective with the
acceptance, exercise or performance of any of its powers or duties hereunder). The
Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder. The Issuer shall defend the claim and the
Trustee may have separate counsel of its selection and the Issuer shall pay the
fees and expenses of such counsel. The Issuer need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee
through the Trustee’s own willful misconduct, negligence or bad faith.


 


The obligations of the Issuer under this Section 7.07
shall survive the satisfaction and discharge of this Indenture or the earlier
resignation or removal of the Trustee.


 


To secure the payment obligations of the Issuer and
the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes. Such Lien
shall survive the satisfaction and discharge of this Indenture.


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(6) or (7) hereof occurs,
the expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.


 


The Trustee shall comply with the provisions of Trust
Indenture Act Section 313(b)(2) to the extent applicable.


 


SECTION 7.08.      Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08. The Trustee may resign in writing
at any time and be discharged from the trust hereby created by so notifying the
Issuer. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Issuer in
writing. The Issuer may remove the Trustee if:


 


(A)          the
Trustee fails to comply with Section 7.10 hereof or Trust Indenture Act Section
310;


 


(B)           the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;


 


(C)           a
custodian or public officer takes charge of the Trustee or its property; or


 


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(D)          the
Trustee becomes incapable of acting.


 


If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Issuer shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer.


 


If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee (at
the Issuer’s expense), the Issuer or the Holders of at least 10% in principal
amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.


 


If the Trustee, after written request by any Holder
who has been a Holder for at least six months, fails to comply with Section
7.10 hereof, such Holder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.


 


A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided all
sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 hereof
shall continue for the benefit of the retiring Trustee.


 


SECTION 7.09.      Successor Trustee by
Merger, etc. If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.


 


SECTION 7.10.      Eligibility;
Disqualification. There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has, together with its parent, a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition.


 


This Indenture shall always have a Trustee who
satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and
(5). The Trustee is subject to Trust Indenture Act Section 310(b).


 


SECTION 7.11.      Preferential Collection
of Claims Against Issuer. The Trustee is subject to Trust Indenture Act
Section 311(a), excluding any creditor relationship listed in Trust Indenture
Act Section 311(b). A Trustee who has resigned or been removed shall be subject
to Trust Indenture Act Section 311(a) to the extent indicated therein.


 


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ARTICLE VIII


 


LEGAL DEFEASANCE AND
COVENANT DEFEASANCE


 


SECTION 8.01.      Option to Effect Legal
Defeasance or Covenant Defeasance. The Issuer may, at its option and at any
time, elect to have either Section 8.02 or 8.03 hereof applied to all
outstanding Notes and all obligations of the Guarantors with respect to the
Guarantees upon compliance with the conditions set forth below in this Article
VIII.


 


SECTION 8.02.      Legal Defeasance and
Discharge. Upon the Issuer’s exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuer and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes and Guarantees on the date the conditions set forth below are
satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means
that the Issuer and the Guarantors shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
hereof, and to have satisfied all its other obligations under such Notes and
this Indenture including that of the Guarantors (and the Trustee, on demand of
and at the expense of the Issuer, shall execute proper instruments acknowledging
the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder:


 


(A)          the
rights of Holders to receive payments in respect of the principal of, premium,
if any, and interest on the Notes when such payments are due solely out of the
trust created pursuant to this Indenture referred to in Section 8.04 hereof;


 


(B)           the
Issuer’s obligations with respect to Notes concerning issuing temporary Notes,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payment and money for security payments
held in trust;


 


(C)           the
rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s
and the Guarantors’ obligations in connection therewith; and


 


(D)          this
Section 8.02.


 


Subject
to compliance with this Article VIII, the Issuer may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.


 


SECTION 8.03.      Covenant Defeasance. Upon
the Issuer’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, the Issuer and the Guarantors shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from their obligations under the covenants contained in Sections 4.03, 4.04,
4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 hereof and
clauses (4) and (5) of Section 5.01(a), Sections 5.01(c) and 5.01(d) hereof
with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 hereof are satisfied (“Covenant Defeasance”), and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver,


 


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consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes and the Guarantees, the Issuer and the Guarantors may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes and the
Guarantees shall be unaffected thereby. In addition, upon the Issuer’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(3) (solely with respect to the covenants that are released upon a
Covenant Defeasance), 6.01(4), 6.01(5), 6.01(6) (solely with respect to the
Issuer and its Restricted Subsidiaries), 6.01(7) (solely with respect to the
Issuer and its Restricted Subsidiaries) and 6.01(8) hereof shall not constitute
Events of Default.


 


SECTION 8.04.      Conditions to Legal or
Covenant Defeasance. The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the outstanding Notes:


 


In order to exercise either Legal Defeasance or
Covenant Defeasance with respect to the Notes:


 


(1)           the
Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S. dollars, U.S. dollar-denominated Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any, and interest due on the Notes on the
stated maturity date or on the Redemption Date, as the case may be, of such
principal of, premium, if any, or interest on such Notes; the Issuer must
specify whether such Notes are being defeased to maturity or to a particular
Redemption Date;


 


(2)           in
the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that,
subject to customary assumptions and exclusions,


 


(A)          the
Issuer has received from, or there has been published by, the United States
Internal Revenue Service a ruling, or


 


(B)           since
the issuance of the Notes, 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, subject to customary assumptions and exclusions, the Holders will
not recognize income, gain or loss for U.S. federal income tax purposes, as
applicable, as a result of such Legal Defeasance and will be subject to U.S.
federal income tax on the same


 


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amounts,
in the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;


 


(3)           in
the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that,
subject to customary assumptions and exclusions, the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
Covenant Defeasance and will be subject to such tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;


 


(4)           no
Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other
Indebtedness and, in each case, the granting of Liens in connection therewith)
shall have occurred and be continuing on the date of such deposit;


 


(5)           such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the Senior Credit Facilities or any
other material agreement or instrument (other than this Indenture) to which,
the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor
is bound;


 


(6)           the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of such opinion and subject to customary assumptions and
exclusions following the deposit, the trust funds will not be subject to the
effect of Section 547 of Title 11 of the United States Code;


 


(7)           the
Issuer shall have delivered to the Trustee an Officer’s Certificate stating
that the deposit was not made by the Issuer with the intent of defeating,
hindering, delaying or defrauding any creditors of the Issuer or any Guarantor
or others; and


 


(8)           the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary
assumptions and exclusions) each stating that all conditions precedent provided
for or relating to the Legal Defeasance or the Covenant Defeasance, as the case
may be, have been complied with.


 


SECTION 8.05.      Deposited Money and
Government Securities to Be Held in Trust; Other Miscellaneous Provisions. Subject
to Section 8.06 hereof, all money and Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the “Trustee”) pursuant
to Section 8.04 hereof in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer or a Guarantor acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal of, premium and interest, but such
money need not be segregated from other funds except to the extent required by
law.


