Exhibit 4.3


 


EXECUTION COPY


 


FREEDOM GROUP, INC.,

as Issuer


 


and the Guarantors named herein


 


101⁄4% Senior Secured Notes due 2015


 






 


 


INDENTURE


 


Dated as of July 29, 2009


 






 


WILMINGTON TRUST FSB,


 


as Trustee and Collateral Agent


 

















 


CROSS-REFERENCE TABLE


 


	
  TIA

  Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N/A

  
	
  (a)(4)

  	
   

  	
  N/A

  
	
  (b)

  	
   

  	
  7.08;
  7.10

  
	
  (c)

  	
   

  	
  N/A

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N/A

  
	
  312(a)

  	
   

  	
  2.06

  
	
  (b)

  	
   

  	
  13.03

  
	
  (c)

  	
   

  	
  13.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  11.06

  
	
  (b)(2)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  7.06

  
	
  (d)

  	
   

  	
  4.02;
  4.09

  
	
  314(a)

  	
   

  	
  4.02;
  4.09

  
	
  (b)

  	
   

  	
  11.02

  
	
  (c)(1)

  	
   

  	
  13.04

  
	
  (c)(2)

  	
   

  	
  13.04

  
	
  (c)(3)

  	
   

  	
  N/A

  
	
  (d)

  	
   

  	
  11.06

  
	
  (e)

  	
   

  	
  13.05

  
	
  (f)

  	
   

  	
  4.10

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last
  sentence)

  	
   

  	
  13.06

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N/A

  
	
  (b)

  	
   

  	
  6.07

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.05

  
	
  318(a)

  	
   

  	
  13.01

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Other
  Definitions

  	
  34

  
	
  SECTION 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  35

  
	
  SECTION 1.04.

  	
  Rules of
  Construction

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  
	
  THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Amount of
  Securities; Issuable in Series

  	
  37

  
	
  SECTION 2.02.

  	
  Form and
  Dating

  	
  38

  
	
  SECTION 2.03.

  	
  Execution
  and Authentication

  	
  38

  
	
  SECTION 2.04.

  	
  Registrar
  and Paying Agent

  	
  39

  
	
  SECTION 2.05.

  	
  Paying
  Agent to Hold Money in Trust

  	
  39

  
	
  SECTION 2.06.

  	
  Holder
  Lists

  	
  40

  
	
  SECTION 2.07.

  	
  Transfer
  and Exchange

  	
  40

  
	
  SECTION 2.08.

  	
  Replacement
  Securities

  	
  41

  
	
  SECTION 2.09.

  	
  Outstanding
  Securities

  	
  41

  
	
  SECTION 2.10.

  	
  Temporary
  Securities

  	
  42

  
	
  SECTION 2.11.

  	
  Cancellation

  	
  42

  
	
  SECTION 2.12.

  	
  Defaulted
  Interest

  	
  42

  
	
  SECTION 2.13.

  	
  CUSIP
  Numbers, ISINs, etc.

  	
  42

  
	
  SECTION 2.14.

  	
  Calculation
  of Specified Percentage of Securities

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  
	
  REDEMPTION

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Redemption

  	
  43

  
	
  SECTION 3.02.

  	
  Applicability
  of Article

  	
  43

  
	
  SECTION 3.03.

  	
  Notices
  to Trustee

  	
  43

  
	
  SECTION 3.04.

  	
  Selection
  of Securities to Be Redeemed

  	
  43

  
	
  SECTION 3.05.

  	
  Notice of
  Optional Redemption

  	
  44

  
	
  SECTION 3.06.

  	
  Effect of
  Notice of Redemption

  	
  45

  
	
  SECTION 3.07.

  	
  Deposit
  of Redemption Price

  	
  45

  
	
  SECTION 3.08.

  	
  Securities
  Redeemed in Part

  	
  45

  



 


ii

















 


	
  ARTICLE 4

  
	
   

  
	
  COVENANTS

  
	
   

  
	
  SECTION 4.01.

  	
  Payment
  of Securities

  	
  45

  
	
  SECTION 4.02.

  	
  Reports
  and Other Information

  	
  46

  
	
  SECTION 4.03.

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

  	
  47

  
	
  SECTION 4.04.

  	
  Limitation
  on Restricted Payments

  	
  53

  
	
  SECTION 4.05.

  	
  Dividend
  and Other Payment Restrictions Affecting Subsidiaries

  	
  59

  
	
  SECTION 4.06.

  	
  Asset
  Sales

  	
  61

  
	
  SECTION 4.07.

  	
  Transactions
  with Affiliates

  	
  65

  
	
  SECTION 4.08.

  	
  Change of
  Control

  	
  68

  
	
  SECTION 4.09.

  	
  Compliance
  Certificate

  	
  69

  
	
  SECTION 4.10.

  	
  Further
  Assurances, Instruments and Acts

  	
  70

  
	
  SECTION 4.11.

  	
  Future
  Guarantors

  	
  70

  
	
  SECTION 4.12.

  	
  Liens

  	
  70

  
	
  SECTION 4.13.

  	
  Maintenance
  of Office or Agency

  	
  71

  
	
  SECTION 4.14.

  	
  Discharge
  and Suspension of Covenants

  	
  71

  
	
  SECTION 4.15.

  	
  Event of
  Loss

  	
  72

  
	
  SECTION 4.16.

  	
  Insurance

  	
  73

  
	
  SECTION 4.17.

  	
  Maintenance
  of Properties

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  
	
  SUCCESSOR COMPANY

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  When
  Company May Merge or Transfer Assets

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events of
  Default

  	
  78

  
	
  SECTION 6.02.

  	
  Acceleration

  	
  80

  
	
  SECTION 6.03.

  	
  Other
  Remedies

  	
  81

  
	
  SECTION 6.04.

  	
  Waiver of
  Past Defaults

  	
  81

  
	
  SECTION 6.05.

  	
  Control
  by Majority

  	
  81

  
	
  SECTION 6.06.

  	
  Limitation
  on Suits

  	
  81

  
	
  SECTION 6.07.

  	
  Rights of
  the Holders to Receive Payment

  	
  82

  
	
  SECTION 6.08.

  	
  Collection
  Suit by Trustee

  	
  82

  
	
  SECTION 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
  82

  
	
  SECTION 6.10.

  	
  Priorities

  	
  82

  
	
  SECTION 6.11.

  	
  Undertaking
  for Costs

  	
  83

  
	
  SECTION 6.12.

  	
  Waiver of
  Stay or Extension Laws

  	
  83

  



 

















 


	
  ARTICLE 7

  
	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Duties of
  Trustee

  	
  83

  
	
  SECTION 7.02.

  	
  Rights of
  Trustee

  	
  85

  
	
  SECTION 7.03.

  	
  Individual
  Rights of Trustee

  	
  86

  
	
  SECTION 7.04.

  	
  Trustee’s
  Disclaimer

  	
  86

  
	
  SECTION 7.05.

  	
  Notice of
  Defaults

  	
  86

  
	
  SECTION 7.06.

  	
  Reports
  by Trustee to the Holders

  	
  86

  
	
  SECTION 7.07.

  	
  Compensation
  and Indemnity

  	
  86

  
	
  SECTION 7.08.

  	
  Replacement
  of Trustee

  	
  87

  
	
  SECTION 7.09.

  	
  Successor
  Trustee by Merger

  	
  88

  
	
  SECTION 7.10.

  	
  Eligibility;
  Disqualification

  	
  89

  
	
  SECTION 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  
	
  DISCHARGE OF INDENTURE; DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Discharge
  of Liability on Securities; Defeasance

  	
  89

  
	
  SECTION 8.02.

  	
  Conditions
  to Defeasance

  	
  90

  
	
  SECTION 8.03.

  	
  Application
  of Trust Money

  	
  92

  
	
  SECTION 8.04.

  	
  Repayment
  to Company

  	
  92

  
	
  SECTION 8.05.

  	
  Indemnity
  for U.S. Government Obligations

  	
  92

  
	
  SECTION 8.06.

  	
  Reinstatement

  	
  92

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  
	
  AMENDMENTS AND WAIVERS

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Without
  Consent of the Holders

  	
  93

  
	
  SECTION 9.02.

  	
  With
  Consent of the Holders

  	
  94

  
	
  SECTION 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
  95

  
	
  SECTION 9.04.

  	
  Revocation
  and Effect of Consents and Waivers

  	
  95

  
	
  SECTION 9.05.

  	
  Notation
  on or Exchange of Securities

  	
  95

  
	
  SECTION 9.06.

  	
  Trustee
  to Sign Amendments

  	
  96

  
	
  SECTION 9.07.

  	
  Payment
  for Consent

  	
  96

  
	
  SECTION 9.08.

  	
  Additional
  Voting Terms; Calculation of Principal Amount

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Guarantees

  	
  96

  
	
  SECTION 10.02.

  	
  Limitation
  on Liability

  	
  99

  
	
  SECTION 10.03.

  	
  Successors
  and Assigns

  	
  99

  



 

















 


	
  SECTION 10.04.

  	
  No Waiver

  	
  99

  
	
  SECTION 10.05.

  	
  Modification

  	
  100

  
	
  SECTION 10.06.

  	
  Execution
  of Supplemental Indenture for Future Guarantors

  	
  100

  
	
  SECTION 10.07.

  	
  Non-Impairment

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  
	
  SECURITY

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Security
  Documents; Additional Collateral; Intercreditor Agreement

  	
  100

  
	
  SECTION 11.02.

  	
  Recording,
  Registration and Opinions

  	
  101

  
	
  SECTION 11.03.

  	
  Releases
  of Collateral

  	
  101

  
	
  SECTION 11.04.

  	
  Form and
  Sufficiency of Release

  	
  102

  
	
  SECTION 11.05.

  	
  Possession
  and Use of Collateral

  	
  103

  
	
  SECTION 11.06.

  	
  Reports
  and Certificates Relating to Collateral

  	
  103

  
	
  SECTION 11.07.

  	
  Collateral
  Agent

  	
  103

  
	
  SECTION 11.08.

  	
  Purchaser
  Protected

  	
  107

  
	
  SECTION 11.09.

  	
  Authorization
  of Actions to be Taken by the Collateral Agent Under the Security Documents

  	
  107

  
	
  SECTION 11.10.

  	
  Authorization
  of Receipt of Funds by the Trustee Under the Security Agreement

  	
  107

  
	
  SECTION 11.11.

  	
  Powers
  Exercisable by Receiver or Collateral Agent

  	
  107

  
	
  SECTION 11.12.

  	
  Compensation
  and Indemnification

  	
  107

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
   

  
	
  APPLICATION OF TRUST MONIES

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Collateral
  Account

  	
  107

  
	
  SECTION 12.02.

  	
  Withdrawal
  of Loss Proceeds

  	
  108

  
	
  SECTION 12.03.

  	
  Withdrawal of Net Cash Proceeds to Fund an Asset
  Sale Offer or Net Loss Proceeds to Fund an Event of Loss Offer

  	
  108

  
	
  SECTION 12.04.

  	
  Withdrawal
  of Trust Monies for Investment in Replacement Assets

  	
  109

  
	
  SECTION 12.05.

  	
  Investment
  of Trust Monies

  	
  110

  
	
  SECTION 12.06.

  	
  Use of
  Trust Monies; Retirement of Securities

  	
  110

  
	
  SECTION 12.07.

  	
  Disposition
  of Securities Retired

  	
  111

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01.

  	
  Trust
  Indenture Act Controls

  	
  111

  
	
  SECTION 13.02.

  	
  Notices

  	
  112

  
	
  SECTION 13.03.

  	
  Communication
  by the Holders with Other Holders

  	
  112

  
	
  SECTION 13.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  112

  



 

















 


	
  SECTION 13.05.

  	
  Statements
  Required in Certificate or Opinion

  	
  113

  
	
  SECTION 13.06.

  	
  When
  Securities Disregarded

  	
  113

  
	
  SECTION 13.07.

  	
  Rules by
  Trustee, Paying Agent and Registrar

  	
  113

  
	
  SECTION 13.08.

  	
  Legal
  Holidays

  	
  113

  
	
  SECTION 13.09.

  	
  Governing
  Law

  	
  114

  
	
  SECTION 13.10.

  	
  No
  Recourse Against Others

  	
  114

  
	
  SECTION 13.11.

  	
  Successors

  	
  114

  
	
  SECTION 13.12.

  	
  Multiple
  Originals

  	
  114

  
	
  SECTION 13.13.

  	
  Table of
  Contents; Headings

  	
  114

  
	
  SECTION 13.14.

  	
  Indenture
  Controls

  	
  114

  
	
  SECTION 13.15.

  	
  Severability

  	
  114

  
	
  SECTION 13.16.

  	
  Waiver of Jury Trial

  	
  114

  



 


	
  Appendix
  A

  	
  –

  	
  Provisions
  Relating to Initial Securities, Additional Securities and Exchange Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  INDEX

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  –

  	
  Initial
  Security

  	
   

  
	
  Exhibit B

  	
  –

  	
  Exchange
  Security

  	
   

  
	
  Exhibit C

  	
  –

  	
  Form of
  Transferee Letter of Representation

  	
   

  
	
  Exhibit D

  	
  –

  	
  Form of
  Supplemental Indenture

  	
   

  



 














 


INDENTURE dated as of July 29, 2009 among
FREEDOM GROUP, INC., a Delaware corporation (the “Company”), the
Guarantors and WILMINGTON TRUST FSB, a federal savings bank, as trustee (in
such capacity, the “Trustee”) and collateral agent (in such capacity, the
“Collateral Agent”).


 


Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of (a) $200,000,000
aggregate principal amount of the Company’s 101⁄4% Senior Secured Notes due August 1,
2015 (the “Original Securities”) issued on the date hereof, (b) any
Additional Securities that may be issued after the date hereof in the form of Exhibit A
(all such securities in clauses (a) and (b) being referred to collectively
as the “Initial Securities”) and (c) if and when issued as provided
in the Registration Rights Agreement or otherwise registered under the
Securities Act and issued, the Company’s 101⁄4% Senior Secured Notes due August 1,
2015 (the “Exchange Securities” and, together with the Initial Securities,
the “Securities”) issued in the Registered Exchange Offer in exchange
for any Initial Securities or otherwise registered under the Securities Act and
issued in the form of Exhibit B. 
Subject to the conditions and compliance with the covenants set forth
herein, the Company may issue an unlimited aggregate principal amount of
Additional Securities.


 


ARTICLE 1


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01.               Definitions.


 


“ABL
Facility Collateral Agent” means Wachovia Bank, National Association,
as administrative agent and collateral agent under the Credit Agreement, its
successors and/or assigns in such capacity.


 


“ABL
Obligations” means (i) the Indebtedness and other obligations
incurred under Section 4.03(b)(i) which are secured by Permitted Liens
on the Collateral, including any interest, fees, expenses or indemnified
obligations related thereto and (ii) certain Hedging Obligations and cash
management and other “bank product” obligations owed to a lender or an
affiliate of a lender under the Credit Agreement and more particularly
described in the Intercreditor Agreement.


 


“ABL
Priority Collateral” has the meaning assigned to it in the
Intercreditor Agreement.


 


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


 


(1)           Indebtedness of any other Person existing at the
time such other Person is merged with or into or became a Restricted Subsidiary
of such specified Person, and


 


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


 

















 


in each case, other than Indebtedness
Incurred as consideration in, in contemplation of, or to provide all or any
portion of the funds or credit support utilized to consummate, the transaction
or series of related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was otherwise acquired by such Person, or
such asset was acquired by such Person, as applicable.


 


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


 


“Additional Securities” means Securities
issued from time to time under this Indenture subsequent to the Issue Date.


 


“Affiliate” of any specified Person means any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.  For purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,” “controlled by”
and “under common control with”), as used with respect to any Person, 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.


 


“Appendix” means Appendix A attached hereto.


 


“Applicable Premium” means, with
respect to any Security on any applicable redemption date, the greater of:


 


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


 


(2)           the excess of:


 


(a)           the present value at such redemption date of (i) the
redemption price of the Securities, at August 1, 2012 as set forth in
Paragraph 5 of the applicable Security plus (ii) all required interest
payments due on such Security through August 1, 2012 (excluding accrued
but unpaid interest), computed using a discount rate equal to the Treasury Rate
as of such redemption date plus 50 basis points; over


 


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


 


“Asset Sale” means:


 


(1)           the sale, conveyance, transfer or other disposition
(whether in a single transaction or a series of related transactions) of
property or assets (including by way of a Sale/Leaseback Transaction) of the
Company or any Restricted Subsidiary of the Company (each referred to in this
definition as a “disposition”) or


 


(2)           the issuance or sale of Equity Interests (other than
directors’ qualifying shares or shares or interests required to be held by
foreign nationals or other third parties 


 


2

















 


to the extent required by
applicable law) of any Restricted Subsidiary (other than to the Company or
another Restricted Subsidiary of the Company) (whether in a single transaction
or a series of related transactions), in each case other than:


 


(a)           a disposition of Cash Equivalents or Investment
Grade Securities or obsolete or worn out equipment in the ordinary course of
business;


 


(b)           the disposition of all or substantially all of the
assets of the Company in a manner permitted pursuant to Section 5.01 or
any disposition that constitutes a Change of Control;


 


(c)           any Restricted Payment or Permitted Investment that
is permitted to be made, and is made, under Section 4.04;


 


(d)           any disposition of assets or issuance or sale of
Equity Interests of any Restricted Subsidiary with an aggregate Fair Market
Value of less than $2.5 million;


 


(e)           any disposition of property or assets by a
Restricted Subsidiary of the Company to the Company or by the Company or a
Restricted Subsidiary of the Company to a Restricted Subsidiary of the Company;
provided, that, to the extent
such property or assets constitutes Collateral, such disposition is to the Company
or a Guarantor;


 


(f)            sales of assets received by the Company or any of
its Restricted Subsidiaries upon the foreclosure on a Lien;


 


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


 


(h)           sales of inventory in the ordinary course of
business;


 


(i)            the lease, assignment or sublease of any real or
personal property in the ordinary course of business and consistent with past
practice;


 


(j)            a sale of accounts receivable and related assets of
the type specified in the definition of “Receivables Financing” to a
Receivables Subsidiary in a Qualified Receivables Financing or in factoring or
similar transactions;


 


(k)           a transfer of accounts receivable and related assets
of the type specified in the definition of “Receivables Financing” (or a
fractional undivided interest therein) by a Receivables Subsidiary in a
Qualified Receivables Financing;


 


(l)            any exchange of assets for assets (including a
combination of assets and Cash Equivalents) related to a Similar Business of
comparable or greater market value or usefulness to the business of the Company
and its Restricted Subsidiaries 


 


3

















 


as a whole, as determined in
good faith by the Company, which in the event of an exchange of assets with a
Fair Market Value in excess of (1) $5 million shall be evidenced by an
Officers’ Certificate, and (2) $15 million shall be set forth in a
resolution approved in good faith by at least a majority of the Board of
Directors of the Company;


 


(m)          the grant in the ordinary course of business of any
license of patents, trademarks, know-how and any other intellectual property;


 


(n)           any Event of Loss; provided
that the proceeds are applied in accordance with the terms of this Indenture
and the Security Documents; and


 


(o)           the sale of any property in a Sale/Leaseback
Transaction within six months of the acquisition of such property.


 


“Board of Directors” means as to any Person,
the board of directors or managers, as applicable, of such Person (or, if such
Person is a partnership, the board of directors or other governing body of the
general partner of such Person) or any duly authorized committee thereof.


 


“Borrowing
Base” means the sum of (1) 90% of the book value (calculated in
accordance with GAAP) of the accounts receivable of the Company and its
Restricted Subsidiaries, (2) 65% of the book value (calculated in
accordance with GAAP) of the inventory of the Company and its Restricted
Subsidiaries and (3) 100% of the Unrestricted Cash of the Company and its
Restricted Subsidiaries, in each case as shown on the most recent consolidated
balance sheet of the Company and its Restricted Subsidiaries.


 


“Business Day” means a day other than a
Saturday, Sunday or other day on which banking institutions are authorized or
required by law to close in New York City.


 


“Capital Stock”
means:


 


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


 


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


 


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


 


(4)           any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.


 


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


 


4

















 


“Cash Contribution Amount” means the
aggregate amount of cash contributions made to the capital of the Company or
any Guarantor described in the definition of “Contribution Indebtedness.”


 


“Cash Equivalents” means:


 


(1)           U.S. Dollars, pounds sterling, euros, the national
currency of any participating member state of the European Union or, in the
case of any Foreign Subsidiary that is a Restricted Subsidiary, such local
currencies held by it from time to time in the ordinary course of business;


 


(2)           securities issued or directly and fully guaranteed
or insured by the government of the United States or any country that is a
member of the European Union or any agency or instrumentality thereof in each
case with maturities not exceeding two years from the date of acquisition;


 


(3)           certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers’ acceptances, in each case with maturities not exceeding
one year, and overnight bank deposits, in each case with any commercial bank
having capital and surplus in excess of $500 million, or the foreign currency
equivalent thereof, and whose long-term debt is rated “A” or the equivalent
thereof by Moody’s or S&P (or reasonably equivalent ratings of another
internationally recognized ratings agency);


 


(4)           repurchase obligations for underlying securities of
the types described in clauses (2) and (3) above entered into with
any financial institution meeting the qualifications specified in clause (3) above;


 


(5)           commercial paper issued by a corporation (other than
an Affiliate of the Company) rated at least “A-1” or the equivalent thereof by
Moody’s or S&P (or reasonably equivalent ratings of another internationally
recognized ratings agency) and in each case maturing within one year after the
date of acquisition;


 


(6)           readily marketable direct obligations issued by any
state of the United States of America or any political subdivision thereof
having one of the two highest rating categories obtainable from either Moody’s
or S&P (or reasonably equivalent ratings of another internationally
recognized ratings agency) in each case with maturities not exceeding two years
from the date of acquisition;


 


(7)           Indebtedness issued by Persons (other than the
Sponsor or any of its Affiliates) with a rating of “A” or higher from S&P
or “A-2” or higher from Moody’s in each case with maturities not exceeding two
years from the date of acquisition; and


 


(8)           investment funds investing at least 95% of their
assets in securities of the types described in clauses (1) through (7) above;


 


5

















 


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


 


(i)            the sale, lease
or transfer, in one or a series of related transactions, of all or
substantially all the assets of the Company and its Subsidiaries, taken as a
whole, to a Person other than any of the Permitted Holders, and other than any
transaction in compliance with Section 5.01 where the Successor Company is
a Wholly Owned Subsidiary of a direct or indirect parent of the Company; or


 


(ii)           the Company
becomes aware (by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any
of the Permitted Holders, in a single transaction or in a related series of
transactions, by way of merger, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act, or any successor provision), of more than 50% of the total
voting power of the Voting Stock of the Company or any direct or indirect parent
of the Company.


 


Notwithstanding the
foregoing, no Specified Merger/Transfer Transaction shall constitute a Change
of Control.


 


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


 


“Collateral”
means all the assets and properties subject or purported to be subject to the
security interests and liens created by the Security Documents and shall
include any Mortgaged Property (as defined in the Security Agreement).


 


“Collateral
Account” means the collateral account established pursuant to this Indenture
and the Security Documents in the name and under sole dominion and control of
the Collateral Agent.


 


“Collateral
Agent” means the Trustee, in its capacity as Collateral Agent under
the Security Documents, together with its successors.


 


“Company” means the party named as such in
the Preamble to this Indenture until a successor replaces it and, thereafter,
means the successor and, for purposes of any provision contained herein and required
by the TIA, each other obligor on the Securities.


 


“consolidated” means, with respect to any
Person, such Person consolidated with its Restricted Subsidiaries, and shall
not include any Unrestricted Subsidiary, but the interest of such Person in an
Unrestricted Subsidiary shall be accounted for as an Investment.


 


6

















 


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


 


(1)           consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, to the extent such expense was
deducted in computing Consolidated Net Income (including amortization of
original issue discount, the interest component of Capitalized Lease
Obligations, and net payments and receipts (if any) pursuant to interest rate
Hedging Obligations and excluding amortization of deferred financing fees and expensing
of any bridge or other financing fees, the non-cash portion of interest expense
resulting from the reduction in the carrying value under purchase accounting of
the Company’s outstanding Indebtedness and commissions, discounts, yield and
other fees and charges (including any interest expense) related to any Receivables
Financing); and


 


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


 


less interest income for
such period;


 


provided that, for
purposes of calculating Consolidated Interest Expense, no effect shall be given
to the discount and/or premium resulting from the bifurcation of derivatives
under FAS No. 133 and related interpretations as a result of the terms of
the Indebtedness to which such Consolidated Interest Expense relates.


 


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


 


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


 


(1)           any net after-tax extraordinary, nonrecurring or
unusual gains or losses or income or expenses (less all fees and expenses
relating thereto), including, without limitation, any expenses related to any
reconstruction, recommissioning or reconfiguration of fixed assets for
alternate uses, any severance or relocation expenses and fees, restructuring
costs, expenses or charges related to any Equity Offering, Permitted
Investment, acquisition or Indebtedness permitted to be Incurred by this
Indenture (in each case, whether or not successful), shall be excluded;


 


(2)           any increase in amortization or depreciation or any
one-time non-cash charges (such as purchased in-process research and
development or capitalized manufacturing profit in inventory) resulting from
purchase accounting in connection with any acquisition that is consummated
after the Issue Date;


 


(3)           the Net Income for such period shall not include the
cumulative effect of a change in accounting principles during such period;


 


7

















 


(4)           any net after-tax income or loss from discontinued
operations and any net after-tax gains or losses on disposal of discontinued
operations shall be excluded;


 


(5)           any net after-tax gains or losses (less all fees and
expenses or charges relating thereto) attributable to business dispositions or
asset dispositions other than in the ordinary course of business (as determined
in good faith by the Company) shall be excluded;


 


(6)           any net after-tax gains or losses (less all fees and
expenses or charges relating thereto) attributable to the early extinguishment
of indebtedness shall be excluded;


 


(7)           the Net Income for such period of any Person that is
not a Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be included only to the
extent of the amount of dividends or distributions or other payments paid in
cash (or to the extent converted into cash) to the referent Person or a
Restricted Subsidiary thereof in respect of such period;


 


(8)           solely for the purpose of determining the amount
available for Restricted Payments under Section 4.04(a)(3)(A), the Net
Income for such period of any Restricted Subsidiary (other than any Guarantor)
shall be excluded to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary of its Net Income is not at
the date of determination permitted without any prior governmental approval
(which has not been obtained) or, directly or indirectly, by the operation of
the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, unless such restrictions with respect to the
payment of dividends or similar distributions have been legally waived; provided that (x) the net loss of any
such Restricted Subsidiary shall be included therein and (y) the
Consolidated Net Income of such Person shall be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or
converted into cash) by any such Restricted Subsidiary to such Person, to the
extent not already included therein;


 


(9)           an amount equal to the amount of Tax Distributions
actually made to the holders of Capital Stock of such Person or any parent
company of such Person in respect of such period in accordance with Section 4.04(b)(xii)
shall be included as though such amounts had been paid as income taxes directly
by such Person for such period;


 


(10)         any non-cash impairment charges or asset write-off
resulting from the application of FAS Nos. 142 and 144, and the
amortization of intangibles arising pursuant to FAS No. 141, shall be excluded;


 


(11)         any non-cash compensation expense realized from
employee benefit plans or post-employment benefit plans, grants of stock
appreciation or similar rights, stock options or other rights to officers,
directors and employees of such Person or any of its Restricted Subsidiaries
shall be excluded;


 


8

















 


(12)         (a)(i) the non-cash portion of “straight-line”
rent expense shall be excluded and (ii) the cash portion of “straight-line”
rent expense which exceeds the amount expensed in respect of such rent expense
shall be included and (b) non-cash gains, losses, income and expenses
resulting from fair value accounting required by FAS No. 133 shall be
excluded;


 


(13)         unrealized gains and losses relating to hedging
transactions and mark-to-market of Indebtedness denominated in foreign
currencies resulting from the application of FAS No. 52 shall be excluded;
and


 


(14)         any (a) severance or relocation costs or
expenses, (b) one-time non-cash compensation charges, (c) the costs
and expenses after the Issue Date related to employment of terminated
employees, or (d) costs or expenses realized in connection with or resulting
from stock appreciation or similar rights, stock options or other rights
existing on the Issue Date of officers, directors and employees, in each case
of such Person or any of its Restricted Subsidiaries, shall be excluded.


