Exhibit 4.1


 


Execution Version


 




 





 


TALECRIS
BIOTHERAPEUTICS HOLDINGS CORP.,


as Company


 


and


 


THE SUBSIDIARIES NAMED HEREIN


 


as Subsidiary Guarantors


 


7.75% SENIOR NOTES DUE 2016


 






 


INDENTURE


 


Dated as of October 21, 2009


 






 


The Bank of New York Mellon Trust Company, N.A.,


as Trustee


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other
  Definitions

  	
  27

  
	
  Section 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  28

  
	
  Section 1.04.

  	
  Rules of
  Construction

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
   

  	
   

  
	
  THE NOTES

  	
   

  
	
   

  	
   

  
	
  Section 2.01.

  	
  Form and
  Dating

  	
  29

  
	
  Section 2.02.

  	
  Execution
  and Authentication

  	
  30

  
	
  Section 2.03.

  	
  Registrar
  and Paying Agent

  	
  31

  
	
  Section 2.04.

  	
  Paying
  Agent to Hold Money in Trust

  	
  31

  
	
  Section 2.05.

  	
  Holder
  Lists

  	
  31

  
	
  Section 2.06.

  	
  Transfer
  and Exchange

  	
  32

  
	
  Section 2.07.

  	
  Replacement
  Notes

  	
  44

  
	
  Section 2.08.

  	
  Outstanding
  Notes

  	
  44

  
	
  Section 2.09.

  	
  Treasury
  Notes

  	
  44

  
	
  Section 2.10.

  	
  Temporary
  Notes

  	
  45

  
	
  Section 2.11.

  	
  Cancellation

  	
  45

  
	
  Section 2.12.

  	
  Defaulted
  Interest

  	
  45

  
	
  Section 2.13.

  	
  CUSIP
  or ISIN Numbers

  	
  46

  
	
  Section 2.14.

  	
  Additional
  Interest

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
   

  	
   

  
	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  
	
  Section 3.01.

  	
  Notices
  to Trustee

  	
  46

  
	
  Section 3.02.

  	
  Selection
  of Notes to Be Redeemed

  	
  46

  
	
  Section 3.03.

  	
  Notice
  of Redemption

  	
  47

  
	
  Section 3.04.

  	
  Effect
  of Notice of Redemption

  	
  48

  
	
  Section 3.05.

  	
  Deposit
  of Redemption Price

  	
  48

  
	
  Section 3.06.

  	
  Notes
  Redeemed in Part

  	
  48

  
	
  Section 3.07.

  	
  Optional
  Redemption

  	
  48

  
	
  Section 3.08.

  	
  Mandatory
  Redemption

  	
  49

  
	
  Section 3.09.

  	
  Offer To Purchase by Application of Excess Proceeds

  	
  50

  



 


i

















 


TABLE OF
CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 4.01.

  	
  Payment
  of Notes

  	
  51

  
	
  Section 4.02.

  	
  Maintenance
  of Office or Agency

  	
  52

  
	
  Section 4.03.

  	
  Reports

  	
  52

  
	
  Section 4.04.

  	
  Compliance
  Certificate

  	
  53

  
	
  Section 4.05.

  	
  Taxes

  	
  54

  
	
  Section 4.06.

  	
  Stay,
  Extension and Usury Laws

  	
  54

  
	
  Section 4.07.

  	
  Corporate
  Existence

  	
  55

  
	
  Section 4.08.

  	
  Payments
  for Consent

  	
  55

  
	
  Section 4.09.

  	
  Incurrence
  of Indebtedness and Issuance of Disqualified Stock and Preferred Stock

  	
  55

  
	
  Section 4.10.

  	
  Restricted
  Payments

  	
  59

  
	
  Section 4.11.

  	
  Liens

  	
  62

  
	
  Section 4.12.

  	
  Asset
  Sales

  	
  62

  
	
  Section 4.13.

  	
  Dividend
  and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
  64

  
	
  Section 4.14.

  	
  Transactions
  with Affiliates

  	
  66

  
	
  Section 4.15.

  	
  Sale
  and Leaseback Transactions

  	
  67

  
	
  Section 4.16.

  	
  Issuances
  and Sales of Capital Stock of Restricted Subsidiaries

  	
  68

  
	
  Section 4.17.

  	
  Designation
  of Restricted and Unrestricted Subsidiaries

  	
  68

  
	
  Section 4.18.

  	
  Repurchase
  at the Option of Holders Upon a Change of Control

  	
  68

  
	
  Section 4.19.

  	
  Additional
  Subsidiary Guarantees

  	
  70

  
	
  Section 4.20.

  	
  Covenant
  Suspension

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
   

  	
   

  
	
  SUCCESSORS

  	
   

  
	
   

  	
   

  
	
  Section 5.01.

  	
  Merger,
  Consolidation or Sale of Assets

  	
  71

  
	
  Section 5.02.

  	
  Successor
  Corporation Substituted

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events
  of Default

  	
  72

  
	
  Section 6.02.

  	
  Acceleration

  	
  74

  
	
  Section 6.03.

  	
  Other
  Remedies

  	
  75

  
	
  Section 6.04.

  	
  Waiver
  of Past Defaults

  	
  75

  
	
  Section 6.05.

  	
  Control
  by Majority

  	
  75

  
	
  Section 6.06.

  	
  Limitation
  on Suits

  	
  76

  
	
  Section 6.07.

  	
  Rights
  of Holders to Receive Payment

  	
  76

  



 


ii

















 


TABLE OF
CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 6.08.

  	
  Collection
  Suit by Trustee

  	
  76

  
	
  Section 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
  77

  
	
  Section 6.10.

  	
  Priorities

  	
  77

  
	
  Section 6.11.

  	
  Undertaking
  for Costs

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
   

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties
  of Trustee

  	
  78

  
	
  Section 7.02.

  	
  Rights
  of Trustee

  	
  79

  
	
  Section 7.03.

  	
  Individual
  Rights of Trustee

  	
  80

  
	
  Section 7.04.

  	
  Trustee’s
  Disclaimer

  	
  80

  
	
  Section 7.05.

  	
  Notice
  of Defaults

  	
  80

  
	
  Section 7.06.

  	
  Reports
  by Trustee to Holders

  	
  81

  
	
  Section 7.07.

  	
  Compensation
  and Indemnity

  	
  81

  
	
  Section 7.08.

  	
  Replacement
  of Trustee

  	
  82

  
	
  Section 7.09.

  	
  Successor
  Trustee by Merger, etc.

  	
  83

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
  83

  
	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
   

  	
   

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Option
  to Effect Legal Defeasance or Covenant Defeasance

  	
  83

  
	
  Section 8.02.

  	
  Legal
  Defeasance and Discharge

  	
  83

  
	
  Section 8.03.

  	
  Covenant
  Defeasance

  	
  84

  
	
  Section 8.04.

  	
  Conditions
  to Legal or Covenant Defeasance

  	
  84

  
	
  Section 8.05.

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

  	
  86

  
	
  Section 8.06.

  	
  Reserved

  	
  86

  
	
  Section 8.07.

  	
  Reinstatement

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  
	
  Section 9.01.

  	
  Without
  Consent of Holders of Notes

  	
  87

  
	
  Section 9.02.

  	
  With
  Consent of Holders of Notes

  	
  88

  
	
  Section 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
  89

  
	
  Section 9.04.

  	
  Revocation
  and Effect of Consents

  	
  90

  
	
  Section 9.05.

  	
  Notation
  on or Exchange of Notes

  	
  90

  
	
  Section 9.06.

  	
  Trustee
  to Sign Amendments, etc.

  	
  90

  



 


iii

















 


TABLE OF
CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
   

  	
   

  
	
  SUBSIDIARY GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Guarantee

  	
  90

  
	
  Section 10.02.

  	
  Limitation
  on Subsidiary Guarantor Liability

  	
  92

  
	
  Section 10.03.

  	
  Execution
  and Delivery of Subsidiary Guarantee

  	
  93

  
	
  Section 10.04.

  	
  Subsidiary
  Guarantors May Consolidate, etc., on Certain Terms

  	
  93

  
	
  Section 10.05.

  	
  Release
  of Guarantees

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Satisfaction
  and Discharge

  	
  95

  
	
  Section 11.02.

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

  	
  96

  
	
  Section 11.03.

  	
  Repayment
  to Company

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 12.01.

  	
  Trust
  Indenture Act Controls

  	
  96

  
	
  Section 12.02.

  	
  Notices

  	
  96

  
	
  Section 12.03.

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
  98

  
	
  Section 12.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  98

  
	
  Section 12.05.

  	
  Statements
  Required in Certificate or Opinion

  	
  98

  
	
  Section 12.06.

  	
  Rules by
  Trustee and Agents

  	
  98

  
	
  Section 12.07.

  	
  No
  Personal Liability of Directors, Officers, Employees and Stockholders

  	
  99

  
	
  Section 12.08.

  	
  Governing
  Law

  	
  99

  
	
  Section 12.09.

  	
  No
  Adverse Interpretation of Other Agreements

  	
  99

  
	
  Section 12.10.

  	
  Successors

  	
  99

  
	
  Section 12.11.

  	
  Severability

  	
  99

  
	
  Section 12.12.

  	
  Counterpart
  Originals

  	
  99

  
	
  Section 12.13.

  	
  Table of Contents, Headings, etc.

  	
  99

  



 


iv

















 


CROSS-REFERENCE TABLE*


 


	
  Trust
  Indenture Act

  	
   

  	
  Indenture

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
  12.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06

  
	
   

  	
  (c)

  	
   

  	
  7.06; 12.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.03; 10.02

  
	
   

  	
  (a)(4)

  	
   

  	
  4.04

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  12.04

  
	
   

  	
  (c)(2)

  	
   

  	
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  12.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05, 12.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a)(last sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.12

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  12.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  12.01

  
	
   

  	
  N.A. means not
  applicable.

  	
   

  	
   

  



 






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


 


v
















 


This
INDENTURE dated as of October 21, 2009, is by and among Talecris
Biotherapeutics Holdings Corp., a Delaware corporation (the “Company”), the Subsidiary Guarantors
listed on the signature pages hereto, and The Bank of New York Mellon
Trust Company, N.A., national banking association, 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 7.75% Senior Notes due 2016 (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.


 


“Additional Interest” has the meaning set
forth in the Registration Rights Agreement for the term “Registration Default
Damages”.


 


“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
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 on any
redemption date, the greater of:


 


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


 


(2)           the excess, if
any, of (a) the present value at such redemption date of (i) the
redemption price of such Note at November 15, 2012 (such redemption price
being set forth in the table appearing under Section 3.07(a) hereof),
plus (ii) all required interest payments due on such Note through November 15,
2012 (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 0.50%; over (b) the principal amount of such 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.


 


“Asset Sale” means the sale, lease (as
lessor), conveyance or other disposition of any assets or rights; provided that
the sale, lease, conveyance or other 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 transaction
or series of related transactions that involves assets or rights having a fair
market value of less than $7.5 million;


 


(2)           a transfer of
assets or rights between or among the Company and its Restricted Subsidiaries
or between or among the Company’s Restricted Subsidiaries;


 


(3)           the sale,
lease, conveyance or other disposition of equipment, inventory (including, but
not limited to, raw materials, work-in-progress and finished goods), accounts
receivable or other assets or rights in the ordinary course of business, or if
excess, obsolete, damaged, worn-out or surplus or no longer used or useful in
the conduct of business as then being conducted;


 


(4)           a Restricted
Payment that is permitted by Section 4.10, or a Permitted Investment;


 


(5)           the sale, lease,
conveyance or other disposition of property or assets acquired within the
twelve month period prior to such sale, lease, conveyance or disposition in
preparation for a sale and leaseback transaction relating to such property or
assets;


 


(6)           an issuance of
Equity Interests by one of the Company’s Restricted Subsidiaries to the Company
or another Restricted Subsidiary;


 


2

















 


(7)           the sale or
other disposition of cash or Cash Equivalents;


 


(8)           the license or
sub-license of patents, trademarks, copyrights, know how, process technology or
other intellectual property to third Persons by the Company or its Restricted
Subsidiaries, so long as the Company or such Restricted Subsidiary retain the
right to use such licensed property; and


 


(9)           the granting or
assumption of a Lien permitted by Section 4.11, including a Permitted
Lien.


 


“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.


 


“Board of Directors” means:


 


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


 


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


 


(3)           with respect to
a limited liability company, the managing member or members or any controlling
committee of managing members thereof; and


 


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


 


“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of 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 delivered to the Trustee.