 


The Issuer shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or
Government Securities deposited pursuant to


 


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Section 8.04 hereof or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.


 


Anything in this Article VIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon the written request of the Issuer any money or Government Securities
held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.


 


SECTION 8.06.      Repayment to Issuer. Subject
to any applicable abandoned property law, any money deposited with the Trustee
or any Paying Agent, or then held by the Issuer, in trust for the payment of
the principal of, premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
has become due and payable shall be paid to the Issuer on its request or (if
then held by the Issuer) shall be discharged from such trust; and the Holder of
such Note shall thereafter look only to the Issuer for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuer as trustee thereof, shall thereupon cease.


 


SECTION 8.07.      Reinstatement. If the
Trustee or Paying Agent is unable to apply any United States dollars or
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Issuer’s and the Guarantors’ obligations under this Indenture and the
Notes and the Guarantees shall be revived and reinstated as though no deposit
had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.02 or 8.03 hereof, as the case may be; provided that, if the
Issuer makes any payment of principal of, premium, if any, or interest on any
Note following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.


 


ARTICLE IX


 


AMENDMENT, SUPPLEMENT AND
WAIVER


 


SECTION 9.01.      Without Consent of
Holders. Notwithstanding Section 9.02 hereof, the Issuer, the Guarantors
and the Trustee may amend or supplement this Indenture and any Guarantee or
Notes without the consent of any Holder:


 


(1)           to
cure any ambiguity, omission, mistake, defect or inconsistency;


 


(2)           to
provide for uncertificated Notes in addition to or in place of certificated
Notes;


 


(3)           to
comply with Section 5.01 hereof;


 


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(4)           to
provide for the assumption of the Issuer’s or any Guarantor’s obligations to
the Holders;


 


(5)           to
make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights under this Indenture
of any such Holder;


 


(6)           to
add covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Issuer or any Guarantor;


 


(7)           to
comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;


 


(8)           to
evidence and provide for the acceptance and appointment under this Indenture of
a successor Trustee hereunder pursuant to the requirements hereof;


 


(9)           to
provide for the issuance of exchange notes or private exchange notes, which are
identical to exchange notes except that they are not freely transferable;


 


(10)         to
add a Guarantor under this Indenture;


 


(11)         to
conform the text of this Indenture, Guarantees or the Notes to any provision of
the “Description of Senior Notes” section of the Offering Memorandum to the
extent that such provision in such “Description of Senior Notes” section was
intended to be a verbatim recitation of a provision of this Indenture,
Guarantee or Notes; or


 


(12)         to
make any amendment to the provisions of this Indenture relating to the transfer
and legending of Notes as permitted by this Indenture, including, without
limitation, to facilitate the issuance and administration of the Notes; provided
that (a) compliance with this Indenture as so amended would not result in Notes
being transferred in violation of the Securities Act or any applicable
securities law and (b) such amendment does not materially and adversely affect
the rights of Holders to transfer Notes.


 


Upon the request of the Issuer accompanied by a
resolution of its board of directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof, the Trustee shall join with the
Issuer and the Guarantors in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall have the right, but not be obligated to, enter into such amended
or supplemental indenture that affects its own rights, duties or immunities
under this Indenture or otherwise. Notwithstanding the foregoing, neither an
Opinion of Counsel nor an Officer’s Certificate shall be required in connection
with the addition of a Guarantor under this Indenture (other than as required
by Section 4.15 hereof) upon execution and delivery by such Guarantor and the
Trustee of a supplemental indenture to this Indenture, the form of which is
attached as Exhibit D hereto.


 


SECTION 9.02.      With Consent of Holders.
Except as provided below in this Section 9.02, the Issuer, the Guarantors and
the Trustee may amend or supplement this


 


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Indenture, the Notes and the Guarantees with the
consent of the Holders of at least a majority in principal amount of the Notes
(including Additional Notes, if any) then outstanding voting as a single class
(including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or interest on
the Notes, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture, the
Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including
Additional Notes, if any) voting as a single class (including consents obtained
in connection with a tender offer or exchange offer for, or purchase of, the
Notes). Section 2.08 hereof and Section 2.09 hereof shall determine which Notes
are considered to be “outstanding” for the purposes of this Section 9.02.


 


Upon the request of the Issuer accompanied by a
resolution of its board of directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Issuer and the Guarantors
in the execution of such amended or supplemental indenture unless such amended
or supplemental indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.


 


It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.


 


After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Issuer shall deliver to the Holders
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Issuer to deliver such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental indenture or waiver.


 


Without the consent of each affected Holder of Notes,
an amendment or waiver under this Section 9.02 may not (with respect to any Notes
held by a non-consenting Holder):


 


(1)           reduce
the principal amount of such Notes whose Holders must consent to an amendment,
supplement or waiver;


 


(2)           reduce
the principal of or change the fixed final maturity of any such Note or alter
or waive the provisions with respect to the redemption of such Note (other than
provisions relating to Section 3.09, Section 4.10 and Section 4.14 hereof) to
the extent that any such amendment or waiver does not have the effect of
reducing the principal of or changing the fixed final maturity of any such Note
or altering or waiving the provisions with respect to the redemption of such
Notes;


 


(3)           reduce
the rate of or change the time for payment of interest on any Note;


 


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(4)           waive
a Default in the payment of principal of, premium, if any, or interest on the
Notes, except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration, or in respect of a
covenant or provision contained in this Indenture or any Guarantee which cannot
be amended or modified without the consent of all Holders;


 


(5)           make
any Note payable in money other than that stated therein;


 


(6)           make
any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders to receive payments of principal of, premium,
if any, or interest on the Notes;


 


(7)           make
any change in these amendment and waiver provisions;


 


(8)           impair
the right of any Holder to receive payment of principal of, premium, if any, or
interest on such Holder’s Notes on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to such
Holder’s Notes;


 


(9)           make
any change to or modify the ranking of the Notes that would adversely affect
the Holders;


 


(10)         except
as expressly permitted by this Indenture, modify any Guarantee in any manner
adverse to the Holders.


 


SECTION 9.03.      Compliance with Trust
Indenture Act. Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies in all
material respects with the Trust Indenture Act as then in effect.


 


SECTION 9.04.      Revocation and Effect of
Consents. Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder or portion of a Note that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as
to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.


 


The Issuer may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent to
any amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date unless the consent of the requisite number
of Holders has been obtained.


 


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SECTION 9.05.      Notation on or Exchange
of Notes. The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuer in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.


 


Failure to make the appropriate notation or issue a
new Note shall not affect the validity and effect of such amendment, supplement
or waiver.


