Exhibit 4.1


 


EXECUTION VERSION


 




 





 


HANGER ORTHOPEDIC GROUP, INC.


 


AND EACH OF THE SUBSIDIARY GUARANTORS PARTY HERETO


 


71/8% SENIOR NOTES DUE 2018


 


 






 


INDENTURE


 


Dated as of November 2, 2010


 






 


 


WILMINGTON TRUST COMPANY,

as Trustee


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1. DEFINITIONS AND
  INCORPORATION BY REFERENCE

  	
   

  	
  2

  
	
  Section 1.01.

  	
  Definitions

  	
   

  	
  2

  
	
  Section 1.02.

  	
  Other Definitions

  	
   

  	
  27

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  28

  
	
  Section 1.04.

  	
  Rules of Construction

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2. THE NOTES

  	
   

  	
  29

  
	
  Section 2.01.

  	
  Form and Dating

  	
   

  	
  29

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
   

  	
  30

  
	
  Section 2.03.

  	
  Registrar and Paying Agent

  	
   

  	
  30

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
   

  	
  31

  
	
  Section 2.05.

  	
  Holder Lists

  	
   

  	
  31

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
   

  	
  31

  
	
  Section 2.07.

  	
  Replacement Notes

  	
   

  	
  43

  
	
  Section 2.08.

  	
  Outstanding Notes

  	
   

  	
  43

  
	
  Section 2.09.

  	
  Treasury Notes

  	
   

  	
  43

  
	
  Section 2.10.

  	
  Temporary Notes

  	
   

  	
  44

  
	
  Section 2.11.

  	
  Cancellation

  	
   

  	
  44

  
	
  Section 2.12.

  	
  Defaulted Interest

  	
   

  	
  44

  
	
  Section 2.13.

  	
  CUSIP or ISIN Numbers

  	
   

  	
  45

  
	
  Section 2.14.

  	
  Additional Interest

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3. REDEMPTION AND
  PREPAYMENT

  	
   

  	
  45

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
   

  	
  45

  
	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed

  	
   

  	
  45

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
   

  	
  46

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
   

  	
  46

  
	
  Section 3.05.

  	
  Deposit of Redemption Price

  	
   

  	
  47

  
	
  Section 3.06.

  	
  Notes Redeemed in Part

  	
   

  	
  47

  
	
  Section 3.07.

  	
  Optional Redemption

  	
   

  	
  47

  
	
  Section 3.08.

  	
  Mandatory Redemption

  	
   

  	
  48

  
	
  Section 3.09.

  	
  Offer To Purchase by Application of Excess Proceeds

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4. COVENANTS

  	
   

  	
  50

  
	
  Section 4.01.

  	
  Payment of Notes

  	
   

  	
  50

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
   

  	
  50

  
	
  Section 4.03.

  	
  Reports

  	
   

  	
  50

  
	
  Section 4.04.

  	
  Compliance Certificate

  	
   

  	
  51

  
	
  Section 4.05.

  	
  Taxes

  	
   

  	
  52

  
	
  Section 4.06.

  	
  Stay, Extension and Usury Laws

  	
   

  	
  52

  
	
  Section 4.07.

  	
  Corporate Existence

  	
   

  	
  52

  
	
  Section 4.08.

  	
  Payments for Consent

  	
   

  	
  52

  
	
  Section 4.09.

  	
  Incurrence of Indebtedness

  	
   

  	
  53

  
	
  Section 4.10.

  	
  Restricted Payments

  	
   

  	
  56

  
	
  Section 4.11.

  	
  Liens

  	
   

  	
  59

  
	
  Section 4.12.

  	
  Asset Sales

  	
   

  	
  59

  
	
  Section 4.13.

  	
  Dividend and Other Payment Restrictions Affecting
  Restricted Subsidiaries

  	
   

  	
  61

  



 

















 


TABLE OF CONTENTS


 


	
  Section 4.14.

  	
  Transactions with Affiliates

  	
   

  	
  63

  
	
  Section 4.15.

  	
  Sale and Leaseback Transactions

  	
   

  	
  65

  
	
  Section 4.16.

  	
  [Reserved]

  	
   

  	
  65

  
	
  Section 4.17.

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
   

  	
  65

  
	
  Section 4.18.

  	
  Repurchase at the Option of Holders Upon a Change of
  Control

  	
   

  	
  65

  
	
  Section 4.19.

  	
  Additional Subsidiary Guarantees

  	
   

  	
  67

  
	
  Section 4.20.

  	
  Changes in Covenants When Notes Rated Investment Grade

  	
   

  	
  67

  
	
  Section 4.21.

  	
  Business Activities

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5. SUCCESSORS

  	
   

  	
  68

  
	
  Section 5.01.

  	
  Merger, Consolidation or Sale of Assets

  	
   

  	
  68

  
	
  Section 5.02.

  	
  Successor Company Substituted

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6. DEFAULTS AND
  REMEDIES

  	
   

  	
  69

  
	
  Section 6.01.

  	
  Events of Default

  	
   

  	
  69

  
	
  Section 6.02.

  	
  Acceleration

  	
   

  	
  71

  
	
  Section 6.03.

  	
  Other Remedies

  	
   

  	
  72

  
	
  Section 6.04.

  	
  Waiver of Past Defaults

  	
   

  	
  72

  
	
  Section 6.05.

  	
  Control by Majority

  	
   

  	
  72

  
	
  Section 6.06.

  	
  Limitation on Suits

  	
   

  	
  73

  
	
  Section 6.07.

  	
  Rights of Holders to Receive Payment

  	
   

  	
  73

  
	
  Section 6.08.

  	
  Collection Suit by Trustee

  	
   

  	
  73

  
	
  Section 6.09.

  	
  Trustee May File Proofs of Claim

  	
   

  	
  73

  
	
  Section 6.10.

  	
  Priorities

  	
   

  	
  74

  
	
  Section 6.11.

  	
  Undertaking for Costs

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7. TRUSTEE

  	
   

  	
  75

  
	
  Section 7.01.

  	
  Duties of Trustee

  	
   

  	
  75

  
	
  Section 7.02.

  	
  Rights of Trustee

  	
   

  	
  76

  
	
  Section 7.03.

  	
  Individual Rights of Trustee

  	
   

  	
  77

  
	
  Section 7.04.

  	
  Trustee’s Disclaimer

  	
   

  	
  77

  
	
  Section 7.05.

  	
  Notice of Defaults

  	
   

  	
  77

  
	
  Section 7.06.

  	
  Reports by Trustee to Holders

  	
   

  	
  77

  
	
  Section 7.07.

  	
  Compensation and Indemnity

  	
   

  	
  77

  
	
  Section 7.08.

  	
  Replacement of Trustee

  	
   

  	
  78

  
	
  Section 7.09.

  	
  Successor Trustee by Merger, etc.

  	
   

  	
  79

  
	
  Section 7.10.

  	
  Eligibility; Disqualification

  	
   

  	
  79

  
	
  Section 7.11.

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8. LEGAL DEFEASANCE
  AND COVENANT DEFEASANCE

  	
   

  	
  80

  
	
  Section 8.01.

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  80

  
	
  Section 8.02.

  	
  Legal Defeasance and Discharge

  	
   

  	
  80

  
	
  Section 8.03.

  	
  Covenant Defeasance

  	
   

  	
  80

  
	
  Section 8.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  81

  
	
  Section 8.05.

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

  	
   

  	
  82

  
	
  Section 8.06.

  	
  Repayment to Company

  	
   

  	
  82

  
	
  Section 8.07.

  	
  Reinstatement

  	
   

  	
  82

  



 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 9. AMENDMENT,
  SUPPLEMENT AND WAIVER

  	
   

  	
  83

  
	
  Section 9.01.

  	
  Without Consent of Holders of Notes

  	
   

  	
  83

  
	
  Section 9.02.

  	
  With Consent of Holders of Notes

  	
   

  	
  84

  
	
  Section 9.03.

  	
  Compliance with Trust Indenture Act

  	
   

  	
  85

  
	
  Section 9.04.

  	
  Revocation and Effect of Consents

  	
   

  	
  85

  
	
  Section 9.05.

  	
  Notation on or Exchange of Notes

  	
   

  	
  86

  
	
  Section 9.06.

  	
  Trustee to Sign Amendments, etc.

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10. SUBSIDIARY
  GUARANTEES

  	
   

  	
  86

  
	
  Section 10.01.

  	
  Guarantee

  	
   

  	
  86

  
	
  Section 10.02.

  	
  Limitation on Subsidiary Guarantor Liability

  	
   

  	
  88

  
	
  Section 10.03.

  	
  Execution and Delivery of Subsidiary Guarantee

  	
   

  	
  88

  
	
  Section 10.04.

  	
  Subsidiary Guarantors May Consolidate, etc., on
  Certain Terms

  	
   

  	
  88

  
	
  Section 10.05.

  	
  Releases

  	
   

  	
  89

  
	
  Section 10.06.

  	
  Additional Subsidiary Guarantors

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11. SATISFACTION AND
  DISCHARGE

  	
   

  	
  90

  
	
  Section 11.01.

  	
  Satisfaction and Discharge

  	
   

  	
  90

  
	
  Section 11.02.

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

  	
   

  	
  91

  
	
  Section 11.03.

  	
  Repayment to Company

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12. MISCELLANEOUS

  	
   

  	
  91

  
	
  Section 12.01.

  	
  Trust Indenture Act Controls

  	
   

  	
  91

  
	
  Section 12.02.

  	
  Notices

  	
   

  	
  91

  
	
  Section 12.03.

  	
  Communication by Holders of Notes with Other Holders of
  Notes

  	
   

  	
  93

  
	
  Section 12.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  93

  
	
  Section 12.05.

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  93

  
	
  Section 12.06.

  	
  Rules by Trustee and Agents

  	
   

  	
  93

  
	
  Section 12.07.

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
   

  	
  94

  
	
  Section 12.08.

  	
  Governing Law

  	
   

  	
  94

  
	
  Section 12.09.

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  94

  
	
  Section 12.10.

  	
  Successors

  	
   

  	
  94

  
	
  Section 12.11.

  	
  Severability

  	
   

  	
  94

  
	
  Section 12.12.

  	
  Counterpart Originals

  	
   

  	
  94

  
	
  Section 12.13.

  	
  Table of Contents, Headings, etc.

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF
  NOTE

  	
   

  	
  A-1

  
	
  Exhibit B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  	
   

  	
  B-1

  
	
  Exhibit C

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  	
   

  	
  C-1

  
	
  Exhibit D

  	
  FORM OF
  NOTATION GUARANTEE

  	
   

  	
  D-1

  



 

















 


CROSS REFERENCE SHEET


 


Between


 


Provisions
of Sections 310 through 318(c) inclusive of Trust Indenture Act of 1939
and the Indenture dated as of November 2, 2010 between Hanger Orthopedic
Group, Inc., each of the Subsidiary Guarantors party thereto, and
Wilmington Trust Company, as Trustee.


 


	
  Section of Act

  	
   

  	
  Section of Indenture

  
	
   

  	
   

  	
   

  
	
  310(a)(1),
  (2) and (5)

  	
   

  	
  7.10

  
	
  310(a)(3) and
  (4)

  	
   

  	
  *

  
	
  310(b)

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  *

  
	
  311(a)

  	
   

  	
  7.11

  
	
  311(b)

  	
   

  	
  7.11

  
	
  311(c)

  	
   

  	
  *

  
	
  312(a)

  	
   

  	
  2.05

  
	
  312(b)

  	
   

  	
  12.03

  
	
  312(c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  313(b)(1)

  	
   

  	
  *

  
	
  313(b)(2)

  	
   

  	
  7.06 and 7.07

  
	
  313(c)

  	
   

  	
  7.06 and 12.02

  
	
  313(d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.04 and 12.05

  
	
  314(b)

  	
   

  	
  *

  
	
  314(c)(1)

  	
   

  	
  12.04

  
	
  314(c)(2)

  	
   

  	
  12.04

  
	
  314(c)(3)

  	
   

  	
  *

  
	
  314(d)

  	
   

  	
  *

  
	
  314(e)

  	
   

  	
  12.05

  
	
  314(f)

  	
   

  	
  *

  
	
  315(a), (c) and (d)

  	
   

  	
  7.01

  
	
  315(b)

  	
   

  	
  7.05

  
	
  315(e)

  	
   

  	
  6.11

  
	
  316(a)(1)(A)

  	
   

  	
  6.05

  
	
  316(a)(1)(B)

  	
   

  	
  6.04

  
	
  316(a)(2)

  	
   

  	
  *

  
	
  316(a) last para

  	
   

  	
  2.09

  
	
  316(b)

  	
   

  	
  6.07

  
	
  316(c)

  	
   

  	
  6.10

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  317(a)(2)

  	
   

  	
  6.09

  
	
  317(b)

  	
   

  	
  2.03

  
	
  318(a) and
  (c)

  	
   

  	
  12.01

  
	
  318(b)

  	
   

  	
  *

  



 






*                                         Not applicable.


 


**                                  This cross reference sheet
shall not, for any purpose, be deemed to be part of the Indenture.


 

















 


This
INDENTURE dated as of November 2, 2010, is by and among Hanger Orthopedic
Group, Inc., a Delaware corporation (the “Company”),
the Subsidiary Guarantors listed on the signature pages hereto, and
Wilmington Trust Company, as trustee (the “Trustee”).


 


The
Company, the Subsidiary Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 71/8% Senior Notes due 2018 (the
“Notes”):


 


ARTICLE 1.


 


DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section 1.01.                              Definitions.


 


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


 


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


 


“Acquired Debt” 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 Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of, such specified
Person; and


 


(2)                                 Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person, to
the extent such Indebtedness is secured by such Lien.


 


“Additional Interest” has the meaning set forth in the
Registration Rights Agreement.


 


“Additional Notes” means any Notes (other than Initial Notes
and Exchange Notes) issued under this Indenture in accordance with Sections
2.02 and 4.09 hereof, as part of the same series as the Initial Notes.


 


“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,” as used with respect to any
Person, means 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; provided that for purposes of Section 4.14 hereof,
beneficial ownership of 10% or more of the Voting Stock of a Person will be
deemed to be control.  For purposes of
this definition, the terms “controlling,” “controlled by” and “under common control with”
have correlative meanings.


 


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


 


“Applicable Premium” means with respect to
any Note redeemed pursuant to Section 3.07(c) on the applicable
redemption date, the greater of:


 


2

















 


(1)                                 1.0% of the then outstanding
principal amount of the note; and


 


(2)                                 the excess of:


 


(a)                                 the present
value at such redemption date of (i) the redemption price of the notes at
November 15, 2014 (such redemption price being set forth in the table
appearing under Section 3.07 hereof) plus (ii) all required interest
payments due on the notes through November 15, 2014 (excluding accrued but
unpaid interest to the redemption date), computed using a discount rate equal
to the Treasury Rate as of such redemption date plus 50 basis points; over


 


(b)                                 the then
outstanding principal amount of the note.


 


“Applicable Procedures” means, with respect to any transfer,
redemption 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, redemption or exchange.


 


“Ares” means Ares Management LLC or any of its Affiliates,
any investment fund solely managed by any of them, or any Affiliate of any such
investment fund.


 


“Asset Acquisition” means (1) an Investment by the
Company or any Restricted Subsidiary in any other Person pursuant to which such
Person shall become a Restricted Subsidiary, or shall be merged with or into
the Company or any Restricted Subsidiary; or (2) the acquisition by the
Company or any Restricted Subsidiary of the assets of any Person which constitute
all or substantially all of the assets of such Person, any division or line of
business of such Person or any other properties or assets of such Person other
than in the ordinary course of business and consistent with past practices.


 


“Asset Sale” means (1) the sale, transfer, conveyance or
other disposition of any assets, excluding the issuance or sale of the Company’s
Equity Interests (each referred to in this definition as a “disposition”); and (2) the
issuance or sale of Equity Interests of any Restricted Subsidiary or sale of
Equity Interests in any of its Restricted Subsidiaries; provided
that the disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole will be governed by Section 4.18
and/or Section 5.01 and not by Section 4.12.


 


Notwithstanding
the preceding, the following items will not be deemed to be Asset Sales:


 


(1)                                 any single
disposition or series of related dispositions that involves assets or rights
having a Fair Market Value of less than $2.5 million;


 


(2)                                 dispositions of
cash or Cash Equivalents;


 


(3)                                 the sale and
leaseback of any assets within 90 days of the acquisition thereof;


 


(4)                                 a disposition
between or among the Company and its Restricted Subsidiaries or between or
among the Company’s Restricted Subsidiaries;


 


(5)                                 the disposition
of equipment, inventory, accounts receivable or other assets or rights in the
ordinary course of business;


 


(6)                                 a Restricted
Payment that is permitted by Section 4.10 or an Investment that is not
prohibited by this Indenture;


 


3

















 


(7)                                 the disposition of assets
that, in the Company’s good faith judgment, are no longer used or useful in the
business of the applicable entity;


 


(8)                                 any trade-in of equipment in
exchange for other equipment; provided
that in the Company’s good faith judgment, the Company or such Restricted
Subsidiary receives equipment having a Fair Market Value equal to or greater
than the equipment being traded in;


 


(9)                                 the concurrent purchase and
sale or exchange of Related Business Assets or a combination of Related
Business Assets between the Company or any of the Company’s Restricted
Subsidiaries and another Person to the extent that the Related Business Assets
received by the Company or the Company’s Restricted Subsidiaries are of
equivalent or better Fair Market Value than the Related Business Assets
transferred;


 


(10)                          the creation of a Lien (but
not the sale or other disposition of the property subject to such Lien);


 


(11)                          leases or subleases in the
ordinary course of business to third persons not interfering in any material
respect with the business of the Company or any of the Company’s Restricted
Subsidiaries and otherwise in accordance with the provisions of this Indenture;


 


(12)                          dispositions of accounts
receivable in connection with the collection or compromise thereof in the
ordinary course of business and consistent with past practice;


 


(13)                          licensing or sublicensing of
intellectual property or other general intangibles in accordance with industry
practice in the ordinary course of business;


 


(14)                          any transfer of accounts
receivable or other financial assets, or a fractional undivided interest
therein, by a Receivable Subsidiary in a Qualified Receivables Transaction;


 


(15)                          any sales of accounts
receivable or other financial assets, directly or indirectly, to a Receivable
Subsidiary pursuant to a Qualified Receivables Transaction for the Fair Market
Value thereof (including the issuance of equity by and/or an increase in the
value of the equity of such Receivable Subsidiary); provided that
for the purposes of this clause (15), Purchase Money Notes will be deemed
to be cash; or


 


(16)                          foreclosures on assets to
the extent it would not otherwise result in a Default or Event of Default.


 


For purposes of this definition, any series of related transactions
that, if effected as a single transaction, would constitute an Asset Sale,
shall be deemed to be a single Asset Sale effected when the last such
transaction which is a part thereof is effected.


 


“Attributable Debt” in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be
extended.  Such present value shall be
calculated using a discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP.


 


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


 


4

















 


“Board of Directors” means:


 


(1)                                 with respect to
a corporation, the board of directors of the corporation or any duly authorized
committee thereof;


 


(2)                                 with respect to
a partnership, the board of directors of the general partner of the
partnership; and


 


(3)                                 with respect to
any other Person, the board or committee of such Person or, as applicable,
another Person serving a similar function.


 


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


 


“Business Day” means any day other than a Legal Holiday.


 


“Capital Lease Obligation” means, at the time any
determination is to be made, the amount of the liability in respect of a
capital lease that would be required to be capitalized on a balance sheet in
accordance with GAAP as in effect as of the Issue Date.


 


“Capital Stock” means:


 


(1)                                 in the case of
a corporation, any and all equity shares, including common stock and preferred
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.


 


“Cash Equivalents” means:


 


(1)                                 United States dollars;


 


(2)                                  securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that the full faith and credit of
the United States is pledged in support of those securities) having maturities
of not more than one year from the date of acquisition;


 


(3)                                  time deposits
in and certificates of deposit of any Eligible Bank, provided that such time deposits and certificates of deposit
have a maturity date not more than two years after the date of acquisition and
that the weighted average maturity of all such time deposits and certificates
of deposit is one year or less from the respective dates of acquisition;


 


5

















 


(4)                                  repurchase
obligations with a term of not more than 180 days for underlying
securities of the types described in clauses (2) and (3) above
entered into with any Eligible Bank;


 


(5)                                  direct
obligations issued by any state of the United States or any political
subdivision or public instrumentality thereof, provided
that such obligations mature, or are subject to tender at the option of the
holder thereof, within 365 days after the date of acquisition;


 


(6)                                  commercial
paper of any Person other than an Affiliate of the Company and other than
structured investment vehicles, provided
that such commercial paper has one of the two highest ratings obtainable from
either S&P or Moody’s and matures within 180 days after the date of
acquisition;


 


(7)                                  (a) overnight
and demand deposits in and bankers’ acceptances of any Eligible Bank and
(b) overnight and demand deposits in any other bank or trust company to
the extent insured by the Federal Deposit Insurance Corporation against the
Bank Insurance Fund; and


 


(8)                                  money market
funds substantially all of the assets of which constitute Cash Equivalents of
the kinds described in clauses (1) through (7) of this definition.


 


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


 


(1)                                 any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company to any
Person or group of related Persons for purposes of Section 13(d) of
the Exchange Act (a “Group”),
together with any Affiliates thereof (whether or not otherwise in compliance
with the provisions of this Indenture), other than to a Permitted Holder or a
Subsidiary Guarantor;


 


(2)                                 the approval by
the holders of Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Indenture);


 


(3)                                 the Company
becomes aware that any Person or Group other than the Permitted Holder is or
has become the owner, directly or indirectly, beneficially or of record, of
shares representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company;


 


(4)                                 the replacement
of a majority of the Board of Directors of the Company over a two-year period
from the directors who constituted the Board of Directors of the Company at the
beginning of such period, and such replacement shall not have been approved by
a vote of at least a majority of the Board of Directors then still in office
who either were members of such Board of Directors at the beginning of such
period or whose election as a member of such Board of Directors was previously
so approved; or


 


(5)                                 the Company
consolidates with, or merges with or into, any Person other than a Permitted
Holder or a Subsidiary Guarantor, or any Person, other than a Permitted Holder
or a Subsidiary Guarantor, consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which any of the
Company’s outstanding Voting Stock or the outstanding Voting Stock of such
other Person is converted into or exchanged for cash, securities or other
property, other than any such transaction where the Company’s Voting Stock
outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately after giving
effect to such issuance).


 


6






 












 


“Clearstream” means Clearstream Banking S.A. and any
successor thereto.