 


Notwithstanding the foregoing, for the purpose of Section 4.04
only, there shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of assets from Unrestricted
Subsidiaries of the Company or a Restricted Subsidiary of the Company to the
extent such dividends, repayments or transfers increase the amount of
Restricted Payments permitted under Sections 4.04(a)(3)(E) and (F).


 


“Consolidated
Non-cash Charges” means, with respect to any Person for any period,
the aggregate depreciation, amortization, impairment, compensation, rent and
other non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person for such period on a consolidated basis
and otherwise determined in accordance with GAAP, but excluding (i) any
such charge which consists of or requires an accrual of, or cash reserve for,
anticipated cash charges for any future period and (ii) the non-cash
impact of recording the change in fair value of any embedded derivatives under
FAS No. 133 and related interpretations as a result of the terms of any
agreement or instrument to which such Consolidated Non-cash Charges relate.


 


“Consolidated
Taxes” means, with respect to any Person and its Restricted Subsidiaries on
a consolidated basis for any period, provision for taxes based on income, profits
or capital, including, without limitation, state franchise and similar taxes,
and including an amount equal to the amount of tax distributions actually made
to the holders of Capital Stock of such Person or any direct or indirect parent
of such Person in respect of such period in accordance with Section 4.04(b)(xii)
which shall be included as though such amounts had been paid as income taxes
directly by such Person.


 


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


 


9

















 


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


 


(2)           to advance or supply funds:


 


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


 


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


 


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


 


“Contribution
Indebtedness” means Indebtedness of the Company or any Guarantor in
an aggregate principal amount not greater than the aggregate amount of cash
contributions (other than Excluded Contributions) made to the capital of the
Company or such Guarantor after the Issue Date, provided that:


 


(1)           such Contribution Indebtedness shall be Indebtedness
with a Stated Maturity later than the Stated Maturity of the Securities, and


 


(2)           such Contribution Indebtedness (a) is Incurred
within 210 days after the making of such cash contributions and (b) is so
designated as Contribution Indebtedness pursuant to an Officers’ Certificate on
the Incurrence date thereof.


 


“Credit
Agreement” means (i) the credit agreement entered into on the
Issue Date among the Company, certain subsidiaries of the Company, the
financial institutions named therein and Wachovia Bank, National Association,
as Administrative Agent, as amended, restated, supplemented, waived, replaced
(whether or not upon termination, and whether with the original lenders or
otherwise), restructured, repaid, refunded, refinanced or otherwise modified
from time to time, including any agreement or indenture extending the maturity
thereof, refinancing, replacing or otherwise restructuring all or any portion
of the Indebtedness under such agreement or agreements or indenture or
indentures or any successor or replacement agreement or agreements or indenture
or indentures or increasing the amount loaned or issued thereunder or altering
the maturity thereof, and (ii) whether or not the credit agreement referred
to in clause (i) remains outstanding, if designated by the Company to be
included in the definition of “Credit Agreement,” one or more (A) debt
facilities or commercial paper facilities providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
lenders or to special purpose entities formed to borrow from lenders against
such receivables) or letters of credit, (B) debt securities, indentures or
other forms of debt financing (including convertible or exchangeable debt
instruments or bank guarantees or bankers’ acceptances), or (C) instruments
or agreements evidencing any other Indebtedness, in each case, with the same or
different borrowers or issuers and, in each case, as amended, supplemented, modified,
extended, restructured, renewed, refinanced, restated, replaced or refunded in
whole or in part from time to time.


 


10














 


“Default” means any event which is, or after
notice or passage of time or both would be, an Event of Default.


 


“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 Officers’
Certificate, setting forth the basis of such valuation, less the amount of Cash
Equivalents received in connection with a subsequent sale of such Designated
Non-cash Consideration.


 


“Designated Preferred Stock” means Preferred
Stock of the Company or any direct or indirect parent company of the Company,
as applicable (other than Disqualified Stock), that is issued for cash (other
than to the Company or any of its Subsidiaries or an employee stock ownership
plan or trust established by the Company or any of its Subsidiaries) and is so
designated as Designated Preferred Stock, pursuant to an Officers’ Certificate,
on the issuance date thereof, the cash proceeds of which are excluded from the
calculation set forth in Section 4.04(a)(3).


 


“Discharge
of ABL Obligations” means (a) the payment in full in cash of
all outstanding ABL Obligations excluding contingent indemnity obligations with
respect to then unasserted claims but including, with respect to amounts
available to be drawn under outstanding letters of credit issued thereunder (or
indemnities or other undertakings issued pursuant thereto in respect of
outstanding letters of credit), the cancellation of such letters of credit or
the delivery or provision of money or backstop letters of credit in respect
thereof in compliance with the terms of the Credit Agreement (which shall not
exceed an amount equal to 105% of the aggregate undrawn amount of such letters
of credit) and (b) the termination of all commitments to extend credit
under the Credit Agreement and related loan documents.


 


“Disqualified Stock” means, with respect to
any Person, any Capital Stock of such Person which, by its terms (or by the
terms of any security into which it is convertible or for which it is redeemable
or exchangeable), or upon the happening of any event:


 


(1)           matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise (other than as a result of a change of
control or asset sale; provided that the relevant asset sale or
change of control provisions, taken as a whole, are no more favorable in any
material respect to holders of such Capital Stock than the asset sale and
change of control provisions applicable to the Securities and any purchase requirement
triggered thereby may not become operative until compliance with the asset sale
and change of control provisions applicable to the Securities (including the
purchase of any Securities tendered pursuant thereto)),


 


(2)           is convertible or exchangeable for Indebtedness or
Disqualified Stock, or


 


(3)           is redeemable at the option of the holder thereof,
in whole or in part,


 


in each case prior to 91 days after the maturity date of the Securities;
provided, however, that
only the portion of Capital Stock which so matures or is mandatorily
redeemable, is so convertible or exchangeable or is so redeemable at the option
of the holder thereof prior to such date 


 


11

















 


shall be deemed to be Disqualified Stock; provided, further,  however, that if such Capital Stock is issued to any
employee or to any plan for the benefit of employees of the Company or its Subsidiaries
or by any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the
Company in order to satisfy applicable statutory or regulatory obligations or
as a result of such employee’s termination, death or disability; provided, further, that
any class of Capital Stock of such Person that by its terms authorizes such
Person to satisfy its obligations thereunder by delivery of Capital Stock that
is not Disqualified Stock shall not be deemed to be Disqualified Stock.


 


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


 


“EBITDA”
means, with respect to any Person for any period, the Consolidated Net Income
of such Person for such period plus, without duplication, to the extent the same
was deducted in calculating Consolidated Net Income:


 


(1)           Consolidated Taxes; plus


 


(2)           Consolidated Interest Expense; plus


 


(3)           Consolidated Non-cash Charges; plus


 


(4)           the amount of management, monitoring, consulting and
advisory fees and related expenses paid to the Sponsor and Meritage (or any
accruals relating to such fees and related expenses) during such period to the
extent otherwise permitted under Section 4.07; plus


 


(5)           any expenses or charges (other than Consolidated
Non-cash Charges) related to any issuance of Equity Interests, Investment,
acquisition, disposition, recapitalization or the Incurrence or repayment of
Indebtedness permitted to be incurred by this Indenture (including a
refinancing thereof) (whether or not successful), including (i) such fees,
expenses or charges related to the offering of the Securities, (ii) any
amendment or other modification of the Securities or other Indebtedness, (iii) any
additional interest in respect of the Securities and (iv) commissions,
discounts, yield and other fees and charges (including any interest expense)
related to any Qualified Receivables Financing; plus


 


(6)           the amount of loss on sale of receivables and
related assets to a Receivables Subsidiary in connection with a Qualified
Receivables Financing; plus


 


(7)           any costs or expense incurred pursuant to any
management equity plan or stock option plan or other management or employee
benefit plan or agreement or any stock subscription or shareholder agreement,
to the extent that such costs or expenses are funded with cash proceeds
contributed to the capital of the Company or a Guarantor or the net cash
proceeds of an issuance of Equity Interests of the Company (other than Disqualified
Stock) solely to the extent that such net cash proceeds are excluded from the 


 


12

















 


calculation of the amount
available for Restricted Payments under Section 4.04(a)(3)(A); plus


 


(8)           (a) the Net Income of any Person and its
Restricted Subsidiaries shall be calculated without deducting the income
attributed to, or adding the loses attributed to, the minority equity interests
of third parties in any non-wholly owned Restricted Subsidiary except to the
extent of the dividends declared or paid in respect of such period or any prior
period on the shares of Capital Stock of such Restricted Subsidiary held by
such third parties and (b) any ordinary course dividend, distributions or
other payment paid in cash and received from any Person in excess of amounts
included in clause (7) pursuant to the definition of “Consolidated Net
Income” shall be included;


 


less, without
duplication, non-cash items increasing Consolidated Net Income for such period
(excluding any items which represent the reversal of any accrual of, or cash
reserve for, anticipated cash charges in any prior period).


 


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


 


“Equity Offering” means any public or private
sale after the Issue Date of common stock or Preferred Stock of the Company or
any direct or indirect parent company of the Company, as applicable (other than
Disqualified Stock), other than:


 


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


 


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


 


“Event of Loss” means, with respect to any property or asset
(tangible or intangible, real or personal) constituting Notes Priority
Collateral, any of the following:


 


(i) any loss, destruction or
damage of such property or asset;


 


(ii) any institution of any
proceeding for the condemnation or seizure of such property or asset or for the
exercise of any right of eminent domain;


 


(iii) any actual condemnation,
seizure or taking by exercise of the power of eminent domain or otherwise of
such property or asset, or confiscation of such property or asset or the
requisition of the use of such property or asset; or


 


(iv) any settlement in lieu of
clauses (ii) or (iii) above.


 


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


 


13

















 


“Excluded Contributions”
means the net cash proceeds, Cash Equivalents and/or Investment Grade
Securities received by the Company after the Issue Date from:


 


(1)           contributions to its common equity capital, and


 


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


 


in each case designated as Excluded Contributions pursuant to an
Officers’ Certificate executed by an Officer of the Company, the proceeds of
which are excluded from the calculation set forth in Section 4.04(a)(3).


 


“Fair Market Value” means, with respect to
any asset or property, the price which could be negotiated in an arm’s-length,
free market transaction, for cash, between a willing seller and a willing and
able buyer, neither of whom is under undue pressure or compulsion to complete
the transaction.


 


“FAS”
means the Statement of Financial Accounting Standards, including any
codification or renumbering of such standards or any successor or replacement
section or sections promulgated by the Financial Accounting Standards Board.


 


“Fixed Charge Coverage Ratio” means, with
respect to any Person for any period, the ratio of EBITDA of such Person for
such period to the Fixed Charges of such Person for such period.  In the event that the Company or any of its
Restricted Subsidiaries Incurs or redeems any Indebtedness (other than in the
case of revolving credit borrowings or revolving advances under any Qualified
Receivables Financing, in which case interest expense shall be computed based
upon the average daily balance of such Indebtedness during the applicable
period) or issues or redeems Preferred Stock subsequent to the commencement of
the period for which the Fixed Charge Coverage Ratio is being calculated but
prior to the event for which the calculation of the Fixed Charge Coverage Ratio
is made (referred to in this definition as the “Calculation Date”), then
the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to
such Incurrence or redemption of Indebtedness, or such issuance or redemption
of Preferred Stock, as if the same had occurred at the beginning of the
applicable four-quarter period.


 


For purposes of making the computation referred to
above, Investments, acquisitions, dispositions, mergers, consolidations and
discontinued operations (as determined in accordance with GAAP), in each case
with respect to an operating unit of a business, and operational changes, that
the Company or any of its Restricted Subsidiaries has both determined to make
and made after the Issue Date and during the four-quarter reference period or
subsequent to such reference period and on or prior to or simultaneously with
the Calculation Date (each referred to in this definition as a “pro forma
event”) shall be calculated on a pro forma basis assuming that all such
Investments, acquisitions, dispositions, mergers, consolidations, discontinued
operations and operational changes (and the change of any associated fixed
charge obligations and the change in EBITDA resulting therefrom) had occurred
on the first day of the four-quarter reference period. If since the beginning
of such period any Person that subsequently became a Restricted 


 


14

















 


Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since the beginning of
such period shall have made or effected any Investment, acquisition, disposition,
merger, consolidation or discontinued operation, in each case with respect to
an operating unit of a business, or operational change that would have required
adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio
shall be calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, merger, consolidation, discontinued
operation, or operational change had occurred at the beginning of the
applicable four-quarter period.


 


For purposes of this definition, whenever pro forma
effect is to be given to any pro forma event, the pro forma calculations shall
be made in good faith by a responsible financial or accounting officer of the
Company. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated
as if the rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging Obligations applicable to
such Indebtedness if such Hedging Obligation has a remaining term in excess of
12 months). Interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by a responsible financial or
accounting officer of the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP. For purposes of making
the computation referred to above, interest on any Indebtedness under a
revolving credit facility computed on a pro forma basis shall be computed based
upon the average daily balance of such Indebtedness during the applicable period.
Interest on Indebtedness that may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rate, shall be deemed to have been based upon the rate
actually chosen, or, if none, then based upon such optional rate chosen as the
Company may designate. Any such pro forma calculation may include adjustments
appropriate, in the reasonable determination of the Company as set forth in an
Officers’ Certificate, to reflect (1) in the case of any pro forma event,
operating expense reductions and other operating improvements or synergies
reasonably expected to result within twelve months of the date of such pro
forma event and (2) all adjustments of the type and nature used in
connection with the calculation of “EBITDA” as set forth in footnote 4 under “Summary—Summary
Historical and Pro Forma Consolidated Financial Data” in the Offering
Memorandum to the extent such adjustments, without duplication, continue to be
applicable to such four quarter period.


 


“Fixed Charges”
means, with respect to any Person for any period, the sum of:


 


(1)           Consolidated Interest Expense of such Person for
such period, and


 


(2)           all cash dividend payments (excluding items
eliminated in consolidation) on any series of Preferred Stock or Disqualified
Stock of such Person and its Restricted Subsidiaries.


 


“Foreign Subsidiary” means a Restricted
Subsidiary not organized or existing under the laws of the United States of
America or any state or territory thereof or the District of Columbia and any
direct or indirect subsidiary of such Restricted Subsidiary.


 


15

















 


“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, which are in effect on the
Issue Date.


 


“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,
letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness or other obligations.


 


“Guarantee”  means
any guarantee of the obligations of the Company under this Indenture and the
Securities by any Person in accordance with the provisions of this Indenture.


 


“Guarantor” means any Person that Incurs a
Guarantee; provided that upon the release or discharge
of such Person from its Guarantee in accordance with this Indenture, such Person
ceases to be a Guarantor.


 


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


 


(1)           currency exchange, interest rate or commodity swap
agreements, currency exchange, interest rate or commodity cap agreements and
currency exchange, interest rate or commodity collar agreements; and


 


(2)           other agreements or arrangements designed to protect
such Person against fluctuations in currency exchange, interest rates or
commodity prices.


 


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


 


“Incur” means issue, assume, guarantee, incur
or otherwise become liable for; provided, however,
that any Indebtedness or Capital Stock of a Person existing at the time such
Person becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Person at the time it becomes
a Subsidiary.


 


“Indebtedness” means,
with respect to any Person:


 


(1)           the principal and premium (if any) of any
indebtedness of such Person, whether or not contingent, (a) in respect of
borrowed money, (b) evidenced by bonds, notes, debentures or similar
instruments or letters of credit or bankers’ acceptances (or, without
duplication, reimbursement agreements in respect thereof), (c) representing
the deferred and unpaid purchase price of any property, except any such balance
that constitutes a trade payable or similar obligation to a trade creditor due
within six months from the date on which it is Incurred, in each case Incurred
in the ordinary course of business, which purchase price is due more than six
months after the date of placing the property in service or taking delivery and
title thereto, (d) in respect of Capitalized Lease Obligations, 


 


16

















 


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


 


(2)           to the extent not otherwise included, any obligation
of such Person to be liable for, or to pay, as obligor, guarantor or otherwise,
on the Indebtedness of another Person (other than by endorsement of negotiable
instruments for collection in the ordinary course of business); and


 


(3)           to the extent not otherwise included, Indebtedness
of another Person secured by a Lien on any asset owned by such Person (whether
or not such Indebtedness is assumed by such Person); provided, however, that the amount of such
Indebtedness will be the lesser of: (a) the Fair Market Value of such
asset at such date of determination, and (b) the amount of such
Indebtedness of such other Person;


 


provided that (a) Contingent Obligations
incurred in the ordinary course of business and (b) obligations under or
in respect of Receivables Financings shall be deemed not to constitute Indebtedness.


 


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


 


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


 


“Intercreditor
Agreement” means the Intercreditor Agreement dated the Issue Date by and
among the Company, the Guarantors, the ABL Facility Collateral Agent and the
Collateral Agent, as the same may be amended, modified, restated,
supplemented or replaced from time to time in accordance with its terms.


 


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


 


“Investment Grade Securities” means:


 


(1)           securities issued or directly and fully guaranteed
or insured by the U.S. government or any agency or instrumentality thereof
(other than Cash Equivalents) and in each case with maturities not exceeding
two years from the date of acquisition,


 


(2)           securities that have a rating equal to or higher
than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by
S&P, or an equivalent rating by any other Rating Agency,


 


17

















 


(3)           investments in any fund that invests at least 95% of
its assets in investments of the type described in clauses (1) and (2) which
fund may also hold immaterial amounts of cash pending investment and/or
distribution, and


 


(4)           corresponding instruments in countries other than
the United States customarily utilized for high quality investments and in each
case with maturities not exceeding two years from the date of acquisition.


 


“Investments” means, with respect to any
Person, all investments by such Person in other Persons (including Affiliates)
in the form of loans (including guarantees), advances or capital contributions
(excluding accounts receivable, trade credit and advances to customers and
commission, travel and similar advances to officers, employees and consultants
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities issued by
any other Person and investments that are required by GAAP to be classified on
the balance sheet of the Company in the same manner as the other investments
included in this definition to the extent such transactions involve the
transfer of cash or other property.  For
purposes of the definition of “Unrestricted Subsidiary” and Section 4.04:


 


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


 


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


 


(b)           the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and


 


(2)           any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer, in each case as determined in good faith by the Board of Directors of
the Company.


 


“Issue Date” means July 29, 2009.


 


“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); provided that in no event shall an operating
lease be deemed to constitute a Lien.


 


“Meritage”
means Meritage Farms LLC.


 


18

















 


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


 


“Mortgage” has the meaning assign to it in
the Security Agreement.


 


“Mortgaged Property” has the meaning assigned
to it in the Security Agreement.


 


“Net
Cash 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 in respect of or upon the sale or other
disposition of any Designated Non-cash Consideration received in any Asset Sale
and any cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or otherwise, but only as and when
received, but excluding the assumption by the acquiring Person of Indebtedness
relating to the disposed assets or other consideration received in any other
non-cash form), net of the direct costs relating to such Asset Sale and the
sale or disposition of such Designated Non-cash Consideration (including,
without limitation, legal, accounting and investment banking fees, and brokerage
and sales commissions), and any relocation expenses Incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements
related thereto), amounts required to be applied to the repayment of principal,
premium (if any) and interest on Indebtedness required (other than pursuant to Section 4.06(b))
to be paid as a result of such transaction, and any deduction of appropriate
amounts to be provided by the Company as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed of in such
transaction and retained by the Company after such sale or other disposition
thereof, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.


 


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


 


“Net
Loss Proceeds” means the aggregate cash proceeds received by the Company
or any Guarantor in respect of any Event of Loss, including, without
limitation, insurance proceeds, condemnation awards or damages awarded by any
judgment, net of the direct cost in recovery of such Net Loss Proceeds
(including, without limitation, legal, accounting, appraisal and insurance
adjuster fees and any relocation expenses incurred as a result thereof),
amounts required to be applied to the repayment of Indebtedness secured by any
Permitted Lien  on
the asset or assets that were the subject of such Event of Loss (other than any
Lien which does not rank prior to the Note Liens), and any taxes paid or
payable as a result thereof.


 


“Note
Liens” means all Liens in favor of the Collateral Agent on
Collateral securing the Note Obligations, and any Permitted Additional Pari
Passu Obligations.


 


“Note
Obligations” means the Indebtedness Incurred and Obligations under
this Indenture and the Securities.


 


19














 


“Notes
Priority Collateral” has the meaning assigned to it in the
Intercreditor Agreement.


 


“Obligations” means any principal, interest,
penalties, fees, indemnifications, reimbursements (including, without
limitation, reimbursement obligations with respect to letters of credit and
bankers’ acceptances), damages and other liabilities payable under the
documentation governing any Indebtedness; provided that Obligations with respect to the
Securities shall not include fees or indemnifications in favor of the Trustee
and other third parties other than the Holders of the Securities.


 


“Offering Memorandum” means the offering
memorandum relating to the offering of the Original Securities dated July 15,
2009.


 


“Officer” means the Chairman of the Board,
Chief Executive Officer, Chief Financial Officer, President, any Executive Vice
President, Senior Vice President or Vice President, the Treasurer, the
Secretary or the Assistant Secretary of the Company, or any direct or indirect
parent of the Company, as applicable.


 


“Officers’ Certificate” means a certificate
signed on behalf of the Company by two Officers of the Company or any direct or
indirect parent of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal accounting
officer of the Company or any direct or indirect parent of the Company, as
applicable, that meets the requirements set forth in this Indenture.


 


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


 


“Pari Passu Indebtedness”
means:


 


(1)           with respect to the Company, the Securities and any
Indebtedness which ranks pari passu in right of payment to the Securities; and


 


(2)           with respect to any Guarantor, its Guarantee and any
Indebtedness which ranks pari passu in right of payment to such Guarantor’s
Guarantee.


 


“Permitted
Additional Pari Passu Obligations” means obligations under any additional
notes (whether Incurred under this Indenture or any other indenture or
agreement evidencing or establishing Indebtedness with the same Trustee and
Collateral Agent and the same or substantially similar intercreditor
arrangements as those set forth in the Intercreditor Agreement) secured by the
Note Liens; provided that the
amount of such obligations does not exceed an amount such that immediately
after giving effect to the Incurrence of such additional notes or other
Indebtedness secured by the Note Liens and the receipt and application of the
proceeds therefrom, the Company would not be permitted to Incur at least $1.00
of additional Indebtedness pursuant to Section 4.03(a); provided, further,
that (i) the representative of such Permitted Additional Pari Passu
Obligation executes a joinder agreement to the applicable Security Documents in
the form attached thereto agreeing to be bound thereby and (ii) the
Company has designated 


 


20

















 


such Indebtedness as “Permitted
Additional Pari Passu Obligations” under the Security Agreement.


 


“Permitted
Asset Swap” means the concurrent purchase and sale or exchange of
Related Business Assets or a combination of Related Business Assets and cash or
Cash Equivalents between the Company or any of its Restricted Subsidiaries and
another Person; provided, that
any cash or Cash Equivalents received must be applied in accordance with Section 4.06.


 


“Permitted
Holders” means (i) the Sponsor, (ii) any Person that has
no material assets other than the Capital Stock of the Company and, directly or
indirectly, holds or acquires 100% of the total voting power of the Voting
Stock of the Company, and of which no other Person or group (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act, or any successor provision), other than any Permitted Holder specified in
clause (i) above, holds more than 50% of the total voting power of the
Voting Stock thereof, and (iii) any group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act, or any successor provision) the
members of which include any Permitted Holder specified in clause (i) above
and that, directly or indirectly, hold or acquire beneficial ownership of the
Voting Stock of the Company (referred to in this definition as a “Permitted
Holder Group”), so long as (1) each member of the Permitted Holder
Group has voting rights proportional to the percentage of ownership interests
held or acquired by such member and (2) no Person or other “group” (other
than a Permitted Holder specified in clause (i) above) beneficially owns
more than 50% on a fully diluted basis of the Voting Stock held by the
Permitted Holder Group. Any person or group, together with its Affiliates,
whose acquisition of beneficial ownership constitutes a Change of Control in respect
of which a Change of Control Offer is made in accordance with the requirements
of this Indenture will thereafter constitute an additional Permitted Holder.


 


“Permitted Investments”
means:


 


(1)           any Investment in the Company (including the
Securities) or any Restricted Subsidiary;


 


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


 


(3)           any Investment by the Company or any Restricted
Subsidiary of the Company in a Person that is primarily engaged in a Similar
Business if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary of the Company, or (b) such Person, in one
transaction or a series of related transactions, is merged, consolidated or
amalgamated with or into, or transfers or conveys all or substantially all of
its assets to, or is liquidated into, the Company or a Restricted Subsidiary of
the Company;


 


(4)           any Investment in securities or other assets not
constituting Cash Equivalents and received in connection with an Asset Sale
made pursuant to Section 4.06 or any other disposition of assets not constituting
an Asset Sale;


 


(5)           any Investment (x) existing on the Issue Date, (y) made
pursuant to binding commitments in effect on the Issue Date and (z) that
replaces, refinances, refunds, renews or extends any Investment described under
either of the immediately preceding 


 


21

















 


clauses (x) or (y), provided that any such Investment is in an
amount that does not exceed the amount replaced, refinanced, refunded, renewed
or extended;


 


(6)           advances to employees not in excess of
$5 million outstanding at any one time in the aggregate;


 


(7)           any Investment acquired by the Company or any of its
Restricted Subsidiaries (a) in exchange for any other Investment or
accounts receivable held by the Company or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts receivable,
or (b) as a result of a foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer of title
with respect to any secured Investment in default;


 


(8)           Hedging Obligations permitted under Section 4.03(b)(x);


 


(9)           any Investment by the Company or any of its
Restricted Subsidiaries in a Similar Business (other than an Investment in an
Unrestricted Subsidiary) having an aggregate Fair Market Value, taken together
with all other Investments made pursuant to this clause (9) that are
at the time outstanding, not to exceed the greater of (x) $50 million and (y) 6%
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), at any one time outstanding; provided, however, that if any Investment
pursuant to this clause (9) is made in any Person that is not a
Restricted Subsidiary of the Company at the date of the making of such
Investment and such Person becomes a Restricted Subsidiary of the Company after
such date, such Investment shall thereafter be deemed to have been made
pursuant to clause (1) above and shall cease to have been made
pursuant to this clause (9) for so long as such Person continues to
be a Restricted Subsidiary;


 


(10)         additional Investments by the Company or any of its
Restricted Subsidiaries having an aggregate Fair Market Value, taken together
with all other Investments made pursuant to this clause (10) that are
at the time outstanding, not to exceed the greater of (x) $25 million and (y) 3%
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), at any one time outstanding;


 


(11)         loans and advances to officers, directors and
employees for business-related travel expenses, moving and relocation expenses
and other similar expenses, in each case Incurred in the ordinary course of
business;


 


(12)         Investments the payment for which consists of Equity
Interests of the Company (other than Disqualified Stock) or any direct or
indirect parent company of the Company, as applicable; provided, however, that
such Equity Interests will not increase the amount available for Restricted
Payments under Section 4.04(a)(3);


 


22

















 


(13)         any transaction to the extent it constitutes an
Investment that is permitted by and made in accordance with Section 4.07(b) (except
transactions described in clauses (ii), (iv), (v) and (viii)(B) of
such Section);


 


(14)         Investments consisting of the licensing or
contribution of intellectual property pursuant to joint marketing arrangements
with other Persons;


 


(15)         guarantees issued in accordance with Sections 4.03
and 4.11;


 


(16)         any Investment by Restricted Subsidiaries of the
Company in other Restricted Subsidiaries of the Company and Investments by
Subsidiaries that are not Restricted Subsidiaries in other Subsidiaries that
are not Restricted Subsidiaries of the Company;


 


(17)         Investments consisting of purchases and acquisitions
of inventory, supplies, materials and equipment or purchases of contract rights
or licenses or leases of intellectual property, in each case in the ordinary
course of business;


 


(18)         any Investment in a Receivables Subsidiary or any
Investment by a Receivables Subsidiary in any other Person in connection with a
Qualified Receivables Financing, including Investments of funds held in
accounts permitted or required by the arrangements governing such Qualified
Receivables Financing or any related Indebtedness; provided, however, that any Investment in a
Receivables Subsidiary is in the form of a Purchase Money Note, contribution of
additional receivables or an equity interest;


 


(19)         Investments resulting from the receipt of non-cash
consideration in an Asset Sale received in compliance with Section 4.06;


 


(20)         additional Investments in joint ventures of the
Company or any of its Restricted Subsidiaries existing on the Issue Date in an
aggregate amount, taken together with all other Investments made pursuant to
this clause (20) that are at the time outstanding, not to exceed the
greater of (x) $25 million and (y) 3% of Total Assets at the time of
such Investment, at any one time outstanding; and


 


(21) Investments of a Restricted Subsidiary
of the Company acquired after the Issue Date or of an entity merged into or
consolidated with a Restricted Subsidiary of the Company in a transaction that
is not prohibited by Section 5.01 after the Issue Date to the extent that
such Investments were not made in contemplation of such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or
consolidation.