 


SECTION 9.06.      Trustee to Sign
Amendments, etc. The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee. The
Issuer may not sign an amendment, supplement or waiver until the board of
directors of the Issuer approves it. In executing any amendment, supplement or
waiver, the Trustee shall receive and (subject to Section 7.01 hereof) shall be
fully protected in conclusively relying upon, in addition to the documents
required by Section 12.04 hereof, an Officer’s Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amendment, supplement
or waiver is the legal, valid and binding obligation of the Issuer and any
Guarantors party thereto, enforceable against them in accordance with its
terms, subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03 hereof). Notwithstanding the foregoing, except as
required by Section 4.15 hereof, neither an Opinion of Counsel nor an Officer’s
Certificate will be required for the Trustee to execute any amendment or
supplement adding a new Guarantor under this Indenture.


 


SECTION 9.07.      Payment for Consent. Neither
the Issuer nor any of its Affiliates shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to all Holders and is paid to all Holders
that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.


 


SECTION 9.08.      Additional Voting Terms;
Calculation of Principal Amount. All Notes issued under this Indenture
shall vote and consent together on all matters (as to which any of such Notes
may vote) as one class and no series of Notes will have the right to vote or
consent as a separate series on any matter. Determinations as to whether
Holders of the requisite aggregate principal amount of Notes have concurred in
any direction, waiver or consent shall be made in accordance with this Article
IX and Section 2.14 hereof.


 


ARTICLE X


 


GUARANTEES


 


SECTION 10.01.    Guarantee. Subject to
this Article X, from and after the consummation of the merger contemplated by
the Merger Agreement, each of the Guarantors hereby, jointly and severally,
irrevocably and unconditionally, guarantees to each Holder


 


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authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Issuer
hereunder or thereunder, that: (a) the principal of, premium, if any, and
interest on the Notes shall be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Issuer to the Holders or the Trustee hereunder or thereunder
shall be promptly paid in full, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same shall be promptly paid in
full when due in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.


 


The Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest, notice and all
demands whatsoever and covenants that this Guarantee shall not be discharged
except by full payment of the obligations contained in the Notes and this
Indenture.


 


Each Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys’ fees and expenses) incurred by
the Trustee or any Holder in enforcing any rights under this Section 10.01.


 


If any Holder or the Trustee is required by any court
or otherwise to return to the Issuer, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or
the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.


 


Each Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article VI hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article VI hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Guarantee. The Guarantors shall have the right to seek contribution from any
nonpaying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantees.


 


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Each Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Issuer for liquidation, reorganization, should the Issuer become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Issuer’s assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee on the Notes or Guarantees, whether as a
“voidable preference,” “fraudulent transfer” or otherwise, all as though such
payment had not been made. In the event that any payment or any part thereof,
is rescinded, reduced, restored or returned, the Notes shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.


 


In case any provision of any Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


The Guarantee issued by any Guarantor shall be a
general unsecured senior obligation of such Guarantor and shall rank equally in
right of payment with all existing and future Senior Indebtedness of such
Guarantor, if any.


 


Each payment to be made by a Guarantor in respect of
its Guarantee shall be made without set-off, counterclaim, reduction or
diminution of any kind or nature.


 


SECTION 10.02.    Limitation on Guarantor
Liability. Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws and after
giving effect to (i) any collections from, (ii) rights to receive contribution
from or (iii) payments made by or on behalf of any other Guarantor in respect
of the obligations of such other Guarantor under this Article X, result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under applicable law. Each Guarantor that
makes a payment under its Guarantee shall be entitled upon payment in full of
all guaranteed obligations under this Indenture to a contribution from each
other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the
respective net assets of all the Guarantors at the time of such payment
determined in accordance with GAAP.


 


SECTION 10.03.    Execution and Delivery.
To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor
hereby agrees that this Indenture shall be executed on behalf of such Guarantor
by its President, one of its Vice Presidents or one of its Assistant Vice
Presidents.


 


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Each Guarantor hereby agrees that its Guarantee set
forth in Section 10.01 hereof shall remain in full force and effect
notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.


 


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


 


The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of the Guarantors.


 


If required by Section 4.15 hereof, the Issuer shall
cause any newly created or acquired Restricted Subsidiary to comply with the
provisions of Section 4.15 hereof and this Article X, to the extent applicable.


 


SECTION 10.04.    Subrogation. Each
Guarantor shall be subrogated to all rights of Holders against the Issuer in
respect of any amounts paid by any Guarantor pursuant to the provisions of
Section 10.01 hereof; provided that, if an Event of Default has occurred
and is continuing, no Guarantor shall be entitled to enforce or receive any
payments arising out of, or based upon, such right of subrogation until all
amounts then due and payable by the Issuer under this Indenture or the Notes
shall have been paid in full.


 


SECTION 10.05.    Benefits Acknowledged. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the
guarantee and waivers made by it pursuant to its Guarantee are knowingly made in
contemplation of such benefits.


 


SECTION 10.06.    Release of Guarantees. Each
Guarantee by a Guarantor will provide by its terms that it shall be
automatically and unconditionally released and discharged upon:


 


(1)           (A)  any sale, exchange or transfer (by merger or
otherwise) of (i) the Capital Stock of such Guarantor, after which the
applicable Guarantor is no longer a Restricted Subsidiary or (ii) all or
substantially all the assets of such Guarantor, in each case if such sale,
exchange or transfer is made in compliance with the applicable provisions of
this Indenture and the Guarantor is released from its guarantee, if any, of,
and all pledges and security, if any, granted in connection with, the Senior
Credit Facilities;


 


(B)           the
release or discharge of the guarantee by such Guarantor of Indebtedness under
the Senior Credit Facilities, or the release or discharge of such other
guarantee that resulted in the creation of such Guarantee, except a discharge
or release by or as a result of payment under such guarantee;


 


(C)           the
designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in compliance with the applicable provisions of this Indenture; or


 


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(D)          the
exercise by the Issuer of the Legal Defeasance option or Covenant Defeasance
option in accordance with Article VIII hereof or the discharge of the Issuer’s
obligations under this Indenture in accordance with the terms of this
Indenture; and


 


(2)           such
Guarantor delivering to the Trustee an Officer’s Certificate of the Issuer and
an Opinion of Counsel, each stating that all conditions precedent provided for
in this Indenture relating to such transaction have been complied with.


 


ARTICLE XI


 


SATISFACTION AND
DISCHARGE


 


SECTION 11.01.    Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect as
to all Notes, when either:


 


(1)           all
Notes theretofore authenticated and delivered, except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust, have been delivered to the Trustee for
cancellation; or


 


(2)           (A)
all Notes not theretofore delivered to the Trustee for cancellation have become
due and payable by reason of the making of a notice of redemption or otherwise,
will become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the
Issuer, and the Issuer or any Guarantor has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders, cash in U.S. dollars, U.S. dollar-denominated Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
without consideration of any reinvestment of interest to pay and discharge the
entire indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation for principal of, premium, if any, and accrued interest to the
date of maturity or redemption;


 


(B)           no
Default (other than that resulting from borrowing funds to be applied to make
such deposit or any similar and simultaneous deposit relating to other
Indebtedness and the granting of Liens in connection therewith) with respect to
this Indenture or the Notes shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under the
Senior Credit Facilities or any other material agreement or instrument (other
than this Indenture) to which the Issuer or any Guarantor is a party or by
which the Issuer or any Guarantor is bound;


 


(C)           the
Issuer has paid or caused to be paid all sums payable by it under this
Indenture; and


 


120
















 


(D)          the
Issuer has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or the Redemption
Date, as the case may be.