 


“Consolidated Cash Flow” means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period plus:


 


(1)                                 an amount equal
to any extraordinary loss plus any net loss realized by such Person or any of
its Subsidiaries in connection with an Asset Sale, to the extent such losses
were deducted in computing such Consolidated Net Income; plus


 


(2)                                 provision for
taxes based on or measured by income or profits of such Person and its
Restricted Subsidiaries for such period to the extent the same was deducted in
computing such Consolidated Net Income; plus


 


(3)                                 consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations), to the extent that
any such expense was deducted in computing such Consolidated Net Income; plus


 


(4)                                 depreciation,
amortization (including amortization of goodwill, other intangibles, deferred
financing fees, debt issuance costs, commissions, fees and expenses) and other
non-cash expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period) of such
Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; plus


 


(5)                                 any expenses or
charges related to any public or private sale of Capital Stock of the Company
or any Permitted Investment, acquisition, recapitalization or Indebtedness
permitted to be incurred under this Indenture (in each case whether or not
consummated) or to the transactions contemplated by the Company’s offering
memorandum dated as of October 20, 2010 relating to the Notes, and, in
each case, deducted in such period in computing Consolidated Net Income; plus


 


(6)                                 the amount of
any non-recurring restructuring charges or reserves deducted in such period in
computing Consolidated Net Income, including any one-time, non-recurring costs
incurred in connection with the closure and/or consolidation of facilities, and
any net loss from discontinued operations; plus


 


(7)                                 any other
non-cash charges, including any write off 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 Consolidated Cash Flow to such extent, and
excluding amortization of a prepaid cash item that was paid in a prior period
and the reversal of any accrual of, or cash reserve for, anticipated charges in
any period where such accrual or reserve is no longer required); plus


 


(8)                                 any costs or
expenses incurred by the Company or a Restricted Subsidiary pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement, any stock subscription or shareholder agreement, to
the extent that such costs or 


 


7

















 


expenses
are funded with cash proceeds contributed to the capital of the Company or net
cash proceeds of an issuance of Capital Stock of the Company (other than
Disqualified Stock); minus


 


(9)                                 any non-cash
items increasing such Consolidated Net Income for such period, other than the
accrual of revenue in the ordinary course of business,


 


in
each case, on a consolidated basis and determined in accordance with GAAP.


 


“Consolidated Net Income” means, with respect to any
specified Person for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP; provided that:


 


(1)                                 the Net Income
(but not loss) of any Person that is not a Subsidiary, or that is an
Unrestricted Subsidiary, or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Restricted Subsidiary
of the Person;


 


(2)                                 solely for the
purposes of determining the amount available pursuant to clause (c) of the
second paragraph of Section 4.10, the Net Income of any Restricted
Subsidiary (other than a Subsidiary Guarantor) will be excluded to the extent
that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders; provided that, for the avoidance of doubt, Consolidated Net
Income shall be increased in amounts equal to the amounts of cash actually
received;


 


(3)                                 the cumulative
effect of a change in accounting principles will be excluded;


 


(4)                                  any fees,
expenses and debt issuance costs paid in connection with the issuance of the
Notes will be excluded;


 


(5)                                  any non-cash
impairment charges or asset write-off or write-down resulting from the
application of Financial Accounting Standards Board Accounting Standards
Codification (“ASC”) Topic 350 “Intangibles—Goodwill and Other” or ASC
Topic 360 “Property, Plant and Equipment,” and the amortization of intangibles
arising pursuant to ASC Topic 805 “Business Combinations” or any related subsequent
Statement of Financial Accounting Standards will be excluded;


 


(6)                                  the Net Income
from any disposed or discontinued operations or any net gains or losses on
disposed or discontinued operations, on an after-tax basis, will be excluded;


 


(7)                                  non-cash compensation
expense incurred with any issuance of Equity Interests to an employee of such
Person or any Restricted Subsidiary will be excluded;


 


(8)                                  non-cash gains,
losses, income and expenses resulting from fair value accounting required by
ASC Topic 815 “Derivatives and Hedging” or any related subsequent Statement of
Financial Accounting Standards will be excluded; and


 


(9)                                  any net
unrealized gain or loss (after any offset) resulting from currency translation
gains or losses related to currency remeasurements of Indebtedness (including
any net gain or 


 


8

















 


loss
resulting from obligations under Hedging Obligations for currency exchange
risk) and any foreign currency translation gains or losses will be excluded.


 


“Consolidated Secured Debt Ratio” means, as of any date of
determination, the ratio of (1) all of the Consolidated Total Indebtedness
of the Company to the extent that it is secured by Liens as of the end of the
most recent fiscal period for which financial statements of the Company are
publicly available immediately preceding the date on which such event for which
such calculation is being made shall occur to (2) Consolidated Cash Flow
of the Company for the most recently ended four full fiscal quarters for which
financial statements of the Company are publicly available immediately
preceding the date on which such event for which such calculation is being made
shall occur, in each case with such pro forma adjustments to Consolidated Total
Indebtedness and Consolidated Cash Flow as are appropriate and consistent with
the pro forma adjustment provisions set forth in the definition of Fixed Charge
Coverage Ratio.


 


“Consolidated Total Assets” means the total consolidated
assets of the Company and its Restricted Subsidiaries as shown on the most
recent quarterly or annual (as the case may be) consolidated balance sheet of
the Company.


 


“Consolidated Total Indebtedness” means, as of any date of
determination, an amount equal to the sum of (1) the aggregate amount of
all outstanding Indebtedness of the Company and its Restricted Subsidiaries on
a consolidated basis consisting of Indebtedness for borrowed money, Capital
Lease Obligations and debt obligations evidenced by promissory notes and
similar instruments and (2) the aggregate amount of all of the outstanding
Disqualified Stock of the Company, with the amount of such Disqualified Stock
equal to the greater of its voluntary or involuntary liquidation preference and
maximum fixed repurchase price, in each case determined on a consolidated basis
in accordance with GAAP.  For purposes
hereof, the “maximum fixed repurchase price” of any Disqualified Stock that
does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
purchased on the 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,
such fair market value shall be determined reasonably and in good faith by the
Company.


 


“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 Company.


 


“Credit Agreement” means that certain Credit Agreement, dated
as of May 26, 2006, as amended to date, by and among the Company, the
guarantors and the agents and lenders from time to time party thereto,
including any related notes, letters of credit, guarantees, security and
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, supplemented, renewed,
refunded, replaced, restructured, restated or refinanced in whole or in part
from time to time (including any agreement to extend the maturity thereof,
increase the amount of available borrowings thereunder (provided
that such increase is permitted by Section 4.09 hereof) and/or add
borrowers or guarantors), in each case with respect to such agreement or any
successor or replacement agreement and whether under the same or any other
agent, lender, group of lenders, purchasers or debt holders.


 


“Credit Facilities” means one or more credit facilities or
agreements (including, without limitation, the Credit Agreement) or commercial
paper facilities or indentures, in each case with investment or commercial
banks or other institutional lenders providing for, or acting as initial
purchasers of, revolving credit loans, term loans, notes, debentures,
securities, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders 


 


9

















 


against
such receivables), letters of credit or bankers’ acceptances, in each case, as
amended, restated, modified, renewed, refunded, replaced, restructured,
restated or refinanced (including any agreement to extend the maturity thereof
and adding additional borrowers or guarantors) in whole or in part from time to
time and including increasing the amount of available borrowings thereunder; provided that such increase is permitted by Section 4.09.


 


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


 


“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
hereof, in substantially 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, the 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 provisions of this Indenture.


 


“Designated Non-cash Consideration” means
the Fair Market Value of non-cash consideration received by the Company or a
Restricted Subsidiary in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers’ Certificate
delivered by the Company to the Trustee, setting forth the basis of such
valuation less the amount of cash or Cash Equivalents received in connection
with a subsequent sale of or collection on such Designated Non-cash
Consideration.


 


“Disqualified Stock” means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder of the Capital Stock, in whole or in part, on or
prior to the date on which the Notes mature; provided that
only the portion of such Capital Stock which matures, is required to be
redeemed, is so convertible or exchangeable or is so redeemable at the option
of the Holder thereof before such date will be deemed to be Disqualified Stock.  Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a Change of Control or an
Asset Sale will not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption complies
with Section 4.10.


 


“Distribution Compliance Period” means the 40-day
distribution compliance period as defined in Regulation S.


 


“Domestic Subsidiary” means any Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia.


 


10

















 


“Eligible Bank” means (a) any lender
party to the Credit Agreement and (b) a bank or trust company that
(i) is licensed, chartered or organized and existing under the laws of the
United States of America or any state, territory, province or possession
thereof, (ii) as of the time of the making or acquisition of an Investment
in such bank or trust company, has combined capital and surplus in excess of
$500.0 million and (iii) the senior Indebtedness for borrowed money
of which is rated at least “A-2” by Moody’s or at least “A” by S&P.


 


“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).


 


“Euroclear” means Euroclear Bank, S.A./N.V., as operator of
the Euroclear systems, and any successor thereto.


 


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


 


“Exchange Notes” means Notes issued in the 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.


 


“Existing Indebtedness” means Indebtedness of the Company and
its Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the Issue Date (including available but undrawn commitments to
extend Indebtedness to the Company and its Subsidiaries).


 


“Fair Market Value” means, with respect
to the consideration received or paid in any transaction or series of
transactions or any investment, asset or other property, as the case may be,
the fair market value thereof as determined in good faith by the Company. In
the case of a transaction between the Company or a Restricted Subsidiary, on
the one hand, and a Receivable Subsidiary, on the other hand, if the Company
determines in its sole discretion that such determination is appropriate, a
determination as to Fair Market Value may be made at the commencement of the
transaction and be applicable to all dealings between the Receivable Subsidiary
and the Company or such Restricted Subsidiary during the course of such
transaction.


 


“Fixed Charge Coverage Ratio” means, with respect to any
specified Person for any period, the ratio of the Consolidated Cash Flow of
such Person and its Restricted Subsidiaries for such period to the Fixed
Charges of such Person and its Restricted Subsidiaries for such period.  In the event that the specified Person or any
of its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases
or redeems any Indebtedness (other than ordinary working capital borrowings) or
issues, repurchases or redeems preferred stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated and
on or prior to the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the “Calculation Date”),
then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect
to such incurrence, assumption, Guarantee, repayment, repurchase or redemption
of Indebtedness, or such issuance, repurchase or redemption of preferred stock,
and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period; provided,
however, that the Fixed Charges of such
Person attributable to interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis will be computed 


 


11

















 


based
on the average daily balance of such Indebtedness during the four-quarter
reference period and using the interest rate in effect at the end of such
period.


 


In
addition, for purposes of calculating the Fixed Charge Coverage Ratio:


 


(1)                                 “Consolidated
Cash Flow” and “Fixed Charges” shall be calculated after giving effect to the elimination
or reduction of the cost of any compensation, remuneration or other benefit
paid or provided to any employee, consultant, Affiliate or equity owner of the
entity involved in any Asset Acquisition to the extent such costs are
eliminated or reduced (or public announcement has been made of the intent to
eliminate or reduce such costs) prior to the date of such calculation and not
replaced;


 


(2)                                 Asset
Acquisitions that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date will be given pro forma effect (calculated in accordance with
Regulation S-X promulgated under the Securities Act) as if they had occurred on
the first day of the four-quarter reference period;


 


(3)                                 the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date (including in any Asset Sale), will be excluded; and


 


(4)                                 the Fixed
Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation
Date (including in any Asset Sale), will be excluded, but only to the extent
that the obligations giving rise to such Fixed Charges will not be obligations
of the specified Person or any of its Restricted Subsidiaries following the
Calculation Date;


 


provided that whenever pro forma effect is to be given to an
acquisition or a disposition, the amount of income or earnings related thereto
(including the incurrence of any Indebtedness and any pro forma expense and cost
reductions that have occurred or are reasonably expected to occur, regardless
of whether those expense and cost reductions could then be reflected in pro
forma financial statements in accordance with Regulation S-X promulgated under
the Securities Act or any regulation or policy of the SEC related thereto)
shall be reasonably determined in good faith by one or more of the Company’s
responsible senior financial or accounting officers.


 


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


 


(1)                                  consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations), to the extent that any such expense
was deducted in computing such Consolidated Net Income; plus


 


(2)                                  any interest
expense on Indebtedness of another Person to the extent that is Guaranteed by
such Person or one of its Restricted Subsidiaries or secured by a Lien on
assets of such Person or one of its Restricted Subsidiaries, whether or not
such Guarantee or Lien is called upon; plus


 


12

















 


(3)                                  the product of
(a) all dividends and other distributions paid or accrued during such
period in respect of Disqualified Stock of such Person and its Restricted
Subsidiaries (other than dividends paid in Capital Stock other than
Disqualified Stock), times (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person, expressed as a decimal, in
each case on a consolidated basis and in accordance with GAAP.


 


“GAAP” means generally accepted accounting principles in the
United States as set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, which are in effect
from time to time; provided, however, that, for purposes of this
Indenture, the determination of whether a lease constitutes a capital lease or
an operating lease, and whether obligations arising under a lease are required
to be capitalized on the balance sheet of the lessee thereunder, shall be
determined by reference to GAAP as in effect on the Issue Date.


 


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


 


“Global Notes” means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2 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,
however, 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.


 


“Group” has the meaning set forth in the definition of “Change
of Control.”


 


“Guarantee” means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof, of all or any part of any Indebtedness.


 


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


 


(1)                                 interest rate
swap agreements, interest rate cap agreements and interest rate collar
agreements;


 


13

















 


(2)                                 other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates; and


 


(3)                                 foreign
exchange contracts, currency swap agreements or other agreements or
arrangements designed to protect such Person against fluctuations in currency
values.


 


“Holder” means a Person in whose name a Note is registered.


 


“Indebtedness” means, with respect to any specified Person,
any indebtedness of such Person (excluding indebtedness payable to the Company
or any of the Company’s Subsidiaries), whether or not contingent:


 


(1)                                 in respect of
borrowed money;


 


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


 


(3)                                 constituting
reimbursement obligations of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities (excluding obligations in respect of
letters of credit or bankers’ acceptances issued in respect of trade payables)
issued for the account of such Person; provided
that such obligations shall not constitute Indebtedness except to the extent
drawn and not repaid within five Business Days;


 


(4)                                 representing
Capital Lease Obligations;


 


(5)                                 representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense, trade payable or current
liability; or


 


(6)                                 representing
any Hedging Obligations,


 


if
and to the extent any of the preceding items (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP.  In addition, the term “Indebtedness” includes
all Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified Person)
and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person.


 


The
amount of any Indebtedness outstanding as of any date will be:


 


(1)                                 the accreted
value of the Indebtedness, in the case of any Indebtedness issued with original
issue discount;


 


(2)                                 the net amount payable
(after giving effect to permitted set-offs) if the Hedging Obligations were
terminated on such date due to a default of such Person, in the case of any
Indebtedness described in clause (6) above;


 


(3)                                 the stated or determinable
amount of or, if not stated or if indeterminable, the maximum reasonably
anticipated liability under the Guarantee, in the case of Guarantees of any
Indebtedness of any other Person;


 


14

















 


(4)                                 the amount of
any Non-recourse Debt outstanding as of any date, to the extent such
Non-recourse Debt is secured, will be the lesser of (a) the amount of the
obligations secured and (b) the Fair Market Value of any pledged assets,
in the case of such Indebtedness of others secured by a Lien on the assets of a
Person; and


 


(5)                                 the principal
amount of the Indebtedness, together with any interest on the Indebtedness that
is more than 30 days past due.


 


The
amount of Indebtedness of the Company and its Subsidiaries will be calculated
without duplication of Guarantees by the Company and its Subsidiaries in
respect thereof.


 


“Indenture” means this instrument, as originally executed or
as it may from time to time be supplemented or amended in accordance with Article 9
hereof.


 


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


 


“Initial Notes” means $200,000,000 in aggregate principal
amount of Notes issued under this Indenture on the Issue Date.


 


“Initial Purchasers” means, collectively,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Jefferies &
Company, Inc., Oppenheimer & Co. Inc., SunTrust Robinson Humphrey, Inc.
and RBC Capital Markets, LLC.


 


“Interest Payment Date” means, for so long as the Notes are
outstanding, May 15 and November 15 of each year, commencing May 15,
2011, or if any such day is not a Business Day, the next succeeding Business
Day.


 


“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.


 


“Investments” means, with respect to any
Person, all direct or indirect investments by such Person in other Persons
(including Affiliates) in the form of loans or other extensions of credit
(including Guarantees), advances, capital contributions (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP. 
In no event will a guarantee of an operating lease or an ordinary course
contract for the sale of goods and services of the Company or any Restricted
Subsidiary be deemed an Investment.


 


“Issue Date” means the date on which the Notes are initially
issued.


 


“Legal Holiday” means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the city in which the Corporate
Trust Office of the Trustee is located, or at a place of payment are authorized
by law, regulation or executive order to remain closed.  If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 


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


 


15

















 


“Lien” means, with respect to any asset, any mortgage, lien,
pledge, charge or security interest 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 and any capital lease in
the nature thereof.


 


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


 


“Net Income” means, with respect to any specified Person, the
net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however:


 


(1)                                  any gain or
loss, together with any related provision for taxes on such gain or loss and
net of fees and expenses relating to the transaction giving rise thereto,
realized in connection with: (a) any Asset Sale or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the early extinguishment or conversion of any Indebtedness of
such Person or any of its Restricted Subsidiaries;


 


(2)                                  any
extraordinary gain, loss, income, expenses or charges (net of fees and expenses
relating to the transaction giving rise thereto), together with any related
provision for taxes; and


 


(3)                                  the portion of
such net income attributable to non-controlling interests of Subsidiaries.


 


“Net Proceeds” means, with respect to Asset Sales of any
Person, cash received, net of: (1) all reasonable out-of-pocket costs and
expenses of such Person incurred in connection with such a sale, including,
without limitation, all legal, accounting, title and recording tax expenses,
commissions and other fees and expenses incurred and all federal, state,
foreign and local taxes arising in connection with such an Asset Sale that are
paid or required to be accrued as a liability under GAAP by such Person;
(2) all payments made by such Person on any Indebtedness that is secured
by such properties or other assets in accordance with the terms of any Lien
upon or with respect to such properties or other assets or that must, by the
terms of such Lien or such Indebtedness, or in order to obtain a necessary
consent to such transaction or by applicable law, be repaid to any other Person
(other than the Company or a Restricted Subsidiary) in connection with such
Asset Sale; and (3) all contractually required distributions and other
payments made to minority interest holders in Restricted Subsidiaries of such
Person as a result of such transaction; provided,
however, that: (a) in the
event that any consideration for an Asset Sale (which would otherwise
constitute Net Proceeds) is required by (i) contract to be held in escrow
pending determination of whether a purchase price adjustment will be made or
(ii) GAAP to be reserved against other liabilities in connection with such
Asset Sale, such consideration (or any portion thereof) shall become Net
Proceeds only at such time as it is released to such Person from escrow or
otherwise; and (b) any non-cash consideration received in connection with
any transaction, which is subsequently converted to cash, shall become Net
Proceeds only at such time as it is so converted.


 


“Non-Recourse Debt” means Indebtedness as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness, but excluding in the case of a Receivable Subsidiary
any Standard Securitization Undertakings) or (b) is directly or indirectly
liable as a guarantor or otherwise (except in the case of a Receivable
Subsidiary any Standard Securitization Undertakings).


 


“Non-Recourse Receivable Subsidiary Indebtedness” has the meaning
set forth in the definition of “Receivable Subsidiary.”


 


16






 












 


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


 


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


 


“Officer” means the Chief Executive Officer, the President,
the Chief Financial Officer, the Treasurer, the Controller, the Secretary or
any Assistant Secretary, or any Vice President of the Company.


 


“Officers’ Certificate” means a certificate, other than a
compliance certificate pursuant to Section 4.04 hereof, which meets the
requirements of Section 12.05 hereof, signed by two Officers of the
Company, at least one of whom shall be the principal executive officer,
principal financial officer or principal accounting officer of the Company.


 


“Opinion of Counsel” means a written opinion, from legal
counsel who is reasonably acceptable to the Trustee and which meets the
requirements of Section 12.05 hereof. 
The counsel may be an employee of or counsel to the Company or the
Trustee.


 


“Pari Passu Indebtedness” means any
Indebtedness of the Company or any Subsidiary Guarantor that ranks pari passu in right of payment with the
Notes or the Guarantees, as applicable.


 


“Participant” means, with respect to the Depositary,
Euroclear or Clearstream, a Person who has an account with the Depositary,
Euroclear or Clearstream, respectively, and, with respect to The Depository
Trust Company, shall include Euroclear and Clearstream.


 


“Permitted Business” means any business similar in nature to
any business conducted by Company and its Restricted Subsidiaries on the Issue
Date and any business reasonably ancillary, incidental, complementary or
related to, or a reasonable extension, development or expansion of, the business
conducted by the Company and its Restricted Subsidiaries on the Issue Date, in
each case as determined in good faith by the Company.


 


“Permitted Holder” means Ares unless Ares does not have a
representative on the Board of Directors of the Company as a result of (1) the
resignation by such representative without Ares nominating a replacement Ares
designee, (2) the failure of the Ares representative (or a replacement
nominee of Ares) to stand for election or (3) the failure of the Ares
designee to be elected to the Board of Directors of the Company if Ares failed
to vote in favor of such nominee; provided, however, that it shall not constitute a Change of Control
under clause (3) or (5) under the definition of Change of Control
solely because Ares ceases to be a Permitted Holder at a time when it owns in
excess of 50% of the aggregate voting power represented by the issued and
outstanding Capital Stock of the Company, unless Ares thereafter acquires
beneficial ownership or voting control of one or more additional shares of the
issued and outstanding Capital Stock of the Company.


 


“Permitted Investments” means:


 


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


 


17

















 


(2)                               any Investment
in Cash Equivalents;


 


(3)                               loans and
advances to employees, directors and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business for bona fide business
purposes;


 


(4)                               any Investment
by the Company or any of its Restricted Subsidiaries in a Person, if as a
result of such Investment:


 


(a)                                 such Person becomes one of
the Company’s Restricted Subsidiaries; or


 


(b)                                 such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys all or
substantially all of its assets to, or is liquidated into, the Company or one
of its Restricted Subsidiaries;


 


(5)                               any Investment
made as a result of the receipt of non-cash consideration from an Asset Sale
that was made pursuant to and in compliance with Section 4.12;


 


(6)                               any acquisition
of assets to the extent in exchange for the issuance of the Equity Interests
(other than Disqualified Stock) of the Company;


 


(7)                               any Investments
received in compromise of obligations incurred in the ordinary course of trade
creditors or customers that were incurred in the ordinary course of business,
including pursuant to any plan of reorganization or similar arrangement upon
the bankruptcy or insolvency of any trade creditor or customer;


 


(8)                               Hedging
Obligations and other obligations in connection with derivative transactions
not prohibited under this Indenture;


 


(9)                               Investments in
respect of accounts receivable and other extensions of trade credit in the
ordinary course of business;


 


(10)                        the acquisition
of property and assets from suppliers and other vendors in the ordinary course
of business;


 


(11)                        Investments in
respect of prepaid expenses and workers’ compensation, utility, lease and
similar deposits, in the ordinary course of business; and


 


(12)                        other
Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent
changes in value, but net of cash repayments and returns received in respect of
such Investment), when taken together with all other Investments made pursuant
to this clause (12) that are at the time outstanding, not to exceed $30.0
million at the time of incurrence thereof.