 


“Permitted Liens”
means with respect to any Person:


 


(1)           pledges or deposits by such Person under workmen’s
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or deposits
to secure public or statutory obligations of such 


 


23

















 


Person or deposits of cash
or U.S. government bonds to secure surety or appeal bonds to which such Person
is a party, or deposits as security for contested taxes or import duties or for
the payment of rent, in each case Incurred in the ordinary course of business;


 


(2)           Liens imposed by law, such as carriers’,
warehousemen’s and mechanics’ Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings or other Liens arising out
of judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review (or
which, if due and payable, are being contested in good faith by appropriate
proceedings and for which adequate reserves are being maintained, to the extent
required by GAAP and such proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien);


 


(3)           Liens for taxes, assessments or other governmental
charges (i) which are not yet due or payable or (ii) which are being
contested in good faith by appropriate proceedings that have the effect of
preventing the forfeiture or sale of the property or assets subject to any such
Lien and for which adequate reserves are being maintained to the extent
required by GAAP;


 


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


 


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


 


(6)           (A) Liens incurred to secure Obligations in
respect of Indebtedness permitted to be Incurred pursuant to clauses (i),
(iv), (xii) or (xx) of Section 4.03(b); provided
that (x) in the case of clause (i), such Liens are subject to the
provisions of the Intercreditor Agreement (including with respect to the
relative priority of the ABL Priority Collateral and Notes Priority Collateral)
and (y) in the case of clause (iv) and (xx), such Lien (1) extends
only to the assets and/or Capital Stock, the acquisition, lease, construction,
repair, replacement or improvement of which is financed thereby and any
proceeds or products thereof or (2) does not extend to any assets or
property that constitute Collateral and (B) Liens on the Collateral
granted under the Security Documents in favor of the Collateral Agent to secure
the Securities, the Guarantees and any Permitted Additional Pari Passu
Obligations;


 


(7)           Liens existing on the Issue Date;


 


(8)           Liens on assets, property or shares of stock of a
Person at the time such Person becomes a Subsidiary; provided, however, that such Liens are not
created or Incurred 


 


24

















 


in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that such Liens may not extend to any other
property owned by the Company or any Restricted Subsidiary of the Company;


 


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


 


(10)         Liens securing Indebtedness or other obligations of
a Restricted Subsidiary owing to the Company or another Restricted Subsidiary
of the Company permitted to be Incurred in accordance with Section 4.03;


 


(11)         Liens securing Hedging Obligations so long as the
related Indebtedness is, and is permitted to be under this Indenture, secured
by a Lien on the same property securing such Hedging Obligations;


 


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


 


(13)         leases and subleases of real property which do not
materially interfere with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;


 


(14)         Liens arising from UCC financing statement filings
regarding operating leases entered into by the Company and its Restricted
Subsidiaries in the ordinary course of business;


 


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


 


(16)         Liens on accounts receivable and related assets of
the type specified in the definition of “Receivables Financing” Incurred in
connection with a Qualified Receivables Financing;


 


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


 


(18)         Liens on the Equity Interests of Unrestricted
Subsidiaries;


 


(19)         grants of software and other technology licenses in
the ordinary course of business;


 


25

















 


(20)         judgment and attachment Liens not giving rise to an
Event of Default and notices of lis pendens and associated rights related to
litigation being contested in good faith by appropriate proceedings and for
which adequate reserves have been made;


 


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


 


(22)         Liens incurred to secure cash management services
(and other “bank products” under any ABL Obligations) in the ordinary course of
business;


 


(23)         Liens on equipment of the Company or any Restricted
Subsidiary granted in the ordinary course of business to the Company’s or such
Restricted Subsidiary’s client at which such equipment is located;


 


(24)         Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (6),
(7), (8), (9), (10), (11) and (15); provided, however,
that (x) such new Lien shall be limited to all or part of the same
property that secured the original Lien (plus improvements on such property),
and (y) the Indebtedness secured by such Lien at such time is not increased
to any amount greater than the sum of (A) the outstanding principal amount
or, if greater, committed amount of the Indebtedness described under
clauses (6), (7), (8), (9), (10), (11) and (15) at the time the original
Lien became a Permitted Lien under this Indenture, and (B) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement; and


 


(25)         other Liens securing obligations incurred in the
ordinary course of business which obligations do not exceed the greater of (x) $25
million and (y) 3% of Total Assets, at any one time outstanding; provided that if such Liens extend to the
Collateral, such Lien shall be subject to the Intercreditor Agreement.


 


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


 


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


 


“Purchase Money Note” means a promissory note
of a Receivables Subsidiary evidencing a line of credit, which may be
irrevocable, from the Company or any Subsidiary of the Company to a Receivables
Subsidiary in connection with a Qualified Receivables Financing, which note is
intended to finance that portion of the purchase price that is not paid by cash
or a contribution of equity.


 


26

















 


“Qualified Receivables
Financing” means any Receivables Financing of a Receivables Subsidiary that
meets the following conditions:


 


(1)           the Board of Directors of the Company shall have
determined in good faith that such Qualified Receivables Financing (including
financing terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Company and the Receivables
Subsidiary,


 


(2)           all sales of accounts receivable and related assets
to the Receivables Subsidiary are made at Fair Market Value (as determined in
good faith by the Company), and


 


(3)           the financing terms, covenants, termination events
and other provisions thereof shall be market terms (as determined in good faith
by the Company) and may include Standard Securitization Undertakings.


 


The grant of a security interest in any accounts
receivable of the Company or any of its Restricted Subsidiaries (other than a
Receivables Subsidiary) to secure any Credit Agreement shall not be deemed a
Qualified Receivables Financing.


 


“Rating
Agencies” means (1) each of Moody’s and S&P and (2) if
Moody’s or S&P ceases to rate the Securities for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization”
within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act
selected by the Company or any parent of the Company as a replacement agency
for Moody’s or S&P, as the case may be.


 


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


 


“Receivables Financing” means any transaction
or series of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer to (a) a Receivables Subsidiary (in the case
of a transfer by the Company or any of its Subsidiaries), and (b) any
other Person (in the case of a transfer by a Receivables Subsidiary), or may
grant a security interest in, any accounts receivable (whether now existing or
arising in the future) of the Company or any of its Subsidiaries, and any
assets related thereto including, without limitation, all collateral securing
such accounts receivable, all contracts and all guarantees or other obligations
in respect of such accounts receivable, proceeds of such accounts receivable
and other assets which are customarily transferred or in respect of which
security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable and any Hedging
Obligations entered into by the Company or any such Subsidiary in connection
with such accounts receivable.


 


“Receivables Repurchase Obligation” means any
obligation of a seller of receivables in a Qualified Receivables Financing to
repurchase receivables arising as a result of a breach of a representation,
warranty or covenant or otherwise, including as a result of a receivable or
portion thereof becoming subject to any asserted defense, dispute, off-set or
counterclaim 


 


27

















 


of any kind as a result of
any action taken by, any failure to take action by or any other event relating
to the seller.


 


“Receivables Subsidiary” means a Wholly Owned
Restricted Subsidiary of the Company (or another Person formed for the purposes
of engaging in a Qualified Receivables Financing with the Company in which the
Company or any Subsidiary of the Company makes an Investment and to which the
Company or any Subsidiary of the Company transfers accounts receivable and
related assets) which engages in no activities other than in connection with
the financing of accounts receivable of the Company and its Subsidiaries, all
proceeds thereof and all rights (contractual or other), collateral and other
assets relating thereto, and any business or activities incidental or related
to such business, and which is designated by the Board of Directors of the
Company (as provided below) as a Receivables Subsidiary and:


 


(a)           no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is guaranteed by the
Company or any other Subsidiary of the Company (excluding guarantees of
obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is recourse to or
obligates the Company or any other Subsidiary of the Company in any way other
than pursuant to Standard Securitization Undertakings, or (iii) subjects
any property or asset of the Company or any other Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to Standard Securitization Undertakings,


 


(b)           with which neither the Company nor any other
Subsidiary of the Company has any material contract, agreement, arrangement or
understanding other than on terms which the Company reasonably believes to be
no less favorable to the Company or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Company, and


 


(c)           to which neither the Company nor any other
Subsidiary of the Company has any obligation to maintain or preserve such
entity’s financial condition or cause such entity to achieve certain levels of
operating results.


 


Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the 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 foregoing conditions.


 


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


 


“Required Secured Parties” has the meaning
assigned to it in the Security Agreement.


 


28

















 


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


 


“Restricted Subsidiary” means, with respect
to any Person, any Subsidiary of such Person other than an Unrestricted
Subsidiary of such Person.  Unless
otherwise indicated in this Indenture, all references to Restricted
Subsidiaries shall mean Restricted Subsidiaries of the Company.


 


“Sale/Leaseback Transaction” means an
arrangement relating to property now owned or hereafter acquired by the Company
or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or such Restricted
Subsidiary leases it from such Person, other than leases between the Company
and a Restricted Subsidiary of the Company or between Restricted Subsidiaries
of the Company.


 


“S&P” means Standard & Poor’s
Ratings Services, a Standard & Poor’s Financial Services LLC business,
or any successor to the rating agency business thereof.


 


“SEC” means the Securities and Exchange Commission.


 


“Secured Indebtedness” means any Indebtedness
secured by a Lien.


 


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


 


“Security Agreement” means the security
agreement dated as of the Issue Date between the Collateral Agent, the Company
and the Guarantors, as amended, modified, restated, supplemented or replaced
from time to time in accordance with its terms.


 


“Security
Documents” means the Security Agreement, any mortgages, the Intercreditor
Agreement and all of the security agreements, pledges, collateral assignments,
mortgages, deeds of trust, trust deeds or other instruments evidencing or
creating or purporting to create any security interests in favor of the
Collateral Agent for its benefit and for the benefit of the Trustee and the
Holders of the Securities and the holders of any Permitted Additional Pari
Passu Obligations, in all or any portion of the assets and properties subject
or purported to be subject thereto, as amended, modified, restated,
supplemented or replaced from time to time.


 


“Significant Subsidiary” means any Restricted
Subsidiary that would be a “Significant Subsidiary” of the Company within the
meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.


 


“Similar Business” means a business, the
majority of whose revenues are derived from the manufacture and sale of
firearms, ammunition and accessories related thereto, or the activities of the
Company and its Subsidiaries as of the Issue Date, or any business or activity
that is reasonably similar thereto, including, but not limited to, hunting,
target sports and outdoor recreation, or any business or activity directed
toward law enforcement, governments and government agencies, or a reasonable
extension, development or expansion thereof or ancillary thereto.


 


29














 


“Sponsor”
means (1) Cerberus Capital Management L.P. and (2) one or more investment
funds advised, managed or controlled by Cerberus Capital Management L.P. and,
in each case (whether individually or as a group) their Affiliates (not
including, however, any of their portfolio companies).


 


“Standard Securitization Undertakings” means
representations, warranties, covenants, indemnities and guarantees of
performance entered into by the Company or any Subsidiary of the Company which
the Company has determined in good faith to be customary in a Receivables
Financing including, without limitation, those relating to the servicing of the
assets of a Receivables Subsidiary, it being understood that any Receivables
Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.


 


“Stated Maturity” means, with respect to any
security, the date specified in such security as the fixed date on which the
final payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such security at the option of the holder
thereof upon the happening of any contingency beyond the control of the issuer
unless such contingency has occurred).


 


“Subordinated Indebtedness” means (a) with
respect to the Company, any Indebtedness of the Company which is by its terms
subordinated in right of payment to the Securities, and (b) with respect
to any Guarantor, any Indebtedness of such Guarantor which is by its terms subordinated
in right of payment to its Guarantee.


 


“Subsidiary” means, with respect to any
Person (1) any corporation, association or other business entity (other
than a partnership, joint venture or limited liability company) of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of determination owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof, (2) any
partnership, joint venture or limited liability company of which (x) more
than 50% of the capital accounts, distribution rights, total equity and voting
interests or general and limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person or a combination thereof, whether in the
form of membership, general, special or limited partnership interests or
otherwise, and (y) such Person or any Restricted Subsidiary of such Person
is a controlling general partner or otherwise controls such entity and (3) any
Person that is consolidated in the consolidated financial statements of the
specified Person in accordance with GAAP.


 


“Subsidiary Guarantor” means any Restricted
Subsidiary of the Company that is a Guarantor.


 


“Tax Distributions” means any distributions described
in Section 4.04(b)(xii).


 


“TIA” means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the Issue Date.


 


30

















 


“Total Assets” means the total consolidated
assets of the Company and its Restricted Subsidiaries, as shown on the most
recent consolidated balance sheet of the Company and its Restricted
Subsidiaries.


 


“Treasury Rate” means, as of the applicable
redemption date, the yield to maturity as of such redemption date of United
States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15(519) that has become
publicly available at least two Business Days prior to such redemption date
(or, if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the period from such
redemption date to August 1, 2012; provided, however, that if the period from such redemption date to August 1,
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.


 


“Trust Monies” means all cash and Cash Equivalents received
by the Trustee or the Collateral Agent:


 


(1)           upon the release of Collateral from the Lien of this
Indenture or the Security Documents, including all Net Cash Proceeds and Net
Loss Proceeds and all moneys received in respect of the principal of all
purchase money, governmental and other obligations;


 


(2)           pursuant to the Security Documents;


 


(3)           as proceeds of any sale or other disposition of all
or any part of the Collateral by or on behalf of the Trustee or the Collateral
Agent or any collection, recovery, receipt, appropriation or other realization
of or from all or any part of the Collateral pursuant to this Indenture or any
of the Security Documents or otherwise; or


 


(4)           for application as provided in the relevant
provisions of this Indenture or any Security Document or which disposition is
not otherwise specifically provided for in this Indenture or in any Security
Document;


 


provided,  however,
that Trust Monies shall in no event include any property deposited with the
Trustee for any repayment, redemption, legal defeasance or covenant defeasance
of Securities, for the satisfaction and discharge of this Indenture or to pay
the purchase price of Securities pursuant to a Change of Control Offer, an
Asset Sale Offer or an Event of Loss Offer in accordance with the terms of this
Indenture or pursuant to a tender or exchange offer, open market purchase
and/or private sale and shall not include any cash received or applicable by
the Trustee in payment of its fees and expenses (or, prior to the Discharge of
ABL Obligations, any ABL Priority Collateral).


 


“Trust
Officer” means any officer within the corporate trust administration
department of the Trustee, with direct responsibility for performing the
Trustee’s duties under this Indenture and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom
such matter is referred because of such person’s knowledge of and familiarity
with the particular subject.


 


31

















 


“Trustee” means the party named as such in
the Preamble to this Indenture until a successor replaces it and, thereafter,
means the successor.


 


“UCC” means the Uniform Commercial Code
as in effect from time to time in the State of New York; provided,  however, that, at any time, if by
reason of mandatory provisions of law, any or all of the perfection or priority
of the Collateral Agent’s security interest in any item or portion of the
Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction
other that the State of New York, the term “UCC” shall mean the Uniform Commercial
Code as in effect, at such time, in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or priority and for purposes of
definitions relating to such provisions.


 


“Unrestricted
Cash” means cash or Cash Equivalents of the Company and any of its
Restricted Subsidiaries that would not appear as “restricted cash” on a
consolidated balance sheet of the Company and its Restricted Subsidiaries.


 


“Unrestricted Subsidiary”
means:


 


(1)           any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of such Person in the manner provided below; and


 


(2)           any Subsidiary of an Unrestricted Subsidiary.


 


The Board of Directors of the Company may designate
any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company but excluding the Company) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity
Interests or Indebtedness of, or owns or holds any Lien on any property of, the
Company or any other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; provided, however,
that the Subsidiary to be so designated and its Subsidiaries do not at the time
of designation have and do not thereafter Incur any Indebtedness pursuant to
which the lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries; provided,
further, however, that
either:


 


(a)           the Subsidiary to be so designated has total
consolidated assets of $1,000 or less; or


 


(b)           if such Subsidiary has consolidated assets greater
than $1,000, then such designation would be permitted under Section 4.04.


 


The Board of Directors of the Company may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation:


 


(x)            (1) the Company could Incur $1.00 of additional
Indebtedness pursuant to Section 4.03(a) or (2) the Fixed Charge
Coverage Ratio for the Company and its Restricted Subsidiaries would be greater
than such ratio for the Company and its Restricted 


 


32

















 


Subsidiaries immediately
prior to such designation, in each case on a pro forma basis taking into
account such designation, and


 


(y)           no Event of Default shall have occurred and be
continuing.


 


Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by promptly filing with the
Trustee a 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 foregoing provisions.


 


“U.S. Government
Obligations” means securities that are:


 


(1)           direct obligations of the United States of America
for the timely payment of which its full faith and credit is pledged, or


 


(2)           obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America,


 


which, in each case, are not callable or redeemable at the option of
the issuer 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 U.S. Government Obligations or a specific
payment of principal of or interest on any such U.S. Government Obligations
held by such custodian for the account of the holder of such depository
receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligations or the specific payment of
principal of or interest on the U.S. Government Obligations evidenced by such depository
receipt.


 


“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 or Disqualified Stock, as the case may be, at
any date, the quotient obtained by dividing (1) the sum of the products of
the number of years from the date of determination to the date of each
successive scheduled principal payment of such Indebtedness or redemption or
similar payment with respect to such Disqualified Stock multiplied by the
amount of such payment, by (2) the sum of all such payments.


 


“Wholly Owned Restricted Subsidiary” is any
Wholly Owned Subsidiary that is a Restricted Subsidiary.


 


“Wholly Owned Subsidiary” of any Person means
a Subsidiary of such Person 100% of the outstanding Capital Stock or other
ownership interests of which (other than directors’ qualifying shares or shares
or interests required to be held by foreign nationals or other third parties to
the extent required by applicable law) shall at the time be owned by such
Person or by 


 


33

















 


one or more Wholly Owned
Subsidiaries of such Person and one or more Wholly Owned Subsidiaries of such
Person.


 


SECTION 1.02.               Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Agent
  Members”

  	
   

  	
  Appendix
  A

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.07(a)

  
	
  “Asset
  Sale Offer”

  	
   

  	
  4.06(b)

  
	
  “Bankruptcy
  Law”

  	
   

  	
  6.01

  
	
  “Clearstream”

  	
   

  	
  Appendix
  A

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.08(b)

  
	
  “covenant
  defeasance option”

  	
   

  	
  8.01

  
	
  “Covenant
  Suspension Event”

  	
   

  	
  4.14(a)

  
	
  “Custodian”

  	
   

  	
  6.01

  
	
  “Definitive
  Security”

  	
   

  	
  Appendix
  A

  
	
  “Depository”

  	
   

  	
  Appendix
  A

  
	
  “Euroclear”

  	
   

  	
  Appendix
  A

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Event
  of Loss Offer”

  	
   

  	
  4.15(b)

  
	
  “Excess
  Loss Proceeds”

  	
   

  	
  4.15(b)

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.06(b)

  
	
  “Exchange
  Securities”

  	
   

  	
  Preamble

  
	
  “Global
  Securities”

  	
   

  	
  Appendix
  A

  
	
  “Global
  Securities Legend”

  	
   

  	
  Appendix
  A

  
	
  “Guaranteed
  Obligations”

  	
   

  	
  10.01(a)

  
	
  “IAI”

  	
   

  	
  Appendix
  A

  
	
  “incorporated
  provision”

  	
   

  	
  13.01

  
	
  “Initial
  Purchasers”

  	
   

  	
  Appendix
  A

  
	
  “Initial
  Securities”

  	
   

  	
  Preamble

  
	
  “legal
  defeasance option”

  	
   

  	
  8.01

  
	
  “Notice
  of Default”

  	
   

  	
  6.01

  
	
  “Offer
  Period”

  	
   

  	
  4.06(d)

  
	
  “Original
  Securities”

  	
   

  	
  Preamble

  
	
  “Paying
  Agent”

  	
   

  	
  2.04(a)

  
	
  “Permitted
  Debt”

  	
   

  	
  4.03(b)

  
	
  “protected
  purchaser”

  	
   

  	
  2.08

  
	
  “Purchase
  Agreement”

  	
   

  	
  Appendix
  A

  
	
  “QIB”

  	
   

  	
  Appendix
  A

  
	
  “Refinancing
  Indebtedness”

  	
   

  	
  4.03(b)(xiv)

  
	
  “Refunding
  Capital Stock

  	
   

  	
  4.04(b)(ii)(A)

  
	
  “Registration
  Rights Agreement”

  	
   

  	
  Appendix
  A

  
	
  “Registered
  Exchange Offer”

  	
   

  	
  Appendix
  A

  
	
  “Registrar”

  	
   

  	
  2.04(a)

  



 


34

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Regulation
  S”

  	
   

  	
  Appendix
  A

  
	
  “Regulation
  S Global Securities”

  	
   

  	
  Appendix
  A

  
	
  “Regulation
  S Securities”

  	
   

  	
  Appendix
  A

  
	
  “Released
  Trust Monies”

  	
   

  	
  12.04

  
	
  “Replacement
  Assets”

  	
   

  	
  12.04

  
	
  “Restricted
  Payment”

  	
   

  	
  4.04(a)

  
	
  “Restricted
  Period”

  	
   

  	
  Appendix
  A

  
	
  “Restricted
  Securities Legend”

  	
   

  	
  Appendix
  A

  
	
  “Retired
  Capital Stock”

  	
   

  	
  4.04(b)(ii)(A)

  
	
  “Reversion
  Date”

  	
   

  	
  4.14(b)

  
	
  “Rule 501”

  	
   

  	
  Appendix
  A

  
	
  “Rule 144A”

  	
   

  	
  Appendix
  A

  
	
  “Rule 144A
  Global Securities”

  	
   

  	
  Appendix
  A

  
	
  “Rule 144A
  Securities”

  	
   

  	
  Appendix
  A

  
	
  “Securities”

  	
   

  	
  Preamble

  
	
  “Securities
  Custodian”

  	
   

  	
  Appendix
  A

  
	
  “Shelf
  Registration Statement”

  	
   

  	
  Appendix
  A

  
	
  “Specified
  Merger/Transfer Transaction”

  	
   

  	
  5.01(a)

  
	
  “Subject
  Property”

  	
   

  	
  4.15(a)

  
	
  “Successor
  Company”

  	
   

  	
  5.01(a)(i)

  
	
  “Successor
  Guarantor”

  	
   

  	
  5.01(b)(i)

  
	
  “Suspended
  Covenants”

  	
   

  	
  4.14(a)

  
	
  “Suspension
  Period”

  	
   

  	
  4.14(b)

  
	
  “Transfer
  Restricted Definitive Securities”

  	
   

  	
  Appendix
  A

  
	
  “Transfer
  Restricted Global Securities”

  	
   

  	
  Appendix
  A

  
	
  “Unrestricted Definitive Security”

  	
   

  	
  Appendix A

  
	
  “Unrestricted
  Global Security”

  	
   

  	
  Appendix
  A

  



 


SECTION 1.03.               Incorporation by Reference
of Trust Indenture Act.  This
Indenture incorporates by reference certain provisions of the TIA.  The following TIA terms have the following
meanings:


 


“Commission” means the SEC.


 


“indenture securities” means the Securities
and the Guarantees.


 


“indenture security holder” means a Holder.


 


“indenture to be qualified” means this
Indenture.


 


“indenture trustee” or “institutional
trustee” means the Trustee.


 


“obligor” on the indenture securities means
the Company, the Guarantors and any other obligor on the Securities.


 


35

















 


All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
SEC rule have the meanings assigned to them by such definitions.


 


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


 


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


 


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


 


(c)           “or” is not
exclusive;


 


(d)           “including” means
including without limitation;


 


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


 


(f)            unsecured Indebtedness shall
not be deemed to be subordinate or junior to Secured Indebtedness merely by
virtue of its nature as unsecured Indebtedness;


 


(g)           the principal amount of any
non-interest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP;


 


(h)           the principal amount of any
Preferred Stock shall be (i) the maximum liquidation value of such
Preferred Stock or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock, whichever is greater;


 


(i)            unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared in accordance with GAAP;


 


(j)            “$” and “U.S.
Dollars” each refer to United States dollars, or such other money of the
United States of America that at the time of payment is legal tender for
payment of public and private debts;


 


(k)           whenever in this Indenture
or in any Security there is mentioned, in any context, principal, interest or
any other amount payable under or with respect to any Securities, such mention
shall be deemed to include mention of the payment of Additional Interest, to
the extent that, in such context, Additional Interest is, was or would be payable
in respect thereof; and


 


(l)            for any periods or dates
which the Company does not have historical financial statements available, it
shall be entitled to use and rely on the financial statements of its
predecessor or successor (as the case may be).


 


36

















 


ARTICLE 2


 


THE SECURITIES


 


SECTION 2.01.               Amount of Securities;
Issuable in Series.  The
aggregate principal amount of Original Securities which may be authenticated
and delivered under this Indenture on the Issue Date is $200,000,000.  The Securities may be issued in one or more
series.  All Securities of any one series
shall be substantially identical except as to denomination.