 


In addition, the Issuer must deliver an Officer’s
Certificate and an Opinion of Counsel to the Trustee stating that all
conditions precedent to satisfaction and discharge have been satisfied.


 


Notwithstanding the satisfaction and discharge of this
Indenture, if money shall have been deposited with the Trustee pursuant to subclause
(A) of clause (2) of this Section 11.01, the provisions of Section 11.02 and
Section 8.06 hereof shall survive.


 


SECTION 11.02.    Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the
Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer or a
Guarantor acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal of, premium, if any, and interest
for whose payment such money has been deposited with the Trustee; but such
money need not be segregated from other funds except to the extent required by
law.


 


If the Trustee or Paying Agent is unable to apply any
money or Government Securities in accordance with Section 11.01 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer’s and any Guarantor’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 11.01 hereof; provided that if the
Issuer has made any payment of principal of, premium, if any, or interest on
any Notes because of the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.


 


ARTICLE XII


 


MISCELLANEOUS


 


SECTION 12.01.    Trust Indenture Act
Controls. If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by Trust Indenture Act Section 318(c), the imposed
duties shall control.


 


SECTION 12.02.    Notices. Any notice or
communication by the Issuer, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in person or mailed by first-class mail
(registered or certified, return receipt requested), fax or overnight air
courier guaranteeing next day delivery, to the others’ address:


 


121

















 


If to the Issuer and/or any Guarantor:


 


Bausch & Lomb Incorporated


One Bausch & Lomb Place


Rochester, New York 14604-2701


Fax No.: 585-338-0418


Attention: General Counsel


 


If to the Trustee:


 


U.S.
Bank National Association


100 Wall Street, 16th Floor


New York, New York 
10005


Fax No.: 212-514-6841


Attention: Corporate Trust Services


 


The Issuer, any Guarantor or the Trustee, by notice to
the others, may designate additional or different addresses for subsequent
notices or communications.


 


All notices and communications (other than those sent
to Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five calendar days after being deposited in the
mail, postage prepaid, if mailed by first-class mail; when receipt
acknowledged, if faxed; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery; provided
that any notice or communication delivered to the Trustee shall be deemed
effective upon actual receipt thereof.


 


Any notice or communication to a Holder shall be
electronically delivered, mailed by first-class mail, certified or registered,
return receipt requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the Note Register kept by the Registrar. Any
notice or communication shall also be so mailed to any Person described in
Trust Indenture Act Section 313(c), to the extent required by the Trust
Indenture Act. Failure to deliver a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.


 


If a notice or communication is delivered in the
manner provided above within the time prescribed, it is duly given, whether or
not the addressee receives it.


 


If the Issuer delivers a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.


 


SECTION 12.03.    Communication by Holders
with Other Holders. Holders may communicate pursuant to Trust Indenture Act
Section 312(b) with other Holders with respect to their rights under this
Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else
shall have the protection of Trust Indenture Act Section 312(c).


 


SECTION 12.04.    Certificate and Opinion as
to Conditions Precedent. Upon any request or application by the Issuer or
any of the Guarantors to the Trustee to take any action under this Indenture,
the Issuer, as the case may be, shall furnish to the Trustee:


 


122

















 


(A)          An
Officer’s Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed action
have been satisfied; and


 


(B)           An
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied;


 


provided, however,
that such Officer’s Certificate and Opinion of Counsel shall not be required in
connection with the authentication and delivery by the Trustee of the Initial
Notes.


 


SECTION 12.05.    Statements Required in
Certificate or Opinion. Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to Section 4.04 hereof or Trust Indenture
Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act
Section 314(e) and shall include:


 


(A)          a
statement that the Person making such certificate or opinion has read such
covenant or condition;


 


(B)           a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;


 


(C)           a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with (and, in the case of an Opinion of Counsel, may be limited to
reliance on an Officer’s Certificate as to matters of fact); and


 


(D)          a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.


 


SECTION 12.06.    Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.


 


SECTION 12.07.    No Personal Liability of
Directors, Officers, Employees and Stockholders. No director, officer,
employee, incorporator or stockholder of the Issuer or any Guarantor or any of
their parent companies (other than the Issuer and the Guarantors) shall have
any liability for any obligations of the Issuer or the Guarantors under the
Notes, the Guarantees or this Indenture or for any claim based on, in respect
of, or by reason of such obligations or their creation. Each Holder by
accepting Notes waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.


 


123

















 


SECTION 12.08.    Governing Law. THIS
INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 12.09.    Waiver of Jury Trial. EACH
OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


SECTION 12.10.    Force Majeure. In no
event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations under this Indenture arising out of or
caused by, directly or indirectly, forces beyond its reasonable control,
including without limitation strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software or hardware) services.


 


SECTION 12.11.    No Adverse Interpretation
of Other Agreements. This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Issuer or its Restricted Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.


 


SECTION 12.12.    Successors. All
agreements of the Issuer in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors. All agreements of each Guarantor in this Indenture shall bind its
successors, except as otherwise provided in Section 10.05 hereof.


 


SECTION 12.13.    Severability. In case
any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


SECTION 12.14.    Counterpart Originals. The
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement.


 


SECTION 12.15.    Table of Contents,
Headings, etc. The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.


 


SECTION 12.16.    Qualification of Indenture.
The Issuer and the Guarantors shall qualify this Indenture under the Trust
Indenture Act in accordance with the terms and conditions of the Registration
Rights Agreement and shall pay all reasonable costs and expenses (including
attorneys’ fees and expenses for the Issuer, the Guarantors and the Trustee)
incurred in connection therewith, including, but not limited to, costs and
expenses of qualification of this Indenture and the Notes and printing of this
Indenture and the Notes. The Trustee shall be entitled to receive from the
Issuer and the Guarantors any such Officer’s Certificates, Opinions


 


124

















 


of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
Trust Indenture Act.


 


[Signatures on following page]


 


125

















 


	
   

  	
  WP PRISM MERGER SUB
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Sean D. Carney

  	
   

  
	
   

  	
   

  	
  Name: Sean D. Carney

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
  Date: October 26, 2007

  



 


 


Signature Page to
Indenture


 


126

















 


The undersigned hereby
acknowledges and agrees that, upon the effectiveness of the merger of WP Prism
Merger Sub Inc. with and into Bausch & Lomb Incorporated with Bausch &
Lomb Incorporated continuing as the surviving corporation, it shall succeed by
operation of law to all of the rights and obligations of WP Prism Merger Sub
Inc. set forth herein and that all references to the “Issuer” shall thereupon
be deemed to be references to the undersigned.