 


“Permitted Liens” means:


 


(1)                               Liens upon the
Company’s property or the property of any of the Company’s Restricted
Subsidiaries securing (a) Indebtedness under Credit Facilities (and
Guarantees thereof) permitted to be incurred under Section 4.09(b)(i) in
an amount not to exceed the greater of (x) the amount permitted to be
incurred under Section 4.09(b)(i) and (y) the maximum amount of
Indebtedness such that the Consolidated Secured Debt Ratio would not be greater
than 3.75 to 1.00, determined, in each case, at the time of incurrence of such
Indebtedness after giving pro forma
effect thereto in a manner consistent with the 


 


18

















 


calculation
of the Fixed Charge Coverage Ratio, (b) Hedging Obligations relating to
such Indebtedness and permitted under the agreements related to the Credit
Facilities permitted to be incurred under this Indenture and (c) fees,
expenses and other amounts payable with respect to such Credit Facilities or
payable pursuant to cash management agreements or agreements with respect to
similar banking services relating to such Credit Facilities and permitted under
the agreements related thereto;


 


(2)                               Liens in favor
of the Company or any Restricted Subsidiary;


 


(3)                               Liens on
property of a Person existing at the time such Person is merged with or into or
consolidated with the Company or any of the Company’s Restricted Subsidiaries
or becomes a Restricted Subsidiary; provided that
such Liens were in existence prior to the contemplation of such transaction and
do not extend to any assets of the Company and the Company’s Restricted
Subsidiaries other than the property or assets acquired and the proceeds
thereof;


 


(4)                               Liens on
property existing at the time of acquisition of the property by the Company or
any of its Subsidiaries (and Liens on the proceeds thereof); provided that such Liens on the acquired property were in
existence prior to the contemplation of such acquisition;


 


(5)                               Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature;


 


(6)                               Liens to secure
Indebtedness (including Capital Lease Obligations) permitted by clause (iv) of
the second paragraph of Section 4.09 covering only the assets acquired
with such Indebtedness (and other assets that, in the ordinary course of
business, are subject to Liens in favor of the same creditor or its Affiliates
to secure such type of Indebtedness) plus improvements, accessions, proceeds,
dividends or distributions in respect thereof;


 


(7)                               Liens existing
on the Issue Date and any Liens from time to time securing the Notes and/or the
Subsidiary Guarantees;


 


(8)                               Liens for
taxes, assessments or governmental charges or claims that are not yet
delinquent for more than 90 days, that then remain payable without penalty or
that are being contested in good faith; provided that
any reserve or other appropriate provision as is required in conformity with
GAAP has been made therefor;


 


(9)                               pledges or
deposits (a) in connection with workers’ compensation, unemployment
insurance and other types of statutory obligations or the requirements of any
official body; (b) to secure the performance of tenders, bids, surety or
performance bonds, leases, purchase, construction, sales or servicing contracts
(including utility contracts) and other similar obligations incurred in the
ordinary course of business; (c) to obtain or secure obligations with
respect to letters of credit, Guarantees, bonds or other sureties or assurances
given in connection with the activities described in clauses (a) and
(b) above, in each case not incurred or made in connection with the
borrowing of money, the obtaining of advances or credit or the payment of the
deferred purchase price of property or services; or (d) arising in
connection with any attachment unless such Liens shall not be satisfied or
discharged or stayed pending appeal within 60 days after the entry thereof
or the expiration of any such stay;


 


(10)                        Liens imposed
by law, such as carrier’s, supplier’s, workmen’s, warehousemen’s, landlord’s,
materialmen’s and mechanic’s Liens and other similar Liens arising in the
ordinary course of business in respect of obligations not overdue for a period
in excess of 60 days or which are being contested in good faith; provided, however, that
any reserve or other appropriate provision as will be required to conform to
GAAP will have been made for that reserve or provision;


 


19

















 


(11)                        survey
exceptions, encumbrances, easements, rights-of-way, restrictions, minor defects
or irregularities in title and other similar charges or encumbrances, or zoning
or other similar restrictions as to the use of real properties or Liens
incidental to the conduct of business, in each case not interfering in any
material respect with the Company’s business or assets and the business or
assets of its Subsidiaries taken as a whole;


 


(12)                        Liens securing
Hedging Obligations and other obligations in connection with derivative
transactions so long as the related Indebtedness is permitted to be incurred
under this Indenture;


 


(13)                        Liens incurred
by the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $50.0 million at the time of incurrence
thereof; and


 


(14)                        Liens to secure
any Refinancing (or successive Refinancings) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (3),
(4), (6) and (7), to the extent that:


 


(a)                                 such new Lien
is limited to all or part of the same property that secured the original Lien
(plus improvements, accessions, proceeds, dividends or distributions in respect
thereof) 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 secured
by Liens described under clause (3), (4), (6) or (7) at the time
the original Lien became a Permitted Lien under this Indenture; and


 


(ii)                                  the amount of
any fees and expenses, including premiums and consent fees, related to such
Refinancings;


 


(15)                        for the
avoidance of doubt, other Liens (not securing Indebtedness) incidental to the
conduct of the business of the Company or any of its Restricted Subsidiaries,
as the case may be, or the ownership of the Company’s or any Restricted
Subsidiary’s assets which do not individually or in the aggregate materially
adversely affect the value of the Company and its Restricted Subsidiaries taken
as a whole or materially impair the operation of the business of the Company
and its Restricted Subsidiaries taken as a whole;


 


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


 


(17)                        Liens upon
specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligation in respect of banker’s acceptances issued or created
in the ordinary course of business for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or other goods;


 


(18)                        Liens
(a) that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection with
the issuance of Indebtedness, (ii) relating to pooled deposit or sweep
accounts of the Company or any of its Restricted Subsidiaries to permit
satisfaction of overdraft or similar obligations and other cash management
activities incurred in the ordinary course of business of the Company and/or
any of its Restricted Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers 


 


20

















 


of the Company or any of its Restricted Subsidiaries in the ordinary
course of business, (b) of a collection bank arising under
Section 4-210 of the Uniform Commercial Code on items in the course of
collection, (c) encumbering reasonable customary initial deposits and margin
deposits and attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business, and (d) in favor of
banking institutions arising as a matter of law or pursuant to customary
account agreements encumbering deposits (including the right of set-off) and
which are within the general parameters customary in the banking industry;


 


(19)                        Liens securing
judgments for the payment of money not constituting an Event of Default;


 


(20)                        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 Company or any Restricted Subsidiary and do not secure any
Indebtedness;


 


(21)                        any interest or
title of an owner of equipment or inventory on loan or consignment to the
Company or any of its Restricted Subsidiaries and Liens arising from Uniform
Commercial Code financing statement filings regarding operating leases entered
into by the Company or any Restricted Subsidiary;


 


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


 


(23)                        options, put
and call arrangements, rights of first refusal and similar rights relating to
Investments in joint ventures, partnerships and the like permitted to be made
under this Indenture;


 


(24)                        Liens attaching
to earnest money deposits (or equivalent deposits otherwise named) made in
connection with proposed acquisitions in an amount not to exceed
$10.0 million at any time;


 


(25)                        Liens on cash
and other deposits or net worth imposed in connection with contracts entered
into the ordinary course of business;


 


(26)                        Liens in
respect of Seller Notes permitted to be incurred as of such date under Section 4.09;
and


 


(27)                        Liens on the
Capital Stock of a Receivable Subsidiary and accounts receivable and other
financial and related assets described in the definition of “Qualified
Receivables Transaction”, in each case incurred in connection with a Qualified
Receivables Transaction and in an aggregate amount not to exceed
$250.0 million.


 


“Permitted Refinancing Indebtedness” means any Indebtedness
of the Company or any of its Restricted Subsidiaries to the extent that it is
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Company
or any of its Restricted Subsidiaries (other than intercompany Indebtedness) to
the extent that the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest on the
Indebtedness and the amount of all expenses and premiums and consent fees
incurred in connection therewith; provided that:


 


21

















 


(1)                                 such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;


 


(2)                                 if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and


 


(3)                                 such Permitted
Refinancing Indebtedness is incurred either by the Company or by the Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.


 


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


 


“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 as otherwise
permitted by the provisions of this Indenture.


 


“Purchase Money Note” means a promissory
note of a Receivable Subsidiary to the Company or any Restricted Subsidiary,
which note must be repaid from cash available to the Receivable Subsidiary,
other than amounts required to be established as reserves pursuant to
agreements, amounts paid to investors in respect of interest, principal and
other amounts owing to such investors and amounts paid in connection with the
purchase of newly-generated receivables or other financial assets. The
repayment of a Purchase Money Note may be subordinated to the repayment of
other liabilities of the Receivable Subsidiary on terms determined in good
faith by the Company to be substantially consistent with market practice in
connection with Qualified Receivables Transactions.


 


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


 


“Qualified Equity Offering” means any underwritten public or
any private offering of Capital Stock (excluding Disqualified Stock) of the
Company.


 


“Qualified Receivables Transaction” means
any transaction or series of transactions entered into by the Company or any of
its Restricted Subsidiaries pursuant to which the Company or such Restricted
Subsidiary transfers to (a) a Receivable Subsidiary (in the case of a
transfer by the Company or any of its Restricted Subsidiaries) or (b) any
other Person (in the case of a transfer by a Receivable Subsidiary), or grants
a security interest in, any accounts receivable or other financial assets
(whether now existing or arising in the future) of the Company or any of its
Restricted Subsidiaries, and any assets related thereto, including, without
limitation, all collateral securing such accounts receivable or other financial
assets, all contracts and all Guarantees or other obligations in respect of
such accounts receivable or other financial assets, proceeds of such accounts
receivable or other financial assets and other assets which are customarily
transferred or in respect of which security interests are customarily granted
in connection with an accounts receivable or other financial asset financing
transaction; provided such transaction
is on market terms as determined in good faith by the Company at the time the
Company or such Restricted Subsidiary enters into such transaction.


 


22

















 


“Rating Agency” means S&P and Moody’s
or, if S&P or Moody’s or both shall not make a rating on the Notes publicly
available, a nationally recognized statistical rating agency or agencies, as
the case may be, selected by the Company (as certified by a resolution of the
Board of Directors of the Company) which shall be substituted for S&P or
Moody’s or both, as the case may be.


 


“Receivable Subsidiary” means a
Subsidiary (other than a Subsidiary Guarantor) that engages in no activities
other than in connection with the financing of receivables and other financial
assets and that is designated by the Board of Directors of the Company (as
provided below) as a Receivable Subsidiary (1) no portion of the
Indebtedness or any other Obligations (contingent or otherwise) of which
(a) is guaranteed by the Company or any of its Restricted Subsidiaries
(excluding Guarantees of Obligations (other than the principal of, and interest
on, Indebtedness) pursuant to Standard Securitization Undertakings),
(b) is recourse to or obligates the Company or any of its Restricted Subsidiaries
in any way other than pursuant to Standard Securitization Undertakings or (c) subjects
any property or asset of the Company or any of its Restricted Subsidiaries,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings (such Indebtedness and Obligations meeting
the requirements of the foregoing clause (1), “Non-Recourse
Receivable Subsidiary Indebtedness”); (2) with which neither
the Company nor any of its Restricted Subsidiaries has any material contract,
agreement, arrangement or understanding (except in connection with a Qualified
Receivables Transaction) other than on terms taken as a whole not materially
less favorable to the Company or such Restricted Subsidiary than those that might
be obtained at the time from Persons that are not Affiliates of the Company,
other than fees, expenses and indemnities payable in the ordinary course of
business in connection with servicing accounts receivable, and (3) to
which neither the Company nor any of its Restricted Subsidiaries has any
obligation to maintain or preserve such entity’s financial condition or cause
such entity to achieve a certain level of operating results. Any such
designation by the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a certified copy of the board resolution
giving effect to such designation and an Officers’ Certificate in the form
required under Section 12.04 and 12.05 certifying that such designation
complied with the foregoing conditions.


 


“Refinance” means, in respect of any
Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem,
defease or retire, or to issue other Indebtedness in exchange or replacement
for, such Indebtedness, including, in any such case from time to time, after
the discharge of the Indebtedness being Refinanced. “Refinanced”
and “Refinancing” shall have correlative
meanings.


 


“Registration Rights Agreement” means the Registration Rights
Agreement dated as of November 2, 2010 among the Company, the Subsidiary
Guarantors and the Initial Purchasers named therein, 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 Company
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
Company 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 the Global Note in the form
of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with and registered in the name of the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of Notes sold in reliance on Regulation S.


 


“Related Business Assets” means assets (other than cash or
Cash Equivalents) used or useful in a Permitted Business, provided that any assets received by the
Company or a Restricted Subsidiary 


 


23

















 


in
exchange for assets transferred by the Company 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.


 


“Replacement Assets” means any properties or assets used or
useful in a Permitted Business.


 


“Responsible Officer,” when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject
and who shall, in each case, have direct responsibility for the administration
of this Indenture.


 


“Restricted Definitive Note” means one or more Definitive
Notes bearing the Private Placement Legend.


 


“Restricted Global Notes” means the 144A Global Note and the
Regulation S Global Note.


 


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


 


“Restricted Subsidiary” of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary.


 


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


 


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


 


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


 


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


 


“S&P” means Standard & Poor’s Rating Group, a
division of The McGraw Hill Corporation, or any successor to the rating agency
business thereof.


 


“SEC” means the Securities and Exchange Commission.


 


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


 


“Seller Notes” means any unsecured Indebtedness of the
Company or any of its Restricted Subsidiaries payable to one or more sellers of
any Person acquired by the Company or any of its Restricted Subsidiaries,
incurred in connection with such acquisition and permitted by the terms of this
Indenture, and in each case subordinated in right of payment to the Notes and
the Subsidiary Guarantees.


 


“Senior Debt” means:


 


(1)                                 all
Indebtedness of the Company or of any Subsidiary Guarantor outstanding under
Credit Facilities and all Hedging Obligations with respect thereto;


 


24

















 


(2)                                 any other
Indebtedness of the Company or of any Subsidiary 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 Subsidiary Guarantee; and


 


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


 


Notwithstanding
anything to the contrary in the preceding, Senior Debt will not include:


 


(1)                                 any liability
for federal, state, local or other taxes owed or owing by the Company;


 


(2)                                 any
Indebtedness of the Company to any of its Subsidiaries or other Affiliates (other
than Credit Facilities under which an Affiliate is a lender);


 


(3)                                 any trade
payables; or


 


(4)                                 the portion of
any Indebtedness that is incurred in violation of this Indenture.


 


“Shelf Registration Statement” means the Shelf Registration
Statement as defined in the Registration Rights Agreement.


 


“Significant Subsidiary” means any 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, but shall not include any Unrestricted
Subsidiary.


 


“Standard Securitization Undertakings” means representations,
warranties, covenants and indemnities entered into by the Company or any
Restricted Subsidiary which are reasonably customary in an accounts receivable
or other financial asset securitization transaction as determined in good faith
by the Company, including Guarantees by the Company or any Restricted
Subsidiary of any of the foregoing obligations of the Company or a Restricted
Subsidiary.


 


“Stated Maturity” means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.


 


“Subordinated Indebtedness” means any Indebtedness (whether
outstanding on the Issue Date or thereafter incurred) that is subordinated or
junior in right of payment to the Notes pursuant to a written agreement,
executed by the Person to whom such Indebtedness is owed, to that effect.


 


“Subsidiary” means, with respect to any specified Person:


 


(1)                                 any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees of the corporation, association or other business entity is at the
time owned or controlled, directly or through a Subsidiary, by that Person or
one or more of the other Subsidiaries of that Person (or a combination
thereof); and


 


25

















 


(2)                                 any partnership
(a) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (b) the only general
partners of which are that Person or one or more Subsidiaries of that Person
(or any combination thereof).


 


“Subsidiary Guarantee” means the Guarantee of the Notes by
each of the Subsidiary Guarantors pursuant to Article 10 and in the form
of the Guarantee endorsed on the form of Note attached as Exhibit A and
any additional Guarantee of the Notes to be executed by any Subsidiary of the
Company pursuant to Section 4.19.


 


“Subsidiary Guarantors” means all of the Company’s Domestic
Subsidiaries and any future Domestic Subsidiary of the Company that executes a
Subsidiary Guarantee in accordance with the provisions of this Indenture
described in Section 4.19 and their respective successors and assigns, in
each case subject to release in accordance with the provisions of this
Indenture described in Section 10.05.


 


“TIA” means the Trust Indenture Act of 1939, as amended.


 


“Treasury Rate” means, as of the
applicable 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 such 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 such redemption date to November 15, 2014; provided that if the period from such redemption date to
November 15, 2014 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.


 


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


 


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


 


“Unrestricted Global Notes” means one or more Global Notes,
in the form of Exhibit A attached hereto, that do not and are not required
to bear the Private Placement Legend and are deposited with and registered in
the name of the Depositary or its nominee.


 


“Unrestricted Subsidiary” means any Subsidiary of the Company
(or any successor to any of them) that is designated by the Board of Directors
of the Company as an Unrestricted Subsidiary pursuant to a board resolution,
but only to the extent that such Subsidiary:


 


(1)                                 has no
Indebtedness other than Non-Recourse Debt;


 


(2)                                 is not party to
any agreement, contract, arrangement or understanding with the Company or any
of its Restricted Subsidiaries unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary in any material respect than those that would be
obtained at the time from Persons who are not Affiliates of the Company;


 


(3)                                 is a Person
with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of
operating results; and


 


26






 












 


(4)                                 has not
guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of the Company or any of its Restricted Subsidiaries.


 


Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary will
be evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Company giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.10
hereof.  If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09, the Company will be in
default of Section 4.09.  The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that
such designation will be deemed to be an incurrence of Indebtedness by one of
the Company’s Restricted Subsidiaries of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such
Indebtedness is permitted under Section 4.09, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period; (2) no Default or Event of Default would be in existence
upon giving effect to such designation; and (3) such Subsidiary executes
and delivers to the Trustee a supplemental indenture providing for a Subsidiary
Guarantee.


 


“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated
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 at any date, the number of years obtained by dividing:


 


(1)                                 the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness,
by (b) the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment; by


 


(2)                                 the then
outstanding principal amount of such Indebtedness.


 


Section 1.02.                              Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.14

  
	
  “Asset
  Sale Offer”

  	
   

  	
  4.12

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Benefited
  Party”

  	
   

  	
  10.01

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.18

  
	
  “Change
  of Control Payment”

  	
   

  	
  4.18

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.18

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.12

  



 


27

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “losses”

  	
   

  	
  7.07

  
	
  “Notes”

  	
   

  	
  Preamble

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  
	
  “Permitted
  Debt”

  	
   

  	
  4.09

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.10

  
	
  “Reversion
  Date”

  	
   

  	
  4.20

  
	
  “Security
  Register”

  	
   

  	
  4.18

  
	
  “Suspended
  Covenants”

  	
   

  	
  4.20

  
	
  “Suspension
  Date”

  	
   

  	
  4.20

  
	
  “Suspension
  Period”

  	
   

  	
  4.20

  



 


Section 1.03.                              Incorporation
by Reference of Trust Indenture Act.


 


(a)                                 Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.


 


(b)                                 The following
TIA terms used in this Indenture have the following meanings:


 


“indenture securities” means the Notes;


 


“indenture security holder” means a Holder of a Note;


 


“indenture to be qualified” means this Indenture;


 


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


 


“obligor” on the Notes means the Company and any successor
obligor upon the Notes.


 


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


 


Section 1.04.                              Rules of
Construction.


 


(a)                                 Unless the
context otherwise requires:


 


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


 


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


 


(iii)                               “or” is not
exclusive;


 


28

















 


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


 


(v)                                 all references
in this instrument to designated “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and subdivisions of this instrument as
originally executed;


 


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


 


(vii)                           “including”
means “including without limitation”;


 


(viii)                        provisions
apply to successive events and transactions; and


 


(ix)                              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.


 


ARTICLE 2.


 


THE NOTES


 


Section 2.01.                              Form and
Dating.


 


(a)                                 General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made part of this Indenture.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Note shall be dated the date of its
authentication.  The Notes shall be in
minimum denominations of $2,000 and integral multiples of $1,000 in excess
thereof.  The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part
of this Indenture and the Company, the Subsidiary 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.


 


(b)                                 Form of
Notes.  The Notes
shall be issued initially in global form and shall be substantially in the form
of Exhibit A attached hereto (including the Global Note Legend 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 attached hereto (but without the
Global Note Legend 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
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding 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 appropriate, 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)                                  Book-Entry
Provisions.  This Section 2.01(c) shall
only apply to Global Notes deposited with the Trustee, as custodian for the
Depositary.  Participants and Indirect
Participants shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary or by the Trustee as the
custodian for the Depositary or under such Global Note, and the Depositary
shall be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute 


 


29

















 


owner of such Global Note for all purposes
whatsoever.  Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Participants or Indirect Participants, the Applicable
Procedures or the operation of customary practices of the Depositary governing
the exercise of the rights of a holder of a beneficial interest in any Global
Note.


 


Section 2.02.                              Execution
and Authentication.


 


(a)                                 Two Officers
shall sign the Notes for the Company by manual or facsimile signature.


 


(b)                                 If an Officer
whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.


 


(c)                                  A Note shall
not be valid until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.


 


(d)                                 The Trustee
shall, upon receipt of a written order of the Company signed by an Officer (an “Authentication Order”), authenticate
Notes for original issue.


 


(e)                                  The Trustee may
appoint an authenticating agent acceptable to the Company to authenticate
Notes.  An authenticating agent may
authenticate Notes whenever the Trustee may do so.  Unless limited by the terms of such
appointment, 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 Company.


 


(f)                                   The Company may
issue Additional Notes from time to time after the offering of the Initial
Notes.  The Initial Notes, the Exchange
Notes and any Additional Notes subsequently issued under this Indenture shall
be treated as a single class for all purposes under this Indenture, including,
without limitation, waivers, amendments, redemptions and offers to purchase.


 


Section 2.03.                              Registrar
and Paying Agent.


 


(a)                                 The Company
shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and
an office or agency where Notes may be presented for payment (“Paying Agent”).  The
Registrar shall keep a register of the Notes and of their transfer and
exchange.  The Company may appoint one or
more co-registrars and one or more additional paying agents.  The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying
agent.  The Company may change any Paying
Agent or Registrar without notice to any Holder.  The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture.  If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as
such.  The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.


 


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


 


(c)                                  The Company
initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes.


 


30

















 


Section 2.04.                              Paying
Agent to Hold Money in Trust.


 


The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest and Additional Interest, if any, on the Notes, and
shall notify the Trustee of any Default by the Company in making any such
payment.  While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee.  The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money.  If the Company
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 Company, 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 TIA § 312(a). 
If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date or such shorter time as the Trustee may allow, as the Trustee
may reasonably require of the names and addresses of the Holders and the
Company shall otherwise comply with TIA § 312(a).


 


Section 2.06.                              Transfer
and Exchange.


 


(a)                                 Transfer
and Exchange of Global Notes.  A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.  All Global
Notes will be exchanged by the Company for Definitive Notes if:


 


(1)                                 the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary;


 


(2)                                 the Company in
its sole discretion and subject to the procedures of the Depositary determines
that the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and deliver a written notice to such effect to the Trustee; or


 


(3)                                 an Event of Default
shall have occurred and be continuing.


 


Upon the occurrence of any of the preceding events
in (1), (2) or (3) above, Definitive Notes shall be issued in
denominations of $2,000 or integral multiples of $1,000 in excess thereof and
in such names as the Depositary shall instruct the Trustee.  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.  A Global Note may not be exchanged
for another Note other than as provided in this Section 2.06(a), 


 


31

















 


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 clause (i) or (ii) below,
as applicable, as well as one or more of the other following clauses, 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, however, that
prior to the expiration of the Distribution Compliance Period, transfers of
beneficial interests in the Regulation S Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser).  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).


 


(ii)                                  All Other
Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar either
(A)(1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B)(1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (B)(1) above.  Upon consummation of an Exchange Offer by the
Company 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 Letter of
Transmittal 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 in a Restricted Global Note 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) above
and the Registrar receives the following:


 


32

















 


(A)                               if the
transferee will take delivery in the form of a beneficial interest in the 144A
Global Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and


 


(B)                               if the
transferee will take delivery in the form of a beneficial interest in the
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 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) above
and:


 


(A)                               such exchange
or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;


 


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


 


(C)                               such transfer
is effected by a broker-dealer pursuant to the 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 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 clause (D), if the Company so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


If
any such transfer is effected pursuant to clause (B) or (D) above at
a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more 


 


33

















 


Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to clause (B) or (D) above.