 


“Borrowing Base” means the “Borrowing Base” under the Credit
Agreement from time to time calculated in accordance with the definition of “Borrowing
Base” under the Credit Agreement as in effect at the date the Notes are issued,
provided that if the Credit Agreement is
refinanced or amended, “Borrowing Base” shall mean the “Borrowing Base” under
the Credit Facility replacing the Credit Agreement or the amended Credit
Agreement, so long as the definition of “Borrowing Base” in such replacement
Credit Facility or amended Credit Agreement is based on current assets only and
is in a form customary in the asset based lending market.


 


3

















 


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


 


“Capital Lease Obligation” of any Person
means the obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person in accordance with GAAP, and the amount of such obligations shall be the
capitalized amount thereof required to be set forth on a balance sheet of such
Person in accordance with GAAP.


 


“Capital Stock” means:


 


(1)           in the case of a corporation, any and all
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)           the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and


 


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


 


“Cash Equivalents” means:


 


(1)           direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition
thereof;


 


(2)           investments in commercial paper maturing
within one year from the date of acquisition thereof and having, at such date
of acquisition, the highest credit rating obtainable from S&P or from Moody’s;


 


(3)           investments in certificates of deposit,
banker’s acceptances and time deposits maturing within one year from the date
of acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any State thereof
which has a combined capital and surplus of not less than $500,000,000;


 


(4)           fully collateralized repurchase
agreements with a term of not more than 30 days for securities described in
clause (1) above and entered into with a financial institution satisfying
the criteria described in clause (3) above;


 


4

















 


(5)           money market funds that (i) comply
with the criteria set forth in Securities and Exchange Commission Rule 2a-7
under the Investment Company Act of 1940, (ii) are rated AAA by S&P
and Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000; and


 


(6)           deposits which can be withdrawn on notice
of any commercial bank and a maturity of less than 10 days, held by the Company
or a Restricted Subsidiary and not subject to any Lien (other than a Permitted
Lien), denominated in Dollars and the proceeds of which are capable of being
remitted to such Borrower in the United States of America.


 


“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 property and assets of the
Company and the properties and assets of its Subsidiaries, taken as a whole, 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 one or more Subsidiary
Guarantors;


 


(2)           the adoption 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)           (a) any Person or Group (other than
the Permitted Holder Group) shall be or 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 or (b) the Permitted Holder Group becomes the
owner, directly or indirectly, beneficially or of record, of shares
representing more than 70% of the aggregate ordinary voting power represented
by the Company’s issued and outstanding Capital Stock; or


 


(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.


 


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


 


“Code” means the Internal Revenue Code of
1986, as amended.


 


“Consolidated Cash Flow” means, with
respect to any specified Person for any period, the Consolidated Net Income of
such Person for such period plus (without duplication):


 


5

















 


(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 or expenses for taxes based on
income or profits of such Person and its Restricted Subsidiaries for such
period, to the extent that such provision or expenses for taxes were deducted
in computing such Consolidated Net Income; plus


 


(3)           the Fixed Charges of such Person and its
Restricted Subsidiaries for such period, to the extent that any such expense
was deducted in computing such Consolidated Net Income; plus


 


(4)           depreciation, amortization (including amortization
of goodwill, financing costs and other intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior 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 (including fees) or charges
relating to any public or private sale of Capital Stock of the Company,
acquisition, Investment, discharge of securities registration obligations or
Indebtedness permitted to be incurred under this Indenture (in each case
whether or not consummated) or to the Transactions and, in each case, deducted
in such period in computing Consolidated Net Income; plus


 


(6)           the amount of any minority interest
expense deducted in such period in calculating Consolidated Net Income; plus


 


(7)           any non-cash compensation charge in such
period arising from any grant of stock, stock options or other equity-based
award; plus


 


(8)           any non-cash pension and other
post-employment benefit expense deducted in such period in computing
Consolidated Net Income; plus


 


(9)           any non-cash decrease in consolidated
GAAP revenue resulting from purchase accounting in connection with any
acquisitions permitted hereunder less any non-cash increase in consolidated
GAAP revenue resulting from purchase accounting in connection with acquisitions
permitted hereunder; plus


 


(10)         any extraordinary, unusual, or
non-recurring losses, charges and expenses deducted in such period in
calculating Consolidated Net Income; plus


 


(11)         any payments made pursuant to the Company’s
Special Recognition Bonus Plan deducted in such period in calculating
Consolidated Net Income; plus


 


(12)         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


 


6

















 


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


 


(13)         costs and expenses directly attributable
to the extinguishment of Hedging Obligations in respect of the First Lien Loan
Agreement, the Second Lien Loan Agreement or the Credit Agreement following the
refinancing thereof; minus


 


(14)         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 (without
duplication) 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, except to
the extent of any cash capital contribution) of any Person that is not a
Restricted 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)           the Net Income of any Restricted
Subsidiary will be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary to that
specified Person or another Restricted Subsidiary of such Person 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, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders;


 


(3)           the following non-cash items will be
excluded:


 


(i)            the cumulative effect of a change in
accounting principles;


 


(ii)           the write-off of any debt issuance costs;


 


(iii)          any non-cash impairment charges relating to goodwill
resulting from the application of Statement of Financial Accounting Standards (“SFAS”) No. 142 (or any successor
statement);


 


(iv)          any non-cash SFAS No. 133 income (or
loss) related to hedging activities;


 


(v)           any income (or loss) from discontinued
operations;


 


(vi)          any extraordinary gain, loss or charge;


 


7

















 


(vii)         all deferred financing costs written off,
premiums paid and other net gains or losses in connection with any early
extinguishment of Indebtedness;


 


(viii)        any non-cash impairment charges resulting
from application of SFAS No. 144 and the amortization of intangibles
arising pursuant to SFAS No. 141;


 


(ix)           accruals and reserves that are
established within twelve months after the date of this Indenture and that are
so required to be established in accordance with GAAP, provided that any such accruals or
reserves paid in cash shall be deducted from Consolidated Net Income for the
period in which paid unless excluded pursuant to another clause of this
definition;


 


(x)            any non-cash expense or gain related to
recording of the fair market value of interest rate or currency agreements and
commodity agreements entered into, in each case, in the ordinary course of
business and not for speculative purposes;


 


(xi)           unrealized gains and losses relating to
hedging transactions and mark-to-market of Indebtedness denominated in foreign
currencies resulting from the application of SFAS No. 52;


 


(xii)          the amount of non-cash charges relating
to the exercise of options; and


 


(xiii)         any non-cash expense related to the
establishment of allowances or reserves under the application of SFAS No. 109
attributable to the non-recognition of deferred tax assets.


 


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


 


8

















 


“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
Revolving Credit Agreement, dated as of December 6, 2006, by and among the
Company, Talecris Biotherapeutics, Inc., Precision Pharma Services, Inc.
and Talecris Plasma Resources, Inc., as borrowers, Wachovia Bank, National
Association, as administrative agent, Morgan Stanley Senior Funding, Inc.,
as syndication agent, Goldman Sachs Credit Partners L.P.  as co-documentation agent, Wells Fargo
Foothill, Inc., as collateral agent and co-documentation agent and the
lenders party thereto, including any related notes, Guarantees, instruments and
agreements executed in connection therewith, and, in each case, as amended,
modified, renewed, refunded, replaced (whether after or upon termination or
otherwise), restructured, restated or refinanced (including any agreement to
extend the maturity thereof and adding additional borrowers or guarantors and
including by means of sales of debt securities to institutional investors) in
whole or in part under such agreement or agreements or any successor agreement
or agreements from time to time under the same or any other agent, lender or
group of lenders and including increasing the amount of available borrowings
thereunder; provided that such
increase is permitted under Section 4.09 hereof.


 


“Credit Facilities” means one or more debt
facilities or agreements (including, without limitation, the Credit Agreement)
or commercial paper facilities or indentures, in each case with 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 against such
receivables) or letters of credit, in each case, as amended, restated,
modified, renewed, refunded, replaced (whether after or upon termination or
otherwise), restructured, restated or refinanced (including any agreement to
extend the maturity thereof and adding additional borrowers or guarantors and
including by means of sales of debt securities to institutional investors) 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.


 


“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.


 


“Description of the Notes” means the
Description of the Notes in the Company’s confidential Offering Memorandum
dated October 16, 2009.


 


9

















 


“Designated Non-Cash Consideration”  means the fair market value of non-cash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Non-Cash
Consideration pursuant to an officer’s certificate, setting forth the basis of
such valuation, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale, redemption or payment of, on or with respect
to, 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 that is 91
days after the date on which the Notes mature. 
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.  The amount of Disqualified Stock deemed to be
outstanding at any time for purposes of this Indenture will be the maximum
amount that the Company and its Restricted Subsidiaries may become obligated to
pay upon the maturity of, or pursuant to any mandatory redemption provisions
of, such Disqualified Stock, exclusive of accrued dividends.


 


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


 


“Domestic Subsidiary” means any Subsidiary
that is not a Foreign Subsidiary.


 


“Equity Interests” means Capital Stock and
all warrants, options, restricted stock units, performance units 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 for the term “Registered Exchange Offer.”


 


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


 


10

















 


“Existing Indebtedness” means Indebtedness
of the Company and its Subsidiaries (other than Indebtedness under the Credit
Agreement) in existence on the date of this Indenture, until such amounts are
repaid.


 


“First Lien Loan Agreement” means that certain First Lien
Term Loan Credit Agreement, dated December 6, 2006, among Morgan Stanley
Senior Funding, Inc., as first lien agent, the Company, Talecris
Biotherapeutics Inc., Precision Pharma Services, Inc. and Talecris Plasma
Resources, Inc., as borrowers, and the first lien lenders from time to
time party thereto, as amended, restated, modified or supplemented from time to
time.


 


“Fixed Charge Coverage Ratio” means, with
respect to any specified Person for any period, the ratio of the Consolidated
Cash Flow of such Person for such period to the Fixed Charges of such Person
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 (including use on the Calculation Date)
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 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 (taking into
account any interest rate option, swap, cap or similar agreement applicable to
such Indebtedness).


 


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


 


(1)           acquisitions that have been made or are,
on the Calculation Date, being made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations, or any
Person or any of its Restricted Subsidiaries acquired by (including
acquisitions on the Calculation Date) the specified Person or any of its
Restricted Subsidiaries, and including any related financing transactions and
including any increase in ownership of Restricted Subsidiaries, 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 as if they had
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period will be calculated without giving effect to
clause (3) of the proviso set forth in the definition of Consolidated Net
Income;


 


(2)           the Consolidated Cash Flow attributable
to discontinued operations, as determined in accordance with GAAP, and
operations or businesses (and ownership interests therein) disposed of prior to
the Calculation Date, will be excluded; and


 


11
















 


(3)           the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses (and ownership interests therein) disposed of prior to the
Calculation Date, 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 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)           the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(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 in
respect of interest rates); plus


 


(2)           the consolidated interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period;
plus


 


(3)           any interest expense on Indebtedness of
another Person 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


 


(4)           the product of (a) all dividends,
whether paid or accrued and whether or not in cash, on any series of preferred
stock of such Person or any of its Restricted Subsidiaries, other than
dividends on Equity Interests payable solely in Equity Interests of such Person
(other than Disqualified Stock) or to such Person or one of its Restricted
Subsidiaries, 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.


 


“Foreign Subsidiary”
means any subsidiary of the Company that is organized under the laws of a
jurisdiction other than the United States of America, a State thereof or the
District of Columbia.


 


12

















 


“GAAP”
means generally accepted accounting principles 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
have been approved by a significant segment of the accounting profession, as in
effect as of the date of the Indenture.


 


“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.


 


“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 (whether
from fixed to floating or floating to fixed), interest rate cap agreements and
interest rate collar agreements;


 


(2)           other agreements or arrangements designed
to manage interest rates or interest rate risk; and


 


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


 


13

















 


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


 


“Indebtedness”  means, with respect to any specified
Person, any indebtedness (excluding accrued expenses or trade payables), of
such Person, whether or not contingent:


 


(1)           in respect of borrowed money;


 


(2)           evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);


 


(3)           in respect of banker’s acceptances;


 


(4)           representing Capital Lease Obligations;


 


(5)           representing the balance deferred and
unpaid of the purchase price of any property due more than six months after
such property is acquired, except any such balance that constitutes an accrued
expense or trade payable; 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 (without duplication):


 


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


 


(2)           the principal amount of the Indebtedness,
together with any interest on the Indebtedness that is more than 30 days past
due, in the case of any other Indebtedness; and


 


(3)           in respect of Indebtedness of another
Person secured by a Lien on the assets of the specified Person, the lesser of:


 


(a)           the fair market value of such assets at
the date of determination; and


 


(b)           the amount of the Indebtedness of the
other Person.