 


	
   

  	
  BAUSCH & LOMB
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Efrain Rivera

  	
   

  
	
   

  	
   

  	
  Name: Efrain
  Rivera

  
	
   

  	
   

  	
  Title:   Chief
  Financial Officer

  
	
   

  	
   

  	
  Date:   October
  26, 2007

  
					



 


 


Signature Page to
Indenture


 


127

















 


	
   

  	
   

  	
  B&L CRL Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  B&L Financial
  Holdings Corp.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  B&L SPAF Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  B & L Domestic
  Holdings Corp.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bausch & Lomb China, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bausch & Lomb International Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bausch & Lomb South
  Asia, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  RHC Holdings, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sight Savers, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wilmington Management
  Corp.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  each as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Efrain Rivera

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Efrain
  Rivera

  
	
   

  	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
   

  	
  Date:   October
  26, 2007

  



 


 


Signature Page to
Indenture


 


128

















 


	
   

  	
  B&L CRL Partners
  L.P.

  
	
   

  	
   

  
	
   

  	
   

  	
  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: B&L CRL Inc.,

  
	
   

  	
   

  	
  its managing general
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Efrain Rivera

  	
   

  
	
   

  	
   

  	
  Name: Efrain
  Rivera

  
	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
  Date:   October
  26, 2007

  



 


 


Signature Page to
Indenture


 


129

















 


	
   

  	
  B&L Minority Dutch
  Holdings LLC

  
	
   

  	
   

  
	
   

  	
   

  	
  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Bausch & Lomb
  International, Inc.,

  
	
   

  	
   

  	
  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Efrain Rivera

  	
   

  
	
   

  	
   

  	
  Name: Efrain
  Rivera

  
	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
  Date:   October
  26, 2007

  



 


 


Signature Page to Indenture


 


130

















 


	
   

  	
  Wilmington Partners
  L.P.

  
	
   

  	
   

  
	
   

  	
   

  	
  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Wilmington
  Management Corp.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Efrain Rivera

  	
   

  
	
   

  	
   

  	
  Name: Efrain
  Rivera

  
	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
  Date:   October
  26, 2007

  



 


 


Signature Page to
Indenture


 


131

















 


	
   

  	
  B&L VPLEX Holdings,
  Inc.

  
	
   

  	
   

  
	
   

  	
  Bausch & Lomb
  Technology Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
  each as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Efrain Rivera

  	
   

  
	
   

  	
   

  	
  Name: Efrain
  Rivera

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  	
  Date:   October
  26, 2007

  



 


 


Signature Page to
Indenture


 


132

















 


	
   

  	
  Bausch & Lomb
  Realty Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Susan E.
  Topel-Samek

  	
   

  
	
   

  	
   

  	
  Name: Susan E.
  Topel-Samek

  
	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
  Date:   October
  26, 2007

  



 


 


Signature Page to
Indenture


 


133

















 


	
   

  	
  Iolab Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Stephen C. McCluski

  	
   

  
	
   

  	
   

  	
  Name: Stephen C.
  McCluski

  
	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
  Date:   October
  26, 2007

  



 


 


Signature Page to
Indenture


 


134

















 


	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, 

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ William Keenan

  	
   

  
	
   

  	
   

  	
  Name: William
  Keenan

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  	
  Date:   October
  26, 2007

  



 


 


Signature Page to
Indenture


 


135

















 


EXHIBIT A


 


[Face of Note]


 


[Insert the Global Note Legend, if applicable pursuant
to the provisions of the Indenture]


 


[Insert the Private Placement Legend, if applicable
pursuant to the provisions of the Indenture]


 


[Insert the Regulation S Temporary Global Note Legend,
if applicable pursuant to the provisions of the Indenture]


 


A-1

















 


CUSIP(1)
[           ]

ISIN [           ]


 


[RULE 144A][REGULATION S] [GLOBAL] NOTE

representing up to

$650,000,000

97/8% Senior Note due 2015


 


	
  No.        

  	
   

  	
  [$               ]

  



 


[WP
Prism Merger Sub Inc., a New York corporation, to be merged with and into](2)
Bausch & Lomb Incorporated, a New York corporation, promises to pay to
                
or registered assigns, the principal sum [set forth on the Schedule of
Exchanges of Interests in the Global Note attached hereto] [of                         
United States Dollars] on November 1, 2015.


 


Interest
Payment Dates: May 1 and November 1, commencing on May 1, 2008


 


Record
Dates: April 15 and October 15


 


 






(1)           144A Note
ISIN: US071707AN34


144A Note CUSIP: 071707
AN3


Regulation S Note ISIN:
USU07190AA63


Regulation S Note CUSIP:
U07190 AA6


 


(2)           Applicable
to the Initial Note only


 


A-2

















 


IN
WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.


 


Dated:



 


	
   

  	
  [WP PRISM MERGER SUB
  INC.](3)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 






(3)           Applicable to the
Initial Note only. “Bausch & Lomb Incorporated” for any other Note.


 


 


Signature Page to Senior Note


 


A-3

















 


[The
undersigned hereby acknowledges and agrees that, upon the effectiveness of the
merger of WP Prism Merger Sub Inc. with and into Bausch & Lomb Incorporated
with Bausch & Lomb Incorporated continuing as the surviving corporation, it
shall succeed by operation of law to all of the rights and obligations of WP
Prism Merger Sub Inc. set forth herein and that all references to the “Issuer”
shall thereupon be deemed to be references to the undersigned.


 


	
   

  	
  BAUSCH & LOMB
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
  Date:    ](4)

  	
   

  



 


 






(4)           Applicable to the
Initial Note only. “Bausch & Lomb Incorporated” for any other Note.


 


 


Signature Page to Senior Note


 


A-4

















 


This is one of the Notes
referred to in the within-mentioned Indenture:


 


Dated:


 


	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, 

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Signature Page to
Senior Note


 


A-5

















 


[Back of Note]


97/8%
Senior Note due 2015


 


Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.


 


1.             INTEREST.
[WP Prism Merger Sub Inc., a New York corporation, to be merged with and into](5)
Bausch & Lomb Incorporated, a New York corporation (the “Issuer”),
promises to pay interest on the principal amount of this Note at a rate per
annum of 97⁄8% from October 26, 2007 until maturity and to pay the
Additional Interest, if any, payable pursuant to the Registration Rights
Agreement referred to below. The Issuer will pay interest on this Note
semi-annually in arrears on May 1 and November 1 of each year or, if any such
day is not a Business Day, on the next succeeding Business Day (each, an “Interest
Payment Date”). The Issuer will make each interest payment to the Holder of
record of this Note on the immediately preceding April 15 and October 15 (each,
a “Record Date”). Interest on this Note will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from and
including October 26, 2007. The Issuer will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at the rate borne by
this Note; it shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (without regard
to any applicable grace periods) from time to time on demand at the rate borne
by this Note. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.