 


(v)                                 Transfer or
Exchange of Beneficial Interests in Unrestricted Global Notes for Beneficial
Interests in Restricted Global Notes Prohibited.  Beneficial interests in an Unrestricted
Global Note cannot be exchanged for, or transferred to Persons who take
delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.


 


(c)                                  Transfer
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 receipt by the Registrar of the following documentation:


 


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


 


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


 


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


 


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


 


(E)                                if such beneficial
interest is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in 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 to the effect set forth in 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 Company shall execute and upon receipt of an Authentication Order, the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate 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 or deliver such Definitive Notes to the Persons in whose names such Notes
are so registered.  Any 


 


34

















 


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.


 


(ii)                                  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 if:


 


(A)                               such exchange
or transfer is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;


 


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


 


(C)                               such transfer
is effected by a broker-dealer pursuant to the 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 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 in the
form of Exhibit B hereto, including the certifications in item (4) thereof;


 


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


 


(iii)                               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 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
Company shall execute and the Trustee, upon receipt on an Authentication Order,
shall authenticate and mail or deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall be
registered in such name or names and in such authorized denomination or 


 


35

















 


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 or deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) 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 Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:


 


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


 


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


 


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


 


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


 


(E)                                if such
Restricted Definitive Note is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in 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 to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


 


the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, and in the case of clause (C) above, the 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 the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an


 


36






 












 


exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;


 


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


 


(C)                               such transfer
is effected by a broker-dealer pursuant to the 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 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 in the form of Exhibit B
hereto, including the certifications in item (4) thereof;


 


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


 


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


 


(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 Unrestricted Definitive Note 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.


 


(iv)                              Transfer or
Exchange of Unrestricted Definitive Notes to Beneficial Interests in Restricted
Global Notes Prohibited.  An
Unrestricted Definitive Note cannot be exchanged for, or transferred to Persons
who take delivery thereof in the form of, beneficial interests in a Restricted
Global Note.


 


(v)                                 Issuance of
Unrestricted Global Notes.  If
any such exchange or transfer from a Definitive Note to a beneficial interest
is effected pursuant to clauses (ii)(B), (ii)(D) or (iii) above at a
time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall 


 


37

















 


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 Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (1) thereof;


 


(B)                               if the transfer
will be made pursuant to Rule 903 or Rule 904, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and


 


(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, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.


 


(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 the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;


 


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


 


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


 


38

















 


(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 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 in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 


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


 


(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 the Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate:


 


(1)                                 one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global 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 Company, and accepted for
exchange in the Exchange Offer; and


 


(2)                                 Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes tendered for acceptance by Persons who made
the foregoing certification 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 Company shall execute and upon
receipt of an Authentication Order, the Trustee shall authenticate and mail or
deliver to the Persons designated by the Holders of Restricted Definitive Notes
so accepted Unrestricted Definitive Notes in the appropriate principal amount.


 


(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.


 


39

















 


(i)                                     Private
Placement Legend.


 


(A)                               Except as
permitted by clause (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:


 


“THE SECURITY (OR ITS
PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND THE SECURITY EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (ii) TO
THE COMPANY, OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT
OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE(A) ABOVE.
NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED
BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”


 


(B)                               Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to clauses
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to
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:


 


40

















 


“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 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 COMPANY.


 


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
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.  OR SUCH OTHER NAME AS 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 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.”


 


(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 Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s
order 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 Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental 


 


41

















 


charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.18
and 9.05 hereof).


 


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


 


(iv)                              Neither the
Registrar, the Trustee, nor the Company shall be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the transfer
of or to exchange a Note between a record date and the next succeeding Interest
Payment Date.


 


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


 


(vi)                              The Trustee,
upon receipt of an Authentication Order, shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02 hereof.


 


(vii)                           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.


 


(viii)                        The Trustee is
hereby authorized to enter into a letter of representation with the Depository
in the form provided by the Company and to act in accordance with such letter.


 


(ix)                              Each Holder of
a Note agrees to indemnify the Company and Trustee against any liability that
may result from the transfer, exchange or assignment of such Holder’s Note in
violation of any provision of this Indenture and/or applicable United States
federal or state securities laws.


 


(x)                                 Neither the
Trustee nor any agent of the Trustee shall have any responsibility for any
actions taken or not taken by the Depositary.


 


(xi)                              The Trustee
shall have no responsibility or obligation to any Participant or Indirect
Participant or any other Person with respect to the accuracy of the books or
records, or the acts or omissions, of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any Participant or Indirect
Participant or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount, under or
with respect to such Notes. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Notes shall be given
or made only to or upon the order of the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Note). The rights of
beneficial owners in any Global Note shall be exercised only through the
Depositary subject to the customary procedures of 


 


42

















 


the Depositary. The Trustee
may rely and shall be fully protected in relying upon information furnished by
the Depositary with respect to its Participants or Indirect Participants.


 


(xii)                           The Trustee
shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among Participants or Indirect Participants
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.


 


Section 2.07.                              Replacement
Notes.


 


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


 


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


 


Section 2.08.                              Outstanding
Notes.


 


(a)                                 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 Company or an Affiliate of the Company holds the Note; however, Notes held
by the Company or a Subsidiary of the Company shall not be deemed to be
outstanding for purposes of Section 3.07(b) hereof.


 


(b)                                 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 bona fide purchaser.


 


(c)                                  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.


 


(d)                                 If the Paying
Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes 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 Company, or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, shall 


 


43

















 


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 the Trustee knows are so owned
shall be so disregarded.  Notes so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Notes and that the pledgee is not the Company or
any Affiliate of the Company. In the case of a dispute as to such right, any
decision of, or action taken or not taken by the Trustee upon the advice of
counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers’ Certificate
listing and identifying all Notes, if any, known by the Company to be owned or
held by or for the account of any of the above described Persons, and the
Trustee shall be entitled to accept and rely upon such Officers’ Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Notes not listed therein are outstanding for the purpose of any determination.


 


Section 2.10.                              Temporary
Notes.


 


Until
certificates representing Notes are ready for delivery, the Company 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 Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. 
Without unreasonable delay, the Company shall prepare and upon receipt
of an Authentication Order, the Trustee shall authenticate Definitive Notes in
exchange for temporary Notes.


 


Holders
of temporary Notes shall be entitled to all of the benefits of this Indenture.


 


Section 2.11.                              Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment.  The Trustee upon
direction by the Company and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention requirements of
the Exchange Act).  Certification of the
destruction of all cancelled Notes shall be delivered to the Company.  The Company 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 Company defaults in a payment of interest or Additional Interest, if any,
on the Notes, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof.  The Company 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. 
The Company shall fix or cause to be fixed each 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.  At least 15
days before the special record date, the Company (or, upon the written request
of the Company, the Trustee in the name and at the expense of the Company)
shall mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be
paid.


 


44

















 


Section 2.13.                              CUSIP
or ISIN Numbers.


 


The
Company in issuing the Notes may use “CUSIP” or “ISIN” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers
in notices of redemption as a convenience to Holders; provided,
however, 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 a 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 Company
will promptly notify the Trustee, in writing, of any change in the “CUSIP” or “ISIN”
numbers.


 


Section 2.14.                              Additional
Interest.


 


If
Additional Interest is payable by the Company pursuant to the Registration
Rights Agreement and paragraph 1 of the Notes, the Company shall deliver to the
Trustee an Officers’ Certificate to that effect stating (i) the amount of
such Additional Interest that is payable and (ii) the date on which such
interest is payable.  Unless and until a
Responsible Officer of the Trustee receives such an Officers’ Certificate or
instruction or direction from the Holders in accordance with the terms of the
Indenture, the Trustee may assume without inquiry that no Additional Interest
is payable.  The foregoing shall not
prejudice the rights of the Holders with respect to their entitlement to
Additional Interest as otherwise set forth in this Indenture or the Notes and
pursuing any action against the Company directly or otherwise directing the
Trustee to take any such action in accordance with the terms of this Indenture
and the Notes.  If the Company has paid
Additional Interest directly to the persons entitled to it, the Company shall
deliver to the Trustee an Officers’ Certificate setting forth the particulars
of such payment.


 


ARTICLE 3.


 


REDEMPTION AND PREPAYMENT


 


Section 3.01.                              Notices
to Trustee.


 


If
the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at
least 45 days, or such shorter period allowed by the Trustee, but not more than
60 days before a redemption date, an Officers’ Certificate setting forth (i) the
clause of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of 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 among the Holders of the Notes in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro rata basis and otherwise in accordance with the
Applicable Procedures; provided that
no Notes of $2,000 or less shall be redeemed in part.


 


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 Company 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. 
Notes and portions of Notes selected shall be in amounts of $2,000 or
whole multiples of 


 


45

















 


$1,000
in excess thereof; except that if all of the Notes of a Holder are to be
redeemed, the entire outstanding amount of Notes held by such Holder, even if
not a multiple of $1,000, 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.


 


At
least 30 days but not more than 60 days before a redemption date, the Company
shall mail or cause to be mailed, by first class mail, postage prepaid, a
notice of redemption to each Holder whose Notes are to be redeemed at such
Holder’s registered address.


 


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


 


(a)                                 the redemption
date;


 


(b)                                 the redemption
price, or if the redemption is made pursuant to Section 3.07(c), a
calculation of the redemption price;


 


(c)                                  if any Note is
being redeemed in part, the portion of the principal amount of such Note 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 shall be
issued 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 Company defaults in making such redemption payment, interest and Additional
Interest, if any, on Notes called for redemption ceases to accrue on and after
the redemption date;


 


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


 


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


 


At
the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided, however, that the Company shall have delivered to the
Trustee, at least 45 days, or such shorter period allowed by the Trustee, prior
to the redemption date, an Officers’ Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in this Section 3.03.


 


Section 3.04.                              Effect
of Notice of Redemption.


 


Once
notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. 
A notice of redemption may not be conditional (other than as set forth
in Section 4.18(e)).


 


46






 












 


Section 3.05.                              Deposit
of Redemption Price.


 


On
or before 11:00 a.m. on any redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest and Additional Interest, if any, on
all Notes to be redeemed on that date. 
The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess
of the amounts necessary to pay the redemption price of, and accrued interest
and Additional Interest, if any, on, all Notes to be redeemed.


 


If
the Company complies with the provisions of the preceding paragraph, on and
after the redemption date, interest and Additional Interest, if any, shall
cease to accrue on the Notes or the portions of Notes called for
redemption.  If a Note is redeemed on or
after an interest record date but on or prior to the related Interest Payment
Date, then any accrued and unpaid interest 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 Company to comply with the preceding paragraph, interest and Additional
Interest, if any, shall be paid on the unpaid principal from the redemption
date until such principal is paid, and to the extent lawful on any interest 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 Note that is redeemed in part, the Company shall issue and, upon
receipt of an Authentication Order, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.


 


Section 3.07.                              Optional
Redemption.


 


(a)                                 Except as set
forth in clauses (b) and (c) of this Section 3.07, the Notes
will not be redeemable at the option of the Company prior to November 15,
2014.  Starting on November 15,
2014, the Company may redeem all or from time to time a part of the Notes after
giving the required notice under this Indenture.  The Notes may be redeemed at the redemption
prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and Additional Interest, if any, on the Notes
redeemed to the applicable redemption date (subject to the right of Holders 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 15
of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  103.563

  	
  %

  
	
  2015

  	
   

  	
  101.781

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 At any time and
from time to time prior to November 15, 2013, the Company may redeem up to
35% of the aggregate principal amount of the Notes issued under this Indenture
at a redemption price equal to 107.125% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant Interest Payment Date) with the net cash proceeds
of any Qualified Equity Offering of the Company’s common stock; provided, however, that:


 


(1)                                 after giving
effect to any such redemption, at least 65% of the aggregate principal amount
of the Notes issued on the Issue Date (excluding Notes held by the


 


47

















 


Company and its Subsidiaries)
remains outstanding immediately after the occurrence of any such redemption;


 


(2)                                 any such
redemption shall be made within 90 days of the closing of any such Qualified
Equity Offering upon not less than 30 nor more than 60 days’ prior notice.


 


(c)                                  At any time and
from time to time prior to November 15, 2014, the Company may at its
option redeem the Notes, in whole or in part, at a redemption price equal to
100% of the principal amount of the Notes plus the Applicable Premium as of,
and accrued and unpaid interest to, the redemption date (subject to the right
of Holders on the relevant record date to receive interest due on the relevant
Interest Payment Date).  Notice of such
redemption must be mailed by first-class mail, postage prepaid, to each Holder’s
registered address, not less than 30 nor more than 60 days prior to the
redemption date.


 


(d)                                 Any prepayment
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
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.


 


Section 3.09.                              Offer
To Purchase by Application of Excess Proceeds.


 


(a)                                 In the event
that, pursuant to Section 4.12 hereof, the Company 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 Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.12 hereof (the “Offer Amount”)
or, if less than the Offer Amount has been tendered, all Notes 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.


 


If
the Purchase Date is on or after an interest record date and on or before the
related Interest Payment Date, any accrued and unpaid interest 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.


 


Upon
the commencement of the Asset Sale Offer, the Company shall send, by first
class mail, a notice to the Trustee and 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 Offer shall be made to all Holders. 
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 4.12
hereof and the length of time the Asset Sale Offer shall remain open;


 


(ii)                                  the Offer
Amount, the purchase price and the Purchase Date;


 


48

















 


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


 


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


 


(v)                                 that Holders
electing to have a Note purchased pursuant to an Asset Sale Offer may elect to
have Notes purchased in minimum denominations of $2,000 or integral multiples
of $1,000 in excess thereof only;


 


(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” on the reverse of the Note completed, or transfer by book-entry
transfer, to the Company, a depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice at least three days before
the Purchase Date;


 


(vii)                           that Holders
shall be entitled to withdraw their election if the Company, the depositary or
the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, 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)                        if applicable,
that, if the aggregate principal amount of Notes and other Pari Passu
Indebtedness surrendered by Holders exceeds the Offer Amount, the Company shall
select the Notes and other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and
such other Pari Passu Indebtedness surrendered (with such adjustments as may be
deemed appropriate by the Company so that only Notes in minimum denominations
of $2,000 or integral multiples of $1,000 in excess thereof shall be
purchased); and


 


(ix)                              that Holders
whose 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).


 


On
or before the Purchase Date, the Company shall, to the extent lawful, accept
for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers’ Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09.  The Company, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
Business Days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a
new Note, and the Trustee, upon receipt of an Authentication Order, shall
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered.  Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof.  The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.


 


Other
than as specifically provided in this Section 3.09, any purchase pursuant
to this Section 3.09 shall be made pursuant to the provisions of Section 3.01
through 3.06 hereof.


 


49

















 


ARTICLE 4.


 


COVENANTS


 


Section 4.01.                              Payment
of Notes.


 


The
Company 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, premium, if any, and
interest and Additional Interest, if any, shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 11:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest and Additional Interest, if any,
then due.  The Company shall pay
Additional Interest, if any, in the same manner, on the dates and in the
amounts set forth in the Registration Rights Agreement.


 


The
Company shall 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 a rate that is 1% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any, (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful.


 


Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.


 


Section 4.02.                              Maintenance
of Office or Agency.


 


(a)                                 The Company
shall maintain an office or agency (which may be an office or drop facility of
the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Notes may be presented or surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. 
The Company 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 Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


(b)                                 The Company 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. 
The Company 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.


 


(c)                                  The Company
hereby designates the Corporate Trust Office of the Trustee, as one such
office, drop facility or agency of the Company in accordance with Section 2.03.


 


Section 4.03.                              Reports.


 


(a)                                 Notwithstanding
that the Company may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, so long as any Notes are outstanding the
Company shall furnish to the Holders of the Notes (with copies to the Trustee),
within the time periods specified in the SEC’s rules and regulations:


 


50

















 


(i)                                     all quarterly
and annual financial information that would be required to be contained in a
filing with the SEC on Forms 10-Q and 10-K if the Company were required to file
such Forms, including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and, with respect to the annual
information only, a report on the annual financial statements by the Company’s
certified independent accountants; and


 


(ii)                                  all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports.


 


The Company will be deemed to have furnished such reports to the
Trustee and the Holders if the Company has filed such reports with the SEC via
the EDGAR filing system (or any successor system) and such reports are publicly
available.


 


(b)                                 If the Company
has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the
quarterly and annual financial information required by the preceding clause (a) will
include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes thereto, and in Management’s Discussion and
Analysis of Financial Condition and Results of Operations, of the financial
condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Company’s Unrestricted Subsidiaries.


 


(c)                                  In addition,
following the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, whether or not required by the SEC, the Company
shall file a copy of all of the information and reports referred to in clauses
(a)(i) and (a)(ii) above with the SEC for public availability within
the time periods specified in the SEC’s rules and regulations (unless the
SEC will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.


 


(d)                                 For so long as
any Notes remain outstanding, the Company shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


Section 4.04.                              Compliance
Certificate.


 


(a)                                 The Company
shall deliver to the Trustee, within 120 days after the end of each fiscal year
commencing with the fiscal year ending December 31, 2011, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company is not in Default (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.


 


(b)                                 The year-end
financial statements delivered to the Trustee pursuant to Section 4.03
above shall be accompanied by a written statement of the Company’s independent
public accountants (who shall be a firm of established national reputation)
that in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Articles 4 or 5 hereof or, if
any such violation has


 


51

















 


occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation;  provided that if delivery of such accountant’s statement
would be contrary to the then current recommendations of the American Institute
of Certified Public Accountants as evidenced by an Officers’ Certificate to
such effect, delivery of such accountant’s statement shall not be required
under this Section 4.04(b).


 


(c)                                  The Company
shall, so long as any of the Notes are outstanding, deliver to the Trustee,
promptly after becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default, its status and what
action the Company is taking or proposes to take with respect thereto.


 


Section 4.05.                              Taxes.


 


The
Company 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 proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes; provided that
neither the Company nor any such Restricted Subsidiary shall be required to pay
or discharge, or cause to be paid or discharged, any such tax, assessment,
charge or claim the amount, applicability or validity of which is being
contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP.


 


Section 4.06.                              Stay,
Extension and Usury Laws.


 


The
Company covenants (to the extent that it may lawfully do so) that it 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 Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it 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.                              Corporate
Existence.


 


Subject
to Article 5 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
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 Company or any
such Restricted Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries; provided, however, that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the
Notes.


 


Section 4.08.                              Payments
for Consent.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of


 


52

















 


any
of the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid and is paid to all Holders of the Notes that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.


 


Section 4.09.                              Incurrence
of Indebtedness.


 


(a)                                 The Company
shall not, and shall 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, with respect to
(collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company shall not issue any Disqualified
Stock and shall not permit any of its Restricted Subsidiaries to issue any
Disqualified Stock; provided, however, that the Company and its Restricted Subsidiaries
may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock,
if the Fixed Charge Coverage Ratio for the Company’s most recently ended four
full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified 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 had been issued, as the case may be, at the beginning of
such four-quarter period and any other Indebtedness repaid or Disqualified
Stock that ceased to be outstanding since the beginning of such four-quarter
period had been repaid or ceased to be outstanding at the beginning of such
four-quarter period.


 


(b)                                 Paragraph (a) of
this Section 4.09 will not prohibit the incurrence of any of the following
items of Indebtedness (collectively, “Permitted Debt”):


 


(i)                                     the incurrence
of additional Indebtedness and letters of credit under one or more Credit
Facilities and Guarantees thereof; provided that
the aggregate principal amount of all Indebtedness of the Company and its
Restricted Subsidiaries incurred pursuant to this clause (i) does not
exceed $500.0 million at the time of incurrence thereof;


 


(ii)                                  the incurrence
by the Company and its Restricted Subsidiaries of the Existing Indebtedness;


 


(iii)                               the incurrence
by the Company and any Subsidiary Guarantor of Indebtedness represented by the
Notes and the Subsidiary Guarantees to be issued on the Issue Date (and the
related Exchange Notes and Guarantees to be issued in exchange for the Notes
and the Subsidiary Guarantees pursuant to the Registration Rights Agreement)
and contribution, indemnification and reimbursement obligations owed by the
Company or any Subsidiary Guarantor to any of the other of them in respect of
amounts paid or payable on such Notes or Guarantees;


 


(iv)                              the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case incurred for the purpose of financing all or any part
of the purchase price or cost of construction or improvement of property, plant
or equipment used in the Company’s business or the business of such Restricted
Subsidiary, in an aggregate principal amount, including all Indebtedness
incurred to refund, refinance or replace any Indebtedness incurred pursuant to
this clause (iv), not to exceed $30.0 million at any time outstanding;


 


(v)                                 the incurrence
by the Company or any of its Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that
was incurred under clause (a) of this Section 4.09 or clauses (ii) or
(iii) of this Section 4.09(b);


 


53

















 


(vi)                         the incurrence
by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness owed to the Company or any of the Restricted Subsidiaries; provided, however, that:


 


(A)                                    if the Company
is the obligor on such Indebtedness, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes;


 


(B)                                    if a Subsidiary
Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of such Subsidiary Guarantor’s
Subsidiary Guarantee; and


 


(C)                                    (1) any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary and (2) any sale or other transfer of any such Indebtedness to
a Person that is not either the Company or a Restricted Subsidiary shall be
deemed, in each case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (vi);


 


(vii)                           the incurrence
by the Company or any of its Restricted Subsidiaries of Hedging Obligations and
other obligations with respect to derivative transactions incurred to hedge
bona fide business risks and not for speculative purposes;


 


(viii)                        the guarantee
by the Company or any of its Restricted Subsidiaries of Indebtedness that was
permitted to be incurred by another provision of this covenant; provided that, if the Indebtedness being guaranteed is
subordinated to the Notes, such Guarantee is subordinated to the Notes to the
same extent as the Indebtedness being guaranteed;


 


(ix)                              the incurrence
by the Company’s Unrestricted Subsidiaries of Non-recourse Debt; provided, however, that
if any such Indebtedness ceases to be Non-recourse Debt of an Unrestricted
Subsidiary, such event shall be deemed to be an incurrence of Indebtedness by a
Subsidiary of the Company that was not permitted by this clause (ix);


 


(x)                                 the incurrence
by the Company or any of its Restricted Subsidiaries of any Indebtedness under
Seller Notes, not to exceed at the time of incurrence thereof the greater of (x) $50.0
million and (y) 5% of Consolidated Total Assets, including all
Indebtedness incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (x);


 


(xi)                              Indebtedness incurred in
respect of workers’ compensation claims and self-insurance obligations, and,
for the avoidance of doubt, indemnity, bid, performance, warranty, release,
appeal, surety and similar bonds, letters of credit for operating purposes and
completion guarantees provided or incurred (including Guarantees thereof) by
the Company or any Restricted Subsidiary in the ordinary course of business;


 


(xii)                           Indebtedness arising from
agreements of the Company or a Restricted Subsidiary providing for
indemnification, contribution, earnout, adjustment of purchase price or similar
obligations, in each case incurred or assumed in connection with the
acquisition or disposition of any business, assets or Equity Interests of the
Company or a Restricted Subsidiary otherwise permitted under this Indenture;


 


54

















 


(xiii)                        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, however, that
such Indebtedness is extinguished within five business days of incurrence, and
Indebtedness arising from negative account balances in cash pooling arrangements
arising in the ordinary course of business;


 


(xiv)                       obligations of the Company
or its Restricted Subsidiaries in respect of customer advances received and
held in the ordinary course of business; and


 


(xv)                          the incurrence by the
Company or any of its Restricted Subsidiaries of additional Indebtedness in an
aggregate principal amount (or accreted value, as applicable) not to exceed the
greater of (x) $50.0 million and (y) 5.0% of Consolidated Total
Assets at the time of incurrence thereof (which amount may be incurred, in
whole or in part, under any of the Credit Facilities).