 


The Company may from time to time after the Issue
Date issue Additional Securities under this Indenture in an unlimited principal
amount, so long as (i) the Incurrence of the Indebtedness represented by
such Additional Securities is at such time permitted by Section 4.03 and (ii) such
Additional Securities are issued in compliance with the other applicable
provisions of this Indenture.  With
respect to any Additional Securities issued after the Issue Date (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Sections 2.07,
2.08, 2.09, 2.10, 3.06, 4.06(g), 4.08(c) or the Appendix), there shall be (a) established
in or pursuant to a resolution of the Board of Directors of the Company and (b) (i) set
forth or determined in the manner provided in an Officers’ Certificate or (ii) established
in one or more indentures supplemental hereto, prior to the issuance of such
Additional Securities:


 


(1)           whether such
Additional Securities shall be issued as part of a new or existing series of
Securities and the title of such Additional Securities (which shall distinguish
the Additional Securities of the series from Securities of any other series);


 


(2)           the aggregate
principal amount of such Additional Securities which may be authenticated and
delivered under this Indenture;


 


(3)           the issue price
and issuance date of such Additional Securities, including the date from which
interest on such Additional Securities shall accrue;


 


(4)           if applicable,
that such Additional Securities shall be issuable in whole or in part in the
form of one or more Global Securities and, in such case, the respective depositaries
for such Global Securities, the form of any legend or legends which shall be
borne by such Global Securities in addition to or in lieu of those set forth in
Exhibit A hereto and any circumstances in addition to or in lieu of
those set forth in Section 2.2 of the Appendix in which any such Global
Security may be exchanged in whole or in part for Additional Securities
registered, or any transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the depositary for such
Global Security or a nominee thereof; and


 


(5)           if applicable,
that such Additional Securities that are not Transfer Restricted Definitive
Securities shall not be issued in the form of Initial Securities as set forth
in Exhibit A, but shall be issued in the form of Exchange
Securities as set forth in Exhibit B.


 


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If any of the terms of any Additional Securities are
established by action taken pursuant to a resolution of the Board of Directors
of the Company, a copy of an appropriate record of such action shall be
certified by the Secretary or any Assistant Secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Officers’ Certificate or the
indenture supplemental hereto setting forth the terms of the Additional Securities.


 


SECTION 2.02.               Form and Dating.  Provisions relating to the Initial Securities
and the Exchange Securities are set forth in the Appendix, which is hereby
incorporated in and expressly made a part of this Indenture. The Initial
Securities and the Trustee’s certificate of authentication, and any
Additional Securities (if issued as Transfer Restricted Definitive Securities)
and the Trustee’s certificate of authentication, shall each be substantially in
the form of Exhibit A hereto, which is hereby incorporated in and
expressly made a part of this Indenture. 
The Exchange Securities and the Trustee’s certificate of authentication,
and any Additional Securities issued other than as Transfer Restricted
Definitive Securities and the Trustee’s certificate of authentication, shall
each be substantially in the form of Exhibit B hereto, which is
hereby incorporated in and expressly made a part of this Indenture.  The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Company or any Guarantor is subject, if any, or usage (provided
that any such notation, legend or endorsement is in a form acceptable to the
Company).  Each Security shall be dated
the date of its authentication.  The
Securities shall be issuable only in registered form without interest coupons
and only in denominations of $2,000 and any integral multiples of $1,000 in
excess thereof.


 


SECTION 2.03.               Execution and Authentication.  The Trustee shall authenticate and make
available for delivery upon a written order of the Company signed by one Officer
(a) Original Securities for original issue on the date hereof in an
aggregate principal amount of $200,000,000, (b) subject to the terms of
this Indenture, Additional Securities in an aggregate principal amount to be
determined at the time of issuance and specified therein and (c) the Exchange
Securities for issue in a Registered Exchange Offer pursuant to the Registration
Rights Agreement for a like principal amount of Initial Securities exchanged
pursuant thereto or otherwise pursuant to an effective registration statement
under the Securities Act.  Such order
shall specify the amount of the Securities to be authenticated, the date on
which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities or Exchange Securities.  Notwithstanding anything to the contrary in
the Indenture or the Appendix, any issuance of Additional Securities after the
Issue Date shall be in a principal amount of at least $2,000 and any integral
multiples of $1,000 in excess thereof, whether such Additional Securities are
of the same or a different series than the Original Securities.


 


One Officer shall sign the Securities for the
Company by manual or facsimile signature.


 


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


 


A Security shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on
the Security.  The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.


 


38














 


The Trustee may appoint one or more authenticating
agents reasonably acceptable to the Company to authenticate the
Securities.  Any such appointment shall
be evidenced by an instrument signed by a Trust Officer, a copy of which shall
be furnished to the Company.  Unless
limited by the terms of such appointment, an authenticating agent may authenticate
Securities 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 any Registrar, Paying Agent or agent for service
of notices and demands.


 


SECTION 2.04.               Registrar and Paying Agent.


 


(a)           The Company shall maintain (i) an
office or agency where Securities may be presented for registration of transfer
or for exchange (the “Registrar”) and (ii) an office or agency in
the United States where Securities may be presented for payment (the “Paying
Agent”).  The Registrar shall keep a
register of the Securities and of their transfer and exchange.  The Company may have one or more
co-registrars and one or more additional paying agents.  The term “Registrar” includes any
co-registrars.  The term “Paying Agent” includes
the Paying Agent and any additional paying agents.  The Company initially appoints the Trustee as
(i) Registrar and Paying Agent in connection with the Securities and (ii) the
Securities Custodian with respect to the Global Securities.


 


(b)           The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this Indenture,
which shall incorporate the terms of the TIA. 
The agreement shall implement the provisions of this Indenture that
relate to such agent.  The Company shall
notify the Trustee of the name and address of any such agent.  If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07.  The Company or any of its domestically
organized Wholly Owned Subsidiaries may act as Paying Agent or Registrar.


 


(c)           The Company may remove any Registrar or Paying Agent
upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that
no such removal shall become effective until (i) if applicable, acceptance
of an appointment by a successor as evidenced by an appropriate agreement
entered into by the Company and such successor Registrar or Paying Agent, as
the case may be, and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (i) above.  The Registrar or Paying Agent may resign at
any time upon written notice to the Company and the Trustee; provided, however, that
the Trustee may resign as Paying Agent or Registrar only if the Trustee also resigns
as Trustee in accordance with Section 7.08.


 


SECTION 2.05.               Paying Agent to Hold Money
in Trust.  Prior to
10:00 a.m., New York City time, on each due date of the principal of and interest
on any Security, the Company shall deposit with each Paying Agent (or if the
Company or a Wholly Owned Subsidiary is acting as Paying Agent, segregate and
hold in trust for the benefit of the Persons entitled thereto) a sum sufficient
to pay such principal and interest when so becoming due.  The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that a Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by a Paying
Agent for the payment of principal of and interest on the Securities, and shall
notify the Trustee of any default 


 


39

















 


by the Company in making any
such payment.  If the Company or a Wholly
Owned Subsidiary of the Company acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it in trust for the benefit of the
Persons entitled thereto.  The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed by such Paying Agent.  During the continuance of a Default under
this Indenture, the Trustee may require a Paying Agent to pay all money held by
it to the Trustee.  Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee will serve
as Paying Agent.  Upon complying with
this Section 2.05, a Paying Agent shall have no further liability for the
money delivered to the Trustee.


 


SECTION 2.06.               Holder Lists.  The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders.  If the
Trustee is not the Registrar, the Company shall furnish, or cause the Registrar
to furnish, to the Trustee, in writing at least five Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders.


 


SECTION 2.07.               Transfer and Exchange.  The Securities shall be issued in registered
form and shall be transferable only upon the surrender of a Security for
registration of transfer and in compliance with the Appendix.  When a Security is presented to the Registrar
with a request to register a transfer, the Registrar shall register the
transfer as requested if its requirements therefor are met.  When Securities are presented to the
Registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. 
To permit registration of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar’s
request.  The Company may require payment
of a sum sufficient to pay all taxes, assessments or other governmental charges
in connection with any transfer or exchange pursuant to this Section 2.07.  The Company shall not be required to make,
and the Registrar need not register, transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or of any Securities for a period
of 15 days before a selection of Securities to be redeemed.


 


Prior to the due presentation for registration of
transfer of any Security, the Company, the Guarantors, the Trustee, each Paying
Agent and the Registrar may deem and treat the Person in whose name a Security
is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest, if any, on such Security and
for all other purposes whatsoever, whether or not such Security is overdue, and
none of the Company, any Guarantor, the Trustee, a Paying Agent or the Registrar
shall be affected by notice to the contrary.


 


Any Holder of a beneficial interest in a Global
Security shall, by acceptance of such beneficial interest, agree that transfers
of beneficial interests in such Global Security may be effected only through a
book-entry system maintained by (a) the Holder of such Global Security (or
its agent) or (b) any Holder of a beneficial interest in such Global
Security, and that ownership of a beneficial interest in such Global Security
shall be required to be reflected in a book entry.


 


40

















 


All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.


 


SECTION 2.08.               Replacement Securities.  If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security claims that the Security has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security if the requirements of Section 8-405
of the Uniform Commercial Code are met, such that the Holder (a) satisfies
the Company or the Trustee within a reasonable time after such Holder has
notice of such loss, destruction or wrongful taking and the Registrar does not
register a transfer prior to receiving such notification, (b) makes such request
to the Company or the Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial
Code (a “protected purchaser”) and (c) satisfies any other
reasonable requirements of the Trustee. 
If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of (i) the Trustee to protect
the Trustee or (ii) the Company, to protect the Company, the Trustee, a
Paying Agent and the Registrar, from any loss that any of them may suffer if a
Security is replaced.  The Company and
the Trustee may charge the Holder for their expenses in replacing a Security
(including, without limitation, attorneys’ fees and disbursements in replacing
such Security).  In the event any such
mutilated, lost, destroyed or wrongfully taken Security has become or is about
to become due and payable, the Company in its discretion may pay such Security
instead of issuing a new Security in replacement thereof.


 


Every replacement Security is an additional obligation
of the Company.


 


The provisions of this Section 2.08 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, lost, destroyed or wrongfully
taken Securities.


 


SECTION 2.09.               Outstanding Securities.  Securities outstanding at any time are all
Securities authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section 2.09
as not outstanding.  Subject to Section 13.06,
a Security does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Security.


 


If a Security is replaced pursuant to Section 2.08
(other than a mutilated Security surrendered for replacement), it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected purchaser.  A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.08.


 


If a Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and no Paying Agent is prohibited from paying such money to the Holders
on that date pursuant to the terms of this Indenture, then on and after that
date such Securities (or portions thereof) cease to be outstanding and interest
on them ceases to accrue.


 


41

















 


SECTION 2.10.               Temporary Securities.  In the event that Definitive Securities are
to be issued under the terms of this Indenture, until such Definitive
Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. 
Temporary Securities shall be substantially in the form of Definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities.  Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Definitive
Securities and make them available for delivery in exchange for temporary
Securities upon surrender of such temporary Securities at the office or agency
of the Company, without charge to the Holder. 
Until such exchange, temporary Securities shall be entitled to the same
rights, benefits and privileges as Definitive Securities.


 


SECTION 2.11.               Cancellation.  The Company at any time may deliver Securities
to the Trustee for cancellation.  The
Registrar and each Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of canceled Securities in accordance with its
customary procedures or deliver copies of canceled Securities to the Company
pursuant to written direction by an Officer of the Company.  The Company may not issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee for
cancellation.  The Trustee shall not
authenticate Securities in place of canceled Securities other than pursuant to
the terms of this Indenture.


 


SECTION 2.12.               Defaulted Interest.  If the Company defaults in a payment of
interest on the Securities, the Company shall pay the defaulted interest then
borne by the Securities (plus interest on such defaulted interest to the extent
lawful), in any lawful manner.  The
Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date.  The
Company shall fix or cause to be fixed any such special record date and payment
date to the reasonable satisfaction of the Trustee and shall promptly mail or
cause to be mailed to each affected Holder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.


 


SECTION 2.13.               CUSIP Numbers, ISINs, etc.  The Company in issuing the Securities may use
CUSIP numbers, ISINs and “Common Code” numbers (if then generally in use) and,
if so, the Trustee shall use CUSIP numbers, ISINs and “Common Code” 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 Securities
or as contained in any notice of a redemption, that reliance may be placed only
on the other identification numbers printed on the Securities and that any such
redemption shall not be affected by any defect in or omission of such
numbers.  The Company shall advise the
Trustee in writing of any change in the CUSIP numbers, ISINs and “Common Code”
numbers.


 


SECTION 2.14.               Calculation of Specified Percentage
of Securities.  With respect
to any matter requiring consent, waiver, approval or other action of the
Holders of a specified percentage of the principal amount of all the
Securities, such percentage shall be calculated, on the relevant date of determination,
by dividing (a) the principal amount, as of such date of determination, of
Securities, the Holders of which have so consented by (b) the aggregate
principal 


 


42

















 


amount, as of such date of
determination, of the Securities then outstanding, in each case, as determined
in accordance with the preceding sentence, Section 2.09 and Section 13.06
of this Indenture.  Any such calculation
made pursuant to this Section 2.14 shall be made by the Company and
delivered to the Trustee pursuant to an Officers’ Certificate.


 


ARTICLE 3


 


REDEMPTION


 


SECTION 3.01.               Redemption.  The Securities may be redeemed, in whole, or
from time to time in part, subject to the conditions and at the redemption
prices set forth in Paragraph 5 of the form of Securities set forth in Exhibit A
and Exhibit B hereto, which are hereby incorporated by reference
and made a part of this Indenture, together with accrued and unpaid interest to
the redemption date.


 


SECTION 3.02.               Applicability of Article.  Redemption of Securities at the election of
the Company or otherwise, as permitted or required by any provision of this
Indenture, shall be made in accordance with such provision and this Article 3.


 


SECTION 3.03.               Notices to Trustee.  If the Company elects to redeem Securities
pursuant to the optional redemption provisions of Paragraph 5 of the applicable
Security, it shall notify the Trustee in writing of (i) the Section of
this Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Securities to be redeemed and (iv) the
redemption price.  The Company shall give
notice to the Trustee provided for in this paragraph at least 40 days but
not more than 60 days before a redemption date if the redemption is
pursuant to Paragraph 5 of the applicable Security, unless a shorter period is
acceptable to the Trustee.  Such notice
shall be accompanied by an Officers’ Certificate and Opinion of Counsel from
the Company to the effect that such redemption will comply with the conditions
herein.  If fewer than all the Securities
are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given in writing to the Trustee, which record date
shall be not fewer than 15 days after the date of notice to the
Trustee.  Any such notice may be canceled
at any time prior to notice of such redemption being sent to any Holder and
shall thereby be void and of no effect.


 


SECTION 3.04.               Selection of Securities to
Be Redeemed.  In the case
of any partial redemption, selection of the Securities for redemption will be
made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which such Securities are listed, or
if such Securities are not so listed, by lot or by such other method as the
Trustee shall deem fair and appropriate (and in such manner as complies with
applicable legal requirements); provided that the Trustee shall not select
Securities for redemption which would result in a Holder of Securities with a
principal amount of Securities less than the minimum denomination to the extent
practicable. The Trustee shall make the selection from outstanding Securities
not previously called for redemption. 
The Trustee may select for redemption portions of the principal of Securities
that have denominations larger than $2,000. 
Securities and portions of them the Trustee selects shall be in amounts
of $2,000 or a whole multiple of $1,000 in excess thereof.  Provisions of this Indenture that apply to Securities
called for redemption also 


 


43

















 


apply to portions of
Securities called for redemption.  The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.


 


SECTION 3.05.               Notice of Optional
Redemption.


 


(a)           At least 30 days but
not more than 60 days before a redemption date pursuant to Paragraph 5 of the
applicable Security, the Company shall mail or cause to be mailed by
first-class mail a notice of redemption to each Holder whose Securities are to
be redeemed to such Holder’s registered address or otherwise in accordance with
the procedures of the Depository.


 


Any such notice shall
identify the Securities to be redeemed and shall state:


 


(i)            the redemption
date;


 


(ii)          the redemption
price and the amount of accrued interest to the redemption date;


 


(iii)         the name and
address of a Paying Agent;


 


(iv)         that Securities
called for redemption must be surrendered to a Paying Agent to collect the
redemption price, plus accrued interest;


 


(v)          if fewer than
all the outstanding Securities are to be redeemed, the certificate numbers and
principal amounts of the particular Securities to be redeemed, the aggregate
principal amount of Securities to be redeemed and the aggregate principal
amount of Securities to be outstanding after such partial redemption;


 


(vi)         that, unless
the Company defaults in making such redemption payment or any Paying Agent is
prohibited from making such payment pursuant to the terms of this Indenture,
interest on Securities (or portion thereof) called for redemption ceases to accrue
on and after the redemption date;


 


(vii)        the CUSIP
number, ISIN and/or “Common Code” number, if any, printed on the Securities
being redeemed; and


 


(viii)       that no representation
is made as to the correctness or accuracy of the CUSIP number or ISIN and/or “Common
Code” number, if any, listed in such notice or printed on the Securities.


 


In addition, if such redemption is subject to
satisfaction of one or more conditions precedent, such notice of redemption
shall describe each such condition, and if applicable, shall state that, in the
Company’s discretion, the redemption date may be delayed until such time as any
or all such conditions shall be satisfied, or such redemption may not occur and
such notice may be rescinded in the event that any or all such conditions shall
not have been satisfied by the stated redemption date, or by the redemption
date as so delayed.


 


44

















 


(b)           At the Company’s request, the Trustee shall give the
notice of redemption in the Company’s name and at the Company’s expense; provided, however, that
the Company has delivered to the Trustee, at least 45 days (unless a shorter
period is acceptable to the Trustee) prior to the redemption date, an Officers’
Certificate requesting that the Trustee give such notice.  In such event, the Company shall provide the
Trustee in writing with the information required by this Section 3.05.


 


SECTION 3.06.               Effect of Notice of
Redemption.  Once notice
of redemption is mailed in accordance with Section 3.05, Securities called
for redemption become due and payable on the redemption date and at the
redemption price stated in the notice (except to the extent such redemption is
conditional as set forth in Section 3.05). 
Upon surrender to any Paying Agent, such Securities shall be paid at the
redemption price stated in the notice, plus accrued interest to the redemption
date; provided, however,
that if the redemption date is after a regular record date and on or prior to
the interest payment date, the accrued interest shall be payable to the Holder
of the redeemed Securities registered on the relevant record date.  Failure to give notice or any defect in the
notice to any Holder shall not affect the validity of the notice to any other
Holder.


 


SECTION 3.07.               Deposit of Redemption Price.  Prior to 10:00 a.m., New York City time,
on the redemption date, the Company shall deposit with the Paying Agent (or, if
the Company or a Wholly Owned Subsidiary is a Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest on all Securities or portions thereof to be redeemed on that date
other than Securities or portions of Securities called for redemption that have
been delivered by the Company to the Trustee for cancellation.  On and after the redemption date, interest
shall cease to accrue on Securities or portions thereof called for redemption
so long as the Company has deposited with the Paying Agent funds sufficient to
pay the principal of, plus accrued and unpaid interest on, the Securities to be
redeemed, unless a Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture.


 


SECTION 3.08.               Securities Redeemed in Part.  Upon surrender of a Security that is redeemed
in part, the Company shall execute and the Trustee shall authenticate for the
Holder (at the Company’s expense) a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.


 


ARTICLE 4


 


COVENANTS


 


SECTION 4.01.               Payment of Securities.  The Company shall promptly pay the principal
of and interest, on the Securities on the dates and in the manner provided in
the Securities and in this Indenture.  An
installment of principal of or interest shall be considered paid on the date
due if on such date the Trustee or any Paying Agent holds in accordance with
this Indenture money sufficient to pay all principal and interest then due and
the Trustee or any Paying Agent, as the case may be, are not prohibited from
paying such money to the Holders on that date pursuant to the terms of this
Indenture.


 


45

















 


The Company shall pay interest on overdue principal
at the rate specified therefor in the Securities, and it shall pay interest on
overdue installments of interest at the same rate borne by the Securities to
the extent lawful.


 


SECTION 4.02.               Reports and Other
Information.  Notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, or otherwise report on an annual and quarterly basis on forms
provided for such annual and quarterly reporting pursuant to rules and regulations
promulgated by the SEC, the Company shall file with the SEC (and provide the
Trustee and Holders with copies thereof, without cost to each Holder, within 15
days after it files them with the SEC),


 


(a)           within 90 days after the end
of each fiscal year (or such longer period as may be permitted by the SEC if
the Company were then subject to such SEC reporting requirements as a required
filer, voluntary filer or otherwise), annual reports (which, if permitted under
applicable rules of the SEC, may be the annual report of any direct or indirect
parent of the Company so long as such report contains reasonably detailed financial
information (including a management’s discussion and analysis of financial
information) with respect to the Company and its Subsidiaries on a stand alone
basis) on Form 10-K (or any successor or comparable form) containing the
information required to be contained therein (or required in such successor or
comparable form),


 


(b)           within 45 days after the end
of each of the first three fiscal quarters of each fiscal year (or such longer
period as may be permitted by the SEC if the Company were then subject to such
SEC reporting requirements as a required filer, voluntary filer or otherwise),
quarterly reports (which, if permitted under applicable rules of the SEC,
may be the quarterly report of any direct or indirect parent of the Company so
long as such report contains reasonably detailed financial information
(including a management’s discussion and analysis of financial information)
with respect to the Company and its Subsidiaries on a stand alone basis) on Form 10-Q
(or any successor or comparable form),


 


(c)           promptly from time to time
after the occurrence of an event required to be therein reported (and in any
event within the time period specified for filing current reports on Form 8-K
by the SEC), such other reports on Form 8-K (or any successor or comparable
form), and


 


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


 


provided, however, that the
Company shall not be so obligated to file such reports with the SEC if the SEC
does not permit such filing, in which event the Company shall put such information
on its website, in addition to providing such information to the Trustee and
the Holders, in each case within 15 days after the time the Company would
be required to file such information with the SEC if it were subject to Section 13
or 15(d) of the Exchange Act. For avoidance of doubt, the obligations of
the Company under this Section 4.02 shall commence with respect to the
Company’s first fiscal quarter that ends after the Issue Date.


 


46














 


In addition, to the extent not satisfied by the
foregoing, the Company shall, for so long as any Securities are outstanding,
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.


 


Notwithstanding the foregoing, the Company will be
deemed to have furnished such reports referred to above to the Trustee and the
Holders if it or any direct or indirect parent of the Company has filed such
reports with the SEC via the IDEA filing system and such reports are publicly
available.


 


Notwithstanding the foregoing, the requirement to
provide the information and reports referred to in clauses (a) and (b) above
shall be deemed satisfied prior to the commencement of the Registered Exchange
Offer or the effectiveness of a Shelf Registration Statement relating to the
registration of the Securities under the Securities Act by the filing (within
the time periods specified for such filings in the Registration Rights
Agreement) with the SEC of a registration statement, and any amendments
thereto, with such financial information that satisfies Regulation S-X under
the Securities Act.


 


In the event that:


 


(i)            the rules and
regulations of the SEC permit the Company and any direct or indirect parent
company of the Company to report at such parent entity’s level on a consolidated
basis and such parent entity of the Company is not engaged in any business in
any material respect other than incidental to its ownership, directly or
indirectly, of the capital stock of the Company, or


 


(ii)           any direct or
indirect parent of the Company becomes a Guarantor of the Securities,


 


such consolidated reporting at such parent entity’s level in a manner
consistent with that described in this Section 4.02 for the Company will
satisfy this Section 4.02; provided that,
such financial information is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating
to such direct or indirect parent and any of its Subsidiaries other than the
Company and its Subsidiaries, on the one hand, and the information relating to
the Company and its Subsidiaries on a stand alone basis, on the other hand.


 


Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively (subject to Article 7) on Officers’ Certificates).


 


SECTION 4.03.               Limitation on Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred Stock.


 


(a)           (i) The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, Incur any Indebtedness (including Acquired Indebtedness) or 


 


47

















 


issue any shares of Disqualified Stock; and (ii) the
Company shall not permit any of its Restricted Subsidiaries to issue any shares
of Preferred Stock; provided, however,
that the Company and any Restricted Subsidiary that is a Guarantor may Incur
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock and any Restricted Subsidiary that is a Guarantor may issue shares of
Preferred Stock, in each case if the Fixed Charge Coverage Ratio of the Company
for the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is Incurred or such Disqualified Stock or Preferred
Stock is issued would have been at least 2.00 to 1.00 determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred
Stock had been issued, as the case may be, and the application of proceeds
therefrom had occurred at the beginning of such four-quarter period.