 


2.             METHOD
OF PAYMENT. The Issuer will pay interest on this Note to the Person who is the
registered Holder of this Note at the close of business on the Record Date
(whether or not a Business Day) next preceding the Interest Payment Date, even
if this Note is cancelled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect
to defaulted interest. Payment of interest may be made by check mailed to the
Holders at their addresses set forth in the Note Register of Holders, provided
that (a) all payments of principal of, premium, if any, and interest on Notes
represented by Global Notes registered in the name of or held by DTC or its
nominee will be made by wire transfer of immediately available funds to the
accounts specified by the Holder or Holders thereof and (b) all payments of
principal of, premium, if any, and interest with respect to certificated Notes
will be made by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire transfer
by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion). Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.


 






(5)           Applicable to the
Initial Note only.


 


A-6

















 


3.             PAYING
AGENT AND REGISTRAR. Initially, U.S. Bank National Association, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Issuer may
change any Paying Agent or Registrar without notice to the Holders. The Issuer
or any of its Subsidiaries may act in any such capacity.


 


4.             INDENTURE.
The Issuer issued the Notes under a Senior Notes Indenture, dated as of October
26, 2007 (the “Indenture”), among WP Prism Merger Sub Inc., to be merged
with and into Bausch & Lomb Incorporated, the Guarantors named therein and
the Trustee. This Note is one of a duly authorized issue of notes of the Issuer
designated as its 97⁄8% Senior Notes due 2015. The Issuer shall be entitled
to issue Additional Notes pursuant to Sections 2.01 and 4.09 of the Indenture. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.


 


5.             OPTIONAL
REDEMPTION.


 


(a)           Except as described
below under clauses 5(b), 5(c) and 5(d) hereof, the Notes will not be
redeemable at the Issuer’s option.


 


(b)           At any time prior to
November 1, 2011, the Issuer may redeem all or a part of the Notes at a
redemption price equal to 100.0% of the principal amount of the Notes redeemed
plus the Applicable Premium as of, and accrued and unpaid interest, if any, to
the date of redemption (the “Redemption Date”), subject to the rights of
Holders on the relevant Record Date to receive interest due on the relevant
Interest Payment Date.


 


(c)           Until November 1, 2010,
the Issuer may, at its option, on one or more occasions redeem up to 35.0% of
the aggregate principal amount of Notes at a redemption price equal to 109.875%
of the aggregate principal amount thereof, plus accrued and unpaid interest, if
any, to the Redemption Date, subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date, with the net cash proceeds received by the Issuer from one or more Equity
Offerings; provided that at least 50.0% of the sum of the aggregate
principal amount of the Notes issued under the Indenture remains outstanding
immediately after the occurrence of each such redemption; provided, further,
that each such redemption occurs within 90 days of the date of closing of each
such Equity Offering. Notice of any redemption upon any Equity Offering may be
given prior to the redemption thereof, and any such redemption or notice may,
at the Issuer’s discretion, be subject to one or more conditions precedent,
including, but not limited to, completion of the related Equity Offering.


 


(d)           On and after November
1, 2011, the Issuer may redeem the Notes, in whole or in part at the redemption
prices (expressed as percentages of principal amount of the Notes to be
redeemed) set forth below, plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
Record Date to


 


A-7

















 


receive interest due on the relevant Interest Payment
Date) if redeemed during the twelve-month period beginning on November 1 of
each of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  104.938

  	
  %

  
	
  2012

  	
   

  	
  102.469

  	
  %

  
	
  2013 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


(e)           Any redemption pursuant
to this paragraph 5 shall be made pursuant to the provisions of Sections 3.01
through 3.06 of the Indenture.


 


6.             MANDATORY
REDEMPTION. The Issuer shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.


 


7.             NOTICE
OF REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption
will be delivered electronically or mailed by first-class mail at least 30 days
but not more than 60 days before the redemption date (except that redemption
notices may be delivered electronically or mailed more than 60 days prior to a
redemption date if the notice is issued in connection with Article VIII or
Article XI of the Indenture) to each Holder whose Notes are to be redeemed at
its registered address. No Notes of $2,000 or less can be redeemed in part,
except that if all the Notes of a Holder are to be redeemed, the entire amount
of Notes held by such Holder shall be redeemed. On and after the Redemption
Date, interest ceases to accrue on this Note or portions thereof called for
redemption.


 


8.             OFFERS
TO REPURCHASE. Upon the occurrence of a Change of Control, the Issuer shall
make a Change of Control Offer in accordance with Section 4.14 of the Indenture.
In connection with certain Asset Sales, the Issuer shall make an Asset Sale
Offer as and when provided in accordance with Sections 3.09 and 4.10 of the
Indenture.


 


9.             DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and
the Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Issuer
need not exchange or register the transfer of any Notes for a period of 15 days
before the electronic delivery or mailing of a notice of redemption of Notes to
be redeemed.


 


10.           PERSONS
DEEMED OWNERS. The registered Holder may be treated as its owner for all
purposes.


 


11.           AMENDMENT,
SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be
amended or supplemented as provided in the Indenture.


 


12.           DEFAULTS
AND REMEDIES. The Events of Default relating to the Notes are defined in
Section 6.01 of the Indenture. If any Event of Default occurs and is


 


A-8

















 


continuing, the Trustee or the Holders of at least
30.0% in principal amount of the then outstanding Notes may declare the
principal of, premium, if any, interest and any other monetary obligations on
all the then outstanding Notes to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, all outstanding Notes will become due and payable
immediately without further action or notice. Holders may not enforce the
Indenture, the Notes or the Guarantees except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default (except a Default relating to the payment of principal of,
premium, if any, or interest) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or its consequences under the
Indenture except a continuing Default in payment of the principal of, premium,
if any, or interest on, any of the Notes held by a non-consenting Holder. The
Issuer is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Issuer is required within five Business
Days after becoming aware of any Default, to deliver to the Trustee a statement
specifying such Default and what action the Issuer proposes to take with
respect thereto.


 


13.           AUTHENTICATION.
This Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose until authenticated by the manual signature of
the Trustee.


 


14.           ADDITIONAL
RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In
addition to the rights provided to Holders under the Indenture, Holders of
Restricted Global Notes and Restricted Definitive Notes shall have all the
rights set forth in the Registration Rights Agreement, including the right to
receive Additional Interest (as defined in the Registration Rights Agreement).


 


15.           GOVERNING
LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THE NOTES AND THE GUARANTEES.


 


16.           CUSIP
AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer has caused CUSIP and
ISIN numbers to be printed on the Notes and the Trustee may use CUSIP and ISIN
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.