 


(c)                                  For purposes of
determining compliance with this Section 4.09, in the event that an item
of proposed Indebtedness meets the criteria of more than one of the categories
of Permitted Debt described above as of the date of incurrence thereof or is
entitled to be incurred pursuant to clause (a) of this Section 4.09,
the Company shall, in its sole discretion, at the time the proposed
Indebtedness is incurred, (x) classify all or a portion of that item of
Indebtedness on the date of its incurrence under either clause (a) of this
Section 4.09 or under any category of Permitted Debt, (y) reclassify
at a later date all or a portion of that or any other item of Indebtedness as
being or having been incurred in any manner that complies with this Section 4.09
and (z) elect to comply with this Section 4.09 and the applicable
definitions in any order; provided, however, that Indebtedness incurred pursuant to the Credit
Agreement on the Issue Date (or any subsequent or replacement Credit Facility
contemplated by the Company’s offering memorandum dated October 20, 2010
relating to the Notes) shall be treated as incurred pursuant to clause (1) of
the definition of Permitted Debt and may not later be reclassified.


 


(d)                                 The accrual of
interest, accretion or amortization of original issue discount and the payment
of interest on Indebtedness in the form of additional Indebtedness or payment
of dividends on Capital Stock in the forms of additional shares of Capital
Stock with the same terms will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.09.


 


(e)                                  The Company
shall not incur, create, issue, assume, guarantee or otherwise become liable
for any Indebtedness that is contractually or by its terms subordinate or
junior in right of payment to any Senior Debt of the Company and not
subordinate or junior in right of payment to the Notes to the same extent; provided, however, that
no Indebtedness of the Company will be deemed to be contractually subordinated
in right of payment solely by virtue of being unsecured or secured to a greater
or lesser extent or with greater or lower priority or by virtue of structural
subordination.  No Subsidiary Guarantor
will incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is contractually or by its terms subordinate or junior in
right of payment to the Senior Debt of such Subsidiary Guarantor and not
subordinate or junior in right of payment to such Subsidiary Guarantor’s
Subsidiary Guarantee to the same extent; provided, however, that no Indebtedness of a Subsidiary Guarantor will
be deemed to be contractually subordinated in right of payment solely by virtue
of being unsecured or secured to a greater or lesser extent or with greater or
lower priority or by virtue of structural subordination.


 


55

















 


Section 4.10.                              Restricted
Payments.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:


 


(a)                                 declare and pay
any dividend or make any other payment or distribution on account of the
Company’s or any of its Restricted Subsidiaries’ Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the direct
or indirect holders of the Company or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (in each case other than dividends
or distributions (i) payable in the Company’s or any of its Restricted
Subsidiaries’ Equity Interests (other than Disqualified Stock) or (b) to
the Company or any of its Restricted Subsidiaries);


 


(b)                                 purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company or any of
its Restricted Subsidiaries) any of the Company’s or its Restricted
Subsidiaries’ Equity Interests (in each case other than (i) any of the Company’s
Restricted Subsidiaries’ Equity Interests owned by the Company or another
Restricted Subsidiary and (ii) a payment made solely with Equity Interests
not constituting Disqualified Stock);


 


(c)                                  make any
payment (other than a payment made solely with Equity Interests not
constituting Disqualified Stock) to purchase, redeem, defease or otherwise
acquire or retire for value, prior to any scheduled maturity or scheduled
sinking fund or mandatory redemption payment, any of the Company’s or its
Restricted Subsidiaries’ Subordinated Indebtedness (other than Subordinated
Indebtedness owed to the Company or any of its Restricted Subsidiaries), except
payments or principal and interest in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case within one
year of the due date thereof and payments of principal and interest at the
Stated Maturity thereof; or


 


(d)                                 make any
Restricted Investment


 


(all
such payments and other actions set forth in these clauses (a) through (d) above
being collectively referred to as “Restricted Payments”),
unless, at the time of and after giving effect to such Restricted Payment:


 


(a)                                 no Default or
Event of Default has occurred and is continuing or would exist upon giving
effect to such Restricted Payment; and


 


(b)                                 the Company
would, at the time of such Restricted Payment and after giving pro forma effect
thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a); and


 


(c)                                  such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Company and its Restricted Subsidiaries after the Issue Date
(excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6) and
(7) of the next paragraph), is less than the sum, without duplication, of


 


(i)                                50% of the
Company’s Consolidated Net Income for the period (taken as one accounting
period) from the beginning of the first fiscal quarter commencing after the
Issue Date  to the end of the Company’s
most recently ended fiscal quarter for which the Company’s financial


 


56
















 


statements are publicly
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit), plus


 


(ii)                                  100% of the
aggregate net cash proceeds or the Fair Market Value of property or assets
received by the Company since the Issue Date as a contribution to the Company’s
common equity capital or from the issue or sale of the Company’s Equity
Interests (other than Disqualified Stock) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or exchangeable
debt securities of the Company that have been converted into or exchanged for
such Equity Interests (other than Equity Interests or Disqualified Stock or
debt securities sold to a Subsidiary of the Company), plus


 


(iii)                               to the extent
that any of the Company’s Unrestricted Subsidiaries are redesignated as a
Restricted Subsidiary after the Issue Date, the Fair Market Value of the
Company’s Investment in such Subsidiary as of the date of such redesignation.


 


So
long as no Default has occurred and is continuing or would exist upon giving
effect thereto (except with respect to clauses (3) and (5) below),
the preceding provisions will not prohibit:


 


(1)                                 the payment of
any dividend within 60 days after the date of declaration of the dividend, if
at the date of declaration the dividend payment would have complied with the
provisions hereof;


 


(2)                                 the redemption,
purchase, repurchase, retirement, defeasance or other acquisition of any of the
Company’s or any of its Restricted Subsidiaries’ Subordinated Indebtedness or
of any of the Company’s Equity Interests in exchange for, or out of the net
cash proceeds of the substantially concurrent sale (other than to any of the
Company’s Restricted Subsidiaries) of, the Company’s Equity Interests (other
than Disqualified Stock); provided that
the amount of any such net cash proceeds that are utilized for any such
redemption, purchase, repurchase, retirement, defeasance or other acquisition
will be excluded from clause (c)(ii) of the preceding paragraph;


 


(3)                                 the defeasance,
redemption, repurchase or other acquisition or retirement for value of the
Subordinated Indebtedness of the Company or Subordinated Indebtedness of any of
its Restricted Subsidiaries with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness or of Equity Interests other than
Disqualified Stock;


 


(4)                                 the purchase,
repurchase, redemption, or other acquisition or retirement for value of any
Equity Interests of the Company held by any member of the Company’s (or any of
its Restricted Subsidiaries’) management (or their estates or beneficiaries
under their estates) pursuant to any management equity subscription agreement,
stock option agreement or similar agreement or other agreement under which such
Equity Interests were issued; provided
that the aggregate price paid for all such purchased, repurchased, redeemed,
acquired or retired Equity Interests may not exceed $3.0 million in any
twelve-month period; provided, further,
that any of the $3.0 million permitted to be applied under this clause (4) in
any twelve-month period (and not so applied) may be carried forward for use in
any future twelve-month period; provided,
further, that such amount in any twelve-month period may be
increased by an amount not to exceed (A) the cash proceeds received by the
Company or any of its Restricted Subsidiaries from the sale of Equity Interests
of the Company (other than Disqualified Stock) to any member of the Company’s
(or any of its Restricted Subsidiaries’) management that occurs after the Issue
Date; provided, however, that the
amount of such cash proceeds utilized for any such purchase, repurchase,
redemption or other acquisition or retirement for value will not increase the
amount available for Restricted Payments under clause (c)(ii) of the
preceding paragraph; plus
(B) the cash proceeds of


 


57

















 


key man life insurance policies received by the
Company and its Restricted Subsidiaries after the Issue Date;


 


(5)                                 in the case of
a Subsidiary, the payment of dividends or any similar distribution to the
holders of any class of its Capital Stock on a pro rata basis;


 


(6)                                 the repurchase of Equity
Interests deemed to occur upon the exercise of stock options, warrants or other
convertible or exchangeable securities;


 


(7)                                 any cash payment, in lieu of
issuance of fractional shares, in connection with the exercise of warrants,
options or other securities convertible into or exchangeable for Capital Stock
of the Company or the Capital Stock of any of its Restricted Subsidiaries;


 


(8)                                 to the extent no Default in
any payment in respect of principal or interest under the Notes or the Credit
Agreement or Event of Default has occurred and is continuing or would exist
upon giving effect thereto, upon the occurrence of a Change of Control or an
Asset Sale, the defeasance, redemption, repurchase or other acquisition of any
subordinated Indebtedness pursuant to provisions substantially similar to Section 4.18
and Section 4.12 hereof at a purchase price not greater than 101% of the
principal amount thereof (in the case of a Change of Control) or at a
percentage of the principal amount thereof not higher than the principal amount
applicable to the Notes (in the case of an Asset Sale), plus any accrued and
unpaid interest thereon; provided
that prior to or contemporaneously with such defeasance, redemption, repurchase
or other acquisition, the Company has made a Change of Control Offer or Asset
Sale Offer, as the case may be, with respect to the Notes and have repurchased
all Notes validly tendered for payment and not withdrawn in connection
therewith;


 


(9)                                 to the extent no Default in
any payment in respect of principal or interest under the Notes or the Credit
Agreement or Event of Default has occurred and is continuing or would exist
upon giving effect thereto, the payment of dividends on the Company’s common
stock and the purchase, repurchase, redemption, defeasance or other acquisition
or retirement of any Equity Interests of the Company (other than Disqualified
Stock) in an aggregate amount not to exceed $10.0 million in any calendar
year;


 


(10)                          the purchase,
redemption, defeasance or other acquisition or retirement for value of any
Seller Notes incurred under clause (x) of the definition of Permitted Debt
or existing on the Issue Date; provided that
the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09;


 


(11)                          the declaration
and payment of dividends to holders of any class or series of Disqualified
Stock of the Company or the Disqualified Stock of any Restricted Subsidiary
issue or incurred in compliance with Section 4.09 to the extent such
dividends are included in the calculation of “Fixed Charges”; and


 


(12)                          other
Restricted Payments in an aggregate amount since the Issue Date not to exceed
$50.0 million.


 


The
amount of all Restricted Payments (other than cash) will be the Fair Market
Value on the date of the Restricted Payment of the asset(s), property or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.


 


58

















 


The
Fair Market Value of any assets or securities that are required to be valued by
this Section 4.10 in excess of $20.0 million will be determined by the
Board of Directors of the Company whose resolutions with respect thereto will
be delivered to the Trustee.  The Board
of Directors’ determination must be based upon an opinion or appraisal issued
by an accounting, appraisal or investment banking firm of national standing if
the Fair Market Value exceeds $50.0 million. 
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers’ Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.10 were computed, together with a
copy of any fairness opinion or appraisal required by this Indenture.


 


For purposes of this Section 4.10, if a particular Restricted
Payment involves a non-cash payment, including a distribution of assets, then
such Restricted Payment shall be deemed to be an amount equal to the cash
portion of such Restricted Payment, if any, plus an amount equal to the Fair
Market Value of the non-cash portion of such Restricted Payment.


 


Section 4.11.                              Liens.


 


The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind securing Indebtedness or Attributable Debt on any
asset now owned or hereafter acquired or any proceeds therefrom, or assign or
convey any right to receive income therefrom, except Permitted Liens, unless:


 


(a)                                 in the case of
Liens securing Subordinated Indebtedness, the Notes and related Subsidiary
Guarantees are secured by a Lien on such property (including Capital Stock of a
Restricted Subsidiary), assets, proceeds, income or profit that is senior in
priority to such Liens until such time as such Subordinated Indebtedness is no
longer secured by such Liens; and


 


(b)                                 in the case of
Liens securing Senior Debt, the Notes and related Subsidiary Guarantees are
equally and ratably secured on such property (including Capital Stock of a
Restricted Subsidiary), assets, proceeds, income or profit until such time as
such Senior Debt is no longer secured by such Liens.


 


Section 4.12.                              Asset
Sales.


 


(a)                                 The Company
shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:


 


(i)                                     the Company (or
the Restricted Subsidiary, as the case may be) receive consideration at the
time of the Asset Sale at least equal to the Fair Market Value of the assets
sold, leased, transferred, conveyed or otherwise disposed of;


 


(ii)                                  the fair market
value, if greater than $50.0 million, is determined by the Company’s Board of
Directors and evidenced by a resolution of the Board of Directors set forth in
an Officer’s Certificate delivered to the Trustee; and


 


(iii)                               at least 75% of
the consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets.


 


59

















 


(b)                                 For purposes of
this Section 4.12, each of the following will be deemed to be cash:


 


(i)                                     any liabilities
of the Company or any of its Restricted Subsidiaries, as shown on the Company’s
or such Restricted Subsidiary’s most recent balance sheet (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any Restricted Subsidiary’s Subsidiary Guarantee), that are
assumed by the transferee of any such assets pursuant to a customary assignment
and assumption agreement that releases the Company or such Restricted Subsidiary
from further liability with respect thereto;


 


(ii)                                  any securities,
notes or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are converted by the Company or such
Restricted Subsidiary into cash within 180 days of receipt thereof (subject to
ordinary settlement periods), to the extent of the cash received in that
conversion; and


 


(iii)                               any Designated
Non-cash Consideration received by the Company or any 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 (iii) that is at the time outstanding, not to exceed the
greater of $10.0 million and 1.5% of the Consolidated Total Assets of the
Company 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.


 


(c)                                  Within 365 days
after the receipt of any Net Proceeds from an Asset Sale, the Company (or the
applicable Restricted Subsidiary, as the case may be) may apply those Net
Proceeds at its option:


 


(i)                                     to permanently
reduce obligations under the Credit Agreement and, in the case of revolving
obligations thereunder, to correspondingly reduce commitments with respect
thereto (or other Indebtedness of the Company or Subsidiary Guarantees secured
by a Lien) or Pari Passu Indebtedness; provided
that if the Company or a Subsidiary Guarantor shall so reduce obligations under
such Pari Passu Indebtedness, the Company (or the applicable Subsidiary
Guarantor, as the case may be) will equally and ratably reduce Obligations
under the Notes by making an offer (in accordance with Section 3.09
hereof) to all Holders of Notes to purchase at a purchase price equal to 100%
of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, the pro rata
principal amount of Notes), in each case other than Indebtedness owed to either
the Company or an Affiliate of the Company (provided
that in the case of any reduction of any revolving obligations, the Company or
such Subsidiary Guarantor shall effect a corresponding reduction of commitments
with respect thereto);


 


(ii)                                  to acquire all
or substantially all of the assets of, or a majority of the Voting Stock of,
another Permitted Business;


 


(iii)                               to acquire
assets (other than inventory) that are used or useful in a Permitted Business;


 


(iv)                              to make capital
expenditures in or that are used or useful in a Permitted Business or to make
expenditures for maintenance, repair or improvement of existing properties and
assets in a manner not prohibited by this Indenture, in each case, to the
extent such expenditures are made by or used in the Company or a Subsidiary
Guarantor; or


 


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(v)                                 any combination
of the foregoing clauses (i) through (iv).


 


In the case of each of clauses (ii) and (iii) above, the
entry into a definitive agreement to acquire such assets within 365 days after
the receipt of any Net Proceeds from an Asset Sale shall be treated as a
permitted application of the Net Proceeds from the date of such agreement so
long as the Company or such Restricted Subsidiary, as the case may be, enters
into such agreement with the good faith expectation that such Net Proceeds will
be applied to satisfy such commitment within 455 days of the date of the
receipt of such Net Proceeds and such Net Proceeds are actually so applied
within such period.


 


Pending the final application of any Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.


 


(d)                                 Any Net Proceeds
from Asset Sales that are not applied or invested as provided in Section 4.12(c) will
constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $20.0 million, the Company shall, within 30 days, make one or more
offers to the Holders of the Notes and all holders of other Pari Passu
Indebtedness containing provisions similar to those set forth herein with
respect to offers to purchase or redeem with the proceeds of sales of assets to
purchase the maximum principal amount of Notes and such other Pari Passu
Indebtedness that may be purchased out of the Excess Proceeds (each, an “Asset Sale Offer”). 
The offer price in any Asset Sale Offer will be equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, to the date of purchase, and shall be payable in cash.  If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture and they will no
longer constitute Excess Proceeds.  If
the aggregate principal amount of Notes and other Pari Passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other Pari Passu Indebtedness to be
purchased as described in Article 3 hereof.  Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.


 


(e)                                  The Company
shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with each repurchase of Notes
pursuant to an Asset Sale Offer.  To the
extent that the provisions of any securities laws or regulations conflict with
the Asset Sale provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and will not be deemed to have
breached the Company’s obligations under this Section 4.12 by virtue of
such conflict.


 


Section 4.13.                              Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


The
Company shall not, and shall not permit any Restricted Subsidiary of the
Company to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:


 


(a)                                 pay dividends
or make any other distributions on or in respect of its Capital Stock to the
Company or any of its Restricted Subsidiaries or pay any Indebtedness owed to
the Company or any other of its Restricted Subsidiaries;


 


(b)                                 make any loans
or advances to the Company or any other Restricted Subsidiary of the Company;
or


 


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(c)                                  transfer any of
its properties or assets to the Company or any other Restricted Subsidiary of
the Company.


 


However,
the preceding restrictions will not apply to encumbrances or restrictions
existing under or by reason of:


 


(i)                                any agreement
or other document as in effect on the Issue Date or subsequent agreements or
documents relating to the Company’s Indebtedness or Indebtedness of any
Restricted Subsidiary and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
such agreements; provided that the amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are not, in the good faith judgment of the Company,
materially more restrictive, taken as a whole, with respect to such dividend
and other payment restrictions than those contained in those agreements or
documents on the Issue Date;


 


(ii)                             this Indenture,
the Notes and the Subsidiary Guarantees;


 


(iii)                          applicable law,
rule, regulation or order;


 


(iv)                         any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness or Capital Stock was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired; provided that, in the case of Indebtedness,
such Indebtedness was permitted by the terms of this Indenture to be incurred;


 


(v)                            customary
provisions restricting subletting or assignment of any lease, contract, or
license and provisions in agreements that restrict the assignment of such agreement
or any rights thereunder;


 


(vi)                         purchase money
obligations (including Capital Lease Obligations) for property acquired in the
ordinary course of business that impose restrictions on that property (and
proceeds thereof) of the nature described in clause (c) of this Section 4.13;


 


(vii)                      any agreement
in connection with the sale of assets or Capital Stock, including, without
limitation, any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by that Restricted Subsidiary or its
assets pending such sale or other disposition;


 


(viii)                   Permitted Refinancing
Indebtedness; provided that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are not, in the good faith judgment of the Company, materially more
restrictive, taken as a whole, than those contained in the agreements governing
the Indebtedness being refinanced;


 


(ix)                         Liens securing
Indebtedness otherwise permitted to be incurred under Section 4.11 that
limit the right of the debtor to dispose of the assets subject to such Liens;


 


(x)                            provisions with
respect to the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, stock sale agreements and other
similar agreements;


 


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(xi)                              any encumbrance or
restriction existing at the time of the acquisition of property, so long as the
encumbrances or restrictions relate solely to the property so acquired (and are
not or were not created in anticipation of or in connection with the
acquisition thereof);


 


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


 


(xiii)                        any Person that becomes a
Restricted Subsidiary or merges with or into a Restricted Subsidiary on or
after the Issue Date, which encumbrance or restriction is in existence at the
time such Person becomes a Restricted Subsidiary or merges with or into a Restricted
Subsidiary, but not created in connection with or in anticipation of such
Person becoming a Restricted Subsidiary or merging with or into a Restricted
Subsidiary, and which is not applicable to any Person or the property or assets
of any Person other than such Person or the property or assets of such Person
becoming a Restricted Subsidiary;


 


(xiv)                       any Non-Recourse Receivable
Subsidiary Indebtedness or other contractual requirements of a Receivable
Subsidiary that is a Restricted Subsidiary in connection with a Qualified
Receivables Transaction; provided
that such restrictions apply only to such Receivable Subsidiary or the accounts
receivable and other financial assets described in the definition of “Qualified
Receivables Transaction” which are subject to such Qualified Receivables
Transaction; and


 


(xv)                          any other
agreement governing Indebtedness entered into after the Issue Date that
contains encumbrances and restrictions that are not materially more restrictive
with respect to any Restricted Subsidiary than those in effect on the Issue
Date with respect to that Restricted Subsidiary pursuant to agreements in
effect on the Issue Date.


 


Nothing contained in this Section 4.13 shall
prevent the Company or any Restricted Subsidiary from (a) creating, incurring,
assuming or suffering to exist any Liens otherwise permitted under Section 4.11
hereof or (b) restricting the sale or other disposition of property or
assets of the Company or any of its Restricted Subsidiaries that secure
Indebtedness that is not prohibited by this Indenture.


 


Section 4.14.                              Transactions
with Affiliates.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
the Company’s or its Restricted Subsidiaries’ respective 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 Company involving aggregate
consideration in excess of $2.0 million (each, an “Affiliate
Transaction”), unless:


 


(a)                                 such Affiliate
Transaction is on terms that are not materially less favorable to the Company
or the relevant Subsidiary than those that could reasonably have been obtained
in a comparable arm’s length transaction by the Company or such Subsidiary with
an unaffiliated party; and


 


(b)                                 the Company
delivers to the Trustee:


 


(i)                                with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $20.0 million, a resolution of the Board
of Directors set forth in an Officers’ Certificate certifying that such
Affiliate Transaction complies with this Section 4.14; and


 


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(ii)                             with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $50.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing.


 


The
following items will not be deemed to be Affiliate Transactions and, therefore,
will not be subject to the provisions of the prior paragraph:


 


(a)                                 any employment
agreement, employee benefit plan, related trust agreement or any other similar
arrangement entered into by the Company or any of its Restricted Subsidiaries
in the ordinary course of business;


 


(b)                                 transactions
between or among the Company and/or its Restricted Subsidiaries;


 


(c)                                  transactions
with a Person that is an Affiliate of the Company solely because the Company
owns an Equity Interest in such Person;


 


(d)                                 the payment of
reasonable and customary compensation and indemnities and other benefits to
members of our Board of Directors or the Board of Directors of a Restricted
Subsidiary who are outside directors;


 


(e)                                  the payment of
reasonable and customary compensation and other benefits (including retirement,
health, option, deferred compensation and other benefit plans) and indemnities
to directors, officers and employees of the Company or any Restricted
Subsidiary in the ordinary course of business;


 


(f)                                   sales of Equity
Interests (other than Disqualified Stock) to Affiliates of the Company;


 


(g)                                  Permitted
Investments, Restricted Payments that are permitted by Section 4.10 hereof
and transactions permitted by, and complying with, Section 5.01 hereof;


 


(h)                                 any agreement
(including any certificate of designations relating to Capital Stock) as in
effect as of the Issue Date or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Holders in any material respect
than the original agreement as in effect on the Issue Date;


 


(i)                                     transactions effected as
part of a Qualified Receivables Transaction;


 


(j)                                    transactions with customers,
clients, suppliers or purchasers or sellers of goods or services, in each case
in the ordinary course of business and on terms that are not materially less
favorable to the Company or such Restricted Subsidiary, as the case may be, as
determined in good faith by the Company, other than those that could be
obtained in a comparable arm’s-length transaction with a Person that is not an
Affiliate of the Company; and


 


(k)                                 sales or leases
of goods to joint ventures and Affiliates (but excluding any officers or
directors) in the ordinary course of business for less than Fair Market Value
but not for less than cost.