 


(b)           The limitations set forth in
Section 4.03(a) shall not apply to (collectively, “Permitted Debt”):


 


(i)            the Incurrence
by the Company or its Restricted Subsidiaries of Indebtedness under any Credit
Agreement and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being
deemed to have a principal amount equal to the face amount thereof) up to an
aggregate principal amount not to exceed the greater of (x) $180 million
and (y) the Borrowing Base, in each case, outstanding at any one time;


 


(ii)           the Incurrence
by the Company and the Guarantors of Indebtedness represented by the Original
Securities and the Guarantees, as applicable (and any Exchange Securities and
guarantees thereof);


 


(iii)          Indebtedness
existing on the Issue Date (other than Indebtedness described in clauses (i) and
(ii) of this Section 4.03(b)), including any Indebtedness being
repaid with the proceeds of the offering as described in the Offering Memorandum;


 


(iv)          Indebtedness
(including Capitalized Lease Obligations) Incurred by the Company or any of its
Restricted Subsidiaries to finance the purchase, lease, construction or
improvement of property (real or personal) or equipment (whether through the
direct purchase of assets or the Capital Stock of any Person owning such assets
(but no other material assets)) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then outstanding
that was Incurred pursuant to this clause (iv), does not exceed the
greater of (x) $25 million and (y) 3% of Total Assets at the time of
Incurrence, at any one time outstanding;


 


(v)           Indebtedness
Incurred by the Company or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit and bank guarantees
issued in the ordinary course of business, including, without limitation,
letters of credit in respect of workers’ compensation claims, health,
disability or other employee benefits (whether current or former) or property,
casualty or liability insurance or self-insurance, or other Indebtedness with
respect to reimbursement-type obligations regarding


 


48

















 


workers’
compensation claims; provided, however,
that upon the drawing of such letters of credit, such obligations are
reimbursed within 30 days following such drawing;


 


(vi)          Indebtedness
arising from agreements of the Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, Incurred in connection with the disposition of any business, assets or a
Subsidiary of the Company in accordance with the terms of this Indenture, other
than guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition;


 


(vii)         Indebtedness of
the Company to a Restricted Subsidiary; provided
that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Company or another Restricted Subsidiary) shall be deemed, in
each case to be an Incurrence of such Indebtedness;


 


(viii)        shares of
Preferred Stock of a Restricted Subsidiary issued to the Company or another
Restricted Subsidiary; provided
that any subsequent issuance or transfer of any Capital Stock or any other
event that results in any Restricted Subsidiary that holds such shares of
Preferred Stock of another Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such shares of Preferred
Stock (except to the Company or another Restricted Subsidiary) shall be deemed,
in each case, to be an issuance of shares of Preferred Stock;


 


(ix)          Indebtedness of
a Restricted Subsidiary to the Company or another Restricted Subsidiary; provided that if a Guarantor incurs such
Indebtedness to a Restricted Subsidiary that is not a Guarantor such
Indebtedness is subordinated in right of payment to the Guarantee of such
Guarantor; provided, further, that any subsequent issuance or
transfer of any Capital Stock or any other event which results in any
Restricted Subsidiary lending such Indebtedness ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except to
the Company or another Restricted Subsidiary) shall be deemed, in each case, to
be an Incurrence of such Indebtedness;


 


(x)           Hedging
Obligations that are Incurred in the ordinary course of business (and not for
speculative purposes):  (1) for the
purpose of fixing or hedging interest rate risk with respect to any
Indebtedness that is permitted by the terms of this Indenture to be
outstanding; (2) for the purpose of fixing or hedging currency exchange
rate risk with respect to any currency exchanges; or (3) for the purpose
of fixing or hedging commodity price risk with respect to any commodity
purchases;


 


(xi)          obligations
(including reimbursement obligations with respect to letters of credit and bank
guarantees) in respect of performance, bid, appeal and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary in
the ordinary course of business;


 


(xii)         Indebtedness or
Disqualified Stock of the Company or any Restricted Subsidiary of the Company
and Preferred Stock of any Restricted Subsidiary of the Company 


 


49





















 


in
an aggregate principal amount which, when aggregated with the principal amount
or liquidation preference of all other Indebtedness, Disqualified Stock and
Preferred Stock then outstanding and Incurred pursuant to this
clause (xii), does not exceed the greater of (x) $30 million and (y) 4%
of Total Assets at the time of Incurrence, at any one time outstanding (it
being understood that any Indebtedness, Disqualified Stock or Preferred Stock
Incurred or issued under this clause (xii) shall cease to be deemed
Incurred or outstanding for purposes of this clause (xii) but shall be
deemed Incurred for purposes of Section 4.03(a) from and after the
first date on which the Company, or the Restricted Subsidiary, as the case may
be, could have Incurred or issued such Indebtedness, Disqualified Stock or
Preferred Stock under Section 4.03(a) without reliance upon this
clause (xii));


 


(xiii)        any guarantee
by the Company or a Restricted Subsidiary of Indebtedness or other obligations
of the Company or any of its Restricted Subsidiaries so long as the Incurrence
of such Indebtedness or other obligations by the Company or such Restricted
Subsidiary is permitted under the terms of this Indenture; provided that if such Indebtedness is by its express terms subordinated
in right of payment to the Securities or the Guarantee of such Restricted
Subsidiary, as applicable, any such guarantee of such Guarantor with respect to
such Indebtedness shall be subordinated in right of payment to such Guarantor’s
Guarantee with respect to the Securities substantially to the same extent as
such Indebtedness is subordinated to the Securities or the Guarantee of such
Restricted Subsidiary, as applicable;


 


(xiv)        the Incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness or
Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the Company
which serves to refund, refinance or defease any Indebtedness, Disqualified
Stock or Preferred Stock Incurred as permitted under Section 4.03(a) and
clauses (ii), (iii), (xiv) and (xv) of this Section 4.03(b) or
any Indebtedness, Disqualified Stock or Preferred Stock Incurred to so refund
or refinance such Indebtedness, Disqualified Stock or Preferred Stock,
including any Indebtedness, Disqualified Stock or Preferred Stock Incurred to
pay premiums, fees and expenses in connection therewith (subject to the following
proviso, “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that
such Refinancing Indebtedness:


 


(1)           has a Weighted Average Life
to Maturity at the time such Refinancing Indebtedness is Incurred which is not
less than the remaining Weighted Average Life to Maturity of the Indebtedness
being refunded or refinanced;


 


(2)           has a Stated Maturity which
is no earlier than the Stated Maturity of the Indebtedness being refunded or
refinanced;


 


(3)           to the extent such
Refinancing Indebtedness refinances (x) Indebtedness junior to the
Securities or the Guarantee of such Restricted Subsidiary, as applicable, such
Refinancing Indebtedness is junior to the Securities or the Guarantee of such
Restricted Subsidiary, as applicable or (y) Disqualified Stock or
Preferred Stock, such Refinancing Indebtedness is Disqualified Stock or
Preferred Stock;


 


50

















 


(4)           is Incurred in an aggregate
principal amount (or if issued with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or if
issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced plus premium and fees Incurred
in connection with such refinancing; and


 


(5)           shall not include (x) Indebtedness
of a Restricted Subsidiary of the Company that is not a Guarantor that
refinances Indebtedness of the Company or a Guarantor, or (y) Indebtedness
of the Company or a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary;


 


(xv)         Indebtedness,
Disqualified Stock or Preferred Stock of Persons that are acquired by the
Company or any of its Restricted Subsidiaries or merged into the Company or a
Restricted Subsidiary in accordance with the terms of this Indenture; provided,  however, that such Indebtedness,
Disqualified Stock or Preferred Stock is not Incurred in contemplation of such
acquisition or merger or to provide all or a portion of the funds or credit
support required to consummate such acquisition or merger; provided, further,
however, that after giving effect
to such acquisition and the Incurrence of such Indebtedness either:


 


(1)           the Company would be
permitted to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
or


 


(2)           the Fixed Charge Coverage
Ratio would be greater than immediately prior to such acquisition;


 


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


 


(xvii)       Indebtedness of
the Company or any Restricted Subsidiary supported by a letter of credit or
bank guarantee issued pursuant to the Credit Agreement, in a principal amount
not in excess of the stated amount of such letter of credit or bank guarantee;


 


(xviii)      Contribution
Indebtedness;


 


(xix)         Indebtedness of
the Company or any Restricted Subsidiary consisting of (x) the financing
of insurance premiums or (y) take-or-pay obligations contained in supply
arrangements, in each case, in the ordinary course of business


 


(xx)          Indebtedness of
Foreign Subsidiaries of the Company in an amount not to exceed the greater of (x) $10
million or (y) 1.5% of Total Assets of all Foreign Subsidiaries at the
time of such Incurrence, at any one time outstanding (it being understood that
any Indebtedness Incurred under this clause (xx) shall cease to be deemed
Incurred or outstanding for purposes of this clause (xx) but shall be
deemed Incurred for purposes of Section 4.03(a) from and after the
first date on which the Company or the Restricted Subsidiary,


 


51

















 


as
the case may be, could have Incurred such Indebtedness under Section 4.03(a) without
reliance upon this clause (xx)); and


 


(xxi)        Indebtedness or
Disqualified Stock of the Company or any Restricted Subsidiary of the Company
and Preferred Stock of any Restricted Subsidiary of the Company in an aggregate
principal amount which, when aggregated with the principal amount or liquidation
preference of all other Indebtedness, Disqualified Stock and Preferred Stock
then outstanding and Incurred pursuant to this clause (xxi) does not exceed the
greater of (x) $20 million and (y) 2.5% of Total Assets at the time
of Incurrence, at any one time outstanding.


 


(c)           Notwithstanding the foregoing, neither the Company
nor any Guarantor may Incur any Indebtedness pursuant to Section 4.03(b) if
the proceeds thereof are used, directly or indirectly, to repay, prepay,
redeem, defease, retire, refund or refinance any Subordinated Indebtedness
unless such Indebtedness shall be subordinated to the Securities or such
Guarantor’s Guarantee, as applicable, to at least the same extent as such
Subordinated Indebtedness.  For purposes
of determining compliance with this Section 4.03, in the event that an
item of Indebtedness, Disqualified Stock or Preferred Stock meets the criteria
of more than one of the categories of Permitted Debt or is entitled to be
Incurred pursuant to Section 4.03(a), the Company shall, in its sole
discretion, divide, classify or reclassify, or later divide, classify or
reclassify, such item of Indebtedness, Disqualified Stock or Preferred Stock in
any manner that complies with this Section 4.03 and such item of
Indebtedness, Disqualified Stock or Preferred Stock shall be treated as having
been Incurred pursuant to only one of the clauses in Section 4.03(b) or
pursuant to Section 4.03(a); provided that
all Indebtedness under the Credit Agreement outstanding on the Issue Date shall
be deemed to have been Incurred pursuant to clause (i) of Section 4.03(b) and
the Company shall not be permitted to reclassify all or any portion of such
Indebtedness.  Accrual of interest, the
accretion of accreted value, the amortization of original issue discount, the
payment of interest in the form of additional Indebtedness with the same terms,
the payment of dividends on Preferred Stock in the form of additional shares of
Preferred Stock of the same class, the accretion of liquidation preference and
increases in the amount of Indebtedness outstanding solely as a result of fluctuations
in the exchange rate of currencies shall not be deemed to be an Incurrence of
Indebtedness for purposes of this Section 4.03.  Guarantees of, or obligations in respect of
letters of credit relating to, Indebtedness which are otherwise included in the
determination of a particular amount of Indebtedness shall not be included in
the determination of such amount of Indebtedness; provided
that the Incurrence of the Indebtedness represented by such guarantee or letter
of credit, as the case may be, was in compliance with this Section 4.03.


 


(d)           For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was Incurred, in the case of term debt, or
first committed or first Incurred (whichever yields the lower U.S. dollar equivalent),
in the case of revolving credit debt;
provided that if such Indebtedness is Incurred to refinance other
Indebtedness denominated in a foreign currency, and such refinancing would
cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such
refinancing, such U.S. dollar-denominated 


 


52

















 


restriction shall be deemed not to have been exceeded so long as the
principal amount of such refinancing Indebtedness does not exceed the principal
amount of such Indebtedness being refinanced.


 


SECTION 4.04.               Limitation on Restricted
Payments.


 


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


 


(i)            declare or pay
any dividend or make any distribution on account of the Company’s or any of its
Restricted Subsidiaries’ Equity Interests, including any payment made in
connection with any merger or consolidation involving the Company (other than (A) dividends
or distributions by the Company payable solely in Equity Interests (other than
Disqualified Stock) of the Company; or (B) dividends or distributions by a
Restricted Subsidiary so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by a
Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the
Company or a Restricted Subsidiary receives at least its pro rata share of such
dividend or distribution in accordance with its Equity Interests in such class
or series of securities);


 


(ii)           purchase or
otherwise acquire or retire for value any Equity Interests of the Company or
any direct or indirect parent company of the Company;


 


(iii)          make any
principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value, in each case prior to any scheduled repayment or scheduled
maturity, any Subordinated Indebtedness (other than the payment, redemption, repurchase,
defeasance, acquisition or retirement of (A) Subordinated 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 payment, redemption,
repurchase, defeasance, acquisition or retirement and (B) Indebtedness
permitted under clauses (vii) and (ix) of Section 4.03(b));
or


 


(iv)          make any
Restricted Investment


 


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


 


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


 


(2)           immediately
after giving effect to such transaction on a pro forma basis, the Company could
Incur $1.00 of additional Indebtedness under Section 4.03(a); and


 


(3)           such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Company and its Restricted Subsidiaries after the Issue Date
(including Restricted Payments permitted by clauses (i) and (xiii)(B) of
Section 4.04(b),


 


53

















 


but
excluding all other Restricted Payments permitted by Section 4.04(b)), is
less than the sum of, without duplication,


 


(A)          50% of the
Consolidated Net Income of the Company for the period (taken as one accounting
period) from July 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, in the case such Consolidated Net
Income for such period is a deficit, minus 100% of such deficit), plus


 


(B)          100% of the aggregate net proceeds, including cash
and the Fair Market Value (as determined in accordance with the next succeeding
sentence) of property other than cash, received by the Company after the Issue
Date from the issue or sale of Equity Interests of the Company or any direct or
indirect parent company of the Company (excluding (without duplication)
Refunding Capital Stock, Designated Preferred Stock, Cash Contribution Amount,
Excluded Contributions and Disqualified Stock), including Equity Interests
issued upon conversion of Indebtedness or upon exercise of warrants or options
(other than an issuance or sale to a Subsidiary of the Company or an employee
stock ownership plan or trust established by the Company or any of its Subsidiaries),
plus


 


(C)          100% of the aggregate amount of contributions to the
capital of the Company received in cash and the Fair Market Value (as
determined in accordance with the next succeeding sentence) of property other
than cash after the Issue Date (other than Excluded Contributions, Refunding
Capital Stock, Designated Preferred Stock, Disqualified Stock and the Cash
Contribution Amount), plus


 


(D)          the principal amount of any Indebtedness, or the
liquidation preference or maximum fixed repurchase price, as the case may be,
of any Disqualified Stock, of the Company or any Restricted Subsidiary thereof
issued after the Issue Date (other than Indebtedness or Disqualified Stock
issued to a Restricted Subsidiary) which has been converted into or exchanged
for Equity Interests in the Company or any direct or indirect parent of the Company
(other than Disqualified Stock), plus


 


(E)           100% of the aggregate amount received by the Company
or any Restricted Subsidiary in cash and the Fair Market Value (as determined
in accordance with the next succeeding sentence) of property other than cash
received by the Company or any Restricted Subsidiary from:


 


(I)            the sale or other disposition (other than to the
Company or a Restricted Subsidiary of the Company) of Restricted Investments or
Permitted Investments made by the Company and its Restricted Subsidiaries and
from repurchases and redemptions of such Restricted Investments or Permitted
Investments from the Company and its Restricted Subsidiaries by any Person
(other than the Company or any of its Subsidiaries) and from repayments of
loans or advances which constituted Restricted Investments


 


54

















 


(other than in each case to the extent that the Restricted Investment
was made pursuant to clause (vii) or (x) of Section 4.04(b)),


 


(II)          the sale (other than to the Company or a Restricted
Subsidiary of the Company) of the Capital Stock of an Unrestricted Subsidiary,
or


 


(III)         a distribution or dividend from an Unrestricted
Subsidiary, plus


 


(F)           in the event
any Unrestricted Subsidiary of the Company has been redesignated as a
Restricted Subsidiary or has been merged or consolidated with or into, or
transfers or conveys its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company, in each case after the Issue Date, the
Fair Market Value (as determined in accordance with the next succeeding
sentence) of the Investment of the Company in such Unrestricted Subsidiary at
the time of such redesignation, combination or transfer (or of the assets
transferred or conveyed, as applicable), after deducting any Indebtedness
associated with the Unrestricted Subsidiary so designated or combined or any
Indebtedness associated with the assets so transferred or conveyed (other than
in each case to the extent that the designation of such Subsidiary as an Unrestricted
Subsidiary was made pursuant to clause (vii) or (x) of Section 4.04(b) or
constituted a Permitted Investment).


 


The Fair Market Value of
property other than cash covered by clauses (3)(B), (C), (D), (E) and
(F) of this Section 4.04(a) shall be determined in good faith by
the Company and in the event of property with a Fair Market Value in excess of
$15 million, shall be set forth in a resolution approved by at least a
majority of the Board of Directors of the Company.


 


(b)           The provisions of Section 4.04(a) shall
not prohibit:


 


(i)            the payment of
any dividend or distribution within 60 days after the date of declaration
thereof, if at the date of declaration such payment would have complied with
the provisions of this Indenture;


 


(ii)           (A) the
repurchase, retirement or other acquisition of any Equity Interests (“Retired
Capital Stock”) of the Company or any direct or indirect parent of the
Company or any Guarantor or Subordinated Indebtedness of the Company in
exchange for, or out of the proceeds of the substantially concurrent sale of,
Equity Interests of the Company or any direct or indirect parent company of the
Company or contributions to the equity capital of the Company (other than any
Disqualified Stock or any Equity Interests sold to a Subsidiary of the Company
or to an employee stock ownership plan or any trust established by the Company
or any of its Subsidiaries) (collectively, including any such contributions, “Refunding
Capital Stock”); and (B) the declaration and payment of accrued dividends
on the Retired Capital Stock out of the proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company or to an employee
stock ownership plan 


 


55

















 


or
any trust established by the Company or any of its Subsidiaries) of Refunding
Capital Stock;


 


(iii)          the redemption,
repurchase or other acquisition or retirement of Subordinated Indebtedness of
the Company or any Guarantor made by exchange for, or out of the proceeds of
the substantially concurrent sale of, new Indebtedness of the Company or any
Guarantor which is Incurred in accordance with Section 4.03 so long as:


 


(A)          the principal amount of such new Indebtedness does
not exceed the principal amount of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired for value (plus the amount of any
premium required to be paid under the terms of the instrument governing the
Subordinated Indebtedness being so redeemed, repurchased, acquired or retired
plus any fees incurred in connection therewith);


 


(B)           such Indebtedness is subordinated to the Securities
or the related Guarantee, as the case may be, at least to the same extent as
such Subordinated Indebtedness so purchased, exchanged, redeemed, repurchased,
acquired or retired for value;


 


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


 


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


 


(iv)          the repurchase,
retirement or other acquisition (or dividends to any direct or indirect parent
of the Company to finance any such repurchase, retirement or other acquisition)
for value of Equity Interests of the Company or any direct or indirect parent
of the Company held by any future, present or former employee, director or
consultant of the Company or any direct or indirect parent of the Company or
any Subsidiary of the Company pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or other agreement
or arrangement; provided, however,
that the aggregate amounts paid under this clause (iv) do not exceed
$5 million in any calendar year (with unused amounts in any calendar year
being permitted to be carried over for the two succeeding calendar years up to
a maximum of $10 million in the aggregate in any calendar year); provided, further, however, that such amount in any calendar year may be
increased by an amount not to exceed:


 


(A)          the cash proceeds received by the Company or any of
its Restricted Subsidiaries from the sale of Equity Interests (other than
Disqualified Stock) of the Company or any direct or indirect parent company of
the Company (to the extent contributed to the Company) to members of
management, directors or consultants of the Company and its Restricted
Subsidiaries or any direct or indirect parent of the Company that occurs after
the Issue Date (provided that the amount 


 


56

















 


of such cash proceeds utilized for any such repurchase, retirement, other
acquisition or dividend shall not increase the amount available for Restricted
Payments under Section 4.04(a)(3)); plus


 


(B)           the cash proceeds of key man life insurance policies
received by the Company or any direct or indirect parent company of the Company
(to the extent contributed to the Company) and its Restricted Subsidiaries
after the Issue Date;


 


(provided that the Company may elect to apply all or any portion of the
aggregate increase contemplated by clauses (A) and (B) above in
any calendar year);


 


(v)           the declaration
and payment of dividends or distributions to holders of any class or series of
Disqualified Stock of the Company or any of its Restricted Subsidiaries issued
or incurred in accordance with Section 4.03;


 


(vi)          the declaration
and payment of dividends or distributions to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued after the
Issue Date and the declaration and payment of dividends to any direct or
indirect parent company of the Company, the proceeds of which will be used to
fund the payment of dividends to holders of any class or series of Designated
Preferred Stock (other than Disqualified Stock) of any direct or indirect
parent company of the Company issued after the Issue Date; provided, however, that (A) for
the most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of such
Designated Preferred Stock, after giving effect to such issuance (and the
payment of dividends or distributions) on a pro forma basis, the Company would
have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00 and (B) the
aggregate amount of dividends declared and paid pursuant to this clause (vi) does
not exceed the net cash proceeds actually received by the Company from any such
sale of Designated Preferred Stock (other than Disqualified Stock) issued after
the Issue Date;


 


(vii)         Investments in
Unrestricted Subsidiaries having an aggregate Fair Market Value, taken together
with all other Investments made pursuant to this clause (vii) that
are at that time outstanding, not to exceed the greater of (x) $25 million
and (y) 3% 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), at any one time outstanding;


 


(viii)        the payment of
dividends on the Company’s common stock (or the payment of dividends to any
direct or indirect parent of the Company to fund the payment by any direct or
indirect parent of the Company of dividends on such entity’s common stock) of
up to 6.0% per annum of the net proceeds received by the Company from any
public offering of common stock or contributed to the Company by any direct or
indirect parent of the Company from any public offering of common stock;


 


(ix)          Investments
that are made with Excluded Contributions;


 


57














 


(x)            other
Restricted Payments in an aggregate amount not to exceed the greater of (x) $25
million and (y) 3% of Total Assets at the time of such Restricted Payment,
at any one time outstanding;


 


(xi)          the
distribution, as a dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Company or a Restricted Subsidiary of the Company by,
Unrestricted Subsidiaries;


 


(xii)         the payment of
dividends or other distributions to any direct or indirect parent company of
the Company in amounts required for such parent company to pay federal, state
or local income taxes (as the case may be) imposed directly on such parent
company to the extent such income taxes are attributable to the income of the
Company and its Restricted Subsidiaries by virtue of such parent company being
the common parent of a consolidated or combined tax group of which the Company
and/or its Restricted Subsidiaries are members; provided, however, that in each case the amount of such payments in
respect of any tax year does not exceed the amount that the Company and its
Restricted Subsidiaries would have been required to pay in respect of federal,
state or local taxes (as the case may be) in respect of such year if the
Company and its Restricted Subsidiaries paid such taxes directly as a
stand-alone taxpayer (or stand-alone group);


 


(xiii)        the payment of
dividends, other distributions or other amounts by the Company to, or the
making of loans to, any direct or indirect parent, in the amount required for
such parent to, if applicable:


 


(A)          pay amounts equal to the amounts required for any
direct or indirect parent of the Company to pay fees and expenses (including
franchise or similar taxes) required to maintain its corporate existence,
customary salary, bonus and other benefits payable to officers and employees of
any direct or indirect parent of the Company, if applicable, and general
corporate overhead expenses of any direct or indirect parent of the Company, if
applicable, in each case to the extent such fees, expenses, salaries, bonuses,
benefits and indemnities are attributable to the ownership or operation of the
Company, if applicable, and its Restricted Subsidiaries; and


 


(B)           pay, if applicable, amounts equal to amounts
required for any direct or indirect parent of the Company, if applicable, to
pay interest and/or principal on Indebtedness the proceeds of which have been
permanently contributed to the Company or any of its Restricted Subsidiaries
and that has been guaranteed by, or is otherwise considered Indebtedness of,
the Company or any of its Restricted Subsidiaries Incurred in accordance with Section 4.03;


 


(xiv)        the payment of
cash dividends or other distributions on the Company’s Capital Stock used to,
or the making of loans to any direct or indirect parent of the Company to, fund
the payment of fees and expenses owed by the Company or any direct or indirect
parent company of the Company, as the case may be, or Restricted Subsidiaries
of the Company to Affiliates, in each case to the extent permitted by Section 4.07;


 


58

















 


(xv)         repurchases of
Equity Interests deemed to occur upon exercise of stock options or warrants if
such Equity Interests represent a portion of the exercise price of such options
or warrants;


 


(xvi)        purchases of
receivables pursuant to a Receivables Repurchase Obligation in connection with
a Qualified Receivables Financing and the payment or distribution of
Receivables Fees; and


 


(xvii)       the payment,
purchase, redemption, defeasance or other acquisition or retirement for value
of Subordinated Indebtedness, Disqualified Stock or Preferred Stock of the
Company and its Restricted Subsidiaries pursuant to provisions similar to those
described under Section 4.06 and Section 4.08; provided that, prior to such payment,
purchase, redemption, defeasance or other acquisition or retirement for value,
the Company (or a third party to the extent permitted by this Indenture) has
made a Change of Control Offer or Asset Sale Offer, as the case may be, with
respect to the Securities as a result of such Change of Control or Asset Sale,
as the case may be, and has repurchased all Securities validly tendered and not
withdrawn in connection with such Change of Control Offer or Asset Sale Offer,
as the case may be;


 


provided, however, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (vi), (vii), (viii), (x), (xi)
and (xvii) of this Section 4.04(b), no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof.


 


(c)           As of the Issue Date, all of the Company’s
Subsidiaries shall be Restricted Subsidiaries. 
The Company shall not permit any Unrestricted Subsidiary to become a
Restricted Subsidiary except pursuant to the definition of “Unrestricted
Subsidiary.”  For purposes of designating
any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments
by the Company and its Restricted Subsidiaries (except to the extent repaid) in
the Subsidiary so designated shall be deemed to be Restricted Payments or
Permitted Investments in an amount determined as set forth in the last sentence
of the definition of “Investments.”  Such
designation shall only be permitted if a Restricted Payment or Permitted Investment
in such amount would be permitted at such time and if such Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary.


 


(d)           For purposes of this Section 4.04, if any
Investment or Restricted Payment would be permitted pursuant to one or more
provisions described above and/or one or more of the exceptions contained in
the definition of “Permitted Investments,” the Company may classify such
Investment or Restricted Payment in any manner that complies with this covenant
and may later reclassify any such Investment or Restricted Payment so long as
the Investment or Restricted Payment (as so reclassified) would be permitted to
be made in reliance on the applicable exception as of the date of such
reclassification.


 


SECTION 4.05.               Dividend and Other Payment
Restrictions Affecting Subsidiaries.  The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual encumbrance
or consensual restriction on the ability of any Restricted Subsidiary to:


 


59

















 


(a)           (i) pay dividends or
make any other distributions to the Company or any of its Restricted
Subsidiaries (1) on its Capital Stock; or (2) with respect to any other
interest or participation in, or by, its profits; or (ii) pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries;


 


(b)           make loans or advances to
the Company or any of its Restricted Subsidiaries; or


 


(c)           sell, lease or transfer any
of its properties or assets to the Company or any of its Restricted Subsidiaries;


 


except in each case for such encumbrances or
restrictions existing under or by reason of:


 


(1)           contractual
encumbrances or restrictions in effect or entered into on the Issue Date,
including pursuant to the Credit Agreement;


 


(2)           this Indenture,
the Securities (and any Exchange Securities and guarantees thereof) and the
Security Documents;


 


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


 


(4)           any agreement
or other instrument of a Person acquired by the Company or any Restricted
Subsidiary which was in existence at the time of such acquisition (but not
created in contemplation thereof), 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;


 


(5)           contracts or
agreements for the sale of assets, including customary restrictions with
respect to a Restricted Subsidiary imposed pursuant to an agreement entered
into for the sale or disposition of all or substantially all the Capital Stock
or assets of such Restricted Subsidiary;


 


(6)           Permitted
Additional Pari Passu Obligations or any other Secured Indebtedness otherwise
permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the
right of the debtor to dispose of the assets securing such Indebtedness;


 


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


 


(8)           customary
provisions in joint venture agreements and other similar agreements entered
into in the ordinary course of business;


 


(9)           purchase money
obligations for property acquired and Capitalized Lease Obligations in the
ordinary course of business that impose restrictions of the nature discussed in
clause (c) above on the property so acquired;


 


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(10)         customary
provisions contained in leases, licenses, contracts and other similar agreements
entered into in the ordinary course of business that impose restrictions of the
type described in clause (c) above on the property subject to such
lease;


 


(11)         any encumbrance
or restriction of a Receivables Subsidiary effected in connection with a
Qualified Receivables Financing; provided, however,
that such restrictions apply only to such Receivables Subsidiary;


 


(12)         other
Indebtedness, Disqualified Stock or Preferred Stock of any Restricted
Subsidiary of the Company that is Incurred subsequent to the Issue Date pursuant
to Section 4.03; provided
that such encumbrances and restrictions contained in any agreement or
instrument will not materially affect the Company’s ability to make anticipated
principal or interest payment on the Securities (as determined by the Company
in good faith);


 


(13)         any Restricted
Investment not prohibited by Section 4.04 and any Permitted Investment;
and


 


(14)         any
encumbrances or restrictions of the type referred to in clauses (a), (b) and
(c) above imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (1) through
(13) above; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Company, no more
restrictive as a whole with respect to such dividend and other payment
restrictions than those contained in the dividend or other payment restrictions
prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.


 


For purposes of determining compliance with this Section 4.05, (i) the
priority of any Preferred Stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions being paid on
ordinary shares shall not be deemed a restriction on the ability to make distributions
on Capital Stock and (ii) the subordination of loans or advances made to
the Company or a Restricted Subsidiary of the Company to other Indebtedness
Incurred by the Company or any such Restricted Subsidiary shall not be deemed a
restriction on the ability to make loans or advances.


 


SECTION 4.06.               Asset Sales.