 


“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.


 


14

















 


“Initial Notes” means $600,000,000 in
aggregate principal amount of Notes issued under this Indenture on the date
hereof.


 


“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 forms of loans (including Guarantees or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), 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.  If the Company or any of its Subsidiaries
sells or otherwise disposes of any Equity Interests of any direct or indirect
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company
will be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Subsidiary not sold or disposed of in an amount determined as provided in the final
paragraph of Section 4.10.  The
acquisition by the Company or any of its Subsidiaries of a Person that holds an
Investment in a third Person will be deemed to be an Investment by the Company
or such Subsidiary in such third Person in an amount equal to the fair market
value of the Investment held by the acquired Person in such third Person in an
amount determined as provided in the final paragraph of Section 4.10.  Except as otherwise provided in this
Indenture, the amount of an Investment will be determined at the time the
Investment was made and without giving effect to subsequent changes in value.


 


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


 


“Lien” means, with respect to any asset,
any mortgage, lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.


 


15

















 


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


 


“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 (but not loss), together with
any related provision for taxes on such gain (but not loss), 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 extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries;


 


(2)           any extraordinary gain (but not loss),
together with any related provision for taxes on such extraordinary gain (but
not loss); and


 


(3)           any merger termination fee received by
the Company or a Restricted Subsidiary.


 


“Net Proceeds” means the aggregate cash
proceeds received by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration received in
any Asset Sale), net of the direct costs directly attributable to such Asset
Sale, including, without limitation, legal, accounting and investment banking
fees, and sales commissions, taxes paid or payable as a result of the Asset
Sale, in each case, after taking into account any available tax credits or
deductions and any tax sharing arrangements, and amounts required to be applied
to the repayment of Indebtedness, other than Senior Debt, secured by a Lien on
the asset or assets that were the subject of such Asset Sale, and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP (unless such reserve is not used).


 


“Non-Recourse Debt”
means Indebtedness:


 


(1)           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), or (b) is directly or indirectly liable as a guarantor or
otherwise;


 


(2)           no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice, lapse of
time or both any holder of any other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its Stated
Maturity; and


 


(3)           as to which the
lenders have been notified in writing that they will not have any recourse to
the Company’s stock or assets or the stock or assets of any of the Company’s
Restricted Subsidiaries.


 


16

















 


“Obligations” means any 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, any Vice President, or any
other officer authorized by actions of the Board of Directors of the Company.


 


“Officers’ Certificate” means a
certificate, in form and substance reasonably satisfactory to the Trustee,
signed by two Officers of the Company and delivered to the Trustee. At least
one of the Officers signing an Officers’ Certificate given pursuant to Section 4.04
shall be the principal executive officer, principal financial officer or the
principal accounting officer of the Company,


 


“Opinion of Counsel” means a written
opinion, in form and substance reasonably satisfactory to the Trustee, from
legal counsel who is 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.


 


“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 healthcare
products and services (including the lines of business conducted by the Company
and its Restricted Subsidiaries on the date hereof) and any businesses
ancillary, complementary or reasonably related thereto.


 


“Permitted Holder Group” means any group comprised (i) solely
of (a) Cerberus Partners, L.P. and its Affiliates, and any funds or
entities managed or controlled by it or under common control with it and/or (b) Ampersand
Ventures and its Affiliates, and any funds or entities managed or controlled by
it or under common control with it (individually or together, the “Existing Holders”), or (ii) a person or group of
related persons for purposes of Section 13(d) of the Exchange Act
that includes the Existing Holders where the Existing Holders control (whether
through exercise of voting rights, by contract or otherwise) the Company.


 


“Permitted
Investments” means:


 


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


 


(2)           any Investment in Cash Equivalents;


 


(3)           loans and advances to employees and
officers of the Company and its Restricted Subsidiaries in the ordinary course
of business for bona fide business purposes not in excess of $2.0 million at
any one time outstanding;


 


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


 


17

















 


(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 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 or Capital
Stock solely in exchange for the issuance of the Equity Interests (other than
Disqualified Stock) of the Company;


 


(7)           any Investments received (A) in
compromise of obligations of trade creditors or customers that were incurred in
the ordinary course of business of the Company or its Restricted Subsidiaries,
including pursuant to any plan of reorganization or similar arrangement upon
the bankruptcy or insolvency or other reorganization of any trade creditor or
customer or (B) in resolution of litigation, arbitration or other disputes
or (C) as a result of foreclosure, perfection or enforcement of any Lien;


 


(8)           Hedging
Obligations;


 


(9)           Investments in Permitted Joint Ventures,
together with all other Investments pursuant to this clause (9) in an
aggregate amount at the time of such Investment not to exceed the greater of
$50.0 million or 2.5% of Total Assets at the time of such Investment  (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value);


 


(10)         payroll, travel, moving and similar
advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made
in the ordinary course of business;


 


(11)         repurchases of the Notes;


 


(12)         receivables owing to the Company or its
Restricted Subsidiaries created or acquired in the ordinary course of business
(including concessionary trade terms the Company deems reasonable under the
circumstances);


 


(13)         Investments in existence or made pursuant
to legally binding written commitments in existence on the date hereof, and any
extension, modification, replacement, refunding, refinancing or renewal thereof
in whole or in part;


 


(14)         Guarantees issued in accordance with Section 4.09,
and performance or completion Guarantees in the ordinary course of business;


 


(15)         Investments of a Restricted Subsidiary
acquired after the date hereof, or of an entity acquired by, merged into,
amalgamated with, or consolidated with a Restricted Subsidiary in a transaction
that is not prohibited by Article 5 of this Indenture after the


 


18

















 


date hereof, to the extent that such investments were
not made in contemplation of such acquisition, merger, amalgamation or
consolidation and were in existence on the date of such acquisition, merger,
amalgamation or consolidation;


 


(16)         Investments consisting of purchases and
acquisitions of inventory, supplies, material or equipment, including
pre-payments therefore;


 


(17)         Investments representing amounts held for
the Company’s employees and employees of its Restricted Subsidiaries under
deferred compensation plans; provided
that the amount of such Investments (excluding income earned thereon) shall not
exceed the amount otherwise payable to such employees the payment of which was
deferred under such plan and any amounts matched by the Company or its
Restricted Subsidiaries under such plan;


 


(18)         Investments consisting of the licensing
or contribution of intellectual property pursuant to development, marketing or
manufacturing agreements or arrangements or similar agreements or arrangements
with other Persons;


 


(19)         any Investment in exchange for, or out of
the net proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company or one of its Restricted Subsidiaries or an employee
stock ownership plan or similar trust) of the Company’s Capital Stock (other
than Disqualified Stock); provided
that the amount of any net cash proceeds that are utilized for such Investment
will be excluded from clause c(ii) of the second part of the first
paragraph of Section 4.10;


 


(20)         Investments consisting of advances or
loans to Persons building, developing or overseeing the construction of plasma
collection centers expected to supply principally the Company or the Restricted
Subsidiaries in the ordinary course of business and consistent with past
practice; and


 


(21)         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), when taken together
with all other Investments made pursuant to this clause (21) that are at
the time outstanding, not to exceed $100.0 million.


 


“Permitted Joint Venture” means any joint
venture that the Company or any Restricted Subsidiary is a party to that is
engaged in a Permitted Business.


 


“Permitted Liens”
means:


 


(1)           Liens to secure Obligations in respect of
any Indebtedness incurred under Section 4.09(b)(i);


 


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


 


(3)           Liens and deposits to secure the
performance of bids, trade contracts, leases, statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature, in each
case in the ordinary course of business;


 


19

















 


(4)           Liens to secure Indebtedness (including
Capital Lease Obligations) permitted by clause (iv) of Section 4.09(b) covering
only the assets acquired, or financed, with such Indebtedness;


 


(5)           Liens existing on the date of this
Indenture (other than under the Credit Agreement);


 


(6)           Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
concluded; provided that any
reserve or other appropriate provision as is required in conformity with GAAP
has been made therefor;


 


(7)           pledges or deposits in the ordinary
course of business to secure lease obligations or nondelinquent obligations
under workers’ compensation, social security laws, unemployment insurance or
similar legislation and regulations;


 


(8)           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 or are
being contested in good faith;


 


(9)           easements, rights-of-way, restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary conduct
of the Company’s and its Restricted Subsidiaries’ business or assets taken as a
whole;


 


(10)         securing Hedging Obligations so long as
the related Indebtedness is, and is permitted to be under this Indenture,
secured by the same property securing the Hedging Obligations;


 


(11)         Liens securing Permitted Refinancing
Indebtedness, provided that such
Liens do not extend to any property or assets other that the property or assets
that secure the Indebtedness being refinanced;


 


(12)         Liens created for the benefit of or
securing the Notes and the Subsidiary Guarantees;


 


(13)         Liens arising out of judgments, decrees,
orders or awards in respect of which the Company shall in good faith be
prosecuting an appeal or proceedings for review which appeal or proceedings
shall not have been finally terminated, or the period within which such appeal or
proceedings may be initiated shall not have expired and Liens arising from
final judgments only to the extent, in an amount and for a period not resulting
in an Event of Default with respect thereto;


 


(14)         Liens arising out of conditional sale,
title retention, consignment or similar arrangements for sale of goods in the
ordinary course of business;


 


(15)         Liens in favor of customs or revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;


 


20

















 


(16)         Liens on property or assets used to
defease or to satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge
is not prohibited by this Indenture;


 


(17)         Liens on specific items of inventory or
other goods and proceeds of any Person securing such Person’s obligations in
respect of bankers’ acceptances issued or created for the account of such
Person to facilitate the purchase, shipment or storage of such inventory or
other goods;


 


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


 


(19)         Liens incurred by the Company or any of
its Restricted Subsidiaries with respect to obligations that do not exceed
$40.0 million at any one time outstanding; and


 


(20)         Liens securing Obligations in respect of
any Indebtedness that was permitted to be incurred under Section 4.09(a); provided that at the time of incurrence of and after giving
pro forma effect thereto, the ratio of (x) Consolidated Total Indebtedness
in respect of which Liens have been granted pursuant to this clause (20) to (y) Consolidated
Cash Flow for the most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such event for which such calculation is being made would be no greater
than 1.5 to 1.00, provided  further
that whenever pro forma effect is to be given to a transaction, 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 shall be made.


 


“Permitted
Refinancing Indebtedness”  means
any Indebtedness of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease, refund or discharge other Indebtedness of the Company
or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:


 


(1)           the principal amount (or accreted value,
if applicable) of such Permitted Refinancing Indebtedness does not exceed (A) the
principal amount (or accreted value, if applicable) of the Indebtedness
extended, refinanced, renewed, replaced, defeased, refunded or discharged, plus
(B) all accrued interest on the Indebtedness, plus (C) the amount of
all fees, expenses and premiums incurred in connection therewith;


 


(2)           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, refunded or discharged;


 


(3)           if the Indebtedness being extended,
refinanced, renewed, replaced, defeased, refunded or discharged 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


 


21

















 


documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased, refunded or discharged; and


 


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


 


“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.


 


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


 


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


 


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


 


“Registration Rights Agreement” means the
Registration Rights Agreement dated as of October 21, 2009 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.


 


“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.


 


22
















 


“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 Services, a division of The McGraw-Hill Companies, Inc., and any
successors to its rating agency business.


 


“SEC” means the Securities and Exchange
Commission.


 


“Second Lien Loan Agreement” means that certain Second Lien
Term Loan Credit Agreement, dated December 6, 2006, among Morgan Stanley
Senior Funding, Inc., as second lien agent, the Company, Talecris
Biotherapeutics Inc., Precision Pharma Services, Inc. and Talecris Plasma
Resources, Inc., as borrowers, and the second lien lenders from time to
time party thereto, as amended, restated, modified or supplemented from time to
time.


 


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


 


“Senior Debt”
means with respect to any person:


 


(1)           Indebtedness of such person, whether
outstanding on the Issue Date of the Notes or thereafter created, incurred or
assumed; and


 


(2)           accrued and unpaid interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such person whether or not post-filing interest is
allowed in such proceeding) in respect of (A) indebtedness of such person
for money borrowed and (B) indebtedness evidenced by notes, debentures,
bonds or other similar instruments for the payment of which such person is
responsible or liable,


 


unless, in the case of clauses (1) and (2), in the instrument
creating or evidencing the same or pursuant to which the same is outstanding,
it is expressly provided that such


 


23

















 


obligations are subordinate in right of payment to the
Notes or the guarantee of the Notes by such person, as the case may be.