 


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Section 4.15.                              Sale
and Leaseback Transactions.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
enter into any transaction pursuant to which property is sold or transferred by
the Company or a Restricted Subsidiary and is thereafter leased back as a
capital lease by the Company or a Restricted Subsidiary; provided
that the Company or any Restricted Subsidiary may enter into such a sale and
leaseback transaction if:


 


(a)                                 the Company or
that Restricted Subsidiary could have (a) incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and leaseback
transaction under the Fixed Charge Coverage Ratio test in the first paragraph
of Section 4.09 and (b) incurred a Lien to secure such Indebtedness
pursuant to Section 4.11,


 


(b)                                 the
consideration received in such sale and leaseback transaction is at least equal
to the Fair Market Value, as set forth in an Officers’ Certificate delivered to
the Trustee, of the property that is the subject of that sale and leaseback
transaction; and


 


(c)                                  the transfer of
assets in that sale and leaseback transaction is permitted by, and the Company
apply the proceeds of such transaction in compliance with Section 4.12.


 


Section 4.16.                              [Reserved]..


 


Section 4.17.                              Designation
of Restricted and Unrestricted Subsidiaries.


 


The
Board of Directors of the Company may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if upon giving effect to such designation a Default
would not exist.  If a Restricted
Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair
Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary properly designated will be deemed to
be an Investment made as of the time of the designation and will reduce the
amount available for Restricted Payments under the first paragraph of Section 4.10
or to the extent such Investments do not constitute Permitted Investments, as
determined by the Company.  That
designation will only be permitted if the Investments would be permitted at
that time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.  The Board of
Directors of the Company may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if upon giving effect to such redesignation a Default
would not exist.  Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the foregoing provisions.


 


Section 4.18.                              Repurchase
at the Option of Holders Upon a Change of Control.


 


(a)                                 Upon the
occurrence of a Change of Control, each Holder shall have the right to require
the Company to repurchase all or any part (equal to a minimum of $2,000 or an
integral multiples of $1,000 in excess thereof) of such Holder’s Notes pursuant
to the offer described below (the “Change of Control Offer”)
at a purchase price (the “Change of Control Payment”)
equal to 101% of the principal amount thereof, plus accrued and unpaid interest
and Additional Interest, if any, on the Notes repurchased to the purchase date
(subject to the right of Holders on the relevant record date to receive
interest due on the relevant Interest Payment Date).


 


Within
10 days following the date of the consummation of a transaction or series of
transactions that constitutes a Change of Control, the Company shall send, by
first-class mail, with a copy


 


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to
the Trustee, a notice to each Holder describing the transaction or series of
transactions that constitute a Change of Control at such Holder’s address
appearing in the securities register maintained in respect of the Notes by the
Registrar (the “Security Register”), and stating:


 


(i)                               that a Change
of Control has occurred and a Change of Control Offer is being made pursuant to
Section 4.18 and that all Notes timely tendered will be accepted for
payment;


 


(B)                                   the Change of
Control Payment and the purchase date, which shall be, subject to any contrary
requirements of applicable law, a business day no earlier than 30 days nor
later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);


 


(C)                                   the
circumstances and relevant facts regarding the Change of Control (including
information with respect to pro forma historical income, cash flow and
capitalization after giving effect to the Change of Control); and


 


(D)                                   the procedures
that Holders must follow in order to tender their Notes (or portions thereof)
for payment, and the procedures that Holders must follow in order to withdraw
an election to tender Notes (or portions thereof) for payment.


 


The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent
those laws and regulations are applicable in connection with the repurchase of
the Notes as a result of a Change of Control. 
To the extent that the provisions of any securities laws or regulations
conflict with the covenant described hereunder, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the covenant described hereunder by virtue of
such conflict.


 


(b)                                 On the Change
of Control Payment Date, the Company shall, to the extent lawful:


 


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


 


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


 


(iii)                          deliver or
cause to be delivered to the Trustee the Notes properly accepted together with
an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.


 


The
Paying Agent shall promptly mail to each Holder of Notes properly tendered the
Change of Control Payment for such Notes, and upon receipt of an Authentication
Order, the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a principal amount of
$2,000 or an integral multiples of $1,000 in excess thereof.


 


(c)                                  The provisions
described above that require the Company to make a Change of Control Offer
following a Change of Control will be applicable whether or not any other
provisions of this Indenture are applicable. 
Except as described above with respect to a Change of Control, this
Indenture does not contain provisions that permit the Holders of the Notes to
require that the Company repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar transaction.


 


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(d)                                 The Company
will not be required to make a Change of Control Offer upon a Change of Control
if (i) a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer or (ii) a notice of redemption has been given pursuant to Section 3.03
hereof.


 


(e)                                  Notwithstanding
the foregoing, 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 transaction or series of transactions that constitute a Change of
Control at the time of consummating the Change of Control Offer.


 


Section 4.19.                              Additional
Subsidiary Guarantees.


 


If
any Domestic Subsidiary of the Company Guarantees at least $15.0 million of the
Obligations of any borrower under a Credit Facility after the Issue Date and such
Domestic Subsidiary is not a Subsidiary Guarantor of the Notes, then that
Domestic Subsidiary will execute and deliver to the Trustee a supplemental
indenture providing for a Subsidiary Guarantee and deliver an Opinion of
Counsel satisfactory to the Trustee within 10 Business Days of the date on
which it provided such Guarantee; provided, however, that the foregoing shall not apply to Subsidiaries
that have properly been designated as Unrestricted Subsidiaries in accordance
with this Indenture for so long as they continue to constitute Unrestricted
Subsidiaries.


 


Section 4.20.                              Changes
in Covenants When Notes Rated Investment Grade


 


(a)                                  If on any date
following the Issue Date (i) the Notes have an Investment Grade Rating
from both of the Ratings Agencies and (ii) no Default has occurred and is
continuing under this Indenture (the date upon which the events described in
the foregoing clauses (i) and (ii) have occurred being referred to as
the “Suspension Date”), the Company and its
Restricted Subsidiaries will not be subject to the following covenants
(collectively, the “Suspended Covenants”):


 


(1)                                     Section 4.10
hereof;


 


(2)                                     Section 4.09
hereof;


 


(3)                                     Section 4.13
hereof;


 


(4)                                     Section 4.12
hereof;


 


(5)                                     Section 4.14
hereof; and


 


(6)                                     Section 5.01(d) hereof.


 


(b)                                  In the event
that the Company and its Restricted Subsidiaries are not subject to the
Suspended Covenants 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 withdraws its Investment Grade Rating or
downgrades the rating assigned to the Notes below an Investment Grade Rating,
then the Company and its Restricted Subsidiaries will thereafter again be
subject to the Suspended Covenants with respect to future events and the Subsidiary
Guarantees will be reinstated to the extent required by this Indenture (unless
and until a Suspension Date again occurs). 
The period of time between any Suspension Date and the related Reversion
Date is referred to as a “Suspension Period.”  Notwithstanding that the Suspended Covenants
may be reinstated, no Default or Event of Default will be deemed to have
occurred as a result of a


 


67

















 


failure to comply with the Suspended Covenants
during a Suspension Period (or on the Reversion Date or after a Suspension
Period based solely on events that occurred during such Suspension
Period).  During any Suspension Period,
the Company’s Board of Directors may not designate any Subsidiary to be an
Unrestricted Subsidiary pursuant to Section 4.17 and the second paragraph
of the definition of “Unrestricted Subsidiary” unless the Company would have
been permitted to designate such Subsidiary to be an Unrestricted Subsidiary if
a Suspension Period had not been in effect for any period.


 


(c)                                   On the
Reversion Date, all Indebtedness incurred during the related Suspension Period
will be classified as having been incurred or issued pursuant to Section 4.09(a),
or, at the Company’s option, one or more of the clauses set forth under Section 4.09(b) (to
the extent such Indebtedness would be permitted to be incurred thereunder as of
the Reversion Date and after giving effect to Indebtedness incurred prior to
the Suspension Period and outstanding on the Reversion Date).  To the extent such Indebtedness would not be
so permitted to be incurred pursuant to Section 4.09(a) or Section 4.09(b),
such Indebtedness will be deemed to have been outstanding on the Issue Date, so
that it is classified as permitted under Section 4.09(b).  Calculations made after the Reversion Date of
the amount available to be made as Restricted Payments under Section 4.10
will be made as though the provisions of Section 4.10 had been in effect
since the Issue Date and throughout the Suspension Period.  Accordingly, Restricted Payments made during
the Suspension Period will reduce the amount available to be made as Restricted
Payments under the first paragraph of Section 4.10.  Additionally, for purposes of determining
compliance with Section 4.12(d), Excess Proceeds will be deemed to be
reset to zero on the Reversion Date.


 


(d)                                  Upon the
occurrence of a Suspension Date or a Reversion Date, the Company shall provide
written notice to the Holders, with a copy to the Trustee, and file with the
Trustee an Officers’ Certificate certifying that such suspension or reversion
complied with the foregoing provisions. 
In the case of a Suspension Date, such notice shall list the Suspended
Covenants.


 


Section 4.21.                              Business
Activities.


 


The
Company shall not, and shall not permit any Restricted Subsidiary to, engage in
any business other than Permitted Businesses, except to such extent as would
not be material to the Company and its Subsidiaries taken as a whole.


 


ARTICLE 5.


 


SUCCESSORS


 


Section 5.01.                              Merger,
Consolidation or Sale of Assets.


 


The
Company shall not, directly or indirectly: 
(1) consolidate or merge with or into another Person (whether or
not the Company is the surviving corporation) or (2) sell, assign,
transfer, convey, lease or otherwise dispose of all or substantially all of the
properties or assets of the Company and the properties or assets of its
Restricted Subsidiaries taken as a whole, in one or more related transactions
(except for a pledge of assets as collateral for security purposes but not any outright
assignment upon any foreclosure of such collateral), to another Person; unless:


 


(a)                                 either:  (x) the Company is the surviving
corporation; or (y) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is a Person
organized or existing under the laws of the United States, any state of the
United States or the District of Columbia;


 


68

















 


(b)                                 the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, conveyance or
other disposition has been made assumes all of the Company’s obligations under
the Notes and this Indenture pursuant to agreements reasonably satisfactory to
the Trustee;


 


(c)                                  immediately
after such transaction no Default or Event of Default exists; and


 


(d)                                 the Company or
the Person formed by or surviving any such consolidation or merger (if other
than the Company), or to which such sale, assignment, transfer, conveyance or
other disposition has been made will, on the date of such transaction after
giving pro forma effect thereto and any related financing transactions as if
the same had occurred at the beginning of the applicable four-quarter period, (i) be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.09 or (ii) the
Company’s Fixed Charge Coverage Ratio, or that of the Person formed by or
surviving any such consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, conveyance or other disposition has been
made, shall not be less than the Company’s Fixed Charge Coverage Ratio
immediately prior to such transaction or series of transactions.


 


Notwithstanding
the foregoing, failure to satisfy the requirements of the preceding clauses (c) and
(d) will not prohibit:


 


(i)                                     a merger between the Company
and a Restricted Subsidiary that is a wholly-owned Subsidiary of the Company or
the sale, assignment, conveyance, transfer, lease or other disposition of all
or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole to a Restricted Subsidiary that is a wholly-owned
Subsidiary of the Company; or


 


(ii)                                  a merger between the Company
and an Affiliate formed solely for the purpose of converting the Company into
an entity organized under the laws of the United States or any political subdivision
or state thereof; so long as, in each case, the amount of Indebtedness of the
Company and its Restricted Subsidiaries is not increased thereby.


 


Section 5.02.                              Successor
Company Substituted.


 


The
Person formed by or surviving any consolidation or merger (if other than the
Company) shall succeed to, and be substituted for, and may exercise every right
and power of the Company under this Indenture, but, in the case of a lease of
all or substantially all the Company’s assets, the Company shall not be released
from the obligation to pay the principal of and interest on the Notes.


 


ARTICLE 6.


 


DEFAULTS AND REMEDIES


 


Section 6.01.                              Events
of Default.


 


Each
of the following is an “Event of Default”
if it shall occur and be continuing:


 


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


 


(ii)                             default in
payment when due of the principal of or premium, if any, on the Notes;


 


69

















 


(iii)                               failure by the
Company or any of its Restricted Subsidiaries to comply with Article 5
hereof;


 


(iv)                              failure by the
Company or any of its Restricted Subsidiaries for 30 days after notice to
comply with Sections 4.12 or 4.18 hereof;


 


(v)                                 failure to
perform or comply with Section 4.03 hereof and continuance of such failure
to perform or comply for a period of 90 days after written notice thereof has
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in the aggregate principal amount of the
outstanding Notes;


 


(vi)                              failure by the
Company or any of its Restricted Subsidiaries for 60 days after notice to
comply with any other covenant or agreement in this Indenture or the Notes
after written notice thereof has been given to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in the aggregate
principal amount of the outstanding Notes;


 


(vii)                           default by the
Company or any Restricted Subsidiary under any mortgage, indenture or
instrument (other than this Indenture, the Notes and the Subsidiary Guarantees)
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed (other than any such Indebtedness payable
to the Company or any of its Subsidiaries) by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee
now exists, or is created after the Issue Date, if that default:


 


(A)                          is caused by a
failure to pay any scheduled installment of principal on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness (a “Payment Default”); or


 


(B)                          results in the
acceleration of such Indebtedness prior to its express maturity,


 


and,
in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there exists a
Payment Default or the maturity of which has been so accelerated at such time,
aggregates more than $30.0 million;


 


(viii)                        failure by the
Company or any of the Subsidiary Guarantors to pay final judgments (to the
extent not covered by insurance) aggregating in excess of $30.0 million, which
judgments are not paid, discharged, satisfied, waived, bonded or stayed for a
period of 60 consecutive days;


 


(ix)                              except as
permitted by or in accordance with this Indenture, any Subsidiary Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any Subsidiary
Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, shall
deny or disaffirm its obligations under its Subsidiary Guarantee; and


 


(x)                                 the Company or
any of its Significant Subsidiaries (or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary) pursuant to or
within the meaning of Bankruptcy Law:


 


(A)                               commences a
voluntary case,


 


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(B)                               consents to the
entry of an order for relief against it in an involuntary case,


 


(C)                               consents to the
appointment of a custodian of it or for all or substantially all of its
property,


 


(D)                               makes a general
assignment for the benefit of its creditors, or


 


(E)                                generally is
not paying its debts as they become due; and


 


(xi)                              a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(A)                          is for relief
against the Company or any of its Significant Subsidiaries (or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary)
in an involuntary case; or


 


(B)                          appoints a
Custodian of the Company or any of its Significant Subsidiaries (or any group
of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary) or for all or substantially all of the property of the Company or
any of its Significant Subsidiaries (or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary); or


 


(C)                          orders the
liquidation of the Company or any of its Significant Subsidiaries (or any group
of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary);


 


and
the order or decree remains unstayed and in effect for 60 consecutive days.


 


Section 6.02.                              Acceleration.


 


If
an Event of Default (other than an Event of Default specified in clauses (x) or
(xi) of Section 6.01 hereof, with respect to the Company, any
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together would constitute a Significant Subsidiary),
shall have occurred and be continuing, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding may
declare to be immediately due and payable the principal amount of all the Notes
then outstanding, plus accrued but unpaid interest and Additional Interest, if
any, to the date of acceleration, by a notice in writing to the Company (and to
the Trustee if given by the Holders of the Notes); provided,
however, that after such acceleration, but before a judgment or
decree based on acceleration, the Holders of a majority in aggregate principal
amount of the outstanding Notes may rescind and annul such acceleration if all
Events of Default, other than the nonpayment of accelerated principal of or
interest on the Notes, have been cured or waived as provided in this Indenture.


 


In
the event of a declaration of acceleration of the Notes solely because an Event
of Default under Section 6.01(vii) hereof has occurred and is
continuing, the declaration of acceleration of the Notes shall be automatically
rescinded and annulled if the Event of Default or Payment Default triggering
such Event of Default pursuant to Section 6.01(vii) hereof shall be
remedied or cured by the Company or a Restricted Subsidiary or waived by the
Holders of the relevant Indebtedness within 20 business days after the
declaration of acceleration with respect thereto and if the rescission and
annulment of the acceleration of the Notes would not conflict with any judgment
or decree of a court of competent jurisdiction obtained by the Trustee for the
payment of amounts due on the Notes.


 


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In
the case of an Event of Default specified in clauses (x) or (xi) of Section 6.01
hereof, with respect to the Company, any Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together would
constitute a Significant Subsidiary shall occur, such amount with respect to
all the Notes will become due and payable immediately without any declaration
or other act on the part of the Trustee or the Holders.


 


Holders
may not enforce this Indenture or the Notes except as provided in this
Indenture.  Subject to the limitations
described in this Article 6, 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 notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal,
premium, if any, or interest or Additional Interest, if any) if it determines
that withholding notice is in their interest.


 


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, premium, if any, and
interest and Additional Interest, if any, 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.


 


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 an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of
the principal of, premium, if any, or interest or Additional Interest on, the
Notes; provided, however,
that after any acceleration, but before a judgment or decree based on
acceleration is obtained by the Trustee, the Holders of a majority in aggregate
principal amount of the Notes then outstanding may rescind and annul such
acceleration if all Events of Default, other than the nonpayment of accelerated
principal, premium or interest or Additional Interest, have been cured or
waived as provided in this Indenture. 
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.


 


Subject
to Section 7.01, in case an Event of Default shall occur and be
continuing, the Trustee will 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 such Holders shall have offered to the Trustee indemnity
satisfactory to it.  Subject to Section 7.07,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Notes.  However, the Trustee 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 of a Note or
that would involve the Trustee in personal liability and may take any other action
that it deems proper that is not inconsistent with any such direction received
from Holders of Notes.


 


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Section 6.06.                              Limitation
on Suits.


 


No
Holder will have any right to institute any proceeding with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any remedy
thereunder, unless:


 


(a)                                 such Holder has
previously given to the Trustee written notice of a continuing Event of
Default,


 


(b)                                 Holders of at
least 25% in aggregate principal amount of the Notes then outstanding have made
written request and offered the Trustee security or indemnity satisfactory to
the Trustee against any loss, liability or expense to institute such proceeding
as Trustee, and


 


(c)                                  the Trustee shall
not have received from the Holders of a majority in aggregate principal amount
of the Notes then outstanding a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days after the receipt
of the Holders’ request and offer of security or indemnity.


 


The
preceding limitations do not apply to a suit instituted by a Holder for
enforcement of payment of the principal of, and premium, if any, or interest or
Additional Interest on, a Note on or after the respective due dates expressed
in such Note.


 


A
Holder may not use this Indenture to affect, disturb or prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.


 


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, premium, if any, and interest and Additional Interest, if
any, on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), 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 clauses (i) or (ii) of Section 6.01
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest and Additional Interest,
if any, 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.                              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 Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to participate as a member, voting or otherwise, of any
official committee of creditors appointed in such matter and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such


 


73

















 


claims
and 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 6.10.                              Priorities.


 


If
the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:


 


First:  to the
Trustee, its 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 and the costs and expenses of
collection;


 


Second:  to Holders
for amounts due and unpaid on the Notes for principal, premium, if any, and
interest and Additional Interest, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest and Additional Interest, if any,
respectively; and


 


Third:  to the
Company or to such party as a court of competent jurisdiction shall direct.


 


The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.10.


 


Section 6.11.                              Undertaking
for Costs.


 


In
any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as 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, 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 6.11 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% in principal amount of the then
outstanding Notes.


 


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ARTICLE 7.


 


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 man would exercise or use under
the circumstances in the conduct of his own affairs.


 


(b)                                 Except during
the continuance of an Event of Default:


 


(1)                                 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


 


(2)                                 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,
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 or otherwise verify the contents thereof).


 


(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:


 


(1)                                 this paragraph
does not limit the effect of paragraph (b) of this Section;


 


(2)                                 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


 


(3)                                 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 6.05
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.


 


(e)                                  No provision of
this Indenture shall require the Trustee to expend or risk its own funds or
incur any liability.  The Trustee shall
be under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall 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 Company. 
Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.


 


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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.


 


(b)                                 Before the
Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both.  The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel and the
written 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 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.


 


(e)                                  Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer of the Company.


 


(f)                                   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 or Event of Default
is received by a Responsible Officer of the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the specific Default or Event
of Default, the Notes and this Indenture.


 


(g)                                  The Trustee
shall not be required to give any bond or surety in respect of the performance
of its power and duties hereunder.


 


(h)                                 The Trustee
shall have no duty to inquire as to the performance of the Company’s covenants
herein.


 


(i)                                     In no event shall
the Trustee be responsible or liable for special, indirect, or consequential
loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.


 


(j)                                    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
(including, without limitation, as Custodian, Registrar and Paying Agent), and
each agent, custodian and other Person employed to act hereunder.


 


(k)                                 Any permissive
right or authority granted to the Trustee shall not be construed as a mandatory
duty.


 


(l)                                     The Company
shall provide prompt written notice to the Trustee of any change to its fiscal
year.


 


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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 Company or any Affiliate of the
Company 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, apply to the SEC for permission to continue as Trustee or resign.  Any Agent may do the same with like rights
and duties.  The Trustee is also subject
to Section 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 Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’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 or Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to Holders a notice of the Default or Event
of Default within 90 days after it occurs unless such Default or Event of
Default has since been cured.  Except in
the case of a Default or Event of Default in payment of principal of, premium,
if any, or interest or Additional Interest, if any, on any Note, the Trustee
may withhold the notice if and so long as any 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 November 1 beginning with November 1, 2011, 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 TIA § 313(a)
(but if no event described in TIA § 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted).  The Trustee also shall comply with TIA
§ 313(b)(2).  The Trustee shall also
transmit by mail all reports as required by TIA § 313(c).


 


A
copy of each report at the time of its mailing to the Holders shall be mailed
to the Company and filed with the SEC and each stock exchange on which the
Notes are listed in accordance with TIA § 313(d).  The Company shall promptly notify the Trustee
when the Notes are listed on any stock exchange.


 


Section 7.07.                              Compensation
and Indemnity.


 


The
Company shall pay to the Trustee from time to time reasonable compensation for
its acceptance of this Indenture and services hereunder as agreed to in
writing.  The Trustee’s compensation
shall not be limited by any law on compensation of a trustee of an express
trust.  The Company 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, professional advisors and counsel.


 


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The
Company shall indemnify the Trustee or any predecessor Trustee against any and
all losses, claims, damages, penalties, fines, liabilities or expenses,
including incidental and out-of-pocket expenses and reasonable attorneys fees (“losses”) incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such losses may be attributable to its
gross negligence or bad faith.  The
Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the claim, and the
Trustee shall cooperate in the defense. 
The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. 
The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.  The Company need not reimburse any expense or
indemnify against any loss liability or expense incurred by the Trustee through
the Trustee’s own willful misconduct, gross negligence or bad faith.


 


The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.


 


To
secure the Company’s payment obligations in this Section, 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, premium, if any, and
interest and Additional Interest, if any, 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 clauses (x) or (xi) of Section 6.01 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 TIA § 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.