 


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


 


(1)           the Company or any of its Restricted Subsidiaries,
as the case may be, receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value (as determined in good faith by the
Company) of the assets sold or otherwise disposed of;


 


61

















 


(2)           except in the case of a Permitted Asset Swap, at
least 75% of the consideration therefor received by the Company or such Restricted
Subsidiary, as the case may be, is in the form of Cash Equivalents; provided that the amount of:


 


(i)            any liabilities (as shown on
the Company’s or such Restricted Subsidiary’s most recent balance sheet or in
the notes thereto) of the Company or any Restricted Subsidiary of the Company
(other than liabilities that are by their terms subordinated to the Securities)
that are assumed by the transferee of any such assets,


 


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


 


(iii)          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, taken together with all
other Designated Non-cash Consideration received pursuant to this clause (iii) that
is at that time outstanding, not to exceed the greater of (x) $25 million
and (y) 3% 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)


 


shall
each be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).


 


(3)           if such Asset Sale involves the disposition of
Collateral, the Company or such Restricted Subsidiary has complied with the
provisions of this Indenture and the Security Documents; and


 


(4)           if such Asset Sale involves the disposition of Notes
Priority Collateral or, after the Discharge of ABL Obligations, the disposition
of ABL Priority Collateral, the Net Cash Proceeds thereof shall be paid
directly by the purchaser of the Collateral to the Collateral Agent for deposit
into the Collateral Account, and, if any property other than cash or Cash
Equivalents is included in such Net Cash Proceeds, such property shall be made
subject to the Note Liens.


 


(b)           Within 365 days after the Company or any
Restricted Subsidiary of the Company’s receipt of the Net Cash Proceeds of any
Asset Sale, the Company or such Restricted Subsidiary may apply the Net Cash
Proceeds from such Asset Sale, at its option:


 


(i)            to the extent
such Net Cash Proceeds constitute proceeds from the sale of ABL Priority
Collateral, to permanently repay Indebtedness under the Credit Agreement
secured by such ABL Priority Collateral;


 


62

















 


(ii)           to the extent
such Net Cash Proceeds constitute proceeds from the sale of Notes Priority
Collateral, to permanently repay, equally and ratably, the Securities and any
Permitted Additional Pari Passu Obligations;


 


(iii)          to permanently
reduce Obligations under other Secured Indebtedness (provided that if the Company or any Guarantor shall so
reduce such Obligations, the Company shall equally and ratably reduce
Obligations under the Securities and any Permitted Additional Pari Passu
Obligations if the Securities and Permitted Additional Pari Passu Obligations
are then prepayable or, if the Securities may not then be prepaid, by making an
offer (in accordance with the procedures set forth below for an Asset Sale Offer)
to all Holders to purchase at a purchase price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest, if any, the pro rata
principal amount of Securities that would otherwise be prepaid) or Indebtedness
of a Restricted Subsidiary that is not a Guarantor, in each case other than
Indebtedness owed to the Company or an Affiliate of the Company;


 


(iv)          to an
Investment in any one or more businesses (provided
that if such investment is in the form of the acquisition of Capital Stock of a
Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Company), or capital expenditures, in each case used or
useful in a Similar Business; and/or


 


(v)           to make an
Investment in any one or more businesses (provided
that if such investment is in the form of the acquisition of Capital Stock of a
Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Company), properties or assets that replace the properties
and assets that are the subject of such Asset Sale; provided that if such Net Cash Proceeds are received in
respect of Notes Priority Collateral, such assets constitute Notes Priority
Collateral;


 


provided that in the
case of clauses (iv) and (v) above, a binding commitment shall be
treated as a permitted application of the Net Cash Proceeds from the date of
such commitment and, in the event such binding commitment is later canceled or
terminated for any reason before such Net Cash Proceeds are so applied, the
Company or such Restricted Subsidiary enters into another binding commitment
within six months of such cancellation or termination of the prior binding
commitment.


 


Pending the final application of any such Net Cash
Proceeds, the Company or such Restricted Subsidiary of the Company may
temporarily reduce Indebtedness under a revolving credit facility, if any, or
otherwise invest such Net Cash Proceeds in Cash Equivalents or Investment Grade
Securities.  Any Net Cash Proceeds from
any Asset Sale that are not applied as provided and within the time period set
forth in the first sentence of this Section 4.06(b) shall be deemed
to constitute “Excess Proceeds.” 
When the aggregate amount of Excess Proceeds exceeds $15 million,
the Company shall make an offer (an “Asset Sale Offer”) to all Holders
of Securities and (x) in the case of Net Cash Proceeds from Notes Priority
Collateral, to the holders of any other Permitted Additional Pari Passu
Obligations containing provisions similar to those set forth in this Indenture
with respect to Asset Sales or (y) in the case of any other Net Cash
Proceeds, to all holders of other Pari Passu Indebtedness containing provisions
similar to those set forth in this Indenture with respect to Assets Sales, to
purchase the maximum principal 


 


63

















 


amount of such Securities
and Permitted Additional Pari Passu Obligations or Pari Passu Indebtedness, as
appropriate, that may be purchased out of the Excess Proceeds at an offer price
in cash in an amount equal to 100% of the principal amount thereof (or in the
event such other Indebtedness was issued with significant original issue
discount, 100% of the accreted value thereof), plus accrued and unpaid
interest, if any (or such lesser price, if any, as may be provided by the terms
of such other Indebtedness), to the date fixed for the closing of such offer,
in accordance with the procedures set forth in this Section 4.06 and, in
the case of Securities, is an integral multiple of $2,000. The Company shall
commence an Asset Sale Offer with respect to Excess Proceeds within ten
Business Days after the date that Excess Proceeds exceed $15 million by mailing
the notice required pursuant to the terms of Section 4.06(f), with a copy
to the Trustee. To the extent that the aggregate amount of Securities and such
other Indebtedness tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Securities and
Permitted Additional Pari Passu Obligations or Pari Passu Indebtedness, as
appropriate, surrendered by holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Securities and such other Indebtedness
to be purchased in the manner described in Section 4.06(e). Upon
completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.


 


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


 


(d)           Not later than the date upon
which written notice of an Asset Sale Offer is delivered to the Trustee as
provided above, the Company shall deliver to the Trustee an Officers’
Certificate as to (i) the amount of the Excess Proceeds, (ii) the
allocation of the Net Cash Proceeds from the Asset Sales pursuant to which such
Asset Sale Offer is being made and (iii) the compliance of such allocation
with the provisions of Section 4.06(b). 
On such date, the Company shall also irrevocably deposit with the
Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Restricted
Subsidiary is acting as a Paying Agent, segregate and hold in trust) an amount
equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in
writing by the Company, and to be held for payment in accordance with the
provisions of this Section 4.06. 
Upon the expiration of the period for which the Asset Sale Offer remains
open (the “Offer Period”), the Company shall deliver to the Trustee for
cancellation the Securities or portions thereof that have been properly
tendered to and are to be accepted by the Company.  The Trustee (or a Paying Agent, if not the
Trustee) shall, on the date of purchase, mail or deliver payment to each
tendering Holder in the amount of the purchase price.  In the event that the Excess Proceeds
delivered by the Company to the Trustee is greater than the purchase price of
the Securities tendered, the Trustee shall deliver the excess to the Company
immediately after the expiration of the Offer Period for application in
accordance with Section 4.06.


 


64

















 


(e)           Holders electing to have a
Security purchased shall be required to surrender the Security, with an
appropriate form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the purchase date.  Holders shall be entitled to withdraw their
election if the Trustee or the Company receives not later than two Business
Days prior to the purchase date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security which was delivered by the Holder for purchase and a statement that
such Holder is withdrawing his election to have such Security purchased.  If at the end of the Offer Period more
Securities are tendered pursuant to an Asset Sale Offer than the Company is
required to purchase, selection of such Securities for purchase shall be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Securities are listed, or if such Securities
are not listed by lot or such other method as the Trustee shall deem fair and
appropriate (and in such manner as complies with applicable legal
requirements); provided that the Trustee shall
not select Securities for purchase which would result in a Holder with a principal
amount of Securities less than the minimum denomination to the extent
practicable.


 


(f)            Notices of an Asset Sale
Offer shall be mailed by first class mail, postage prepaid, at least 30 but not
more than 60 days before the purchase date to each Holder of Securities at
such Holder’s registered address.  If any
Security is to be purchased in part only, any notice of purchase that relates
to such Security shall state the portion of the principal amount thereof that
has been or is to be purchased.


 


(g)           A new Security in principal
amount equal to the unpurchased portion of any Security purchased in part shall
be issued in the name of the Holder thereof upon cancellation of the original
Security.  On and after the purchase
date, unless the Company defaults in payment of the purchase price, interest
shall cease to accrue on Securities or portions thereof purchased.


 


SECTION 4.07.               Transactions with Affiliates.


 


(a)           The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction or series of transactions, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Company (each of the foregoing, an “Affiliate
Transaction”) involving aggregate consideration in excess of
$2.5 million, unless:


 


(i)            such Affiliate
Transaction is on terms that are not materially less favorable to the Company
or the relevant Restricted Subsidiary than those that could have been obtained
in a comparable transaction by the Company or such Restricted Subsidiary with
an unrelated Person; and


 


(ii)           with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10 million, the Company delivers to
the Trustee a resolution adopted in good faith by the majority of the Board of
Directors of the Company or any direct or indirect parent of the Company, approving



 


65

















 


such
Affiliate Transaction and set forth in an Officers’ Certificate certifying that
such Affiliate Transaction complies with clause (i) above.


 


(b)           The provisions of Section 4.07(a) shall
not apply to the following:


 


(i)            (A) transactions
between or among the Company and/or any of its Restricted Subsidiaries and (B) any
merger of the Company and any direct parent company of the Company; provided that such parent company shall have no material liabilities
and no material assets other than cash, Cash Equivalents and the Capital Stock
of the Company and such merger is otherwise in compliance with the terms of
this Indenture and effected for a bona fide business purpose;


 


(ii)           (x) Restricted
Payments permitted by Section 4.04 and (y) Permitted Investments;


 


(iii)          the payment of
reasonable and customary fees paid to, and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any Restricted
Subsidiary or any direct or indirect parent company of the Company;


 


(iv)          transactions in
which the Company or any of its Restricted Subsidiaries, as the case may be,
delivers to the Trustee a letter from an Independent Financial Advisor stating
that such transaction is fair to the Company or such Restricted Subsidiary from
a financial point of view or meets the requirements of clause (i) of Section 4.07(a);


 


(v)           payments or
loans (or cancellation of loans) to employees or consultants in the ordinary
course of business which are approved by a majority of the Board of Directors
of the Company in good faith;


 


(vi)          any agreement
(other than with the Sponsors) as in effect as of the Issue Date or any
amendment thereto (so long as any such agreement together with all amendments
thereto, taken as a whole, is not more disadvantageous to the Holders of the
Securities in any material respect than the original agreement as in effect on
the Issue Date) or any transaction contemplated thereby;


 


(vii)         the existence
of, or the performance by the Company or any of its Restricted Subsidiaries of
its obligations under the terms of any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which
it is a party as of the Issue Date and any amendment thereto or similar agreements
which it may enter into thereafter; provided, however,
that the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under, any future amendment to any
such existing agreement or under any similar agreement entered into after the
Issue Date shall only be permitted by this clause (vii) to the extent
that the terms of any such existing agreement together with all amendments
thereto, taken as a whole, or new agreement are not otherwise more
disadvantageous to the Holders of the Securities in any material respect than
the original agreement as in effect on the Issue Date;


 


66

















 


(viii)        (A) transactions
with customers, clients, suppliers or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture, which are fair to the Company and
its Restricted Subsidiaries in the reasonable determination of the Board of
Directors or the senior management of the Company, and are on terms at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party or (B) transactions with joint ventures or Unrestricted
Subsidiaries entered into in the ordinary course of business;


 


(ix)           any transaction
effected as part of a Qualified Receivables Financing;


 


(x)            the issuance of
Equity Interests (other than Disqualified Stock) of the Company to any
Permitted Holder or any direct or indirect parent company of the Company or to
any director, officer, employee or consultant thereof;


 


(xi)          the entering
into of any agreement (and any amendment or modification of any such agreement)
to pay, and the payment of, annual management, consulting, monitoring and
advisory fees to the Sponsor in an aggregate amount in any fiscal year not to
exceed the greater of (x) $3 million and (y) 3% of EBITDA, plus all
out-of-pocket reasonable expenses incurred by the Sponsor or any of its
Affiliates in connection with the performance of management, consulting,
monitoring, advisory or other services with respect to the Company and its
Restricted Subsidiaries;


 


(xii)         payments by the
Company or any of its Restricted Subsidiaries to the Sponsor or Meritage made
for any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures, which payments are approved by
a majority of the Board of Directors of the Company or any direct or indirect
parent of the Company in good faith;


 


(xiii)        any
contribution to the capital of the Company;


 


(xiv)        transactions
permitted by, and complying with, the provisions of Section 5.01;


 


(xv)         transactions
between the Company or any of its Restricted Subsidiaries and any Person, a
director of which is also a director of the Company or any direct or indirect
parent of the Company; provided, however, that such director abstains from
voting as a director of the Company or such direct or indirect parent of the
Company, as the case may be, on any matter involving such other Person;


 


(xvi)        pledges of
Equity Interests of Unrestricted Subsidiaries;


 


(xvii)       any employment
agreements entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business;


 


(xviii)      the issuances
of securities or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, stock option


 


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and
stock ownership plans or similar employee benefit plans approved by the Board
of Directors of the Company or any direct or indirect parent of the Company or
of a Restricted Subsidiary of the Company, as appropriate, in good faith; and


 


(xix)        the entering
into of any tax sharing agreement or arrangement and any payments permitted by Section 4.04(b)(xii).


 


SECTION 4.08.               Change of Control.


 


(a)           Upon a Change of Control,
each Holder shall have the right to require the Company to repurchase all or
any part of such Holder’s Securities at a purchase price in cash equal to 101%
of the principal amount thereof, plus accrued and unpaid interest, if any, to
the date of repurchase (subject to the right of the Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), in accordance with the terms contemplated in this Section 4.08; provided, however, that
notwithstanding the occurrence of a Change of Control, the Company shall not be
obligated to purchase any Securities pursuant to this Section 4.08 in the
event that it has exercised its right to redeem such Securities in accordance
with Article 3 of this Indenture.


 


In the event that at the time of such Change of
Control the terms of the Credit Agreement restrict or prohibit the repurchase
of Securities pursuant to this Section 4.08, then prior to the mailing of
the notice to the Holders provided for in Section 4.08(b) but in any
event within 30 days following any Change of Control, the Company shall (i) repay
in full the Credit Agreement, or (ii) obtain the requisite consent, if
required, under the Credit Agreement to permit the repurchase of the Securities
as provided for in Section 4.08(b).


 


(b)           Within 30 days following any Change of Control,
except to the extent that the Company has exercised its right to redeem the
Securities in accordance with Article 3 of this Indenture, the Company
shall mail a notice (a “Change of Control Offer”) to each Holder with a
copy to the Trustee stating:


 


(i)            that a Change
of Control has occurred and that such Holder has the right to require the
Company to purchase all or a portion of such Holder’s Securities at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of the Holders
of record on a record date to receive interest on the relevant interest payment
date);


 


(ii)           the
circumstances and relevant facts and financial information regarding such
Change of Control;


 


(iii)          the repurchase
date (which shall be no earlier than 30 days nor later than 60 days from the
date such notice is mailed); and


 


(iv)          the
instructions determined by the Company, consistent with this Section 4.08,
that a Holder must follow in order to have its Securities purchased.


 


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(c)           Holders electing to have a
Security purchased shall be required to surrender the Security, with an
appropriate form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the purchase date.  The Holders shall be entitled to withdraw
their election if the Trustee or the Company receives not later than two
Business Days prior to the purchase date a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount
of the Security which was delivered for purchase by the Holder and a statement
that such Holder is withdrawing his election to have such Security
purchased.  Holders whose Securities are
purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.


 


(d)           On the purchase date, all Securities purchased by
the Company under this Section shall be delivered to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued and
unpaid interest to the Holders entitled thereto.


 


(e)           Notwithstanding the foregoing provisions of this Section 4.08,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in Section 4.08(b) applicable to a Change of Control Offer made
by the Company and purchases all Securities validly tendered and not withdrawn
under such Change of Control Offer.


 


(f)            At the time the Company delivers Securities to the
Trustee which are to be accepted for purchase, the Company shall also deliver
an Officers’ Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section 4.08.  A Security shall be deemed to have been
accepted for purchase at the time the Trustee or the Paying Agent, directly or
through an agent, mails or delivers payment therefor to the surrendering
Holder.


 


(g)           Prior to any Change of Control Offer, the Company
shall deliver to the Trustee an Officers’ Certificate stating that all
conditions precedent contained herein to the right of the Company to make such
offer have been complied with.


 


(h)           The Company shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any
other securities laws or regulations in connection with the repurchase of
Securities pursuant to this Section 4.08. 
To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section 4.08, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.08 by virtue thereof.


 


(i)            A Change of Control Offer may be made in advance of
a Change of Control, and conditioned upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of
making the Change of Control Offer.


 


SECTION 4.09.               Compliance Certificate.  The Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company an
Officers’ Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers 


 


69

















 


know of any Default that
occurred during such period.  If they do,
the certificate shall describe the Default, its status and what action the
Company is taking or proposes to take with respect thereto.  From the date on which this Indenture is
qualified under the TIA, the Company also shall comply with Section 314(a)(4) of
the TIA.


 


SECTION 4.10.               Further Assurances,
Instruments and Acts.


 


(a)           Upon request of the Trustee,
the Company shall execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.


 


(b)           The Company shall, and shall
cause each of its existing and future Restricted Subsidiaries to, execute and
deliver such additional instruments, certificates or documents, and take all
such actions as may be reasonably required from time to time in order to:


 


(1)           carry out more
effectively the purposes of the Security Documents;


 


(2)           create, grant,
perfect and maintain the validity, effectiveness and priority of any of the
Security Documents and the Liens created, or intended to be created, by the Security
Documents; and


 


(3)           ensure the
protection and enforcement of any of the rights granted or intended to be
granted to the Trustee under any other instrument executed in connection
therewith.


 


SECTION 4.11.               Future Guarantors.  The Company shall cause each Restricted
Subsidiary that is a wholly owned Domestic Subsidiary (unless such Subsidiary
is a Receivables Subsidiary or is already a Guarantor) that:


 


(a)           guarantees any Indebtedness
of the Company or any of its Restricted Subsidiaries; or


 


(b)           Incurs any Indebtedness or
issues any shares of Disqualified Stock,


 


in each case, other than any Permitted Debt
referred to in Section 4.03(b), to execute and deliver to the Trustee a
supplemental indenture pursuant to which such Subsidiary shall guarantee payment
of the Securities and to comply with the provisions of Section 4.10(b) to
the extent any such compliance is required by the terms of the Security
Documents.


 


SECTION 4.12.               Liens.


 


(a)           The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, create,
Incur or suffer to exist any Lien (other than Permitted Liens) on any asset or
property of the Company or such Restricted Subsidiary, or any income or profits
therefrom, or assign or convey any right to receive income therefrom, that
secures any Obligations of the Company or such Restricted Subsidiary, other
than Liens securing Indebtedness that are junior in priority to the Liens on
such property or assets securing the Securities, without effectively 


 


70

















 


providing that the Securities or the
applicable Guarantee, as the case may be, shall be equally and ratably secured
with (or on a senior basis to, in the case such Lien secures any Subordinated Indebtedness)
the Obligations secured by such Lien.


 


(b)           Section 4.12(a) shall not require the
Company or any Restricted Subsidiary of the Company to secure the Securities if
the relevant Lien consists of a Permitted Lien. Any Lien which is granted to
secure the Securities or such Guarantee under Section 4.12(a) shall
be automatically released and discharged at the same time as the release of the
Lien that gave rise to the obligation to secure the Securities or such
Guarantee under Section 4.12(a)


 


SECTION 4.13.               Maintenance of Office or
Agency.


 


(a)           The Company shall maintain
in the United States, an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee or Registrar) where Securities may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Securities 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 as set forth in Section 13.02.


 


(b)           The Company may also from
time to time designate one or more other offices or agencies where the
Securities 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 or its agent, as such
office or agency of the Company in accordance with Section 2.04.


 


SECTION 4.14.               Discharge and Suspension of
Covenants.


 


(a)           If on any date following the
Issue Date (i) the Securities have Investment Grade Ratings from both
Rating Agencies, and (ii) no Default has occurred and is continuing under
this Indenture (the occurrence of the events described in the foregoing clauses
(i) and (ii) being collectively referred to as a “Covenant
Suspension Event”), Section 4.03, Section 4.04, Section 4.05,
Section 4.07, and clause (iv) of Section 5.01(a) (collectively,
the “Suspended Covenants”) shall no longer be applicable to such
Securities.


 


(b)           In the event that the
Company and the Restricted Subsidiaries are not subject to the Suspended
Covenants under this Indenture for any period of time pursuant to Section 4.14(a) (any
such period, a “Suspension Period”), and on any subsequent date (the “Reversion
Date”) one or both of the Rating Agencies (1) withdraw their
Investment Grade Rating or downgrade the rating assigned to the Securities
below an Investment Grade Rating and/or (2) the Company or any of its
Affiliates enters into an agreement to effect a transaction and one or more of
the Rating Agencies indicate that if consummated, such transaction (alone or
together with 


 


71

















 


any related recapitalization or refinancing
transactions) would cause such Rating Agency to withdraw its Investment Grade
Rating or downgrade the ratings assigned to the Securities below an Investment
Grade Rating, then the Company and the 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 (2) above.


 


(c)           Upon the occurrence of a
Covenant Suspension Event, the amount of Excess Proceeds from Net Cash Proceeds
shall be reset at zero.


 


(d)           In the event of any
reinstatement of the Suspended Covenants pursuant to Section 4.14(b), 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 with respect to any Securities; provided that (1) with respect to Restricted Payments
made after any such reinstatement, the amount of Restricted Payments made shall
be calculated as though Section 4.04 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 4.04 and the definition of “Unrestricted
Subsidiary” hereunder) and (2) all Indebtedness Incurred, or Disqualified
Stock or Preferred Stock issued, during the Suspension Period shall be
classified to have been Incurred or issued pursuant to clause (iii) of Section 4.03(b).


 


(e)           The Company shall deliver
promptly to the Trustee an Officers’ Certificate notifying it of any Covenant
Suspension Event or facts or events that would require the reinstatement of
Suspended Covenants under this Section 4.14.


 


SECTION 4.15.               Event of Loss.


 


(a)           In the event of an Event of
Loss, the Company or the affected Restricted Subsidiary of the Company, as the
case may be, may apply the Net Loss Proceeds from such Event of Loss to the
rebuilding, repair, replacement or construction of improvements to the property
affected by such Event of Loss (the “Subject Property”), with no concurrent
obligation to offer to purchase any of the Securities; provided,  however, that the Company
delivers to the Trustee within 90 days of such Event of Loss:


 


(i)            a written
opinion from a reputable contractor that the Subject Property can be rebuilt,
repaired, replaced or constructed in, and operated in, substantially the same
condition as it existed prior to the Event of Loss within 365 days of the
Event of Loss; and


 


(ii)           an Officers’
Certificate certifying that the Company has available from Net Loss Proceeds or
other sources sufficient funds to complete the rebuilding, repair, replacement
of construction described in clause (i) above.


 


(b)           Any Net Loss Proceeds that
are not applied or reinvested or not permitted to be applied or reinvested as
provided in Section 4.15(a) shall be deemed “Excess Loss Proceeds.”
When the aggregate amount of Excess Loss Proceeds exceeds $15 million, the
Company 


 


72

















 


shall make an offer (an “Event of Loss
Offer”) to all Holders and to the holders of any other Permitted Additional
Pari Passu Obligations containing provisions similar to those set forth in this
Indenture with respect to events of loss to purchase or repurchase the
Securities and such other Permitted Additional Pari Passu Obligations with the
proceeds from the Event of Loss in an amount equal to the maximum principal
amount of Securities and such other Permitted Additional Pari Passu Obligations
that may be purchased out of the Excess Loss Proceeds. The offer price in any
Event of Loss Offer shall be equal to 100% of the principal amount plus accrued
and unpaid interest if any, to the date of purchase, and shall be payable in
cash. If any Excess Loss Proceeds remain after consummation of an Event of Loss
Offer, the Company may use such Excess Loss Proceeds for any purpose not
otherwise prohibited by this Indenture and the Security Documents and such
remaining amount shall not be added to any subsequent Excess Loss Proceeds for
any purpose under this Indenture; provided
that any remaining Excess Loss Proceeds shall remain subject to the Lien of the
Security Documents. If the aggregate principal amount of Securities and other
Permitted Additional Pari Passu Obligations tendered pursuant to an Event of
Loss Offer exceeds the Excess Loss Proceeds, the Trustee shall select the
Securities and such other Permitted Additional Pari Passu Obligations to be
purchased, by lot or by such other method as the Trustee shall deem to be fair
and appropriate (and in such manner as complies with applicable legal requirements); provided, that the Trustee shall not
select Securities or such other Permitted Additional Pari Passu Obligations for
purchase which would result in a Holder with a principal amount of Securities
or such other Permitted Additional Pari Passu Obligations less than the
applicable minimum denomination to the extent practicable.


 


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


 


SECTION 4.16.               Insurance.


 


(a)           The Company will at all
times keep all of its and its Subsidiaries’ properties which are of an
insurable nature insured with insurers, believed by the Company to be responsible
(including, to the extent consistent with past practice, self-insurance),
against loss or damage to the extent that property of similar character is
usually so insured by corporations similarly situated and owning like
properties.


 


(b)           The Company and Guarantors


 


(i)            will cause any
property and casualty insurance policies with respect to the Mortgaged Property
to be endorsed or otherwise amended to include a “standard” or “New York”
lender’s loss payable endorsement and cause all property policies and casualty
insurance policies to be in a standard form and substance, naming the Trustee
as loss payee; cause all such policies to provide that neither the Company, the
Trustee nor any other party shall be a coinsurer thereunder and to contain a “Replacement
Cost Endorsement,” or in the case of a policy insuring equipment, to contain an
“Actual Cost Endorsement,”


 


73

















 


or
similar endorsement without any deduction for depreciation, and such other
provisions as may be customary with companies in the same or similar businesses
to protect their interests; deliver original or certified copies of all such
policies or a certificate of an insurance broker to the Trustee; cause each
such policy to provide that it shall not be canceled or not renewed upon less than
30 days’ prior written notice thereof by the insurer to the Trustee; deliver to
the Trustee, prior to the cancellation or nonrenewal of any such policy of insurance,
a copy of a renewal or replacement policy (or other evidence of renewal of a
policy previously delivered to the Trustee), or insurance certificate with
respect thereto, together with evidence of payment of the premium therefor;


 


(ii)           obtain flood
insurance in such amounts as necessary to ensure compliance with applicable
law, and without limiting the generality of the foregoing, if at any time the
area in which the Premises (as defined in the Mortgages) are located is
designated as an area having “special flood hazards” and in which flood
insurance has been made available under the National Flood Insurance Act of
1968, obtain flood insurance in such amounts as necessary to ensure compliance
with the National Flood Insurance Reform Act of 1994, as it may be amended from
time to time;


 


(iii)          with respect to
all Mortgaged Property, carry and maintain comprehensive liability insurance
and coverage on a claims made basis against claims made for personal injury
(including bodily injury, death and property damage) and umbrella liability
insurance against any and all claims, in each case in amounts and against such
risks as are customarily maintained by companies engaged in the same or similar
industry operating in the same or similar locations naming the Trustee as an
additional insured; and


 


(iv)          notify the
Trustee promptly whenever any separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under
this Section 4.16 is taken out by Company or any of the Guarantors; and
promptly deliver to the Trustee a duplicate original copy of such policy or policies,
or an insurance certificate with respect thereto.