 


Without limiting the generality of the foregoing, “Senior Debt” shall
include the principal of, premium, if any, and interest on all obligations of
every nature of any person from time to time owed to the lenders under any
Credit Facility, including, without limitation, principal of and interest on,
any loans and letter of credit disbursements outstanding, and all fees,
indemnities and expenses payable, under any Credit Facility.


 


Notwithstanding the foregoing, “Senior Debt” shall not include:


 


(a)           any Indebtedness of such person (and any
accrued and unpaid interest in respect thereof) that is expressly subordinate
or junior in any respect to any other Indebtedness or other obligation of such
person (other than Indebtedness that is subordinate with respect to payment of
the proceeds of secured assets);


 


(b)           Indebtedness which, when incurred and
without respect to any election under Section 1111(b) of Title 11,
United States Code, is without recourse to such person;


 


(c)           Indebtedness which is represented by
Disqualified Stock;


 


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


 


(e)           Indebtedness of or amounts owed by such
person for compensation to employees or for services rendered to such person;


 


(f)            any liability for federal, state, local
or other taxes owed or owing by such person;


 


(g)           Indebtedness of such person to a
Subsidiary or any other Affiliate or any of such Affiliate’s Subsidiaries; and


 


(h)           that portion of any Indebtedness which is
incurred in violation of the indenture.


 


“Senior Secured Debt” means any Indebtedness incurred by the
Company or any Restricted Subsidiary to the extent secured by a Lien permitted
under the 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 in effect on the date hereof.


 


24

















 


“Special Recognition Bonus Plan” means, with respect to the
Company, the Special Recognition Bonus Plan effective October 1, 2006.


 


“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 documentation governing such Indebtedness as of the date of this Indenture,
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 and
after giving effect to any voting agreement or stockholders’ agreement that
transfers voting power) 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 indirectly, by that Person or one or more
of the other Subsidiaries of that Person (or a combination thereof); and


 


(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 current Domestic Subsidiaries
and any other Person that executes a Subsidiary Guarantee in accordance with
the provisions of this Indenture described in Section 4.19 and their
respective successors and assigns.


 


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


 


“Total Assets” means the total consolidated
assets of the Company and its Restricted Subsidiaries, as shown on the most
recent internal balance sheet of the Company prepared on a consolidated basis
(excluding Unrestricted Subsidiaries) in accordance with GAAP


 


“Transactions” means the repayment of
certain of the Company’s existing Indebtedness, the offering of the Notes and
the entering into of the Credit Agreement.


 


25

















 


“Treasury Rate” means, as of any redemption
date, the yield to maturity as of such redemption date of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to the redemption date (or,
if such Statistical Release is no longer published, any publicly available source
of similar market data)) most nearly equal to the period from the redemption
date to November 15, 2012; provided,
however, that if the period from
the redemption date to November 15, 2012 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 Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean such successor 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)           except as permitted pursuant to Section 4.14,
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 than those that might 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;


 


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


 


(5)           has at least
one director on the Board of Directors of the Company that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Company or any of its Restricted Subsidiaries.


 


26

















 


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 following such designation; and (3) such
Subsidiary executes and delivers to the Trustee a supplemental indenture
providing for a Subsidiary Guarantee.


 


“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

  
	
  “Alternate Offer”

  	
   

  	
  4.18

  
	
  “Asset Sale Offer”

  	
   

  	
  3.09

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Benefited Party”

  	
   

  	
  10.01

  
	
  “Change of Control Offer”

  	
   

  	
  4.18

  
	
  “Change of Control
  Payment”

  	
   

  	
  4.18

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “Covenant Suspension
  Event”

  	
   

  	
  4.22

  
	
  “DTC”

  	
   

  	
  2.03

  



 


27

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Existing Holders”

  	
   

  	
  1.01
  (Permitted Holder Group)

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.12

  
	
  “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

  
	
  “Primary Lien”

  	
   

  	
  4.11

  
	
  “Purchase Date”

  	
   

  	
  3.09

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.10

  
	
  “Reversion Date”

  	
   

  	
  4.22

  
	
  “Security Register”

  	
   

  	
  4.18

  
	
  “SFAS”

  	
   

  	
  1.01

  
	
  “Successor Company”

  	
   

  	
  5.01

  
	
  “Suspended Covenant”

  	
   

  	
  4.22

  



 


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.


 


28

















 


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;


 


(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 are hereby authorized in an initial principal amount of
$600,000,000.  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 denominations of $1,000 and integral multiples thereof.  The terms and provisions contained in the
Notes shall constitute, and are hereby expressly made, a part of this Indenture
and the Company 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.


 


29

















 


(b)           Global 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 thereon and the “Schedule of Exchanges of Interests in the Global Note”
attached thereto).  Notes issued in
definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the “Schedule
of Exchanges of Interests in the Global Note” attached thereto).  Each Global Note shall represent such of the
outstanding Notes as shall be specified 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, 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 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 of the Company shall sign the Notes 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 a written order of the Company
signed by one 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. 
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.


 


30

















 


(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.


 


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 Registrar 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).


 


31
















 


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 90 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) there shall have occurred and be continuing an Event of
Default with respect to such Global Note. 
Upon the occurrence of any of the preceding events in (1), (2) or (3) above,
Definitive Notes shall be issued in denominations of $1,000 or integral
multiples 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),
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


 


32

















 


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:


 


(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,


 


33

















 


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


 


If any such transfer is effected pursuant to 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 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:


 


34

















 


(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; or


 


(D)          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) 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 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 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


 


35

















 


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


 


(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 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
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;


 


36

















 


(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; or


 


(D)          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) 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 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;


 


37

















 


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


 


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 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).


 


38

















 


(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


 


(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


 


39

















 


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 Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar and 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 (A) 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 (B) 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 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.


 


(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:


 


“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE ‘‘SECURITIES ACT’’). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER, THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE FIRST
ANNIVERSARY OF THE


 


40

















 


ISSUANCE
HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS
AN ‘‘AFFILIATE’’ (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF
THE ISSUER AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE ISSUER, (2) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS DEFINED UNDER REGULATION
S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (4) PURSUANT TO ANY EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT,
OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE HOLDER HEREOF,
BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE
ISSUER THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
(k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
ISSUER THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.”


 


(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:


 


“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


 


41
















 


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 (“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 (a) an Authentication Order
in accordance with Section 2.02 and (b) an Officers’ Certificate and
an Opinion of Counsel each stating that all conditions precedent and covenants
provided for in this Indenture relating to authentication and delivery of the
Notes have been complied with, the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company’s order or at the Registrar’s request.


 


42

















 


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


 


(j)            Restrictions on Exchange of
Regulation S Global Note.  Beneficial ownership interests in the
Regulation S Global Notes shall not be exchangeable for interests in the Rule 144A
Global Notes, Unrestricted Global Notes, Restricted Definitive Notes or
Unrestricted Definitive Notes until the expiration of the Distribution
Compliance Period and then only upon certification in form reasonably
satisfactory to the Registrar that beneficial ownership interests in such
Regulation S Global Note are owned by or being transferred to either non U.S.
persons or U.S. persons who purchased such interests in a transaction that did
not require registration under the Securities Act.  The written certificate delivered pursuant to
the applicable provisions in


 


43

















 


Section 2.06(b)-(e) in
the form provided therein shall be deemed satisfactory to the Registrar for
purposes of this clause with respect the relevant exchange of interests.


 


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 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


 


44

















 


consent, only Notes that the
Trustee knows are so owned shall be so disregarded.  Notes so owned which have been pledged in
good faith shall not be disregarded if the pledge establishes to the
satisfaction of the Trustee the pledgee’s right to deliver any such direction,
waive its consent with respect to the Notes and that the pledgee is not the
Company or any obligor of the Notes or any Affiliate of the Company or of such
other obligor.


 


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 the Trustee shall authenticate Definitive Notes in
exchange for temporary Notes.


 


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


 


45

















 


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 shall promptly notify the Trustee
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 a 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 a 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 a 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 (unless a shorter notice shall be
agreed to by the Trustee) but not more than 60 days before a redemption date,
an Officers’ Certificate complying with the applicable provisions of Section 12.05
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, by lot or in accordance with any other method the Trustee considers fair
and appropriate.  In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than


 


46

















 


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 $1,000 or
whole multiples of $1,000; 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.


 


Subject to Section 3.09 hereof, 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, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date
if the notice is issued in connection with a defeasance of the Notes or a
satisfaction or discharge of this Indenture.


 


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(b) 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 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.


 


47

















 


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
(unless a shorter notice shall be agreed to by the Trustee).


 


Any
inadvertent defect in the notice of redemption, including an inadvertent
failure to give notice, to any Holder selected for redemption will not impair
or affect the validity of the redemption of any other Note redeemed in
accordance with the provisions of the Indenture.


 


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.


 


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.


 


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 the Company’s written request, 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 clause (b), (c) and (d) of
this Section 3.07, the Notes will not be redeemable at the option of the
Company prior to November 15, 2012. 
Starting on November 15, 2012, the Company may redeem all or 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


 


48

















 


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

  	
   

  	
  Percent

  	
   

  
	
  2012

  	
   

  	
  103.875

  	
  %

  
	
  2013

  	
   

  	
  102.583

  	
  %

  
	
  2014

  	
   

  	
  101.292

  	
  %

  
	
  2015 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           At any time and from time to time prior to November 15,
2012, 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 107.75% 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; provided,
however, that 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.  Any such redemption shall be
made within 90 days of such Qualified Equity Offering upon not less than 30 nor
more than 60 days’ prior notice.


 


(c)           At any time during each twelve-month period ending on November 15,
2010, 2011 and 2012, the Company may redeem up to 10% of the originally issued
principal amount of the Notes issued on the Issue Date, upon not less than 30
nor more than 60 days’ prior notice mailed by first-class mail to the
registered address of each Holder of the Notes or otherwise, at a redemption
price equal to 103% of the principal amount of the Notes redeemed and accrued
and unpaid interest and Additional Interest, if any, to the redemption date
(subject to the rights of Holders on the relevant record date to receive
interest due on the relevant interest payment date).


 


(d)           At any time and from time to time prior to November 15,
2012, the Company may redeem all or a part of the Notes upon not less than 30
nor more than 60 days’ prior notice under this Indenture at a redemption price
equal to 100% of the principal amount of the Notes redeemed plus the Applicable
Premium as of, and 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).


 


(e)           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.


 


49

















 


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 offer to all Holders to purchase
Notes (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.


 


(c)           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.


 


(d)           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;


 


(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 integral
multiples of $1,000 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;


 


50

















 


(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)        that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000 or integral multiples 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).


 


(e)           On or before the Purchase Date, the Company shall, to
the extent lawful, (1) 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 (2) 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.


 


(f)            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 written request from the Company 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 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.


 


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


 


51
















 


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
Trustee and the Holders of the Notes, within the time periods specified in the
SEC’s rules and regulations:


 


(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, as the case may be, if the Company were required to file such Forms
pursuant to Section 13(a) or 15(d) of the Exchange Act or any
successor provision thereto, including a “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” and, with respect to the


 


52

















 


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 shall be deemed to have furnished such
reports to the Holders if the Company has filed such information or reports
with the SEC via the EDGAR filing system and such information or 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).


 


(d)           For so long as any Notes remain outstanding, if at any
time the Company is not required to file with the SEC the information and
reports required by clauses (i) and (ii) of Section 4.03(a), 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.


 


(e)           The Company shall file with the Trustee and the SEC,
and transmit to Holders, such other information, documents and other reports,
and such summaries thereof, as may be required pursuant to the TIA at the times
and in the manner provided pursuant to the TIA.


 


(f)            Notwithstanding anything herein to the contrary, the
Company will not be deemed to have failed to comply with this Section 4.03
for purposes of clause (iv) of Section 6.01 until 120 days after the
date any information or report hereunder is required to be furnished to Holders
of Notes or filed with the SEC pursuant to this Section 4.03.


 


Section 4.04.        Compliance Certificate.


 


(a)           The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year ended December 31, 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


 


53

















 


has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (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 and, if
there is an existing Event of Default, the status thereof.


 


(b)           So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, 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 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.


 


(c)           The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the form of an Officers’
Certificate of any event that with the giving of notice and the lapse of time
would become an 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.


 


54

















 


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 shall not, and shall 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 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 and Issuance
of Disqualified Stock and Preferred Stock.