 


The
Trustee may resign in writing at any time upon 30 days prior notice to the
Company and be discharged from the trust hereby created by so notifying the
Company.  The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing.  The Company may remove the Trustee if.


 


(a)                                 the Trustee
fails to comply with Section 7.10 hereof;


 


(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


 


(d)                                 the Trustee
becomes incapable of acting.


 


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If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company 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 Company.


 


If
a successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company, 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, 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 Company. 
Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. 
The successor Trustee shall mail a notice of its succession to
Holders.  Subject to the Lien provided
for in Section 7.07 hereof, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided,
however, that all sums owing to the
Trustee hereunder shall have been paid. 
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company’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 Person 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 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 TIA
§ 310(a)(1), (2) and (5).  The
Trustee is subject to TIA § 310(b).


 


Section 7.11.                              Preferential
Collection of Claims Against Company.


 


The
Trustee is subject to TIA § 311(a), excluding any creditor relationship
listed in TIA § 311(b).  A Trustee
who has resigned or been removed shall be subject to TIA § 311(a) to the
extent indicated therein.


 


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ARTICLE 8.


 


LEGAL DEFEASANCE AND COVENANT
DEFEASANCE


 


Section 8.01.                              Option
to Effect Legal Defeasance or Covenant Defeasance.


 


The
Company may, at its option and at any time, elect to have either Section 8.02
or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.


 


Section 8.02.                              Legal
Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.02, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”).  For this
purpose, Legal Defeasance means that the Company shall be deemed to have paid
and discharged the entire Debt represented by the outstanding Notes, which
shall thereafter be deemed to be “outstanding” only for the purposes of Section
8.05 hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and
this Indenture (and the Trustee, on demand of and at the expense of the
Company, 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 of outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest and Additional
Interest, if any, on such Notes when such payments are due, (b) the Company’s
obligations with respect to such Notes under Article 2 and Section 4.02 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company’s and the Subsidiary Guarantors’ obligations in connection
therewith, (d) the Company’s obligations incidental to the Company’s rights
under Section 3.07 hereof and (e) this Article 8.  If the Company exercises under Section 8.01
hereof the option applicable to this Section 8.02, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, payment of the Notes may
not be accelerated because of an Event of Default.  Subject to compliance with this Article 8,
the Company 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 Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, the Company and the Restricted Subsidiaries of the Company
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 4.05, 4.06 and 4.08 through 4.18 hereof, and the operation of Section
5.01(d) hereof, with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, 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, the Company and the Restricted Subsidiaries of the Company
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,


 


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but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby.  If the Company
exercises under Section 8.01 hereof the option applicable to this Section 8.03,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
payment of the Notes may not be accelerated because of an Event of Default
specified in clauses (iii) and (iv) (with respect to the covenants contained in
Sections 4.05, 4.06 and 4.08 through 4.18 hereof), (v), (vi), (vii), (viii) and
(ix) (but in the case of clauses (x) and (xi) of Section 6.01 hereof, with
respect to Significant Subsidiaries only).


 


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.


 


The
Legal Defeasance or Covenant Defeasance may be exercised only if:


 


(a)                                 the Company
irrevocably deposits with the Trustee, in trust, for the benefit of the Holders
of the Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government Securities, in
amounts as will be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, or interest and
premium and Additional Interest, if any, on the outstanding Notes on the Stated
Maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Notes are being defeased to maturity or to a
particular redemption date;


 


(b)                                 in the case of
Legal Defeasance, the Company delivers to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that (a) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (b) since the Issue Date, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel will confirm that, the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;


 


(c)                                  in the case of
Covenant Defeasance, the Company delivers to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;


 


(d)                                 no Default or
Event of Default has occurred and is continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit and the grant of any Lien to secure such
borrowing);


 


(e)                                  such Legal
Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under any material agreement or material instrument
(including, without limitation, the Credit Agreement, but excluding this
Indenture) to which the Company is a party or by which the Company is bound;


 


(f)                                   the Company
delivers to the Trustee an Officers’ Certificate stating that the deposit was
not made by the Company with the intent of preferring the Holders of Notes over
the Company’s other creditors with the intent of defeating, hindering, delaying
or defrauding the Company’s creditors or others; and


 


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(g)                                  the Company
delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent relating to the Legal Defeasance or
the Covenant Defeasance 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 Company acting as Paying Agent) as the Trustee may
determine, to the Holders of all sums due and to become due thereon in respect
of principal, premium, if any, and interest and Additional Interest, if any,
but such money need not be segregated from other funds except to the extent required
by law.


 


The
Company 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 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 8 to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon the request of the Company 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 certified public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the certification delivered under Section 8.04(b)
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 Company.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest or Additional Interest on any Note and remaining unclaimed for one year
after such principal, and premium, if any, or interest or Additional Interest
has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder
shall thereafter, as an unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Company.


 


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 Company’s obligations under this Indenture and the Notes 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


 


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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, however, that, if the Company makes any payment of principal
of, premium, if any, or interest or Additional Interest on any Note following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders to receive such payment from the money held by the
Trustee or Paying Agent.


 


ARTICLE 9.


 


AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.                              Without
Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes, and may waive any provision of this
Indenture, without the consent of any Holder to:


 


(a)                                 cure any
ambiguity, defect, omission, mistake or inconsistency;


 


(b)                                 provide for
Global Notes and/or uncertificated Notes in addition to or in place of
certificated Notes;


 


(c)                                  provide for the
assumption by a successor Person of the obligations of the Company under this
Indenture in the case of a merger or consolidation or sale of all or
substantially all of the Company’s assets;


 


(d)                                 make any change
that would provide any additional rights or benefits to the Holders of the
Notes (including the addition of Events of Default);


 


(e)                                  make any change
to comply with any requirement of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;


 


(f)                                   add covenants
for the benefit of the Holders or to surrender any right or power conferred
upon the Company or any Subsidiary Guarantors;


 


(g)                                  add a
Subsidiary Guarantor under this Indenture or release a Subsidiary Guarantor in
accordance with this Indenture;


 


(h)                                 to conform the
text of this Indenture, the Notes or the Subsidiary Guarantees to any provision
of the “Description of the Notes” section of the Company’s offering memorandum
dated October 20, 2010 relating to the Notes, to the extent such provision of
this Indenture, the Notes or the Subsidiary Guarantees was intended to conform
to the text of such “Description of the Notes”, which intent shall be evidenced
by an Officers’ Certificate to that effect;


 


(i)                                     to evidence and
provide for the acceptance of appointment under this Indenture by a successor
trustee; and


 


(j)                                    to provide for
or confirm the issuance of Additional Notes in accordance with the terms of
this Indenture.


 


Upon
the request of the Company accompanied by a Board Resolution of the Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by


 


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the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company 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 not be obligated to enter into such amended or supplemental indenture
that affects its own rights, duties or immunities under this Indenture or
otherwise.


 


Section 9.02.                              With
Consent of Holders of Notes.


 


Except
as provided below in this Section 9.02, the Company and the Trustee may amend
or supplement this Indenture, may waive any provision of this Indenture, and
the Notes may be amended or supplemented 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 or Additional Interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture 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).


 


Upon
the request of the Company accompanied by a Board Resolution of the 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 of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 hereof, the Trustee
shall join with the Company 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.


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Persons entitled to consent to any indenture supplemental
hereto.  If a record date is fixed, the
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to consent to such supplemental indenture, whether
or not such Holders remain Holders after such record date; provided,
that unless such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 90 days after such
record date, any such consent previously given shall automatically and without
further action by any Holder be cancelled and of no further effect.


 


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 Company shall mail to the Holders to such Holder’s address appearing in the
Security Register a notice briefly describing the amendment, supplement or
waiver.  Any failure of the Company to
mail 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.  Subject to Sections 6.04 and
6.07 hereof, the Holders of a majority in aggregate principal amount of the
Notes, including Additional Notes, if any, then outstanding voting as a single
class may waive compliance in a particular instance by the Company with any
provision of this Indenture or the Notes.


 


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Without
the consent of each Holder directly affected thereby, an amendment, supplement
or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):


 


(a)                                 reduce the
principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;


 


(b)                                 reduce the
principal of or delay the fixed maturity of any Note or alter the provisions
with respect to the redemption of the Notes;


 


(c)                                  reduce the rate
of or delay the time for payment of interest on any Note;


 


(d)                                 waive a Default
or Event of Default in the payment of principal of, or interest or premium, or
Additional Interest, if any, 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);


 


(e)                                  make any Note
payable in money other than that stated in the Notes;


 


(f)                                   make any change
in the provisions of this Indenture relating to waivers of past Defaults or the
rights of Holders of Notes to receive payments of principal of, or interest or
premium or Additional Interest, if any, on the Notes;


 


(g)                                  waive a
redemption payment with respect to any Note;


 


(h)                                 make any change
in the preceding amendment and waiver provisions; or


 


(i)                                     modify or
change any provision of this Indenture or the related definitions affecting the
ranking of the Notes in a manner that would materially adversely affect the
Holders of the Notes.


 


Without
the consent of at least two-thirds in aggregate principal amount of the Notes
then outstanding, an amendment or waiver may not:


 


(a)                                 make any change
in the provisions of Sections 4.12 or 4.18; or


 


(b)                                 release any
Domestic Subsidiary from any of its obligations under its Subsidiary Guarantee
or this Indenture, except in accordance with the terms hereof.


 


Section 9.03.                              Compliance
with Trust Indenture Act.


 


Every
amendment or supplement to this Indenture or the Notes shall be set forth in a
amended or supplemental indenture that complies with the TIA 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 of a Note and every subsequent
Holder of a Note or portion thereof 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 or portion thereof if
the Trustee receives written notice of revocation before the Trustee receives
an Officers’ Certificate certifying that the Holders of the requisite principal
amount of Notes have consented (and theretofore not revoked such consent) to
the amendment, supplement or waiver.


 


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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 Company 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 amended or supplemental indenture authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.  The Company may not sign an amendment or
supplemental indenture until the Board of Directors approves it.  In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon an Officers’ 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 amended or supplemental indenture is the legal, valid and binding
obligations of the Company and any Subsidiary Guarantor party thereto
enforceable against them in accordance with its terms, subject to customary
exceptions and that such amended or supplemental indenture complies with the
provisions hereof (including Section 9.03).


 


ARTICLE 10.


 


SUBSIDIARY GUARANTEES


 


Section 10.01.                       Guarantee.


 


Subject
to this Article 10, each of the Subsidiary Guarantors hereby, intending to be
legally bound, jointly and severally, unconditionally guarantees to each Holder
of a Note 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 Company 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 Company to the Holders or the Trustee hereunder or
thereunder shall be promptly paid in full or performed, 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 or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
pursuant to Section 6.02 hereof or otherwise. 
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly
and severally obligated to pay the same immediately.  Each Subsidiary Guarantor agrees that this is
a guarantee of payment and not a guarantee of collection.


 


Each
Subsidiary Guarantor hereby agrees that its obligations with regard to this
Subsidiary Guarantee shall be joint and several, unconditional, irrespective of
the validity or enforceability of the Notes or the obligations of the Company
under this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other obligor with respect
to this Indenture, the Notes or the Obligations of the Company under this
Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise
constitute


 


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a
legal or equitable discharge or defense of a Subsidiary Guarantor.  Each Subsidiary Guarantor further, to the
extent permitted by law, waives and relinquishes all claims, rights and
remedies accorded by applicable law to guarantors and agrees not to assert or
take advantage of any such claims, rights or remedies, including but not
limited to:  (a) any right to
require any of the Trustee, the Holders or the Company (each a “Benefited Party”), as a condition of payment or performance
by such Subsidiary Guarantor, to (1) proceed against the Company, any
other guarantor (including any other Subsidiary Guarantor) of the Obligations
under the Subsidiary Guarantees or any other Person, (2) proceed against
or exhaust any security held from the Company, any such other guarantor or any
other Person, (3) proceed against or have resort to any balance of any
deposit account or credit on the books of any Benefited Party in favor of the
Company or any other Person, or (4) pursue any other remedy in the power
of any Benefited Party whatsoever, (b) any defense arising by reason of
the incapacity, lack of authority or any disability or other defense of the
Company including any defense based on or arising out of the lack of validity
or the unenforceability of the Obligations under the Subsidiary Guarantees or
any agreement or instrument relating thereto or by reason of the cessation of
the liability of the Company from any cause other than payment in full of the
Obligations under the Subsidiary Guarantees; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in other respects more burdensome than
that of the principal; (d) any defense based upon any Benefited Party’s
errors or omissions in the administration of the Obligations under the
Subsidiary Guarantees, except behavior which amounts to bad faith; (e)(1) any
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms of the Subsidiary Guarantees and any legal or
equitable discharge of such Subsidiary Guarantor’s obligations hereunder, (2) the
benefit of any statute of limitations affecting such Subsidiary Guarantor’s
liability hereunder or the enforcement hereof, (3) any rights to set-offs,
recoupments and counterclaims and (4) promptness, diligence and any
requirement that any Benefited Party protect, secure, perfect or insure any
security interest or lien or any property subject thereto; (f) notices,
demands, presentations, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of the Subsidiary
Guarantees, notices of default under the Notes or any agreement or instrument
related thereto, notices of any renewal, extension or modification of the
Obligations under the Subsidiary Guarantees or any agreement related thereto,
and notices of any extension of credit to the Company and any right to consent
to any thereof; (g) to the extent permitted under applicable law, the
benefits of any “One Action” rule and (h) any defenses or benefits
that may be derived from or afforded by law which limit the liability of or
exonerate guarantors or sureties, or which may conflict with the terms of the
Subsidiary Guarantees.  Each Subsidiary
Guarantor hereby covenants that its Subsidiary Guarantee shall not be
discharged except by complete performance of the obligations contained in its
Subsidiary Guarantee and this Indenture.


 


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder,
this Subsidiary Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.


 


Each
Subsidiary 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 Subsidiary Guarantor further agrees
that, as between the Subsidiary 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 Section 6.02 hereof
for the purposes of this Subsidiary 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 Section 6.02 hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantors for the purpose of this Subsidiary


 


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Guarantee.  The Subsidiary Guarantors shall have the
right to seek contribution from any non-paying Subsidiary Guarantor so long as
the exercise of such right does not impair the rights of the Holders under the
Subsidiary Guarantee.


 


Section 10.02.                       Limitation
on Subsidiary Guarantor Liability.


 


Each
Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Subsidiary 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 Subsidiary Guarantee.  To effectuate the foregoing intention, the
Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree
that the obligations of such Subsidiary Guarantor under this Article 10
shall be limited to the maximum amount as shall, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such
Subsidiary Guarantor that are relevant under such laws, including, if
applicable, its guarantee of all obligations under the Credit Agreement, and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Subsidiary Guarantor in
respect of the obligations of such other Subsidiary Guarantor under this Article 10,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting a fraudulent transfer or conveyance.


 


Section 10.03.                       Execution
and Delivery of Subsidiary Guarantee.


 


To
evidence its Subsidiary Guarantee set forth in Section 10.01 hereof, each
Subsidiary Guarantor hereby agrees that a notation of such Subsidiary Guarantee
in substantially the form included in Exhibit D shall be endorsed by an
Officer of such Subsidiary Guarantor on each Note authenticated and delivered
by the Trustee and that this Indenture shall be executed on behalf of such
Subsidiary Guarantor by its President or one of its Vice Presidents.


 


Each
Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 10.01
hereof shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Subsidiary Guarantee.


 


If
an Officer whose signature is on this Indenture or on the Subsidiary Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be
valid nevertheless.


 


The
delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantors.


 


Section 10.04.                       Subsidiary
Guarantors May Consolidate, etc., on Certain Terms.


 


Except
as otherwise provided in Section 10.05 hereof, no Subsidiary Guarantor may
consolidate with or merge with or into (whether or not such Subsidiary
Guarantor is the surviving Person) another Person whether or not affiliated
with such Subsidiary Guarantor unless:


 


(a)                                 subject to Section 10.05
hereof, the Person formed by or surviving any such consolidation or merger (if
other than a Subsidiary Guarantor or the Company) unconditionally assumes all
the obligations of such Subsidiary Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee, under
the Notes, this Indenture, and the Subsidiary Guarantee on the terms set forth
herein or therein; and


 


88

















 


(b)                                 the Subsidiary
Guarantor complies with the requirements of Article 5 hereof.


 


In
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by the
Subsidiary Guarantor, such successor Person shall succeed to and be substituted
for the Subsidiary Guarantor with the same effect as if it had been named
herein as a Subsidiary Guarantor.  Such
successor Person thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee.  All the Subsidiary Guarantees
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.


 


Except
as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (a) and
(b) above, nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Subsidiary Guarantor with or
into the Company or another Subsidiary Guarantor, or shall prevent any sale or
conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or another Subsidiary Guarantor.


 


Section 10.05.                       Releases.


 


(a)                                 The Guarantee
of a Subsidiary Guarantor will be released:


 


(i)                                (A) automatically
without any further action on the part of the Trustee or any Holder of the
Notes, in connection with any sale or other disposition of all or substantially
all of the assets of that Subsidiary Guarantor (including by way of merger,
consolidation or otherwise) to a Person that is not (either before or after
giving effect to such transaction) a Subsidiary of the Company, if the sale or
other disposition complies with the applicable provisions of this Indenture
relating to Asset Sales, including, without limitation Section 4.12
hereof; (B) automatically without any further action on the part of the
Trustee or any Holder of the Notes, in connection with any sale of Capital
Stock of that Subsidiary Guarantor that causes such Subsidiary Guarantor to
cease to be a Subsidiary to a Person that is not (either before or after giving
effect to such transaction) a Subsidiary of the Company, if the sale complies
with the provisions of this Indenture relating to Asset Sales, including,
without limitation Section 4.12 hereof; and (C) automatically without
any further action on the part of the Trustee or any Holder of the Notes, upon
delivery by the Company to the Trustee of an Officers’ Certificate certifying
that Subsidiary Guarantor shall no longer Guarantee (other than by virtue of
such Subsidiary Guarantor’s Subsidiary Guarantee) any Indebtedness under a
Credit Facility or any other Indebtedness for borrowed money of the Company or
any of its Restricted Subsidiaries of at least $15.0 million;


 


(ii)                             if the Company
designates such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the applicable provisions of this Indenture, including, without
limitation, Section 4.17 hereof; and


 


(iii)                          if the Company
exercises its Legal Defeasance option or its Covenant Defeasance option as
described in Sections 8.02 and 8.03 hereof, or if the Company’s Obligations
under this Indenture are discharged in accordance with Article 11 hereof.


 


89

















 


(b)                                 Any Subsidiary
Guarantor not released from its obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Subsidiary Guarantor under this
Indenture as provided in this Article 10.


 


Section 10.06.                       Additional
Subsidiary Guarantors.


 


Each
Person that is required to become a Subsidiary Guarantor after the Issue Date
pursuant to Section 4.19 hereof shall execute and deliver to the Trustee (i) a
supplemental indenture which subjects such Person to the provisions of this
Indenture as a Subsidiary Guarantor of the Notes, (ii) a Subsidiary
Guarantee substantially in the form of Exhibit D hereto and (iii) an
Opinion of Counsel to the effect that such documents have been duly authorized
and executed by such Person and constitute the legal, valid, binding and
enforceable obligations of such Person (subject to customary exceptions
concerning fraudulent conveyance laws, creditors’ rights and equitable
principles).


 


ARTICLE 11.


 


SATISFACTION AND DISCHARGE


 


Section 11.01.                       Satisfaction
and Discharge.


 


This
Indenture will be discharged and will cease to be of further effect as to all
Notes issued hereunder, when:


 


(a)                                 either:


 


(i)                                     all Notes that
have been authenticated (except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been delivered to
the Trustee for cancellation; or


 


(ii)                                  all Notes that
have not been delivered to the Trustee for cancellation have become due and
payable by reason of the mailing of a notice of redemption or otherwise or will
become due and payable within one year and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, money or Government Securities, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest and Additional Interest, if
any, to the date of maturity or redemption;


 


(b)                                 no Default or
Event of Default shall have occurred and be continuing on the date of such
deposit or shall exist upon giving effect to such deposit and, upon giving
effect to such deposit no breach or violation of, or default under, any other
instrument to which the Company is a party or by which the Company is bound
would exist;


 


(c)                                  the Company has
paid or caused to be paid all sums then due and payable by it under this
Indenture; and


 


(d)                                 the Company has
delivered irrevocable instructions to the Trustee under this Indenture to apply
the deposited money and/or non-callable Government Securities toward the
payment of the Notes at maturity or the redemption date, as the case may be.


 


90

















 


The
Company shall deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge
have been satisfied.


 


Section 11.02.                       Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.


 


Subject
to Section 11.03 hereof, all money and Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 11.02, the “Trustee”) pursuant
to Section 11.01 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 Company 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, premium, if any, and interest and Additional
Interest, if any, but such money need not be segregated from other funds except
to the extent required by law.


 


Section 11.03.                       Repayment
to Company.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest or Additional 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 Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in The New York Times and The Wall
Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.


 


ARTICLE 12.


 


MISCELLANEOUS


 


Section 12.01.                       Trust
Indenture Act Controls.


 


If
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by TIA § 318(c), the imposed duties shall control.


 


Section 12.02.                       Notices.


 


Any
notice or communication by the Company, any Subsidiary 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),
telecopier or overnight air courier guaranteeing next-day delivery, to the
other’s address:


 


91

















 


If
to the Company or any Subsidiary Guarantor:


 


Hanger
Orthopedic Group, Inc.

10910 Domain Drive, Suite 300

Austin, Texas  78758

Attention:  Chief Financial Officer

Telecopier No.:  (512) 777-3779


 


With
a copy to:


 


Foley &
Lardner LLP

777 East Wisconsin Avenue

Milwaukee, Wisconsin

Attention:  Mark T. Plichta, Esq.

Telecopier No.:  (414) 297-4900


 


If
to the Trustee:


 


Wilmington
Trust Company

1100 North Market Street

Wilmington, Delaware  19890

Telecopier No.:  (302) 636-4145

Attention:  Corporate Capital Market
Services (Hanger Orthopedic Group, Inc.)


 


With
a copy (which shall not constitute notice) to:


 


Pillsbury
Winthrop Shaw Pittman LLP

1540 Broadway

New York, New York  10036-4039

Telecopier No. (212) 881-9368

Attention:  Bart Pisella, Esq. &
Timothy P. Kober, Esq.


 


The
Company, any Subsidiary 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 and the Trustee)
shall be deemed to have been duly given: 
at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next-day delivery.  All notices and communications to the Trustee
shall be deemed duly given and effective only upon receipt.


 


Any
notice or communication to a Holder shall be 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 Security
Register.  Any notice or communication
shall also be so mailed to any Person described in TIA § 313(c), to the
extent required by the TIA.  Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.


 


If
a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.


 


92

















 


If
the Company mails 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 of Notes with Other Holders of Notes.


 


Holders
may communicate pursuant to TIA § 312(b) with other Holders with
respect to their rights under this Indenture or the Notes.  The Company, the Subsidiary Guarantors, the
Trustee, the Registrar and anyone else shall have the protection of TIA
§ 312(c).


 


Section 12.04.                       Certificate
and Opinion as to Conditions Precedent.


 


Upon
any request or application by the Company to the Trustee to take any action
under any provision of this Indenture, the Notes or the Subsidiary Guarantees,
the Company shall furnish to the Trustee:


 


(a)                                 an Officers’
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, the Notes or the Subsidiary Guarantees
relating to the proposed action have been complied with; 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 complied with.


 


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, the Notes or the Subsidiary Guarantees (other
than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with
the provisions of TIA § 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 such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
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.