 


(c)           In connection with the
covenants set forth in this Section 4.16, it is understood and agreed
that:


 


(i)            none of the
Trustee nor its respective agents or employees shall be liable for any loss or
damage insured by the insurance policies required to be maintained under this Section 4.16,
it being understood that (A) the Company and Guarantors shall look solely
to their insurance companies or any other parties other than the aforesaid
parties for the recovery of such loss or damage and (B) such insurance
companies shall have no rights of subrogation against the Trustee, or its
agents or employees.  If, however, the
insurance policies do not provide waiver of subrogation rights against such
parties, as required above, then each of Company, and the Guarantors hereby
agree, to the extent permitted by law, to waive, its right of recovery, if any,
against the Trustee and the Holder and its agents and employees; and


 


74

















 


(ii)           the acceptance
of any form, type or amount of insurance coverage by the Trustee under this Section 4.16
shall in no event be deemed a representation, warranty or advice by the Trustee
that such insurance is adequate for the purposes of the business of Company and
the Guarantors or the protection of their properties.


 


SECTION 4.17.               Maintenance of Properties.  Subject to, and in compliance with, the
provisions of Article 11 and the provisions of the applicable Security
Documents, the Company shall cause all material properties used or useful in
the conduct of its business or the business of any of the Subsidiary Guarantors
to be maintained and kept in good operating condition, repair and working order
(ordinary wear and tear and casualty loss excepted) and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto; provided, that the Company shall not be obligated to make
such repairs, renewals, replacements, betterments and improvements if the failure
to do so would not result in a material adverse effect on the ability of the
Company and the Subsidiary Guarantors to satisfy their obligations under the
Securities, the Guarantees, this Indenture and the Security Documents.


 


ARTICLE 5


 


SUCCESSOR COMPANY


 


SECTION 5.01.               When Company May Merge
or Transfer Assets.


 


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


 


(i)            the Company is
the surviving corporation or the Person formed by or surviving any such consolidation
or merger (if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made is a
corporation, partnership or limited liability company organized or existing
under the laws of the United States, any state thereof, the District of Columbia,
or any territory thereof (the Company or such Person, as the case may be, being
herein called the “Successor Company”);


 


(ii)           the Successor
Company (if other than the Company) expressly assumes all the obligations of
the Company under this Indenture and the Securities pursuant to supplemental
indentures or other documents or instruments in form reasonably satisfactory to
the Trustee;


 


(iii)          immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any of its Restricted
Subsidiaries as a result of such transaction as having been Incurred by the Successor
Company or such Restricted Subsidiary at the time of such transaction) no
Default or Event of Default shall have occurred and be continuing;


 


75

















 


(iv)          immediately after giving pro
forma effect to such transaction, as if such transaction had occurred at the
beginning of the applicable four-quarter period, either


 


(A)          the Successor Company would be permitted to Incur at
least $1.00 of additional Indebtedness pursuant to Section 4.03(a); or


 


(B)           the Fixed Charge Coverage Ratio for the Successor
Company and its Restricted Subsidiaries would be greater than such ratio for
the Company and its Restricted Subsidiaries immediately prior to such transaction;


 


(v)           if the
Successor Company is other than the Company, each Guarantor, unless it is the
other party to the transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person’s obligations under
this Indenture and the Securities;


 


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


 


(vii)         the Successor
Company causes such amendments, supplements or other instruments to be
executed, delivered, filed and recorded, as applicable, in such jurisdictions
as may be required by applicable law to preserve and protect the Lien of the
Security Documents on the Collateral owned by or transferred to the Successor
Company;


 


(viii)        the Collateral
owned by or transferred to the Successor Company shall (x) continue to
constitute Collateral under this Indenture and the Security Documents, (y) be
subject to the Lien in favor of the Collateral Agent for the benefit of the
Trustee and the Holders of the Securities, and (z) not be subject to
any Lien other than Permitted Liens; and


 


(ix)          the property
and assets of the Person which is merged or consolidated with or into the
Successor Company, to the extent that they are property or assets of the types
which would constitute Collateral under the Security Documents, shall be
treated as after-acquired property and the Successor Company shall take such
action as may be reasonably necessary to cause such property and assets to be
made subject to the Lien of the Security Documents in the manner and to the
extent required in this Indenture.


 


The Successor Company (if other than the Company)
shall succeed to, and be substituted for, the Company under this Indenture and
the Securities, and the Company shall automatically be released and discharged
from its obligations under this Indenture and the Securities.  Notwithstanding the foregoing clauses (iii) and
(iv) of this Section 5.01, (a) the Company or any Restricted
Subsidiary may consolidate with, merge into or sell, assign, transfer, lease,
convey or otherwise dispose of all or part of its properties and assets to the
Company or to another Restricted Subsidiary, and (b) the Company may merge
or consolidate with an Affiliate incorporated or organized solely for the
purpose of reincorporating or reorganizing the Company in another state of the
United States, the District of Columbia or any territory of the United States
so long as the amount of Indebtedness of the Company and its Restricted
Subsidiaries is not increased


 


76

















 


thereby (any transaction
described in this sentence, a “Specified Merger/Transfer Transaction”).


 


(b)           Subject to the provisions of Section 10.02(b) (which
govern the release of a Guarantee upon the sale or disposition of a Restricted
Subsidiary of the Company that is a Guarantor), each Guarantor shall not, and
the Company shall not permit any Guarantor to, consolidate or merge with or
into or wind up into (whether or not such Guarantor is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or more related
transactions to, any Person unless:


 


(i)            either (x) such
Guarantor is the surviving Person or the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation, partnership or limited liability company organized or
existing under the laws of the United States, any state thereof, the District
of Columbia, or any territory thereof (such Guarantor or such Person, as the
case may be, being herein called the “Successor Guarantor”) and the
Successor Guarantor (if other than such Guarantor) expressly assumes all the
obligations of such Guarantor under this Indenture and such Guarantor’s
Guarantee pursuant to a supplemental indenture or other documents or instruments
in form reasonably satisfactory to the Trustee or (y) such sale or disposition
or consolidation or merger is not in violation of Section 4.06;


 


(ii)           immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Guarantor or any of its Subsidiaries as
a result of such transaction as having been Incurred by the Successor Guarantor
or such Subsidiary at the time of such transaction) no Default or Event of
Default shall have occurred and be continuing;


 


(iii)          the Successor
Guarantor (if other than such Guarantor) shall have delivered or caused to be
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture;


 


(iv)          the Successor
Guarantor causes such amendments, supplements or other instruments to be
executed, delivered, filed and recorded, as applicable, in such jurisdictions
as may be required by applicable law to preserve and protect the Lien of the
Security Documents on the Collateral owned by or transferred to the Successor
Guarantor;


 


(v)           the Collateral
owned by or transferred to the Successor Guarantor shall (a) continue to
constitute Collateral under this Indenture and the Security Documents, (b) be
subject to the Lien in favor of the Collateral Agent for the benefit of the
Trustee and the Holders of the Securities, and (c) not be subject to
any Lien other than Permitted Liens; and


 


(vi)          the property
and assets of the Person which is merged or consolidated with or into the
Successor Guarantor, to the extent that they are property or assets of the
types which would constitute Collateral under the Security Documents, shall be
treated as after-


 


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acquired
property and the Successor Guarantor shall take such action as may be reasonably
necessary to cause such property and assets to be made subject to the Lien of
the Security Documents in the manner and to the extent required in this
Indenture.


 


The Successor Guarantor shall succeed to, and be
substituted for, such Guarantor under this Indenture and such Guarantor’s
Guarantee, and such Guarantor will automatically be released and discharged
from its obligations under this Indenture and such Guarantor’s Guarantee.  Notwithstanding the foregoing, (1) a
Guarantor may merge or consolidate with an Affiliate incorporated or organized
solely for the purpose of reincorporating or reorganizing such Guarantor in
another state of the United States, the District of Columbia or any territory
of the United States, so long as the amount of Indebtedness of the Guarantor is
not increased thereby, (2) a Guarantor may merge or consolidate with
another Guarantor or the Company, and (3) a Guarantor may convert into a corporation, partnership,
limited partnership, limited liability corporation or trust organized or
existing under the laws of the jurisdiction of organization of such Guarantor.


 


ARTICLE 6


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.               Events of Default.  An “Event of Default” occurs if:


 


(a)           the Company defaults in any
payment of interest on any Security when the same becomes due and payable, and
such default continues for a period of 30 days,


 


(b)           the Company defaults in the
payment of principal or premium, if any, of any Security when due at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise,


 


(c)           the Company fails to comply
with its obligations under Section 5.01,


 


(d)           the Company or any of its
Restricted Subsidiaries fails to comply with any of its obligations under the
covenants set forth in Sections 4.08 (other than a failure to purchase
Securities when required under Section 4.08) and such failure continues
for 30 days after receipt of a related Notice of Default as specified below,


 


(e)           the Company or any of its
Restricted Subsidiaries fails to comply with any of its agreements in the Securities
or this Indenture (other than those referred to in (a), (b), (c), or (d) above)
and such failure continues for 60 days after receipt of a related Notice
of Default as specified below,


 


(f)            the Company or any
Significant Subsidiary fails to pay any Indebtedness (other than Indebtedness
owing to the Company or a Restricted Subsidiary of the Company) within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default, in each case, if the
total amount of such Indebtedness unpaid or accelerated exceeds
$20 million or its foreign currency equivalent,


 


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(g)           the Company or any
Significant Subsidiary of the Company pursuant to or within the meaning of any
Bankruptcy Law:


 


(i)            commences a voluntary case;


 


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


 


(iii)          consents to the appointment
of a Custodian of it or for any substantial part of its property; or


 


(iv)          makes a general assignment
for the benefit of its creditors or takes any comparable action under any
foreign laws relating to insolvency,


 


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


 


(i)            is for relief against the
Company or any Significant Subsidiary of the Company in an involuntary case;


 


(ii)           appoints a Custodian of the
Company or any Significant Subsidiary of the Company or for any substantial
part of its property; or


 


(iii)          orders the winding up or
liquidation of the Company or any Significant Subsidiary of the Company;


 


or any similar relief is granted under any
foreign laws and the order or decree remains unstayed and in effect for
90 days,


 


(i)            the Company or any
Significant Subsidiary fails to pay final and non-appealable judgments
aggregating in excess of $20 million or its foreign currency equivalent
(net of any amounts which are covered by enforceable insurance policies issued
by solvent carriers), which judgments are not discharged, waived or stayed for
a period of 60 days following the entry thereof,


 


(j)            the Guarantee of a
Significant Subsidiary ceases to be in full force and effect (except as
contemplated by the terms thereof) or any Guarantor that qualifies as a
Significant Subsidiary denies or disaffirms its obligations under this
Indenture or any Guarantee and such Default continues for 10 days after receipt
of a related Notice of Default as specified below, or


 


(k)           unless all of the Collateral
has been released from the Note Liens in accordance with the provisions of the
Security Documents, the Company or any Subsidiary defaults in the performance
of the Security Documents which adversely affects in any material respect the
enforceability, validity, perfection or priority of the Note Liens on a
material portion of the Collateral, the repudiation or disaffirmation by the
Company or any Subsidiary of its material obligations under the Security
Documents or the determination


 


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in
a judicial proceeding that the Security Documents are unenforceable or invalid
against the Company or any Subsidiary party thereto for any reason with respect
to a material portion of the Collateral, which default, repudiation,
disaffirmation or determination is not rescinded, stayed, or waived by the
Persons having such authority pursuant to the Security Documents or otherwise
cured within 60 days after receipt of a related Notice of Default as specified
below.


 


The foregoing shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary
or involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.


 


The term “Bankruptcy Law” means
Title 11, United States Code, or any similar Federal or state law for the
relief of debtors.  The term “Custodian”
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.


 


A Default under clause (c), (d), (e) or (k) above
shall not constitute an Event of Default until the Trustee notifies the Company
in writing or the Holders of at least 25% in principal amount of the
outstanding Securities notify the Company and the Trustee in writing of the
Default and the Company does not cure such Default within the time specified in
clauses (c), (d), (e) or (k) above after receipt of such notice.
 Such notice must specify the Default,
demand that it be remedied and state that such notice is a “Notice of
Default.”  The Company shall deliver
to the Trustee, within thirty (30) days after the occurrence thereof, written
notice of any event which is, or with the giving of notice or the lapse of time
or both would become, an Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto.


 


SECTION 6.02.               Acceleration.  If an Event of Default (other than an Event of
Default specified in Section 6.01(g) or (h) with respect to the
Company) occurs and is continuing, the Trustee by written notice to the Company
or the Holders of at least 25% in principal amount of outstanding Securities by
written notice to the Company and the Trustee, may declare the principal of,
premium, if any, and accrued but unpaid interest on all the Securities to be
due and payable.  Upon such a
declaration, such principal and interest shall be due and payable immediately.  If an Event of Default specified in Section 6.01(g) or
(h) with respect to the Company occurs, the principal of, premium, if any,
and interest on all the Securities shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders.  The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration.  No
such rescission shall affect any subsequent Default or impair any right consequent
thereto.


 


In the event of any Event of Default specified in Section 6.01(f),
such Event of Default and all consequences thereof (excluding, however, any
resulting payment default) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders of the
Securities, if within 20 days after such Event of Default arose the
Company delivers an Officers’ Certificate to the Trustee stating that (x) the
Indebtedness or guarantee that is the 


 


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basis for such Event of
Default has been discharged or (y) the holders thereof have rescinded or
waived the acceleration, notice or action (as the case may be) giving rise to
such Event of Default or (z) the default that is the basis for such Event
of Default has been cured, it being understood that in no event shall an
acceleration of the principal amount of the Securities as described above be
annulled, waived or rescinded upon the happening of any such events.


 


SECTION 6.03.               Other Remedies.  If an Event of Default occurs and is continuing,
the Trustee may pursue any available remedy at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities, this Indenture or the Security
Documents.


 


The Trustee may maintain a proceeding even if it
does not possess any of the Securities or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default.  No
remedy is exclusive of any other remedy. 
All available remedies are cumulative to the extent permitted by law.


 


SECTION 6.04.               Waiver of Past Defaults.  Provided the Securities are not then due and
payable by reason of a declaration of acceleration, the Holders of a majority
in principal amount of the Securities by notice to the Trustee may waive an
existing Default or Event of Default and its consequences except (a) a
Default or Event of Default in the payment of the principal of or interest on a
Security or (b) a Default or Event of Default in respect of a provision
that under Section 9.02 cannot be amended without the consent of each
Holder affected.  When a Default is
waived, 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 consequent right.


 


SECTION 6.05.               Control by Majority.  Subject to the terms of the Security
Documents, the Holders of a majority in principal amount of the Securities then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee.  However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of any other Holder or that would involve the
Trustee in personal liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction.  Prior to taking any action under this
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.


 


SECTION 6.06.               Limitation on Suits.


 


(a)           Except to enforce the right
to receive payment of principal, premium, if any, or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Securities
unless:


 


(i)            the Holder
gives to the Trustee written notice stating that an Event of Default is continuing;


 


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(ii)           the Holders of
at least 25% in principal amount of the Securities then outstanding make a
written request to the Trustee to pursue the remedy;


 


(iii)          such Holder or
Holders offer to the Trustee security or indemnity reasonably satisfactory to
it against any loss, liability or expense;


 


(iv)          the Trustee
does not comply with the request within 60 days after receipt of the request
and the offer of security or indemnity; and


 


(v)           the Holders of
a majority in principal amount of the Securities do not give the Trustee a
direction inconsistent with the request during such 60-day period.


 


(b)           A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.


 


SECTION 6.07.               Rights of the Holders to
Receive Payment. 
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Securities held
by such Holder, on or after the respective due dates expressed or provided for
in the Securities, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.


 


SECTION 6.08.               Collection Suit by Trustee.  If an Event of Default specified in Section 6.01(a) or
(b) occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company or any other
obligor on the Securities for the whole amount then due and owing (together
with interest on overdue principal and (to the extent lawful) on any unpaid
interest at the rate provided for in the Securities) and the amounts provided
for in Section 7.07.


 


SECTION 6.09.               Trustee May File Proofs
of Claim.  The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for reasonable compensation, expenses disbursements and advances of the Trustee
(including counsel, accountants, experts or such other professionals as the
Trustee deems reasonably necessary, advisable or appropriate)) and the Holders
allowed in any judicial proceedings relative to the Company or any Guarantor,
their creditors or their property, shall be entitled to participate as a
member, voting or otherwise, of any official committee of creditors appointed
in such matters and, unless prohibited by law or applicable regulations, may
vote on behalf of the Holders in any election of a trustee in bankruptcy or
other Person performing similar functions, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee under
Section 7.07.


 


SECTION 6.10.               Priorities.  Subject to the terms of the Security
Documents, if the Trustee collects any money or property pursuant to this Article 6,
it shall pay out the money or property in the following order:


 


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FIRST: 
to the Trustee for amounts due under Section 7.07;


 


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


 


THIRD: 
to the Company or, to the extent the Trustee collects any amount for any
Subsidiary Guarantor, to such Subsidiary Guarantor.


 


The Trustee, upon prior written notice to the
Company and the Subsidiary Guarantors, may fix a record date and payment date
for any payment to the Holders pursuant to this Section 6.10.  At least 15 days before such record
date, the Trustee shall send to each Holder and the Company a notice that
states the record date, the payment date and amount to be paid.


 


SECTION 6.11.               Undertaking for Costs.  In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant
in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. 
This Section 6.11 does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10%
in principal amount of the Securities then outstanding.


 


SECTION 6.12.               Waiver of Stay or Extension
Laws.  Neither the Company nor any
Guarantor (to the extent it may lawfully do so) shall at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company and each Guarantor (to the extent that it may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and shall not
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 had been enacted.


 


ARTICLE 7


 


TRUSTEE


 


SECTION 7.01.               Duties of Trustee.


 


(a)           If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


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


 


(i)            the Trustee
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and


 


(ii)           in the absence
of bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture.  However, in the case
of certificates or opinions required by any provision hereof to be provided to
it, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.


 


(c)           The Trustee may not be
relieved from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:


 


(i)            this paragraph
does not limit the effect of paragraph (b) of this Section 7.01;


 


(ii)           the Trustee
shall not be liable for any error of judgment made in good faith by a Trust
Officer unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts;


 


(iii)          the Trustee
shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it pursuant to Section 6.05;
and


 


(iv)          no provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers.


 


(d)           Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section 7.01.


 


(e)           The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.


 


(f)            Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.


 


(g)           Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 7.01 and, from the date
on which this Indenture is qualified under the TIA, to the provisions of the
TIA.


 


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SECTION 7.02.               Rights of Trustee.


 


(a)           The Trustee may conclusively
rely on 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 the Officers’
Certificate or Opinion of Counsel.


 


(c)           The Trustee may act through 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 which it reasonably believes to be
authorized or within its rights or powers; provided, however,
that the Trustee’s conduct does not constitute willful misconduct or negligence.


 


(e)           The Trustee may consult with counsel of its own
selection and the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.


 


(f)            The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other paper or document unless requested in
writing to do so by the Holders of not less than a majority in principal amount
of the Securities at the time outstanding, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney, at the expense of
the Company and shall incur no liability of any kind by reason of such inquiry
or investigation.


 


(g)           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 pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.


 


(h)           The rights, privileges, protections, immunities and
benefits given to the Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act
hereunder.


 


(i)            In the event the Company is required to pay
Additional Interest, the Company will provide written notice to the Trustee of
the Company’s obligation to pay Additional Interest no later than 15 days prior
to the next interest payment date, which notice shall set forth 


 


85

















 


the amount of the Additional Interest to be paid by the Company.  The Trustee shall not at any time be under
any duty or responsibility to any Holders to determine whether the Additional Interest
is payable and the amount thereof.


 


SECTION 7.03.               Individual Rights of Trustee.  The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee.  Any Paying Agent or Registrar
may do the same with like rights. 
However, the Trustee must comply with Sections 7.10 and 7.11.


 


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, any
Guarantee or the Securities, it shall not be accountable for the Company’s use
of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company or any Guarantor in this Indenture or in any document
issued in connection with the sale of the Securities or in the Securities other
than the Trustee’s certificate of authentication.  The Trustee shall not be charged with knowledge
of any Default or Event of Default under Sections 6.01(c), (d), (e), (f), (i), (j) or
(k) or of the identity of any Significant Subsidiary unless either (a) a
Trust Officer shall have actual knowledge thereof or (b) the Trustee shall
have received notice thereof in accordance with Section 13.02 from the
Company, any Guarantor or any Holder.


 


SECTION 7.05.               Notice of Defaults.  If a Default occurs and is continuing and if
it is actually known to a Trust Officer, the Trustee shall send to each Holder
notice of the Default within the earlier of 90 days after it occurs or
30 days after it is actually known to a Trust Officer or written notice of
it is received by the Trustee.  Except in
the case of a Default in the payment of principal of, premium (if any) or
interest on any Security, the Trustee may withhold the notice if and so long as
a committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of the Holders.


 


SECTION 7.06.               Reports by Trustee to the
Holders.  From the date on which this
Indenture is qualified under the TIA, as promptly as practicable after each June 30
beginning with the June 30 following the date of this Indenture, and in
any event within 12 months of the last such report, the Trustee shall send to
each Holder a brief report dated as of such June 30 that complies with Section 313(a) of
the TIA if and to the extent required thereby. 
From the date on which this Indenture is qualified under the TIA, the
Trustee shall also comply with Section 313(b)(2) of the TIA.


 


A copy of each report at the time of its delivery to
the Holders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed.  The Company
agrees to notify promptly the Trustee whenever the Securities become listed on
any stock exchange and of any delisting thereof.


 


SECTION 7.07.               Compensation and Indemnity.  The Company shall pay to the Trustee from
time to time reasonable compensation for its services (it being understood all
amounts set forth in the fee letter dated June 5, 2009 between the Company
and the Trustee shall be deemed reasonable). 
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 upon request for 


 


86

















 


all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in addition to
the compensation for its services.  Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee’s agents, counsel, accountants and experts.  The Company and each Guarantor, jointly and
severally shall indemnify the Trustee against any and all loss, liability,
claim, damage or expense (including reasonable attorneys’ fees and expenses)
incurred by or in connection with the acceptance or administration of this
trust and the performance of its duties hereunder, including the costs and
expenses of enforcing this Indenture or Guarantee against the Company or a
Guarantor (including this Section 7.07) and defending itself against or
investigating any claim (whether asserted by the Company, any Guarantor, any
Holder or any other Person).  The Trustee
shall notify the Company of any claim for which it may seek indemnity promptly
upon obtaining actual knowledge thereof; provided, however, that any failure so to notify the Company shall
not relieve the Company or any Guarantor of its indemnity obligations
hereunder.  The Company shall defend the
claim and the indemnified party shall provide reasonable cooperation at the
Company’s expense in the defense.  Such
indemnified parties may have separate counsel and the Company and the
Guarantors, as applicable shall pay the fees and expenses of such counsel; provided, however, that
the Company shall not be required to pay such fees and expenses if it assumes
such indemnified parties’ defense and, in such indemnified parties’ reasonable
judgment, there is no conflict of interest between the Company and the
Guarantors, as applicable, and such parties in connection with such
defense.  The Company need not reimburse
any expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party’s own willful misconduct, negligence or
bad faith.


 


To secure the Company’s and the Guarantors’ payment
obligations in this Section 7.07, the Trustee shall have a Lien prior to
the Securities on all money or property held or collected by the Trustee other
than money or property held in trust to pay principal of and interest on
particular Securities.


 


The Company’s and the Guarantors’ payment
obligations pursuant to this Section 7.07 shall survive the satisfaction
or discharge of this Indenture, any rejection or termination of this Indenture
under any bankruptcy law or the resignation or removal of the Trustee.  Without prejudice to any other rights
available to the Trustee under applicable law, when the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(g) or (h) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.


 


SECTION 7.08.               Replacement of Trustee.


 


(a)           The Trustee may resign at
any time by so notifying the Company. 
The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee.  The Company may remove the
Trustee if:


 


(i)            the Trustee
fails to comply with Section 7.10;


 


(ii)           the Trustee is
adjudged bankrupt or insolvent;


 


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(iii)                               a receiver or
other public officer takes charge of the Trustee or its property; or


 


(iv)                              the Trustee
otherwise becomes incapable of acting.


 


If the Trustee has or shall acquire a conflicting
interest within the meaning of the TIA, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the TIA and this Indenture.


 


(b)                                 If the Trustee resigns, is
removed by the Company or by the Holders of a majority in principal amount of
the Securities and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee.


 


(c)                                  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 the Holders. 
The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the Lien provided for in Section 7.07.


 


(d)                                 If a successor Trustee does
not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee or the Holders of 10% in principal amount of the
Securities may petition at the expense of the Company any court of competent
jurisdiction for the appointment of a successor Trustee.


 


(e)                                  If the Trustee fails to
comply with Section 7.10, unless the Trustee’s duty to resign is stayed as
provided in Section 310(b) of the TIA, any Holder who has been a bona
fide holder of a Security for at least six months may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.


 


(f)                                    Notwithstanding the replacement
of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.


 


SECTION 7.09.                                              Successor
Trustee by Merger.  If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.


 


In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder


 


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or in the name of the
successor to the Trustee; and in all such cases such certificates shall have
the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.


 


SECTION 7.10.                                              Eligibility;
Disqualification.  The Trustee
shall at all times satisfy the requirements of Section 310(a) of the
TIA.  The Trustee shall have a combined
capital and surplus of at least $100,000,000 as set forth in its most recent
published annual report of condition. 
The Trustee shall comply with Section 310(b) of the TIA,
subject to its right to apply for a stay of its duty to resign under the
penultimate paragraph of Section 310(b) of the TIA; provided, however, that
there shall be excluded from the operation of Section 310(b)(1) of
the TIA any series of securities issued under this Indenture and any indenture
or indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the
TIA are met.


 


SECTION 7.11.                                              Preferential
Collection of Claims Against Company.  The Trustee shall comply with Section 311(a) of
the TIA, excluding any creditor relationship listed in Section 311(b) of
the TIA.  A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the
extent indicated.


 


ARTICLE 8


 


DISCHARGE OF INDENTURE; DEFEASANCE


 


SECTION 8.01.                                              Discharge of
Liability on Securities; Defeasance.  This Indenture shall be discharged and shall
cease to be of further effect (except as to surviving rights of registration or
transfer or exchange of Securities, as expressly provided for in this
Indenture) as to all outstanding Securities:


 


(a)                                  when (i) all
the Securities theretofore authenticated and delivered (other than Securities
pursuant to Section 2.08 which have been replaced or paid and Securities
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for cancellation
or (ii) all of the Securities (a) have become due and payable, (b) will
become due and payable at their stated maturity within one year or (c) if
redeemable at the option of the Company, are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company, and the Company has irrevocably deposited or caused to be deposited
with the Trustee funds in cash in U.S. Dollars, U.S. Government Obligations or
a combination thereof in an amount sufficient in the written opinion of a firm
of independent public accountants delivered to the Trustee (which delivery
shall only be required if U.S. Government Obligations have been so deposited)
to pay and discharge the entire Indebtedness on the Securities not theretofore
delivered to the Trustee for cancellation, for principal of, premium, if any,
and interest on the Securities to the date of deposit together with irrevocable
instructions from the Company directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be;


 


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(b)                                 the Company
and/or the Guarantors have paid all other sums payable under this Indenture;
and


 


(c)                                  the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
stating that all conditions precedent under this Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.