 


The Issuer will furnish to any Holder upon written
request and without charge a copy of the Indenture and/or the Registration
Rights Agreement. Requests may be made to the Issuer at the following address:


 


Bausch & Lomb Incorporated


One Bausch & Lomb Place


 


A-9

















 


Rochester, New York 14604-2701


Fax No.: 585-338-0418


Attention: General Counsel


 


A-10
















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


	
  (I) or (we) assign and
  transfer this Note to:

  	
   

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  	
   

  



 




 





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


 


	
   

  
	
   

  
	
   

  





 





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


	
  and irrevocably
  appoint 

  	
   

  	
   to
  transfer this Note on the books of 

  



the Issuer. The agent may
substitute another to act for him.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Your Signature: 

  	
   

  	
   

  
	
   

  	
  (Sign exactly as your
  name appears on

  the face of this Note)

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  
							



 






*
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).


 


A-11

















 


OPTION OF HOLDER
TO ELECT PURCHASE


 


If you want to elect to have this Note purchased by
the Issuer pursuant to Section 4.10 or 4.14 of the Indenture, check the
appropriate box below:


 


o
Section 4.10          o
Section 4.14


 


If you want to elect to have only part of this Note
purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the
Indenture, state the amount you elect to have purchased:


 


	
  $

  	
   

  	
   

  	
   

  



 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Your Signature:  

  	
   

  	
   

  
	
   

  	
  (Sign exactly as your
  name appears on

  the face of this Note)

  
	
  Tax
  Identification No.: 

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  
								



 






*
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).


 


A-12

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*


 


The initial outstanding principal amount of this
Global Note is $              .
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global or Definitive Note for an interest in this Global Note, have been made:


 




	
  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

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 






*This
schedule should be included only if the Note is issued in global form.


 


A-13

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


Bausch
& Lomb Incorporated

One Bausch & Lomb Place

Rochester, New York 14604-2701

Fax No.: 585-338-0418

Attention: General Counsel


 


U.S.
Bank National Association

100 Wall Street, 16th Floor

New York, New York  10005

Fax No.: 212-514-6841

Attention: Corporate Trust Services


 


 


	
  Re:

  	
  97/8% Senior Notes due 2015

  



 


Reference is hereby made to the Senior Notes
Indenture, dated as of October 26, 2007 (the “Indenture”), among WP
Prism Merger Sub Inc., to be merged with and into Bausch & Lomb
Incorporated, the Guarantors named therein and the Trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.


 


                                
(the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $                          
in such Note[s] or interests (the “Transfer”), to (the “Transferee”),
as further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.             o
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT
144A GLOBAL NOTE OR RELEVANT DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the “Securities Act”),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note
for its own account, or for one or more accounts with respect to which such
Person exercises sole investment discretion, and such Person and each such
account is a “qualified institutional buyer” within the meaning of Rule 144A in
a transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States.


 


2.             o
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT
REGULATION S GLOBAL NOTE OR RELEVANT DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being


 


B-1

















 


effected pursuant to and in accordance with Rule 903
or Rule 904 and, accordingly, the Transferor hereby further certifies that (i)
the Transfer is not being made to a person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States
or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, (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 Indenture and the Securities Act.


 


3.             o
CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE RELEVANT DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT
OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws
of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):


 


(a)           o
such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act; or


 


(b)           o
such Transfer is being effected to the Issuer or a subsidiary thereof; or


 


(c)           o
such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act.


 


4.             o
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.


 


(a)           o
CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on


 


B-2

















 


transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(b)           o
CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note 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.


 


(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 Issuer.


 


	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


B-3

















 


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: 071707 AN3),  or


 


(ii)           o
Regulation S Global Note (CUSIP: U07190 AA6), 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: 071707 AN3), or


 


(ii)           o
Regulation S Global Note (CUSIP: U07190 AA6)or


 


(iii)          o Unrestricted
Global Note ([           ]
[           ]); or


 


(b)           o
a Restricted Definitive Note; or


 


(c)           o
an Unrestricted Definitive Note, in accordance with the terms of the Indenture.


 


B-4

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Bausch
& Lomb Incorporated

One Bausch & Lomb Place

Rochester, New York 14604-2701

Fax No.: 585-338-0418

Attention: General Counsel


 


U.S.
Bank National Association

100 Wall Street, 16th Floor

New York, New York  10005

Fax No.: 212-514-6841

Attention: Corporate Trust Services


 


	
  Re:

  	
  97/8% Senior Notes due 2015

  



 


Reference is hereby made to the Senior Notes
Indenture, dated as of October 26, 2007 (the “Indenture”), among WP
Prism Merger Sub Inc., to be merged with and into Bausch & Lomb
Incorporated, the Guarantors named therein and the Trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.


 


                                  
(the “Owner”) owns and proposes to exchange the Note[s] or interest in
such Note[s] specified herein, in the principal amount of $                    in
such Note[s] or interests (the “Exchange”). In connection with the
Exchange, the Owner hereby certifies that:


 


1)             EXCHANGE
OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL
NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL NOTE


 


a)             o
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an


 


C-1

















 


Unrestricted
Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


b)            o
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


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


 


C-2

















 


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.


 


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] [ ]
144A Global Note [ ] Regulation S Global Note, with an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired for
the Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued 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.


 


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


 


	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


C-3

















 


EXHIBIT D


 


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]


 


Supplemental Indenture (this “Supplemental
Indenture”), dated as of                       ,
among                            
(the “Guaranteeing Subsidiary”), a subsidiary of Bausch & Lomb
Incorporated, a New York corporation (the “Issuer”), and U.S. Bank
National Association, as trustee (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS, each of Bausch & Lomb Incorporated and
the Guarantors (as defined in the Indenture referred to below) has heretofore
executed and delivered to the Trustee a Senior Notes Indenture (the “Indenture”),
dated as of October 26, 2007, providing for the issuance of an unlimited
aggregate principal amount of 97⁄8% Senior Notes due 2015;


 


WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee
a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall
unconditionally guarantee all of the Issuer’s Obligations under the Notes and
the Indenture on the terms and conditions set forth herein and under the
Indenture (the “Guarantee”); and


 


WHEREAS, pursuant to Section 9.01 of the Indenture,
the Trustee is authorized to execute and deliver this Supplemental Indenture.


 


NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties mutually covenant and agree for the equal and ratable
benefit of the Holders as follows:


 


(1)           Capitalized
Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.


 


(2)           Agreement
to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:


 


(a)           Along with all other
Guarantors named in the Indenture (including pursuant to any supplemental
indentures), to jointly and severally unconditionally guarantee to each Holder
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Issuer hereunder or thereunder,
that:


 


(i)            the
principal of, premium, if any, and interest on the Notes shall be promptly paid
in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Issuer to the Holders or
the Trustee thereunder shall be promptly paid in full, all in accordance with
the terms thereof; and


 


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(ii)           in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same shall be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed for whatever reason, the Guarantors and the Guaranteeing
Subsidiary shall be jointly and severally obligated to pay the same immediately.
This is a guarantee of payment and not a guarantee of collection.