 


93

















 


Section 12.07.                       No
Personal Liability of Directors, Officers, Employees and Stockholders.


 


No
past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Subsidiary Guarantor, as such, shall have any
liability for any obligations of the Company under the Notes, this Indenture,
the Subsidiary Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder by accepting a Note waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.  Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC
that such a waiver is against public policy.


 


Section 12.08.                       Governing
Law.


 


THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPALS OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES, THE SUBSIDIARY GUARANTEES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


Section 12.09.                       No
Adverse Interpretation of Other Agreements.


 


This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.


 


Section 12.10.                       Successors.


 


All
covenants and agreements of the Company in this Indenture and the Notes shall
bind its successors.  All covenants and
agreements of the Trustee in this Indenture shall bind its successors.  All agreements of each Subsidiary Guarantor
in this Indenture will bind its successors, except as otherwise provided in Section 10.05
hereof.


 


Section 12.11.                       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 12.12.                       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.  The exchange of copies of
this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or PDF
shall be deemed to be their original signatures for all purposes.


 


94

















 


Section 12.13.                       Table
of Contents, Headings, etc.


 


The
Table of Contents, Cross-Reference Table and Headings in 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.


 


[Signatures on following page]


 


95

















 


Dated
as of November 2, 2010


 


	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  Hanger Orthopedic Group, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George E. McHenry

  
	
   

  	
   

  	
  Name:

  	
  George E. McHenry

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  Hanger Prosthetics & Orthotics, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George E. McHenry

  
	
   

  	
   

  	
  Name:

  	
  George E. McHenry

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABi Orthotic/Prosthetic Laboratories, Ltd.

  
	
   

  	
  Advanced Prosthetics of America, Inc.

  
	
   

  	
  The Brace Shop Prosthetic Orthotic
  Centers, Inc.

  
	
   

  	
  Colorado Professional Medical, Inc.

  
	
   

  	
  Creative Orthotics &
  Prosthetics, Inc.

  
	
   

  	
  DDOPP Holding LLC

  
	
   

  	
  DiBello’s Dynamic Orthotics and Prosthetics Partnership
  Ltd.

  
	
   

  	
  Dosteon Solutions, LLC

  
	
   

  	
  Elite Care, Incorporated

  
	
   

  	
  Eugene Teufel & Son Orthotics &
  Prosthetics, Inc.

  
	
   

  	
  Hanger Prosthetics & Orthotics
  East, Inc.

  
	
   

  	
  Hanger Prosthetics & Orthotics
  West, Inc.

  
	
   

  	
  Hattingh Holdings, Inc.

  
	
   

  	
  Inline Orthotic and Prosthetic Systems

  
	
   

  	
  Innovative Neurotronics, Inc.

  
	
   

  	
  Linkia, LLC

  
	
   

  	
  Nebraska Orthotic & Prosthetic
  Services, Inc.

  
	
   

  	
  OPNET, Inc.

  
	
   

  	
  Orthopedic Rehabilitation Products, Ltd.

  
	
   

  	
  Southern Prosthetic Supply, Inc.

  
	
   

  	
  Speed Acquisition Vehicle, Inc.

  
	
   

  	
  Wasatch Orthotics & Pedorthics, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  George E. McHenry

  
	
   

  	
   

  	
  Name:

  	
  George E. McHenry

  
	
   

  	
   

  	
  Title:

  	
  Treasurer and Secretary

  



 


SIGNATURE PAGE TO INDENTURE


 
















 


	
   

  	
  Wilmington
  Trust Company, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Geoffrey J. Lewis

  
	
   

  	
   

  	
  Name:

  	
  Geoffrey
  J. Lewis

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  



 


SIGNATURE
PAGE TO INDENTURE


 

















 


EXHIBIT A


 


(Face of Note)


 


71/8%
Senior Notes due 2018


 


	
   

  	
  CUSIP 

  	
               

  
	
  No.
             

  	
  $ 

  	
                

  



 


HANGER ORTHOPEDIC GROUP, INC.


 


promises
to pay to Cede & Co. or registered assigns, the principal sum of
                    
Dollars
($                    )
on November 15, 2018.


 


Interest
Payment Dates:  May 15 and November 15,
commencing May 15, 2011.


 


Record
Dates:  May 1 and November 1.


 


	
  Dated:

  	
   

  	
   

  



 


A-1

















 


IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officers.


 


	
   

  	
  HANGER
  ORTHOPEDIC GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  This
  is one of the Notes referred

  	
   

  
	
  to
  in the within-mentioned Indenture:

  	
   

  
	
   

  	
   

  
	
  WILMINGTON
  TRUST COMPANY,

  	
   

  
	
  as
  Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated

  	
   

  	
   

  



 


A-2

















 


(Back of Note)


 


71/8% Senior Notes due 2018


 


[Insert the Global Note Legend, if applicable pursuant to the terms of
the Indenture]


 


[Insert the Private Placement Legend, if applicable pursuant to the
terms of the Indenture]


 


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.


 


1.             Interest.  Hanger Orthopedic Group, Inc., a
Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 71/8% per annum until maturity and shall pay Additional
Interest, if any, as provided in Section 5(b) of the Registration
Rights Agreement.  The Company shall pay
interest semi-annually on May 15 and November 15 of each year,
commencing May 15, 2011, or if any such day is not a Business Day, on the
next succeeding Business Day (each an “Interest Payment Date”).  Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided, however, that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred
to on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be May 15, 2011.  The Company shall 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 a rate that is 1%
per annum in excess of the rate then in effect; 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 same rate to the extent
lawful.  Interest shall be computed on
the basis of a 360-day year of twelve 30-day months.


 


2.             Method
of Payment.  The Company
shall pay interest on the Notes (except defaulted interest) on the applicable
Interest Payment Date to the Persons who are registered Holders of the Notes at
the close of business on the May 1 or November 1 next preceding the
Interest Payment Date, even if such Notes are 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.  The Notes shall be payable as to principal,
premium, if any, and interest and Additional Interest, if any, at the office or
agency of the Company maintained for such purpose, or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at
their addresses set forth in the Security Register; provided,
however, that payment by wire transfer
of immediately available funds shall be required with respect to principal of
and interest and Additional Interest, if any, and premium, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent.  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.


 


The amount due and payable
at the maturity of this Note shall be payable only upon presentation and
surrender of this Note at the office of the Trustee or the Trustee’s agent
appointed for such purpose.


 


All payments of principal
and interest on this Note prior to Stated Maturity shall be binding upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon.


 


3.             Paying
Agent and Registrar. 
Initially, Wilmington Trust Company, the Trustee under the Indenture,
shall act as Paying Agent and Registrar. 
The Company may change any Paying Agent or 


 


A-3

















 


Registrar
without notice to any Holder.  The
Company or any of its Subsidiaries may act in any such capacity.


 


4.             Indenture.  The Company issued the Notes under an
Indenture dated as of November 2, 2010 (“Indenture”)
among the Company, the guarantors party thereto (the “Guarantors”)
and the Trustee.  The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
§§ 77aaa-77bbbb).  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.  The Notes are obligations
of the Company unlimited in aggregate principal amount.


 


5.             Optional
Redemption.


 


(a)           Except as set forth in clause (b) of
this Paragraph 5, the Notes will not be redeemable at the option of the Company
prior to November 15, 2014.  Starting
on that date, the Company may redeem all or any portion of the Notes, at once
or over time, after giving the required notice under the Indenture.  The Notes may be redeemed at the applicable
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Additional Interest, if any, on the
Notes redeemed to the applicable redemption date (subject to the right of
Holders on the relevant record date to receive interest due on the relevant
Interest Payment Date), if redeemed during the twelve-month period commencing
on November 15 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  103.563

  	
  %

  
	
  2015

  	
   

  	
  101.781

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           At any time and from time to time,
prior to November 15, 2013, the Company may redeem up to 35% of the
aggregate principal amount of the Notes issued under the Indenture at a
redemption price equal to 107.125% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant Interest Payment Date) with the net cash proceeds
of any Qualified Equity Offering of the Company’s common stock; provided, however, that:


 


(1)           after giving effect to any such
redemption, at least 65% of the aggregate principal amount of the Notes issued
on the Issue Date (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption; and


 


(2)           any such redemption shall be made
within 90 days of the closing of such Qualified Equity Offering upon not less
than 30 nor more than 60 days’ prior notice.


 


(c)            At
any time and from time to time prior to November 15, 2014, the Company may
at its option redeem the Notes, in whole or in part, at a redemption price
equal to 100% of the principal amount of the Notes plus the Applicable Premium
as of, and accrued and unpaid interest to, the redemption date (subject to the
right of Holders on the relevant record date to receive interest due on the
relevant Interest Payment Date).  Notice
of such redemption must be mailed by first-class mail, postage prepaid, to each
Holder’s registered address, not less than 30 nor more than 60 days prior
to the redemption date.


 


A-4

















 


(d)           Any prepayment pursuant to this
paragraph shall be made pursuant to the provisions of Sections 3.01 through
3.06 of the Indenture.


 


6.             Mandatory
Redemption.  The Company
shall not be required to make mandatory redemption or sinking fund payments
with respect to the Notes.


 


7.             Repurchase
at Option of Holder.


 


(a)           Upon the occurrence of a Change of
Control, each Holder shall have the right to require the Company to repurchase
all or any part (equal to a minimum $2,000 or an integral multiple of $1,000 in
excess thereof) of such Holder’s Notes (a “Change of Control Offer”)
at a purchase price equal to 101% of the principal amount thereof, plus accrued
and unpaid interest and Additional Interest, if any, on the Notes repurchased
to the purchase date (subject to the right of Holders on the relevant record
date to receive interest due on the relevant Interest Payment Date).


 


(b)           If the Company or one of its
Restricted Subsidiaries consummates any Asset Sales, when the aggregate amount
of Excess Proceeds exceeds $20.0 million, the Company shall, within 30 days,
commence an offer to all Holders of Notes and all holders of other Pari Passu
Indebtedness containing provisions similar to those set forth herein with
respect to offers to purchase or redeem with the proceeds of sales of assets
(an “Asset Sale Offer”) pursuant to Section 3.09
of the Indenture to purchase the maximum principal amount of Notes (including
any Additional Notes) and such other Pari Passu Indebtedness that may be
purchased out of the Excess Proceeds at an offer price in cash equal to 100% of
the principal amount thereof plus accrued and unpaid interest and Additional
Interest thereon, if any, to the date fixed for the closing of such offer in
accordance with the procedures set forth in the Indenture.  To the extent that the aggregate amount of
Notes (including Additional Notes) and other Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
(or such Restricted Subsidiary) may use such deficiency for purposes not
otherwise prohibited by the Indenture and they will no longer constitute Excess
Proceeds.  If the aggregate principal
amount of Notes surrendered by Holders thereof and other Pari Passu
Indebtedness tendered by holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes and such other Pari Passu Indebtedness to be
purchased on a pro rata basis.  Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Notes.


 


8.             Notice
of Redemption.  Notice of
redemption shall be mailed at least 30 days but not more than 60 days before
the redemption date to each Holder whose Notes are to be redeemed at its
registered address.  Notes in
denominations larger than $2,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed.  On and after the redemption
date interest ceases to accrue on Notes or portions thereof called for
redemption.


 


9.             Denominations,
Transfer, Exchange.  The
Notes are in registered form without coupons in minimum denominations of $2,000
and integral multiples of $1,000 in excess thereof.  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 Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. 
The Company 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 Company need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.


 


A-5

















 


10.          Persons Deemed Owners.  The registered holder of a Note may be treated
as its owner for all purposes.


 


11.          Amendment, Supplement and
Waiver.  Subject to
certain exceptions, the Indenture or the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Notes voting as a single class, and any existing Default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class. 
Without the consent of any Holder, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect, omission, mistake or
inconsistency, to provide for global notes and/or uncertificated notes in
addition to or in place of certificated notes, to provide for the assumption by
a successor Person of the obligations of the Company under the Indenture in the
case of a merger or consolidation or sale of all or substantially all of the
assets of the Company, to make any change that would provide any additional
rights or benefits to the Holders of Notes (including the addition of Events of
Default), to make any change to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA, to add
covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Company or any Subsidiary Guarantors, to add a Subsidiary
Guarantor under the Indenture or release a Subsidiary Guarantor in accordance
with the Indenture, to conform the text of the Indenture, the Notes or the
Subsidiary Guarantees to any provision of the “Description of the Notes”
section of the Company’s offering memorandum dated October 20, 2010
relating to the Notes, to the extent such provision of the Indenture, the Notes
or the Subsidiary Guarantees was intended to conform to the text of the “Description
of the Notes” section, to evidence and provide for the acceptance of
appointment under the Indenture by a successor trustee and to provide for or
confirm the issuance of Additional Notes in accordance with the terms of the
Indenture.


 


12.          Defaults and Remedies.  Each of the following is an Event of Default
under the Indenture if it shall occur and be continuing:  (1) default for 30 days in the payment
when due of interest on, or Additional Interest with respect to, the Notes; (2) default
in payment when due of principal of, or premium, if any, on the Notes; (3) failure
by the Company or any of its Restricted Subsidiaries to comply with Article 5
of the Indenture; (4) failure by the Company or any of its Restricted
Subsidiaries for 30 days after notice to comply with Sections 4.12 and 4.18 of
the Indenture; (5) failure to perform or comply with Section 4.03 of
the Indenture and continuance of such failure to perform or comply for a period
of 90 days after written notice thereof has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Notes; (6) failure by the Company
or any of its Restricted Subsidiaries for 60 days after notice to comply with
any of its other agreements in the Indenture or in the Notes after written
notice thereof has been given to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the outstanding Notes; (7) default by the Company or any Restricted
Subsidiary under any mortgage, indenture or instrument (other than the
Indenture, this Note and the Subsidiary Guarantees) under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed (other than any such Indebtedness payable to the Company or any
Subsidiary of the Company) by the Company or any of its Restricted Subsidiaries
(or the payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the Issue Date, if that default (A) is caused by a failure to pay
principal of, or interest or premium, if any, on such indebtedness prior to the
expiration of the grace period provided in such Indebtedness (a “Payment Default”); or (B) results in the acceleration
of such Indebtedness prior to its express maturity; and in each such case, the
principal amount of any such indebtedness, together with the principal amount
of any other such Indebtedness under which there exists a Payment Default or
the maturity of which has been so accelerated at such time, aggregates more
than $30.0 million; (8) failure by the Company or any of the Subsidiary
Guarantors to pay final judgments (to the extent nor covered by insurance) 


 


A-6

















 


aggregating
in excess of $30.0 million, which judgments are not paid, discharged, satisfied,
waived, bonded or stayed for a period of 60 consecutive days; (9) except
as permitted by or in accordance with the Indenture, any Subsidiary Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any Subsidiary
Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, shall
deny or disaffirm its obligations under its Subsidiary Guarantee; and (10) certain
events of bankruptcy or insolvency described in the Indenture with respect to
the Company or any of its Significant Subsidiaries (or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Subsidiary).  If any Event of Default
occurs and is continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately by a notice in writing to the Company
(and to the Trustee if given by the Holders of the Notes); provided,
however, that after such acceleration, but before a judgment or
decree based on acceleration, the Holders of a majority in aggregate principal
amount of the outstanding Notes may, under certain circumstances, rescind and
annul such acceleration if all Events of Default, other than the nonpayment of
accelerated principal of or interest on the Notes, have been cured or waived as
provided in the Indenture. 
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to the
Company, any Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes shall become due and payable without further
action or notice.  Holders may not
enforce the Indenture or the Notes 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 notice
of any continuing Default or Event of Default if it determines that withholding
notice is in their interest, except a Default or Event of Default relating to
the payment of principal or interest or Additional Interest, if any.  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 Event
of Default and its consequences under the Indenture, except a continuing
Default or Event of Default in the payment of interest or Additional Interest
on, or the principal of, the Notes.  The
Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.


 


13.          Trustee Dealings with
Company.  The Trustee, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not the Trustee.


 


14.          No Recourse Against Others.  No director, officer, employee, incorporator
or stockholder of the Company or of any Subsidiary Guarantor, as such, shall
have any liability for any obligations of the Company or any Subsidiary
Guarantor under the Indenture, the Notes, the Subsidiary Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder by accepting a
Note waives and releases all such liability. 
The waiver and release are part of the consideration for the issuance of
the Notes; such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the SEC that such a waiver is
against public policy.


 


15.          Authentication.  This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


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


 


A-7

















 


17.          CUSIP Numbers.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
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.


 


18.          Additional Rights of
Holders of Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes that are Initial Notes shall have all the rights set forth in
the Registration Rights Agreement, dated as of November 2, 2010, between
the Company and the parties named on the signature pages thereto or, in
the case of Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have the rights set forth in one or more registration
rights agreements, if any, among the Company and the other parties thereto,
relating to rights given by the Company to the purchasers of any Additional
Notes.


 


19.          Governing Law.  THE LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS NOTE, WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPALS OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


The
Company shall 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:


 


Hanger
Orthopedic Group, Inc.

10910 Domain Drive, Suite 300

Austin, Texas  78758

Attention:  Chief Financial Officer


 


A-8

















 


Assignment Form


 


	
  To
  assign this Note, fill in the form below: (I) or (we) assign and
  transfer this Note to

  
	
   

  
	
   

  
	
  (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 Company. 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:

  	
   

  
						



 


A-9
















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)


 


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
Note 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 Note

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)           Only included for Global
Notes


 


A-10

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


Hanger
Orthopedic Group, Inc.

10910 Domain Drive, Suite 300

Austin, Texas  78758

Attention:  Chief Financial Officer


 


Wilmington
Trust Company, as Trustee

1100 North Market Street

Wilmington, Delaware 19890

Attention:  Corporate Capital Market
Services (Hanger Orthopedic Group, Inc.)


 


Re:          7 1/8% Senior Notes due 2018


 


Reference
is hereby made to the Indenture, dated as of November 2, 2010 (the “Indenture”), among Hanger Orthopedic Group, Inc. (the “Company”), the Subsidiary Guarantors party thereto and
Wilmington Trust Company, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                                    ,
(the “Transferor”) owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of
$                      
in such Note[s] or interests (the “Transfer”), to
                                  
(the “Transferee”), as further specified in
Annex A hereto.  In connection with the
Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.             o  Check if Transferee will
take delivery of a beneficial interest in the 144A Global Note or a 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 believed and believes is
purchasing the beneficial interest or Definitive Note for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance
with any applicable blue sky securities laws of any state of the United
States.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.


 


2.             o  Check if Transferee will
take delivery of a beneficial interest in the Regulation S Global Note or a
Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States
or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been 


 


B-1

















 


made
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser).  Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Temporary Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.


 


3.             o  Check and complete if
Transferee will take delivery of a beneficial interest in a 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 Company 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 transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.


 


(b)           o  Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated 


 


B-2

















 


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 Company.


 


 


	
   

  	
   

  
	
   

  	
  [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
            ), or


 


(ii)      o Regulation S Global Note
(CUSIP             );
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
            ), or


 


(ii)      o Regulation S Global Note
(CUSIP
            ), or


 


(iii)     o Unrestricted Global Note
(CUSIP
              );
or


 


(b)           o a Restricted Definitive
Note; or


 


(c)           o an Unrestricted Definitive
Note,


 


in accordance with the terms of the Indenture.


 


B-4
















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Hanger
Orthopedic Group, Inc.

10910 Domain Drive, Suite 300

Austin, Texas  78758

Attention:  Chief Financial Officer


 


Wilmington
Trust Company, as Trustee

1100 North Market Street

Wilmington, Delaware 19890

Attention:  Corporate Capital Market
Services (Hanger Orthopedic Group, Inc.)


 


Re:                             71/8% Senior Notes due 2018


 


(CUSIP                  )


 


Reference
is hereby made to the Indenture, dated as of November 2, 2010 (the “Indenture”), among Hanger Orthopedic Group, Inc. (the “Company”), the Subsidiary Guarantors party thereto and
Wilmington Trust Company, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                          ,
(the “Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $          in such Note[s] or
interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.                                      Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note


 


(a)                                 o  Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.


 


(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.


 


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(c)                                  o  Check if Exchange is from
Restricted Definitive Note to beneficial interest in an Unrestricted Global
Note.  In connection with the
Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(d)                                 o  Check if Exchange is from
Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


2.                                      Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes


 


(a)                                 o  Check if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


(b)                                 o  Check if Exchange is from
Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE] o 144A Global
Note, o Regulation S
Global Note 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.


 


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


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  



 


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EXHIBIT D


 


FORM OF NOTATION OF GUARANTEE


 


For
value received, each Subsidiary Guarantor (which term includes any successor
Person under the Indenture), jointly and severally, unconditionally guarantees,
to the extent set forth in the Indenture and subject to the provisions in the
Indenture, dated as of November 2, 2010 (the “Indenture”),
among Hanger Orthopedic Group, Inc. (the “Company”),
the Subsidiary Guarantors listed on the signature pages thereto and
Wilmington Trust Company, as trustee (the “Trustee”), (a) the
due and punctual payment of the principal of, premium, if any, and interest on
the Notes (as defined in the Indenture), whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal and premium, if any, and, to the extent permitted by law, interest,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms of the Indenture
and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.  The obligations of the Subsidiary Guarantors
to the Holders of Notes and to the Trustee pursuant to the Subsidiary Guarantee
and the Indenture are expressly set forth in Article 10 of the Indenture
and reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guarantee.  This Subsidiary
Guarantee is subject to release as and to the extent set forth in Sections
10.04 and 10.05 of the Indenture.  Each
Holder of a Note, by accepting the same agrees to and shall be bound by such
provisions.  Capitalized terms used
herein and not defined are used herein as so defined in the Indenture.


 


[Signatures on following page]


 


D-1

















 


	
   

  	
  Hanger
  Prosthetics & Orthotics, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  George
  E. McHenry

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President,

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABi
  Orthotic/Prosthetic Laboratories, Ltd.

  
	
   

  	
  Advanced
  Prosthetics of America, Inc.

  
	
   

  	
  The
  Brace Shop Prosthetic Orthotic Centers, Inc.

  
	
   

  	
  Colorado
  Professional Medical, Inc.

  
	
   

  	
  Creative
  Orthotics & Prosthetics, Inc.

  
	
   

  	
  DDOPP
  Holding LLC

  
	
   

  	
  DiBello’s
  Dynamic Orthotics and Prosthetics Partnership Ltd.

  
	
   

  	
  Dosteon
  Solutions, LLC

  
	
   

  	
  Elite
  Care, Incorporated

  
	
   

  	
  Eugene
  Teufel & Son Orthotics & Prosthetics, Inc.

  
	
   

  	
  Hanger
  Prosthetics & Orthotics East, Inc.

  
	
   

  	
  Hanger
  Prosthetics & Orthotics West, Inc.

  
	
   

  	
  Hattingh
  Holdings, Inc.

  
	
   

  	
  Inline
  Orthotic and Prosthetic Systems

  
	
   

  	
  Innovative
  Neurotronics, Inc.

  
	
   

  	
  Linkia,
  LLC

  
	
   

  	
  Nebraska
  Orthotic & Prosthetic Services, Inc.

  
	
   

  	
  OPNET, Inc.

  
	
   

  	
  Orthopedic
  Rehabilitation Products, Ltd.

  
	
   

  	
  Southern
  Prosthetic Supply, Inc.

  
	
   

  	
  Speed
  Acquisition Vehicle, Inc.

  
	
   

  	
  Wasatch
  Orthotics & Pedorthics, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  George
  E. McHenry

  
	
   

  	
   

  	
  Title:

  	
  Treasurer
  and Secretary

  



 


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