 


(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 shares of
preferred stock; provided, however, that the Company may incur
Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any of
its Subsidiary Guarantors may incur Indebtedness (including Acquired Debt) or
issue preferred 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 or such
preferred stock is issued, as the case may be, 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 including to refinance other indebtedness), as if the
additional Indebtedness had been incurred or the preferred stock or
Disqualified Stock had been issued, as the case may be, at the beginning of
such four- quarter period.


 


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


 


55

















 


(i)            Indebtedness incurred by the Company and Restricted
Subsidiaries pursuant to Credit Facilities, including the Credit Agreement, in
an amount outstanding at any time not to exceed the greater of (x) $425.0
million and (y) the Borrowing Base;


 


(ii)           the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness (other than Indebtedness under the
Credit Agreement);


 


(iii)          the incurrence by the Company and the incurrence by
the Subsidiary Guarantors of Indebtedness represented by the Notes to be issued
on the Issue Date (and the related Exchange Notes to be issued pursuant to the
Registration Rights Agreement) and the incurrence by the Subsidiary Guarantors
of the Subsidiary Guarantees of such Notes (and the related Exchange Notes);


 


(iv)          the incurrence by the Company or any of the Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage
financings, purchase money obligations, industrial development or similar
bonds, or tax-advantaged governmental or quasi-governmental financing,
including, without limitation, the sale and leaseback arrangements described
under clause (5) under the exclusions set forth under the definition of
Asset Sales in each case incurred for the purpose of financing all or any part of
the purchase price or cost of design, development, construction, installation
or improvement (including at any point subsequent to the purchase) of real or
personal property, plant or equipment used in the Company’s business or the
business of such Restricted Subsidiary (whether through the direct acquisition
or otherwise of such assets or the acquisition of Equity Interests of any
Person owning such assets), 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 the greater of (x) $100.0
million and (y) 5.0% of Total Assets, 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 renew, refund, refinance, replace, defease or
discharge Indebtedness (other than intercompany Indebtedness, unless remedies
are exercised in connection therewith) that was incurred under the clause (a) of
this Section 4.09 or clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and
(xv) of this Section 4.09(b);


 


(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 then due 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 all Obligations then due with respect to such Subsidiary
Guarantor’s Subsidiary Guarantee; and


 


56

















 


(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 (other than the creation of a Permitted Lien
upon such intercompany 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 or entry into derivative transactions, in
each case, in the normal course of business and so long as such obligations and
transactions are not entered into for speculative purposes;


 


(viii)        the incurrence of Guarantees by the Company or any of
the Subsidiary Guarantors of the Indebtedness of the Company or Indebtedness of
one of its Restricted Subsidiaries that was permitted to be incurred by another
provision of this Section 4.09;


 


(ix)           the incurrence of Guarantees by any Restricted
Subsidiary that is not a Subsidiary Guarantor of Indebtedness of a Restricted
Subsidiary that is not a Subsidiary Guarantor that was permitted to be incurred
by another provision of this Section 4.09;


 


(x)            the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness in respect of workers’ compensation claims,
self-retention or self-insurance obligations, unemployment insurance,
performance, bid, release, appeal, surety and similar bonds and related
reimbursement obligations and completion guarantees provided or incurred by the
Company and its Restricted Subsidiaries in the ordinary course of business,
guarantees for the account of plasma suppliers in the ordinary course of
business and consistent with past practice, and obligations in connection with
participation in government reimbursement or other programs or other similar
requirements;


 


(xi)           the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness arising from the Company and its Restricted
Subsidiaries’ agreements providing for indemnification, contribution, earnout,
adjustment of purchase price or similar obligations, in each case, incurred or
assumed in connection with the sale of goods or acquisition or disposition of
any business, assets or Capital Stock of a Restricted Subsidiary; provided that the maximum aggregate
liability in respect of all such Indebtedness shall at no time exceed the gross
proceeds actually received by the Company and its Restricted Subsidiaries in
connection with such acquisition or disposition;


 


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


 


57

















 


(xiii)         the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness to the extent the net proceeds thereof are
promptly deposited to defease the Notes pursuant to Article 8;


 


(xiv)        the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness or the issuance by the Company of
Disqualified Stock or preferred stock in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Indebtedness
incurred to refund, refinance or replace any Indebtedness incurred pursuant to
this clause (xiv), not to exceed $100.0 million;


 


(xv)         the incurrence by the Company’s Foreign Subsidiaries
of Indebtedness in an aggregate principal amount at any time outstanding not to
exceed the greater of (i) $25.0 million and (ii) 2.0% of the Company’s
Total Assets at the time of incurrence;


 


(xvi)        the incurrence of Indebtedness consisting of (i) the
financing of insurance premiums or (ii) take-or-pay obligations contained
in supply arrangements, in each case, in the ordinary course of business;


 


(xvii)       the incurrence of Acquired Debt in an aggregate
principal amount not to exceed $50.0 million; and


 


(xviii)      the incurrence of guarantees of the obligations of
Centric Health Resources in an aggregate principal amount not exceeding $5.0
million at any time outstanding.


 


(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 in clauses (i) through
(xvi) of Section 4.09(b) as of the date of incurrence thereof or
is entitled to be incurred pursuant to clause (a) of this Section 4.09,
the Company, in its sole discretion, (x) at the time the proposed
Indebtedness is incurred, 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 such category of Permitted Debt, as the case may be,
(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 (so long as the Indebtedness being reclassified
could have been incurred under Section 4.09(a) or under such category
of Permitted Debt on the date of its incurrence) 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 date of this
Indenture shall initially be treated as incurred pursuant to clause (1) of
the definition of Permitted Debt.  The
accrual of interest, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, the reclassification of preferred stock as
Indebtedness due to a change in accounting principles, and the payment of
dividends on Disqualified Stock in the form of additional shares of the same
class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09;
provided, in each such case, that
the amount of any such accrual, accretion or payment is included in the Company’s
Fixed Charges as accrued. 
Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Company


 


58

















 


or its Restricted
Subsidiaries may incur pursuant to this Section 4.09 shall not be deemed
to be exceeded solely as a result of fluctuations in exchange rates or currency
values.


 


(d)           The Company shall not incur any Indebtedness that is
contractually 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
other than Senior Secured Debt, which may carry preferences with respect to
sharing or payment of the proceeds of secured assets; 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.  No
Subsidiary Guarantor shall incur any Indebtedness that is 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 other than Senior Secured Debt, which may carry
preferences with respect to sharing or payment of the proceeds of secured
assets; 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.


 


(e)           The Company shall not permit any Unrestricted
Subsidiary to incur any Indebtedness other than 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
the obligors of such Indebtedness.


 


Section 4.10.        Restricted Payments.


 


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


 


(a)           declare or 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 payable in the Company’s or
any of its Restricted Subsidiaries’ Equity Interests (other than Disqualified
Stock) or to the Company or any of its Restricted Subsidiaries);


 


(b)           purchase, redeem, defease 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 any of the Company’s Restricted Subsidiaries’ Equity Interests
owned by the Company or another Restricted Subsidiary or for consideration
consisting solely of the Company’s Equity Interests other than Disqualified
Stock);


 


(c)           make any payment on or with respect to, or purchase,
redeem, repurchase, defease or otherwise acquire or retire for value 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 (i) a payment of interest or


 


59

















 


principal at the Stated Maturity thereof, (ii) the
purchase, repurchase or other acquisition of any such Indebtedness in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case, due within one year of the date of such purchase,
repurchase or other acquisition, or (iii) for consideration consisting
solely of Equity Interests of the Company other than Disqualified Stock; 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 occur as a consequence of such Restricted Payment;


 


(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 date hereof (excluding Restricted Payments permitted by
clauses (3), (5) and (6) 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 fiscal quarter commencing October 1, 2009 to the end of the Company’s
most recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, 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 value (as determined in good faith by
the Board of Directors of the Company) of property or assets received by the Company
since the date hereof 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), together with the aggregate net cash and Cash
Equivalents received by the Company or any of Restricted Subsidiaries of the
Company at the time of such conversion or exchange, plus


 


(iii)          to the extent that any Restricted
Investment that was made after the date hereof is sold for cash or otherwise
liquidated or repaid for cash, the proceeds realized from the sale of such
Restricted Investment and proceeds


 


60

















 


representing the return of the capital with respect to
such Restricted Investment, in each case to the Company or any Restricted
Subsidiary, less the cost of the disposition of such Restricted Investment, plus


 


(iv)          to the extent that any of the Company’s Unrestricted Subsidiaries is redesignated as a Restricted Subsidiary after
the Issue Date, the portion (proportionate to the Company’s interest in such
Unrestricted Subsidiary) of the fair market value of the net assets of the
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated
a Restricted Subsidiary.


 


So long as no Default has occurred and is continuing
or would be caused thereby (except with respect to clauses (1) and (4) through
(7) below), the preceding provisions will not prohibit:


 


(1)           the payment of any dividend (or other
distribution) or the consummation of any irrevocable redemption within 90 days
after the date of declaration of the dividend (or other distribution) or giving
of the redemption notice, as the case may be, if at the date of declaration or
notice the dividend (or other distribution) payment or redemption would have
complied with the provisions hereof;


 


(2)           the making of any Restricted Payment 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) or from the
substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net
cash proceeds that are utilized to make any such Restricted Payment will be
excluded from clause (c)(ii) of the preceding paragraph;


 


(3)           the purchase, defeasance, redemption,
repurchase or other acquisition or retirement of the Company’s Subordinated
Indebtedness or Subordinated Indebtedness of any of its Restricted Subsidiaries
with (i) the net cash proceeds from an incurrence of Permitted Refinancing
Indebtedness or (ii) in exchange for, or out of the proceeds of a
substantially concurrent Qualified Equity Offering;


 


(4)           in the case of a Restricted Subsidiary,
the payment of dividends (or in the case of any partnership or limited
liability company, any similar distribution) to the holders of its Capital
Stock on a pro rata basis;


 


(5)           repurchases of
the Company’s Equity Interests deemed to occur upon the exercise of stock
options, warrants or other convertible securities if such Equity Interests
represent a portion of the exercise price thereof and repurchases of Equity
Interests deemed to occur upon the withholding of a portion of the Equity
Interests granted or awarded to an employee to pay for the taxes payable by
such employee upon such grant or award, or the vesting thereof, in an amount
not to exceed $5.0 million;


 


(6)           the
repurchase, redemption or other acquisition or retirement for value of any Subordinated
Indebtedness following a Change of Control after the Company shall have
complied with the Section 4.18 including the payment of the applicable
purchase price;


 


61
















 


(7)           the declaration and payment of dividends
on the Company’s Capital Stock in an amount not to exceed $30.0 million in each
consecutive twelve-month period commencing after November 15, 2012; and


 


(8)           other Restricted Payments in an aggregate
amount since the Issue Date not to exceed $75.0 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.  The fair market value of any
assets or securities that are required to be valued by this Section 4.10
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
$25.0 million.


 


Section 4.11.        Liens.


 


(a)           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, Attributable Debt or trade payables on any property,
asset, or any proceeds therefrom (“Primary Lien”),
now owned or hereafter acquired except Permitted Liens, unless:


 


(i)            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) or assets
that are senior in priority to such Liens; and


 


(ii)           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) or assets.


 


(b)           Any Lien created for the benefit of the Holders of the
Notes pursuant to Section 4.11(a) shall automatically and
unconditionally be released and discharged upon the release and discharge of
the Primary Lien, without any further action on the part of any Person.


 


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) receives 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; and


 


(ii)           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, or a combination thereof.


 


62

















 


(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 assumption agreement that releases the
Company or such Restricted Subsidiary from further liability;


 


(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 365
days of the consummation of such Asset Sale (subject to ordinary settlement
periods), to the extent of the cash received in that conversion;


 


(iii)          any stock or assets of the kind referred to in clauses
(c)(ii) or (c)(iii) of this Section 4.12; and


 


(iv)          any Designated Non-Cash Consideration received by the
Company or any of its Restricted Subsidiaries in such Asset Sale having an
aggregate fair market value (as determined in good faith by the Company’s Board
of Directors), taken together with all other Designated Non-Cash Consideration
received pursuant to this clause (iv) that is at such time outstanding,
not to exceed an amount equal to the greater of (x) $35.0 million and (y) 2.50%
of Total Assets at the time of the receipt of such Designated Non-Cash
Consideration, with the fair market value of each item of Designated Non-Cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value.