 


(b)           The obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer
or any other Guarantor, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.


 


(c)           The Guaranteeing
Subsidiary hereby waives: diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest, notice and all
demands whatsoever.


 


(d)           This Guarantee shall
not be discharged except by full payment of the obligations contained in the
Notes, the Indenture and this Supplemental Indenture. The Guaranteeing
Subsidiary accepts all obligations applicable to a Guarantor under the
Indenture, including Article X of the Indenture (which is deemed incorporated
in this Supplemental Indenture and applicable to this Guarantee). The
Guaranteeing Subsidiary acknowledges that by executing this Supplemental
Indenture, it will become a Guarantor under the Indenture and subject to all
the terms and conditions applicable to Guarantors contained therein.


 


(e)           If any Holder or the
Trustee is required by any court or otherwise to return to the Issuer, the
Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or
the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.


 


(f)            The Guaranteeing
Subsidiary shall not be entitled to any right of subrogation in relation to the
Holders in respect of any obligations guaranteed hereby until payment in full
of all obligations guaranteed hereby.


 


(g)           As between the
Guaranteeing Subsidiary, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI of the Indenture for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby and (y) in
the event of any declaration of acceleration of such obligations


 


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as
provided in Article VI of the Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Guaranteeing
Subsidiary for the purpose of this Guarantee.


 


(h)           The Guaranteeing
Subsidiary shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under this Guarantee.


 


(i)            Pursuant to Section
10.02 of the Indenture, after giving effect to all other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under Article X
of the Indenture, this new Guarantee shall be limited to the maximum amount
permissible such that the obligations of such Guarantor under this Guarantee
will not constitute a fraudulent transfer or conveyance.


 


(j)            This Guarantee shall
remain in full force and effect and continue to be effective should any
petition be filed by or against the Issuer for liquidation, reorganization,
should the Issuer become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of the Issuer’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Notes are, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or returned by any obligee on the Notes and Guarantee, whether as a “voidable
preference,” “fraudulent transfer” or otherwise, all as though such payment or
performance had not been made. In the event that any payment or any part
thereof, is rescinded, reduced, restored or returned, the Note shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.


 


(k)           In case any provision
of this Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


(l)            This Guarantee shall
be a general unsecured senior obligation of such Guaranteeing Subsidiary,
ranking equally in right of payment with all existing and future Senior
Indebtedness of the Guaranteeing Subsidiary, if any.


 


(m)          Each payment to be made
by the Guaranteeing Subsidiary in respect of this Guarantee shall be made
without set-off, counterclaim, reduction or diminution of any kind or nature.


 


(3)           Execution
and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee shall
remain in full force and effect notwithstanding the absence of the endorsement
of any notation of such Guarantee on the Notes.


 


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(4)           Merger,
Consolidation or Sale of All or Substantially All Assets.


 


(a)           Except
as otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate or merge with or into or wind up into (whether
or not a Guaranteeing Subsidiary is the surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to any Person
unless:


 


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


 


(B)           the Successor Person,
if other than such Guaranteeing Subsidiary, expressly assumes all the
obligations of the Guaranteeing Subsidiary under the Indenture and the
Guaranteeing Subsidiary’s related Guarantee pursuant to supplemental indentures
or other documents or instruments in form reasonably satisfactory to the
Trustee;


 


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


 


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


 


(ii)           the transaction is made
in compliance with Section 4.10 of the Indenture;


 


(b)           Subject
to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, such Guaranteeing Subsidiary under the
Indenture and the Guaranteeing Subsidiary’s Guarantee. Notwithstanding the
foregoing, such Guaranteeing Subsidiary may merge into or transfer all or part
of its properties and assets to another Guarantor or the Issuer.


 


(5)           Releases.
The Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the
Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release
of the Guaranteeing Subsidiary’s Guarantee, upon:


 


(1)           (A)          any sale, exchange or
transfer (by merger or otherwise) of the Capital Stock of the Guaranteeing
Subsidiary, after which the Guaranteeing Subsidiary is no longer a Restricted Subsidiary
or all or substantially all the assets of the Guaranteeing Subsidiary, in each
case if such sale, exchange or transfer is made in compliance with the
applicable provisions of the Indenture and the Guaranteeing Subsidiary is
released from


 


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the guarantee, if any, of, and all pledges and
security, if any, granted in connection with, the Senior Credit Facilities;


 


(B)           the
release or discharge of the guarantee by the Guaranteeing Subsidiary of the Senior
Credit Facilities or the release or discharge of the guarantee which resulted
in the creation of the Guarantee, except a discharge or release by or as a
result of payment under such guarantee;


 


(C)           the
proper designation of the Guaranteeing Subsidiary as an Unrestricted
Subsidiary; or


 


(D)          the
Issuer exercising its Legal Defeasance option or Covenant Defeasance option in
accordance with Article VIII of the Indenture or the Issuer’s obligations under
the Indenture being discharged in accordance with the terms of the Indenture;
and


 


(2)           the
Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
in the Indenture relating to such transaction have been complied with.


 


(6)           No
Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Guaranteeing Subsidiary shall have any liability for any
obligations of the Issuer or the Guarantors (including the Guaranteeing
Subsidiary) under the Notes, any Guarantees, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting Notes waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.


 


(7)           Governing
Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


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


 


(9)           Effect
of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.


 


(10)         The
Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or
for or in respect of the recitals contained herein, all of which recitals are
made solely by the Guaranteeing Subsidiary.


 


(11)         Subrogation.
The Guaranteeing Subsidiary shall be subrogated to all rights of Holders
against the Issuer in respect of any amounts paid by the Guaranteeing
Subsidiary pursuant to the provisions of Section 2 hereof and Section 10.01 of
the Indenture; provided that, if an Event of Default has occurred and is
continuing, the Guaranteeing Subsidiary shall not be entitled to enforce or
receive any payments arising out of, or based upon, such right


 


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of subrogation until all amounts then due and payable by the Issuer
under the Indenture or the Notes shall have been paid in full.


 


(12)         Benefits
Acknowledged.  The Guaranteeing
Subsidiary’s Guarantee is subject to the terms and conditions set forth in the
Indenture.  The Guaranteeing Subsidiary
acknowledges that it 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 this Guarantee are
knowingly made in contemplation of such benefits.


 


(13)         Successors.  All agreements of the Guaranteeing Subsidiary
in this Supplemental Indenture shall bind its Successors, except as otherwise
provided in this Supplemental Indenture. 
All agreements of the Trustee in this Supplemental Indenture shall bind
its successors.


 


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


 


	
   

  	
  [GUARANTEEING SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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