 


(c)           Within 365 days after the receipt of any
Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at
its option:


 


(i)            to repay Indebtedness and other Obligations under
Senior Secured Debt, other Indebtedness or Obligations secured by a Lien on the
asset sold, or Attributable Debt relating to the asset sold and then, to the
extent Net Proceeds remain, under Senior Debt;


 


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


 


(iii)          to acquire other long-term assets that are used or
useful in a Permitted Business.


 


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 enters into such agreement
with the good faith expectation that such Net Proceeds will be applied to
satisfy such commitment within 180


 


63

















 


days of the date of such
agreement 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 $25.0 million, the Company shall make an
Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness
that is pari passu with the Notes
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.  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.  If the
aggregate principal amount of Notes and other pari
passu Indebtedness validly and properly tendered and not withdrawn
pursuant to such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee will select the Notes and the Company or the trustee, agent or other
similar party with respect to such other pari
passu Indebtedness will select such 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 with respect to any other interest or participation in, or
measured by, its profits, 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;


 


64

















 


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


 


(d)           guarantee any of the Company’s Restricted Subsidiaries’
Indebtedness.


 


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


 


(i)            agreements as in effect on the date hereof (including
the Credit Agreement) or subsequent agreements relating to the Company’s
Indebtedness or Indebtedness of any Subsidiary Guarantor and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of those agreements; provided that the amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings are
not materially more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those
agreements on the date hereof;


 


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


 


(iii)          applicable law, rules, regulations and orders;


 


(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 non-assignment provisions in contracts,
licenses and leases entered into in the ordinary course of business;


 


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


 


(vii)         any agreement for the sale or other disposition of a
Restricted Subsidiary or all or substantially all of its assets that restricts
distributions by that Restricted Subsidiary pending its sale or other
disposition;


 


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


 


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


 


65

















 


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


 


(xi)           provisions limiting the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements, sale and
leaseback transactions, stock sale agreements and other similar agreements
entered into in the ordinary course of business or with the approval of the
Company’s Board of Directors, which limitation is applicable only to the assets
that are the subject of such agreements; and


 


(xii)          any encumbrance or restriction on the Company’s
ability or the ability of any Restricted Subsidiary to transfer its interest in
any Investment not prohibited by Section 4.10 hereof.


 


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 (each, an “Affiliate Transaction”),
unless:


 


(a)           the Affiliate Transaction is on terms taken as a whole
that are no less favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; 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 Company’s Board of Directors
set forth in an Officers’ Certificate certifying that such Affiliate
Transaction complies with this Section 4.14 and that such Affiliate
Transaction has been approved by a majority of the Board of Directors of the
Company (and, if any, a majority of the disinterested members of the Board of
Directors of the Company with respect to such transaction); and


 


(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:


 


66

















 


(A)          any customary consulting or employment agreement or
arrangement, benefit arrangement or plan, incentive compensation plan, stock option
or stock ownership plan, employee benefit plan, severance arrangements, expense
reimbursement arrangements, officer or director indemnification agreement or
any similar arrangement, including those agreements that have been filed with
the SEC by the Company pursuant to the Securities Act or the Exchange Act as of
the date hereof, entered into by the Company or any of its Restricted
Subsidiaries for the benefit of the Company’s directors, officers, employees and
consultants and payments and transactions pursuant thereto, in each case, in
the ordinary course of business;


 


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


 


(C)           payment of reasonable directors compensation and
indemnification costs permitted by the Company’s organizational documents for
the benefit of directors, officers and employees, in each case, in the ordinary
course of business;


 


(D)          Permitted Investments or Restricted Payments that are
permitted by Section 4.10;


 


(E)           any agreement (including any certificate of
designations relating to Capital Stock) as in effect as of the date of hereof
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 date hereof; and


 


(F)           the granting or performance of customary registration
rights in respect of restricted Equity Interests held or acquired by
Affiliates.


 


Section 4.15.        Sale and Leaseback Transactions.


 


The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, enter into any sale and
leaseback transaction; provided
that the Company or any Restricted Subsidiary may enter into 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 of Section 4.09(a) and
(b) incurred a Lien to secure such Indebtedness pursuant to Section 4.11;


 


(b)           the gross cash proceeds of that sale and leaseback
transaction are at least equal to the fair market value, as determined in good
faith by the Board of Directors of the Company, taking into account the nature
of the transaction, and set forth in an Officers’ Certificate delivered to the
Trustee, of the property that is the subject of that sale and leaseback transaction;
and


 


67

















 


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


 


Section 4.16.        Issuances and Sales of Capital Stock of
Restricted Subsidiaries.


 


The
Company (a) shall not, and shall not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Capital Stock of any of its Restricted Subsidiaries to any Person (other than
to the Company or another one of its Restricted Subsidiaries), unless (i) such
transfer, conveyance, sale, lease or other disposition is of all the Capital
Stock of such Restricted Subsidiary, and (ii) the Net Proceeds from such
transfer, conveyance, sale, lease or other disposition are applied in
accordance with Section 4.12; provided
that this clause (a) shall not apply to any pledge of Capital Stock of any
Restricted Subsidiary of the Company securing Indebtedness under the Senior
Secured Debt or any exercise of remedies in connection therewith, to the extent
such Credit Facilities are secured by a Lien on such Capital Stock in
accordance with Section 4.11, and (b) will not permit any of its
Restricted Subsidiaries to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors’ qualifying
shares) to any Person other than the Company or another of its Restricted
Subsidiaries.


 


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 that designation
would not cause a Default.  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 Permitted Investments, as determined by the
Company.  That designation will only be
permitted if the Investment 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 the redesignation would not cause a Default.


 


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


 


(a)           Upon the occurrence of a Change of Control, the
Company shall make an offer to purchase (the “Change
of Control Offer”) all Notes, and each Holder shall have the right
to require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple of $1,000) of such Holder’s Notes, pursuant to the offer
described below 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, 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). The Company shall purchase all Notes validly tendered
pursuant to the Change of Control Offer and not withdrawn.


 


68

















 


Subject to clause (c) below,
within 30 days following any Change of Control, the Company shall send a notice, by first-class mail, with
a copy to the Trustee, to each Holder, at such Holder’s address appearing in
the securities register maintained in respect of the Notes by the Registrar
(the “Security Register”),
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;


 


(ii)           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;


 


(iii)          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


 


(iv)          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 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 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 this Section 4.18, the
Company shall comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 4.18
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
validly and properly tendered and not withdrawn pursuant to the Change of
Control Offer;


 


(ii)           deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes validly
and properly tendered and not withdrawn; 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 validly and properly tendered and not withdrawn the Change of Control
Payment for such Notes, and the Trustee will promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a
principal amount of $1,000 or an integral multiple of $1,000.


 


69

















 


The
Company shall publicly announce the results of a Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.


 


(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 provided under Article 8.  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, spin-off, recapitalization or similar transaction.


 


(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 validly and properly
tendered and not withdrawn under the Change of Control Offer, (ii) notice
or redemption of all of the Notes has been given pursuant to Section 3.03
and Section 3.04, unless and until there is a default in payment of the
applicable redemption price, or (iii) in connection with or in contemplation
of any Change of Control for which a definitive agreement is entered into, the
Company or a third party has made an offer to purchase (an “Alternate Offer”) any and all Notes validly and properly
tendered at a cash price equal to or higher than the Change of Control Payment
and has purchased all Notes validly and properly tendered and not withdrawn in
accordance with the terms of such Alternate Offer; provided
that the terms of such Alternate Offer shall not require Holders to irrevocably
tender any Notes and such Alternate Offer shall not close unless and until the
Change of Control is actually consummated.


 


Section 4.19.        Additional Subsidiary Guarantees.


 


If the Company or any of its Restricted Subsidiaries
acquires or creates another Domestic Subsidiary after the date hereof, then
that newly acquired or created Domestic Subsidiary shall execute and deliver to
the Trustee a supplemental Indenture providing for a Subsidiary Guarantee and
deliver an Opinion of Counsel satisfactory to the Trustee as to the due
authorization, execution and delivery and the enforceability of such Subsidiary
Guarantee within 20 Business Days of the date on which it was acquired or
created; 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.        Covenant Suspension.


 


(a)           If on any date following the date hereof (i) the
Notes have Investment Grade Ratings from both Rating Agencies, and (ii) no
Default has occurred and continuing under this Indenture (the occurrence of the
events described in the foregoing clauses (i) and (ii) being
collectively referred to as a “Covenant
Suspension Event”), the Company and its Restricted Subsidiaries will
not be subject to Section 4.09, Section 4.10, Section 4.12, Section 4.13,
Section 4.14, clauses 1(a) and (3) of Section 4.15, Section 4.17,
and clause (d) of the first paragraph of Section 5.01 (collectively,
the “Suspended Covenants”).


 


70

















 


(b)           In the event that the Company and its Restricted
Subsidiaries are not subject to the Suspended Covenants under this Indenture
for any period of time as a result of clause (a) above, and on any
subsequent date (the “Reversion Date”)
(i) one or both of the Rating Agencies  withdraw their Investment
Grade Rating or downgrade the rating assigned to the Notes below an Investment
Grade Rating and/or (ii) the Company or any of its Affiliates enter into
an agreement to effect a transaction that would result in a Change of Control
and one or both of the Rating Agencies indicate that if consummated, such
transaction (alone or together with any related recapitalization or refinancing
transactions) would cause such Rating Agency to withdraw its Investment Grade
Rating or downgrade the ratings assigned to the Notes below an Investment Grade
Rating, then the Company and its Restricted Subsidiaries shall thereafter again
be subject to the Suspended Covenants under this Indenture with respect to
future events, including, without limitation, a proposed transaction described
in clause (ii) above.


 


(c)           The period of time between the Suspension Date and the
Reversion Date is referred to as the “Suspension
Period.” Additionally, upon the occurrence of a Covenant Suspension
Event, the amount of Excess Proceeds from Net Proceeds shall be reset at
zero.  In the event of any such
reinstatement of the Suspended Covenants, no action taken or omitted to be
taken by the Company or any of its Restricted Subsidiaries prior to such
reinstatement will give rise to a Default or Event of Default under this
Indenture; provided that (1) with respect to Restricted Payments made
after any such reinstatement, the amount of Restricted Payments made will be
calculated as though the covenant described under Section 4.10 had been in
effect prior to, but not during the Suspension Period, provided that any
Subsidiaries designated as Unrestricted Subsidiaries during the Suspension
Period shall automatically become Restricted Subsidiaries on the Reversion Date
(subject to the Company’s right to subsequently designate them as Unrestricted
Subsidiaries in compliance with Section 4.17) and (2) all
Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during
the Suspension Period will be classified to have been incurred or issued
pursuant to clause (ii) of Section 4.09(b).


 


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 (not including any conveyance, if any, resulting
solely from the creation of any Lien, unless remedies are exercised in
connection therewith) or otherwise dispose of all or substantially all of the
properties and assets of the Company and the properties and assets of the
Company or its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person or Persons; 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 corporation organized or existing under the laws of the United States, any
state of the United States or the District of Columbia;


 


71
















 


(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 an agreement in a form 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), shall not be less than the
Company’s Fixed Charge Coverage Ratio immediately prior to such transaction or
series of transactions.


 


In addition, the Company may not, directly or
indirectly, lease all or substantially all of the Company’s properties and
assets, in one or more related transactions, to any other Person.


 


Clauses
(c) and (d) of this Section 5.01 will not apply to:


 


(1)           a merger of the Company with an Affiliate
solely for the purpose of reincorporating the Company in another jurisdiction;
or


 


(2)           any consolidation or merger, or any sale,
assignment, transfer, conveyance, lease or other disposition of assets between
or among the Company and its Restricted Subsidiaries.


 


Section 5.02.        Successor Corporation 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”:


 


72

















 


(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;


 


(iii)          failure by the Company or any of its Restricted
Subsidiaries for 30 days after notice to comply with Section 5.01 or with Section 4.18;


 


(iv)          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 is given
to the Company by the Trustee or to the Company and to the Trustee by Holders
of at least 25% in aggregate principal amount of the then outstanding Notes
voting as a single class;


 


(v)           default under any agreement, bond, mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee
now exists, or is created after the date hereof, 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 on the date of such default (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 has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$50.0 million or more; provided, however, where (i) neither the Company nor a Restricted
Subsidiary has general liability with respect to such Indebtedness, and (ii) the
creditor has agreed in writing that such creditor’s recourse is solely to
specified assets or Unrestricted Subsidiaries, the amount of such Indebtedness
shall be deemed to be the lesser of (x) the principal amount of such
Indebtedness, and (y) the fair market value of such specified assets to
which the creditor has recourse;


 


(vi)          failure by the Company or any of its Significant
Subsidiaries or any group of Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary to pay final and non-appealable
judgments in a jurisdiction where the Company or its Restricted Subsidiaries
have material assets entered by a court or courts of competent jurisdiction
aggregating in excess of $50.0 million (net of any amounts covered by
insurance), which judgments are not paid, discharged or stayed for a period of
60 days;


 


(vii)         except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any


 


73

















 


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


 


(viii)        the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of Bankruptcy Law:


 


(A)          commences a voluntary case,


 


(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


 


(ix)           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 in an involuntary case; or


 


(B)           appoints a custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the property of the
Company or any of its Significant Subsidiaries; or


 


(C)           orders the liquidation of the Company or any of its
Significant Subsidiaries;


 


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 (viii) or (ix) of Section 6.01
hereof, with respect to the Company, any Restricted Subsidiary that is a
Significant Subsidiary or any group of 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.  In the case of an Event of Default specified
in clauses (viii) or
(ix) of Section 6.01 hereof, with respect to the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of 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


 


74

















 


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.


 


In the case of an Event of Default occurring by
reason of any willful action or inaction taken or not taken by the Company or
on the Company’s behalf with the intention of avoiding payment of the premium
that the Company would have been required to pay if the Company had then
elected to redeem the Notes pursuant to Section 3.07 hereof, an equivalent
premium will also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.


 


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 reasonable indemnity.  Subject to
Section 7.07, the Holders of a majority in aggregate


 


75

















 


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.


 


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 the Trustee notice
that an Event of Default is continuing;


 


(b)           Holders of at least 25% in aggregate principal amount
of the then outstanding Notes have requested the Trustee to pursue the remedy;


 


(c)           such Holders have offered, and, if requested, have
provided, the Trustee security or indemnity reasonably satisfactory to it
against any loss, liability or expense;


 


(d)           the Trustee has not complied with such request within
60 days after the receipt of the request and the offer of security or
indemnity; and


 


(e)           Holders of a majority in aggregate principal amount of
the then outstanding Notes have not given the Trustee a direction inconsistent
with such request within such 60-day period.


 


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


 


76

















 


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 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.


 


77

















 


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.


 


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; provided  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 that the Trustee was negligent in
ascertaining the pertinent facts; and


 


78

















 


(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 this Section.


 


(e)           No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability and 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.


 


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 two Officers of the Company.


 


(f)            The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.


 


79

















 


(g)           The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default 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.


 


(h)           Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.


 


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


 


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


 


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 Sections 7.10 and 7.11 hereof.


 


Section 7.04.        Trustee’s Disclaimer.


 


The Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the 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 a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders.


 


80

















 


Section 7.06.        Reports by Trustee to Holders.


 


Within 60 days after each January 31 beginning
with January 31, 2010, 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); provided
that if no event described in TIA § 313(a) has occurred within the twelve
months preceding such 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
and counsel.


 


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.  Such Lien shall survive the
satisfaction and discharge of this Indenture.


 


81
















 


When the Trustee
incurs expenses or renders services after an Event of Default specified in
clauses (viii) or (ix) 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.


 


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
Trustee gives notice of resignation or receives notice of removal, 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, 


 


82

















 


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.


 


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 


 


83

















 


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 obligations in connection therewith and (d) 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 shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its 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 may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and
such Notes 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) and (viii) (but in the
case of clauses (viii) and (ix) 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.


 


84

















 


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 investment bank,
appraisal firm or 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 date hereof, 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);


 


(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 instrument (including, without limitation, the
Credit Agreement, but excluding this Indenture) to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its Subsidiaries
may 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


 


(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.


 


85

















 


Section 8.05.                             Deposited Money and Government Securities
to be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 11.03 hereof, all money and U.S. Government
Obligations (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 U.S. Government Obligations 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 U.S.
Government Obligations 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.                             Reserved.


 


Section 8.07.                             Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations 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 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.


 


86

















 


ARTICLE 9


 


AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.                             Without Consent of Holders of Notes.


 


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


 


(a)                                  cure any ambiguity, defect or
inconsistency;


 


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


 


(c)                                  provide for the assumption by a successor
corporation of the obligations of the Company or Subsidiary Guarantors under
the Notes, this Indenture and/or a Subsidiary Guarantee in the case of a merger
or consolidation or sale of all or substantially all of the Company’s assets or
the assets of a Subsidiary Guarantor;


 


(d)                                 make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any such Holder;


 


(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;


 


(h)                                 conform the text of this Indenture, the
Subsidiary Guarantees or the Notes to any provision of the Description of the
Notes to the extent that such provision in the Description of the Notes was
intended to be a verbatim recitation of a provision of this Indenture, the
Subsidiary Guarantee or the Notes;


 


(i)                                     provide for the issuance of additional
Notes in accordance with the limitations as set forth in this Indenture;


 


(j)                                     provide for a successor trustee in
accordance with the terms of the Indenture or to otherwise comply with any
requirement of the Indenture; or


 


(k)                                  comply with the rules of any
applicable securities depositary.


 


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 the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join 


 


87

















 


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 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 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 


 


88

















 


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.


 


Without the
consent of each Holder, 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 change the
fixed maturity of any Note or alter the provisions with respect to the
redemption of the Notes (other than the provisions of Section 4.18);


 


(c)                                  reduce the rate of or change 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; or


 


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


 


Without the consent of at least two-thirds in aggregate principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), an amendment, supplement or waiver may not release any Subsidiary
Guarantor from any of its obligations under its Subsidiary Guarantee or this
Indenture, except in accordance with the terms of this Indenture.


 


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.


 


89

















 


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.


 


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 its 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 obligation of the Company enforceable against it 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, 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 


 


90

















 


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 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


 


91
















 


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
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.


 


92

















 


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.


 


(a)                                  Except as otherwise provided in Section 10.05
hereof, no Subsidiary Guarantor may sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Subsidiary Guarantor is the surviving Person) another
Person, other than the Company or another Subsidiary Guarantor, unless:


 


(i)                                     immediately after giving effect to such
transaction, no Default or Event of Default exists; and


 


(ii)                                  either:


 


(A)                              Subject to Section 10.05 hereof, the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger unconditionally assumes
all the obligations of that Subsidiary Guarantor under this Indenture, its
Guarantee and the Registration Rights Agreement on the terms set forth herein
or therein, pursuant to a supplemental Indenture in form and substance
reasonably satisfactory to the Trustee; or


 


(B)                                the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this
Indenture, including without limitation, Section 4.12 hereof.


 


(b)                                 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



 


93

















 


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.


 


(c)                                  Except as set forth in Articles 4 and 5
hereof, and notwithstanding clauses (a)(ii)(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.                       Release of Guarantees.


 


The Subsidiary Guarantee of a Subsidiary Guarantor shall be
unconditionally released and discharged, and no further action by such
Subsidiary Guarantor, the Company or the Trustee is required for the release of
such Subsidiary Guarantor’s Subsidiary Guarantee, upon:


 


(1)                                  (a) in connection with (i) any
sale or other disposition of all or substantially all of the assets of that
Subsidiary Guarantor (including by way of merger or consolidation) to a Person
that is not (either before or after giving effect to such transaction) a
Subsidiary of the Company’s, if the sale or other disposition comply with the
provisions of Section 4.12 or (ii) any sale of all of the Capital
Stock of a Subsidiary Guarantor 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 Section 4.12, in each case as provided in Section 4.12;


 


(b)                                 if the Company designates any Restricted
Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with Section 4.17;


 


(c)                                  upon Legal Defeasance or Covenant
Defeasance pursuant to Article 8 and upon a discharge of this Indenture
pursuant to Section 11.01; or


 


(d)                                 if such Subsidiary Guarantor shall not
Guarantee any Indebtedness under any Credit Facility (other than if such
Subsidiary Guarantor no longer Guarantees any such Indebtedness as a result of
payment under any Guarantee of any such Indebtedness by any Subsidiary
Guarantor); provided that a
Subsidiary Guarantor shall not be permitted to be released from its Subsidiary
Guarantee pursuant to this clause (d) if it is an obligor with respect to
such Indebtedness that would not, pursuant to Section 4.09, be permitted
to be incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor,
unless such Subsidiary Guarantor is also designated as an Unrestricted
Subsidiary at the time of such release.


 


94

















 


(2)                                  such Subsidiary
Guarantor delivering to the Trustee an Officers’ Certificate and Opinion of
Counsel, each stating that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with.


 


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 (A) have become due and payable by reason of
the making of a notice of redemption or otherwise or (B) will become due
and payable within one year and the Company or any Subsidiary Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. Dollars,
non-callable Government Securities, or (C) a combination of cash and
non-callable Government Securities, 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 (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to such
deposit) and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any
Subsidiary Guarantor is a party or by which the Company or any Subsidiary Guarantor
is bound;


 


(c)                                  the Company or any Subsidiary Guarantor
has paid or caused to be paid all sums 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.


 


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.


 


95

















 


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 U.S. Government
Obligations (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 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:


 


96

















 


If
to the Company:



Talecris Biotherapeutics Holdings Corp.

P.O. Box 110526, 4101 Research Commons

79 T.W. Alexander Drive

Research Triangle Park, North Carolina 27709

Attention:  John F. Gaither, Jr.

Telecopier No.:  (253) 390-6623


 


With
a copy to:

Reed Smith LLP

599 Lexington Ave,

New York, New York  10022

Attention:  Aron Izower

Telecopier No.:  (212) 521-5450


 


If
to the Trustee:



The Bank of New York Mellon Trust Company, N.A.

61 Parkwayt

Jacksonville, FL 32256

Telecopier No.:  (904) 645-1921

Attention:  Corporate Trust
Administration


 


The Company or the
Trustee, by notice to the others, may designate additional or different
addresses, including if it is a different entity notices for each Agent, 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.


 


If the Company
mails a notice or communication to Holders, it shall mail a copy to the Trustee
and, if it is a different Person, to each Agent at the same time.


 


97

















 


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 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 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 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 (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.


 


98

















 


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


 


No past, present or future director, officer, employee, partner,
manager, agent, member, incorporator (or Person forming any limited liability
company) or stockholder of the Company or of any Subsidiary Guarantor, as such,
shall have any liability for any obligations of the Company of any Subsidiary
Guarantor under the Notes, this Indenture, the Subsidiary Guarantee or for any
claim based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder by accepting a
Note and guarantee waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes and guarantee.  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 INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


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.


 


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.


 


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.


 


99

















 


[Signatures on
following page]


 


100

















 


IN
WITNESS WHEREOF, the parties hereto have caused this indenture to be duly
executed and attested, as of the date and year first above written.


 


 


	
   

  	
  ISSUER:

  
	
   

  	
   

  
	
   

  	
  TALECRIS BIOTHERAPEUTICS HOLDINGS CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence Stern

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  TALECRIS BIOTHERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence Stern

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TALECRIS PLASMA RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence Stern

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christie Leppert

  
	
   

  	
   

  	
  Name: Christie Leppert

  
	
   

  	
   

  	
  Title: Vice President

  



 


101
















 


EXHIBIT A


 


(Face
of Note)


 


7.75% Senior Notes due 2016


 


	
   

  	
  CUSIP                

  
	
  No.

  	
  $               

  



 


TALECRIS BIOTHERAPEUTICS HOLDINGS
CORP.


 


promises to pay to CEDE & CO., INC. or registered assigns, the
principal sum of                     
Dollars ($                    )
on November 15, 2016.


 


interest payment dates:  May 15
and November 15, commencing May 15, 2010.


 


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.


 


 


	
   

  	
  TALECRIS BIOTHERAPEUTICS HOLDINGS CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the Global Notes referred to in the within-mentioned
Indenture:


 


	
  The
  Bank of New York Mellon Trust Company, N.A.,

  	
   

  
	
  as
  Trustee

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated

  	
   

  	
   

  
				



 


A-2

















 


(Back
of Note)


 


7.75% Senior Notes due 2016


 


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


 


[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 (“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.]


 


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


 


[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE ‘‘SECURITIES ACT’’). THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER, THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE FIRST
ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY
ANY HOLDER THAT WAS AN ‘‘AFFILIATE’’ (WITHIN THE MEANING OF RULE 144 UNDER THE
SECURITIES ACT) OF THE ISSUER AT ANY TIME DURING THE THREE MONTHS PRECEDING THE
DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE ISSUER, (2)


 


A-3

















 


SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS
DEFINED UNDER REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION
S UNDER THE SECURITIES ACT, (4) PURSUANT TO ANY EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE)
UNDER THE SECURITIES ACT, OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A OR (2) NOT A U.S. PERSON AND IS
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER
THE SECURITIES ACT. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR
THE BENEFIT OF THE ISSUER THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.]


 


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


 


1.                                       Interest. 
Talecris Biotherapeutics Holdings Corp., a Delaware corporation (the “Company”), promises to pay interest on the
principal amount of this Note at 7.75% per annum until maturity and shall
pay Additional Interest, if any, as provided in Section 8 of the
Registration Rights Agreement.  The
Company shall pay interest semi-annually on May 15 and November 15 of
each year, 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 the first of May 15 and November  15 to occur after the
date of issuance, unless such May 15 or November 15 occurs within one
calendar month of such date of issuance, in which case the first interest
payment date shall be the second of May 15 and November 15 to occur
after the date of issuance.  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


 


A-4

















 


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) to the Persons who are Holders 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 and Additional Interest, if any, 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.


 


3.                                       Paying
Agent and Registrar.  Initially, The Bank of New
York Mellon Trust Company, N.A., the Trustee under the Indenture, shall act as
Paying Agent and Registrar.  The Company
may change any Paying Agent or 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 October 21,
2009 (“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 unsecured obligations of the
Company.  The Indenture does not limit
the aggregate principal amount of Notes that may be issued thereunder.


 


5.                                       Optional Redemption.


 


(a)                                  Except as set forth in clauses (b), (c) and
(d) of this Paragraph 5, the Notes will not be redeemable at the option of
the Company prior to November 15, 2012. 
Starting on November 15, 2012, 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 redemption prices (expressed as percentages of principal
amount) set forth below, 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), if redeemed during the twelve-month period commencing on November 15
of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2012

  	
   

  	
  103.875

  	
  %

  
	
  2013

  	
   

  	
  102.583

  	
  %

  
	
  2014

  	
   

  	
  101.292

  	
  %

  
	
  2015
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


A-5

















 


(b)                                 At any time and from time to time prior
to November 15, 2012, 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 107.75% 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; provided, however,
that 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.  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 during each twelve-month
period ending on November 15, 2010, 2011 and 2012, the Company may redeem
up to 10% of the originally issued principal amount of the Notes issued on the
Issue Date, upon not less than 30 nor more than 60 days’ prior notice mailed by
first-class mail to the registered address of each Holder of the Notes or
otherwise, at a redemption price equal to 103% of the principal amount of the
Notes redeemed and accrued and unpaid interest and Additional Interest, if any,
to the redemption date (subject to the rights of Holders on the relevant record
date to receive interest due on the relevant interest payment date).


 


(d)                                 At any time and from time to time prior
to November 15, 2012, the Company may redeem all or a part of the Notes
upon not less than 30 nor more than 60 days’ prior notice under the Indenture
at a redemption price equal to 100% of the principal amount of the Notes
redeemed plus the Applicable Premium as of, and 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).


 


(e)                                  Any prepayment pursuant to this Paragraph
5 shall be made pursuant to the provisions of Sections 3.01 through 3.06 of the
Indenture.


 


6.                                       Mandatory Redemption.  The 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, the Company shall make an offer to purchase (a “Change of Control Offer”) all Notes, and
each Holder shall have the right to require the Company to repurchase all or
any part (equal to $1,000 or an integral multiple of $1,000) of such Holder’s
Notes, at a purchase price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, 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). The Company shall purchase
all Notes validly tendered pursuant to the Change of Control Offer and not
withdrawn.


 


A-6

















 


(b)                                 If the Company or one of its Restricted
Subsidiaries consummates any Asset Sales, when the aggregate amount of Excess
Proceeds exceeds $25.0 million, the Company shall commence an offer (an “Asset Sale Offer”) to all Holders of Notes
and all holders of other Indebtedness that is pari passu
with the Notes containing provisions similar to those set forth in the
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets 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 of purchase,
pursuant to Section 3.09 of the Indenture. 
To the extent that the aggregate amount of Notes (including Additional
Notes) and other pari passu
Indebtedness validly and properly tendered and not withdrawn pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Restricted Subsidiary) may use such deficiency for any purpose not otherwise
prohibited by the Indenture.  If the
aggregate principal amount of Notes and other pari
passu Indebtedness validly and properly tendered and not withdrawn
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and the Company or the trustee, agent or other similar
party with respect to such other pari passu
Indebtedness will select such to be purchased as described in Article 3 of
the Indenture.  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. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.


 


8.                                       Notice of Redemption.  Notice of redemption shall be mailed by first
class mail 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,
except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of the
Notes or a satisfaction or discharge of the Indenture.  Notes in denominations larger than $1,000 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 denominations of $1,000 and integral multiples of
$1,000.  The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the 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.


 


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


 


A-7

















 


11.                                 Amendment,
Supplement and Waiver.  Subject to certain exceptions,
the Indenture or the Subsidiary Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class, and any
existing Default or Event of Default or compliance with any provision of the
Indenture, the Notes or the Subsidiary Guarantees may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including, without limitation, Additional Notes, if any) voting
as a single class.  Without the consent
of any Holder, the Indenture, the Notes or the Subsidiary Guarantees may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for the assumption by a successor corporation of the obligations of the
Company or Subsidiary Guarantors under the Notes, the Indenture and/or a
Subsidiary Guarantee in the case of a merger or consolidation or sale of all or
substantially all of the assets of the Company or the assets of a Subsidiary Guarantor,
provide for uncertificated Notes in addition to or in place of certificated
Notes, to make any change that would provide any additional rights or benefits
to the Holders of Notes or that does not adversely affect the legal rights
under the Indenture of any such Holder, 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, add
a Subsidiary Guarantor under the Indenture, to conform the text of the Notes,
the Indenture, or the Subsidiary Guarantees to any provision of the Description
of the Notes to the extent that such provision in the Description of the Notes
was intended to be a verbatim recitation of a provision of the Notes, the
Indenture or the Subsidiary Guarantee or the Notes, to provide for the issuance
of additional Notes in accordance with the limitations as set forth in the
Indenture, to provide for a successor trustee in accordance with the terms of
the Indenture or to otherwise comply with any requirement of the Indenture, or
to comply with the rules of any applicable securities depositary.


 


12.                                 Defaults
and Remedies.  Each of the following is an Event of Default
under the Indenture:  (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 for 30 days after notice to comply with Section 5.01
or with Section 4.18 of the Indenture; (4) failure by the Company or
any of its Restricted Subsidiaries for 60 days after notice to comply with any
covenant or agreement in the Indenture or the Notes after written notice
thereof is given to the Company by the Trustee or to the Company and to the
Trustee by Holders of at least 25% in aggregate principal amount of the then
outstanding Notes voting as a single class; (5) default under any
agreement, bond, mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Restricted Subsidiaries (or the payment
of which is guaranteed by the Company or any of its Restricted Subsidiaries)
whether such Indebtedness or guarantee now exists, or is created after the date
of the Indenture, 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 on the date of such default
(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 has been
a Payment Default or the maturity of which has been so accelerated, aggregates
$50.0 million or more, provided, however, where (i) neither


 


A-8

















 


the
Company nor a Restricted Subsidiary has general liability with respect to such
Indebtedness, and (ii) the creditor has agreed in writing that such
creditor’s recourse is solely to specified assets or Unrestricted Subsidiaries,
the amount of such Indebtedness shall be deemed to be the lesser of (x) the
principal amount of such Indebtedness, and (y) the fair market value of
such specified assets to which the creditor has recourse; (6) failure by
the Company or any of its Significant Subsidiaries or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary to
pay final and non-appealable judgments in a jurisdiction where the Company or
its Restricted Subsidiaries have material assets entered by a court or courts
of competent jurisdiction aggregating in excess of $50.0 million (net of any
amounts covered by insurance), which judgments are not paid, discharged or
stayed for a period of 60 days; (7) except as permitted by 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; or (8) certain events of bankruptcy or insolvency
described in the Indenture with respect to the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary 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 Notes then outstanding may declare all the
Notes to be due and payable. 
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, 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 (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.  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 rescind an acceleration or 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 principal,
premium, if any, interest or Additional Interest, if any, on 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 past,
present or future director, officer, employee, partner, manager, agent, member,
incorporator (or Person forming any limited liability company) 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 and the
guarantee


 


A-9

















 


waives
and releases all such liability.  The
waiver and release are part of the consideration for the issuance of the Notes
and guarantee.


 


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).


 


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 October 21, 2009, among the Company, the
Subsidiary Guarantors and the initial purchasers named therein 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 internal law of the State of New York
shall govern and be used to construe the Indenture, this Note 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.


 


The
Company shall furnish to any Holder upon written request and without charge a
copy of the Indenture.  Requests may be
made to:


 


Talecris Biotherapeutics Holdings Corp.


P.O. Box 110526, 4101 Research Commons, 


79 T.W. Alexander Drive, Research Triangle Park,


North Carolina 27709


Attention: 
John F. Gaither, Jr.


 


A-10
















 


ASSIGNMENT FORM


 


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


 


	
   

  
	
  (Insert assignee’s 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-11

















 


SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


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

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-12

















 


OPTION
OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note purchased in its entirety by the
Company pursuant to Section 4.12 or 4.18 of the Indenture, check the
applicable box:


 


Section 4.12   o


 


Section 4.18   o


 


If you want to elect to have only a part of the principal amount of
this Note purchased by the Company pursuant to Section 4.12 or 4.18 of the
Indenture, state the portion of such amount: 
$


 


	
  Dated:

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign exactly as your
  name appears on the other side of this Note)

  



 


Signature Guarantee:


 


(Signature must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agent Medallion Program (“STAMP”), the Stock Exchange Medallion
Program (“SEMP”), the New York Stock Exchange, Inc. Medallion Signature
Program (“MSP”) or such other signature guarantee program as may be determined
by the Security Registrar in addition to, or in substitution for, STAMP, SEMP
or MSP, all in accordance with the Securities Exchange Act of 1934, as
amended.)


 


A-13
















 


EXHIBIT B


 


FORM OF CERTIFICATE OF
TRANSFER


 


Talecris Biotherapeutics Holdings Corp.


P.O. Box 110526, 4101 Research Commons,


79 T.W. Alexander Drive, Research Triangle Park,


North Carolina 27709


Attention:  John F. Gaither, Jr.


 


The Bank of New York Mellon Trust Company, N.A., as Trustee


10161 Parkway


Jacksonville, FL 32256


Telecopier No.:  (904) 645-1921


Attention:  Corporate Trust
Administration


 


Re:  7.75% Senior Notes due 2016


 


Reference is hereby made to the Indenture, dated as
of October 21, 2009 (the “Indenture”),
among Talecris
Biotherapeutics Holdings Corp., as issuer (the “Company”), the Subsidiary Guarantors party
thereto and The Bank of New York Mellon Trust Company, N.A., 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.


 


B-1

















 


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 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 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 the Restricted Global Note or a Restricted Definitive
Note pursuant to any provision of the Securities Act other than Rule 144A
or Regulation S.  The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check):


 


o such Transfer is being effected to the
Company or a subsidiary thereof.


 


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


 


B-2

















 


and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


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


 


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


 


Talecris Biotherapeutics Holdings Corp.


P.O. Box 110526, 4101 Research Commons,


79 T.W. Alexander Drive, Research Triangle Park, 


North Carolina 27709


Attention:  John F. Gaither, Jr.


 


The Bank of New York Mellon Trust Company, N.A., as Trustee


10161 Parkway


Jacksonville, FL 32256


Telecopier No.:  (904) 645-1921


Attention:  Corporate Trust
Administration


 


Re:                               7.75% Senior
Notes due 2016


 


(CUSIP
                )


 


Reference is hereby made to the Indenture, dated as
of October 21, 2009 (the “Indenture”),
among Talecris
Biotherapeutics Holdings Corp., as issuer (the “Company”), the Subsidiary Guarantors party thereto and The
Bank of New York Mellon Trust Company, N.A., 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


 


C-1

















 


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


 


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


 


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


 


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


 


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


 


(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


 


C-2

















 


beneficial interest is being acquired for the Owner’s
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global Notes
and pursuant to and in accordance with the Securities Act, and in compliance
with any applicable blue sky securities laws of any state of the United
States.  Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.


 


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


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dated:

  	
   

  



 


C-3
















 


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 October 21, 2009
(the “Indenture”), among Talecris Biotherapeutics Holdings Corp., as issuer
(the “Company”), the Subsidiary
Guarantors party thereto and The Bank of New York Mellon Trust Company, N.A.,
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.


 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  TALECRIS BIOTHERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TALECRIS PLASMA RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-1