 


Subject to Sections 8.01(c) and 8.02, the
Company at any time may terminate (i) all of its obligations under the
Securities and this Indenture (with respect to such Securities) (“legal
defeasance option”) or (ii) its obligations under Sections 4.02,
4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.10, 4.11, 4.12, 4.15, 4.16 and 4.17 and
the operation of Section 5.01 and Sections 6.01(c), 6.01(d), 6.01(e) (with
respect to any Default under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.10,
4.11, 4.12, 4.15, 4.16 and 4.17), 6.01(f), 6.01(g) (with respect to
Significant Subsidiaries of the Company only), 6.01(h) (with respect to
Significant Subsidiaries of the Company only), 6.01(i), 6.01(j) and 6.01(k) (“covenant
defeasance option”).  The Company may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.  In the event
that the Company terminates all of its obligations under the Securities and
this Indenture (with respect to such Securities) by exercising its legal
defeasance option or its covenant defeasance option, the obligations of each
Guarantor under its Guarantee of such Securities shall be terminated
simultaneously with the termination of such obligations.


 


If the Company exercises its legal defeasance
option, payment of the Securities so defeased may not be accelerated because of
an Event of Default.  If the Company
exercises its covenant defeasance option, payment of the Securities so defeased
may not be accelerated because of an Event of Default specified in Section 6.01(c),
6.01(d), 6.01(e), 6.01(f), 6.01(g) (with respect to Significant
Subsidiaries of the Company only), 6.01(h) (with respect to Significant
Subsidiaries of the Company only), 6.01(i) (with respect to Significant
Subsidiaries of the Company only), 6.01(j) or 6.01(k) or because of
the failure of the Company to comply with Section 5.01.


 


Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.


 


(d)                                 Notwithstanding clauses (a) and
(b) above, the Company’s obligations in Sections 2.04, 2.05, 2.06, 2.07,
2.08, 2.09, 7.07, 7.08, 11.07(e), 11.12 and in this Article 8 shall
survive until the Securities have been paid in full.  Thereafter, the Company’s obligations in Sections
7.07, 8.05, 8.06 and 11.12 shall survive such satisfaction and discharge.


 


SECTION 8.02.                                              Conditions to
Defeasance.


 


(a)                                  The Company may
exercise its legal defeasance option or its covenant defeasance option only if:


 


(i)                                     the Company
irrevocably deposits in trust with the Trustee cash in U.S. Dollars, U.S.
Government Obligations or a combination thereof in an amount sufficient or U.S.
Government Obligations, the principal of and the interest on which will be sufficient,


 


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or
a combination thereof sufficient, to pay the principal of, and premium (if any)
and interest on the applicable Securities when due at maturity or redemption,
as the case may be, including interest thereon to maturity or such redemption
date;


 


(ii)                                  the Company
delivers to the Trustee a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the payments of principal
and interest when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide cash at
such times and in such amounts as will be sufficient to pay principal, premium,
if any, and interest when due on all the Securities to maturity or redemption,
as the case may be;


 


(iii)                               91 days
pass after the deposit is made and during the 91-day period no Default
specified in Section 6.01(g) or (h) with respect to the Company
occurs which is continuing at the end of the period;


 


(iv)                              the deposit
does not constitute a default under any other agreement binding on the Company;


 


(v)                                 the Company
delivers to the Trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;


 


(vi)                              in the case of
the legal defeasance option, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (1) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (2) since
the date of this Indenture 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 shall confirm that, the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit and
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
deposit and defeasance had not occurred;


 


(vii)                           in the case of
the covenant defeasance option, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit and
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
deposit and defeasance had not occurred; and


 


(viii)                        the Company
delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance and discharge of
the Securities to be so defeased and discharged as contemplated by this Article 8
have been complied with.


 


Notwithstanding the foregoing, the Opinion of
Counsel required by the clause (vi) above need not be delivered if all
Securities not theretofore delivered to the Trustee for cancellation (x) have
become due and payable or (y) will become due and payable at their Stated
Maturity within one 


 


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year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.


 


(b)                                 Before or after a deposit,
the Company may make arrangements satisfactory to the Trustee for the
redemption of such Securities at a future date in accordance with Article 3.


 


SECTION 8.03.                                              Application of
Trust Money.  The Trustee
shall hold in trust money or U.S. Government Obligations (including proceeds
thereof) deposited with it pursuant to this Article 8.  It shall apply the deposited money and the
money from U.S. Government Obligations through each Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Securities so discharged or defeased.


 


SECTION 8.04.                                              Repayment to
Company.  Each of the Trustee and each
Paying Agent shall promptly turn over to the Company upon request any money or
U.S. Government Obligations held by it as provided in this Article 8
which, in the written opinion of a nationally recognized firm of independent
public accountants delivered to the Trustee (which delivery shall only be
required if U.S. Government Obligations have been so deposited), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent discharge or defeasance in accordance with this Article 8.


 


Subject to any applicable abandoned property law,
the Trustee and each Paying Agent shall pay to the Company upon written request
any money held by them for the payment of principal or interest that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Company for payment as general creditors, and the Trustee and each
Paying Agent shall have no further liability with respect to such monies.


 


SECTION 8.05.                                              Indemnity for
U.S. Government Obligations.  The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest
received on such U.S. Government Obligations.


 


SECTION 8.06.                                              Reinstatement.  If the Trustee or any Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this Article 8
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture and the
Securities so discharged or defeased shall be revived and reinstated as though
no deposit had occurred pursuant to this Article 8 until such time as the
Trustee or any Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the Company has made any payment of
principal of or interest on, any such Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or any Paying Agent.


 


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ARTICLE 9


 


AMENDMENTS AND WAIVERS


 


SECTION 9.01.                                              Without Consent
of the Holders.  The Company
and the Trustee may amend this Indenture, the Securities or the Security
Documents without notice to or consent of any Holder:


 


(i)                                     to cure any
ambiguity, omission, defect or inconsistency;


 


(ii)                                  to comply with Article 5;


 


(iii)                               to provide for
uncertificated Securities in addition to or in place of certificated
Securities; provided, however,
that the uncertificated Securities are issued in registered form for purposes
of Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;


 


(iv)                              to add
additional Guarantees with respect to the Securities or to secure the
Securities;


 


(v)                                 to add to the
covenants of the Company for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company;


 


(vi)                              to comply with
any requirement of the SEC in connection with qualifying or maintaining the
qualification of, this Indenture under the TIA;


 


(vii)                           to effect any
provision of this Indenture or the Security Documents (including to release any
Guarantee in accordance with the terms of this Indenture);


 


(viii)                        to make any
change that does not adversely affect the rights of any Holder;


 


(ix)                                to provide for
the issuance of the Exchange Securities or Additional Securities, which shall have
terms substantially identical in all material respects to the Initial
Securities, and which shall be treated, together with any outstanding Initial Securities,
as a single issue of securities;


 


(x)                                   to provide for
the release of Collateral from the Liens of this Indenture and the Security
Documents when permitted or required by the Security Documents, the Intercreditor
Agreement or this Indenture; or


 


(xi)                                to secure any
Permitted Additional Pari Passu Obligations under the Security Documents and to
appropriately include the same in the Intercreditor Agreement.


 


Upon the request of the Company and the Guarantors
accompanied by a resolution of the Board of Directors of each of the Company
and the Guarantors authorizing the execution of any supplemental indenture
entered into to effect any such amendment, supplement or waiver, and upon
receipt by the Trustee of the documents described in Section 9.06, the
Trustee 


 


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shall join with the Company
and the Guarantors in the execution of such supplemental indenture.  After an amendment under this Section 9.01
becomes effective, the Company shall mail to Holders a notice briefly
describing such amendment.  The failure
to give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section 9.01.


 


SECTION 9.02.                                              With Consent of
the Holders.


 


(a)                                  The Company and
the Trustee may amend this Indenture or the Securities with the written consent
of the Holders of at least a majority in principal amount of the Securities
then outstanding voting as a single class (including consents obtained in
connection with a tender offer or exchange for the Securities).  However, without the consent of each Holder
of an outstanding Security affected, an amendment may not:


 


(i)                                     reduce the
amount of Securities whose Holders must consent to an amendment;


 


(ii)                                  reduce the rate
of or extend the time for payment of interest on any Security;


 


(iii)                               reduce the
principal of or change the Stated Maturity of any Security;


 


(iv)                              reduce the
premium payable upon the redemption of any Security or change the time at which
any Security may be redeemed in accordance with Article 3;


 


(v)                                 make any
Security payable in money other than that stated in such Security;


 


(vi)                              impair the
right of any Holder to receive payment of, principal of, premium, if any, and
interest on such Holder’s Securities on or after the date due or to institute
suit for the enforcement of any payment on or with respect to such Holder’s
Securities;


 


(vii)                           make any change
in Section 6.04 or 6.07 or the second sentence of this Section 9.02(a);


 


(viii)                        expressly
subordinate the Securities or any Guarantee or otherwise modify the ranking
thereof to any other Indebtedness of the Company or any Guarantor;


 


(ix)                                modify the
Guarantees in any manner adverse to the Holders; or


 


(x)                                   make any change
in the provisions in the Intercreditor Agreement or this Indenture dealing with
the application of proceeds of Collateral that would adversely affect the
Holder of the Securities.


 


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, but it shall be sufficient if such consent approves the
substance thereof.


 


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(b)                                 Notwithstanding
the requirements of Section 9.02(a), any amendment to, or waiver of, the
provisions of this Indenture, any Security Document or any other indenture
governing Permitted Additional Pari Passu Obligations that has the effect of
releasing all or substantially all of the Collateral from the Liens securing
the Securities or otherwise modifies the Intercreditor Agreement or other
Security Documents in any manner adverse in any material respect to the Holders
of the Securities will require the consent of the Holders of at least 662/3% in aggregate principal amount of the Securities
and any Permitted Additional Pari Passu Obligations then outstanding.


 


(c)                                  After an
amendment under this Section 9.02 becomes effective, the Company shall
mail to the Holders a notice briefly describing such amendment.  The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.02.


 


SECTION 9.03.                                              Compliance with
Trust Indenture Act.  From the
date on which this Indenture is qualified under the TIA, every amendment,
waiver or supplement to this Indenture or the Securities shall comply with the
TIA as then in effect.


 


SECTION 9.04.                                              Revocation and
Effect of Consents and Waivers.


 


(a)                                  A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences
the same debt as the consenting Holder’s Security, even if notation of the
consent or waiver is not made on the Security. 
However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder’s Security or portion of the Security if the Trustee
receives the notice of revocation before the date on which the Trustee receives
an Officers’ Certificate from the Company certifying that the requisite
principal amount of Securities have consented. 
After an amendment or waiver becomes effective, it shall bind every
Holder.  An amendment or waiver becomes
effective upon the (i) receipt by the Company or the Trustee of consents
by the Holders of the requisite principal amount of securities, (ii) satisfaction
of conditions to effectiveness as set forth in this Indenture and any indenture
supplemental hereto containing such amendment or waiver and (iii) execution
of such amendment or waiver (or supplemental indenture) by the Company and the
Trustee.


 


(b)                                 The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the
Holders entitled to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture.  If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be
Holders after such record date.  No such
consent shall be valid or effective for more than 120 days after such record
date.


 


SECTION 9.05.                                              Notation on or
Exchange of Securities.  If
an amendment, supplement or waiver changes the terms of a Security, the Company
may require the Holder of the Security to deliver it to the Trustee.  The Trustee may place an appropriate notation
on the Security regarding the changed terms and return it to the Holder.  Alternatively, if the Company 


 


95

















 


or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.  Failure to make the appropriate notation or
to issue a new Security shall not affect the validity of such amendment, supplement
or waiver.


 


SECTION 9.06.                                              Trustee to Sign
Amendments.  The Trustee
shall sign any amendment, supplement or waiver authorized pursuant to this Article 9
if the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  If it does,
the Trustee may but need not sign it.  In
signing such amendment, the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and shall be provided with, and (subject to Section 7.01)
shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment, supplement or waiver is
authorized or permitted by this Indenture and that such amendment, supplement
or waiver is the legal, valid and binding obligation of the Company and the
Guarantors, enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section 9.03).


 


SECTION 9.07.                                              Payment for
Consent.  Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.


 


SECTION 9.08.                                              Additional
Voting Terms; Calculation of Principal Amount.  Except as provided in the proviso to the
first sentence of Section 9.02(a), all Securities issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Securities may vote) as one class and no series of Securities will have
the right to vote or consent as a separate class on any matter.  Determinations as to whether Holders of the
requisite aggregate principal amount of Securities have concurred in any
direction, waiver or consent shall be made in accordance with this Article 9
and Section 2.14.


 


ARTICLE 10


 


GUARANTEES


 


SECTION 10.01.                                        Guarantees.


 


(a)                                  Each Guarantor
hereby jointly and severally, irrevocably and unconditionally guarantees, as a
primary obligor and not merely as a surety, to each Holder and to the Trustee
and its successors and assigns (i) the full and punctual payment when due,
whether at Stated Maturity, by acceleration, by redemption or otherwise, of all
obligations of the Company under this Indenture (including obligations to the
Trustee) and the Securities, whether for payment of principal of, premium, if
any, or interest on in respect of the Securities and all other monetary obligations
of the Company under this Indenture and the Securities and (ii) the full
and punctual performance within applicable grace periods of all other
obligations of the Company whether for fees, expenses, indemnification or
otherwise under this Indenture and the Securities (all the foregoing


 


96

















 


being hereinafter collectively called the “Guaranteed
Obligations”).  Each Guarantor further
agrees that the Guaranteed Obligations may be extended or renewed, in whole or
in part, without notice or further assent from each such Guarantor, and that
each such Guarantor shall remain bound under this Article 10
notwithstanding any extension or renewal of any Guaranteed Obligation.


 


(b)                                 Each Guarantor waives
presentation to, demand of payment from and protest to the Company of any of
the Guaranteed Obligations and also waives notice of protest for
nonpayment.  Each Guarantor waives notice
of any default under the Securities or the Guaranteed Obligations.  The obligations of each Guarantor hereunder
shall not be affected by (i) the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Securities or any other
agreement or otherwise; (ii) any extension or renewal of this Indenture,
the Securities or any other agreement; (iii) any rescission, waiver,
amendment or modification of any of the terms or provisions of this Indenture,
the Securities or any other agreement; (iv) the release of any security
held by any Holder or the Trustee for the Guaranteed Obligations or any
Guarantor; (v) the failure of any Holder or Trustee to exercise any right
or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any
change in the ownership of such Guarantor, except as provided in Section 10.02(b).


 


(c)                                  Each Guarantor hereby waives
any right to which it may be entitled to have its obligations hereunder divided
among the Guarantors, such that such Guarantor’s obligations would be less than
the full amount claimed.  Each Guarantor
hereby waives any right to which it may be entitled to have the assets of the
Company first be used and depleted as payment of the Company’s or such
Guarantor’s obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder.  Each
Guarantor hereby waives any right to which it may be entitled to require that
the Company be sued prior to an action being initiated against such Guarantor.


 


(d)                                 Each Guarantor further
agrees that its Guarantee herein constitutes a guarantee of payment,
performance and compliance when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder or the Trustee
to any security held for payment of the Guaranteed Obligations.


 


(e)                                  Except as expressly set
forth in Sections 8.01(b), 10.02 and 10.06, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation, impairment
or termination for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise.  Without limiting the
generality of the foregoing, the obligations of each Guarantor herein shall not
be discharged or impaired or otherwise affected by the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any remedy under this Indenture,
the Securities or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or 


 


97

















 


might in any manner or to any extent vary the risk of any Guarantor or
would otherwise operate as a discharge of any Guarantor as a matter of law or
equity.


 


(f)                                    Except as set forth in
Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain
in full force and effect until payment in full of all the Guaranteed Obligations.  Except as set forth in Sections 8.01 and
10.02, each Guarantor further agrees that its Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment,
or any part thereof, of principal of or interest on any Guaranteed Obligation
is rescinded or must otherwise be restored by any Holder or the Trustee upon
the bankruptcy or reorganization of the Company or otherwise.


 


(g)                                 In furtherance of the
foregoing and not in limitation of any other right which any Holder or the
Trustee has at law or in equity against any Guarantor by virtue hereof, upon the
failure of the Company to pay the principal of or interest on any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any
other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be paid,
in cash, to the Holders or the Trustee an amount equal to the sum of (i) the
unpaid principal amount of such Guaranteed Obligations, (ii) accrued and
unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by applicable law) and (iii) all other monetary obligations of
the Company to the Holders and the Trustee in respect of the Guaranteed
Obligations.


 


(h)                                 Each Guarantor agrees that
it shall not be entitled to any right of subrogation in relation to the Holders
in respect of any Guaranteed Obligations guaranteed hereby until payment in
full of all Guaranteed Obligations.  Each
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (i) the maturity of the Guaranteed
Obligations guaranteed hereby may be accelerated as provided in Article 6
for the purposes of any Guarantee herein, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Guaranteed
Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 6, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purposes of this Section 10.01.


 


(i)                                     Each Guarantor also agrees
to pay any and all costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by the Trustee or any Holder in enforcing any rights under
this Section 10.01.


 


(j)                                     Upon request of the Trustee,
each Guarantor shall execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.


 


(k)                                  Any Guarantee given by any
direct or indirect parent of the Company may be released and discharged from
all obligations under this Article 10 at any time upon written notice to
the Trustee from such direct or indirect parent of the Company.


 


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SECTION 10.02.                                        Limitation on
Liability.


 


(a)                                  Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Indenture or the Guarantee, as each relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.


 


(b)                                 A Guarantee as
to any Subsidiary Guarantor shall automatically terminate and be of no further
force or effect and such Subsidiary Guarantor shall be deemed to be released
and discharged from all obligations under this Article 10 upon:


 


(i)                                     the sale,
disposition or other transfer (including through merger or consolidation) of
the Capital Stock (including any sale, disposition or other transfer following
which the applicable Subsidiary Guarantor is no longer a Restricted
Subsidiary), or all or substantially all the assets, of the applicable
Subsidiary Guarantor if such sale, disposition or other transfer is made in
compliance with this Indenture,


 


(ii)                                  the Company
designating such Subsidiary Guarantor to be an Unrestricted Subsidiary in
accordance with the provisions set forth under Section 4.04 and the definition
of “Unrestricted Subsidiary,”


 


(iii)                               in the case of
any Restricted Subsidiary which after the Issue Date is required to guarantee
the Securities pursuant to Section 4.11, the release or discharge of the
guarantee by such Restricted Subsidiary of Indebtedness of the Company or any Restricted
Subsidiary of the Company or such Restricted Subsidiary or the repayment of the
Indebtedness or Disqualified Stock, in each case, which resulted in the obligation
to guarantee the Securities, or


 


(iv)                              the Company’s
exercise of its legal defeasance option or covenant defeasance option as
described under Section 8.01 or if the Company’s obligations under this
Indenture are discharged in accordance with the terms of this Indenture.


 


(c)                                  A Guarantee
also shall be automatically released upon the applicable Subsidiary ceasing to
be a Subsidiary as a result of any foreclosure of any pledge or security
interest securing Credit Agreement or other exercise of remedies in respect
thereof.


 


SECTION 10.03.                                        Successors and
Assigns.  This Article 10 shall be
binding upon each Guarantor and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party in this Indenture
and in the Securities shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions of this
Indenture.


 


SECTION 10.04.                                        No Waiver.  Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall 


 


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operate as a waiver thereof,
nor shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. 
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article 10 at law,
in equity, by statute or otherwise.


 


SECTION 10.05.                                        Modification.  No modification, amendment or waiver of any
provision of this Article 10, nor the consent to any departure by any
Guarantor therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.  No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstances.


 


SECTION 10.06.                                        Execution of
Supplemental Indenture for Future Guarantors.  Each Subsidiary and other Person which is
required to become a Guarantor pursuant to Section 4.11 shall promptly
execute and deliver to the Trustee a supplemental indenture in the form of Exhibit D
hereto pursuant to which such Subsidiary or other Person shall become a
Guarantor under this Article 10 and shall guarantee the Guaranteed
Obligations.  Concurrently with the execution
and delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers’ Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary or other Person and that, subject to the application of
bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other
similar laws relating to creditors’ rights generally and to the principles of equity,
whether considered in a proceeding at law or in equity, the Guarantee of such
Guarantor is a legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms and/or to such
other matters as the Trustee may reasonably request.


 


SECTION 10.07.                                        Non-Impairment.  The failure to endorse a Guarantee on any
Security shall not affect or impair the validity thereof.


 


ARTICLE 11


 


SECURITY


 


SECTION 11.01.                                        Security
Documents; Additional Collateral; Intercreditor Agreement.


 


(a)                                  Security
Documents.  In order to
secure the due and punctual payment of the Note Obligations and any Permitted
Additional Pari Passu Obligations, the Company, the Subsidiary Guarantors, the
Collateral Agent and the other parties thereto have simultaneously with the
execution of this Indenture entered or, in accordance with the provisions of Section 4.10,
Section 4.11 and this Article 11, will enter into the Security Documents.  In the event of a conflict between the terms
of this Indenture and the Security Documents, the Security Documents shall
control.


 


The Company shall, and shall cause each Restricted
Subsidiary to, and each Restricted Subsidiaries shall, make all filings
(including filings of continuation statements and 


 


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amendments to UCC financing
statements that may be necessary to continue the effectiveness of such UCC
financing statements) and take all other actions as are reasonably necessary or
required by the Security Documents to maintain (at the sole cost and expense of
the Company and its Restricted Subsidiaries) the security interest created by
the Security Documents in the Collateral (other than with respect to any
Collateral the security interest in which is not required to be perfected under
the Security Documents) as a perfected first priority security interest subject
only to Permitted Liens.


 


(b)                                 Additional
Collateral.  With
respect to assets acquired after the Issue Date, the applicable Company or
Guarantor will take the actions required by the Security Agreement.


 


(c)                                  Intercreditor
Agreement. The Security Documents, the Trustee, the Collateral
Agent and the Holders are bound by the terms of the Intercreditor Agreement and
each Holder of a Security, by accepting such Security, agrees to all the terms
and provisions of the Intercreditor Agreement and the other Security Documents.


 


SECTION 11.02.                                        Recording,
Registration and Opinions.  The
Company and the Guarantors shall furnish to the Trustee at least thirty (30)
days prior to the anniversary of the Issue Date in each year an Opinion of
Counsel, dated as of such date, either (i) stating that, in the opinion of
such counsel, such action has been taken with respect to the recording, filing,
re-recording, and refiling of this Indenture or the Security Documents, as
applicable, as are necessary to maintain the perfected Liens of the applicable
Security Documents securing the Note Obligations under applicable law to the
extent required by the Security Documents other than any action as described
therein to be taken and such opinion may refer to prior Opinions of Counsel and
contain customary assumptions, qualifications and exceptions and may rely on an
Officers’ Certificate of the Company or (ii) stating that, in the opinion
of such counsel, no such action is necessary to maintain such Liens or security
interests.


 


SECTION 11.03.                                        Releases of
Collateral.  The Liens
securing the Securities and the Guarantees will, automatically and without the
need for any further action by any Person be released:


 


(1)                                  in whole or in
part, as applicable, as to all or any portion of property subject to such Liens
which has been taken by eminent domain, condemnation or other similar circumstances
in accordance with the terms of Section 4.06 and Section 4.15;


 


(2)                                  in whole upon:


 


(a)                                  payment in full
of the principal of, together with accrued and unpaid interest on, the
Securities and all other Obligations under this Indenture, the Guarantees and
the Security Documents that are due and payable at or prior to the time such
principal, together with accrued and unpaid interest, are paid;


 


(b)                                 satisfaction
and discharge of this Indenture as set forth under Article 8; or


 


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(c)                                  a legal
defeasance or covenant defeasance of this Indenture as set forth under Article 8;


 


(3)                                  in part, as to
any property that (a) is sold, transferred or otherwise disposed of by the
Company or any Subsidiary Guarantor (other than to the Company or another
Subsidiary Guarantor) in a transaction not prohibited by this Indenture at the
time of such transfer or disposition, including, without limitation, as a
result of a transaction of the type permitted under Sections 4.06 and 5.01 or (b) is
owned or at any time acquired by a Guarantor that has been released from its
Guarantee, concurrently with the release of such Guarantee;


 


(4)                                  as to property
that constitutes all or substantially all of the Collateral securing the
Securities, with the consent of each Holder of the Securities and each holder
of any Permitted Additional Pari Passu Obligations outstanding;


 


(5)                                  as to property
that constitutes less than all or substantially all of the Collateral securing
the Securities, with the consent of the Holders of at least 662/3% of the aggregate principal amount of Securities
and any Permitted Additional Pari Passu Obligations outstanding;


 


(6)                                  in part, in
accordance with the applicable provisions of the Security Documents and the
Intercreditor Agreement; and


 


(7)                                  upon a release
of any ABL Priority Collateral that is disposed of in accordance with the terms
of the Credit Agreement and the related security documents.


 


In addition, to the extent
necessary and for so long as required for such Subsidiary Guarantor not to be
subject to any requirement pursuant to Rule 3-16 of Regulation S-X under
the Securities Act to file separate financial statements with the SEC (or any
other governmental agency), the Capital Stock and other securities of any
Subsidiary Guarantor shall not be included in the Collateral with respect to
the Securities (or any Permitted Additional Pari Passu Obligations outstanding)
so affected and shall not be subject to the Liens securing such Securities and
any Permitted Additional Pari Passu Obligations.


 


SECTION 11.04.                                        Form and
Sufficiency of Release.  In
the event that either the Company or any Guarantor has sold, exchanged, or
otherwise disposed of or proposes to sell, exchange or otherwise dispose of any
portion of the Collateral that, under the terms of this Indenture may be sold,
exchanged or otherwise disposed of by the Company or any Guarantor, and the
Company or such Guarantor requests the Trustee to furnish a written disclaimer,
release or quitclaim of any interest in such property under this Indenture, the
applicable Guarantee and the Security Documents, upon receipt of an Officers’
Certificate and Opinion of Counsel to the effect that such release complies
with Section 11.03 and specifying the provision in Section 11.03
pursuant to which such release is being made (upon which the Trustee may
exclusively and conclusively rely), the Trustee shall execute, acknowledge and
deliver to the Company or such Guarantor (or instruct the Collateral Agent to
do the same) such an instrument in the form provided by the Company, and
providing for release without recourse and shall take such other action 


 


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as the Company or such
Guarantor may reasonably request and as necessary to effect such release.


 


SECTION 11.05.                                        Possession and
Use of Collateral.  Subject to
the provisions of the Security Documents, the Company and the Guarantors shall
have the right to remain in possession and retain exclusive control of and to
exercise all rights with respect to the Collateral (other than Trust Monies
held by the Collateral Agent, other monies or U.S. Government Obligations
deposited pursuant to Article 8, and other than as set forth in the
Security Documents and this Indenture), to freely operate, manage, develop,
lease, use, consume and enjoy the Collateral (other than Trust Monies held by
the Collateral Agent, other monies and U.S. Government Obligations deposited
pursuant to Article 8 and other than as set forth in the Security
Documents and this Indenture), to alter or repair any Collateral so long as
such alterations and repairs do not impair the Lien of the Security Documents
thereon, and to collect, receive, use, invest and dispose of the reversions,
remainders, interest, rents, lease payments, issues, profits, revenues,
proceeds and other income thereof and to effect transactions permitted under
Sections 4.06 and 5.01.


 


SECTION 11.06.                                        Reports and
Certificates Relating to Collateral.


 


(a)                                  From the date
on which this Indenture is qualified under the TIA, to the extent applicable,
the Company shall cause Section 313(b)(1) of the TIA, relating to
reports, and Section 314(d) of the TIA, relating to the release of
property or securities subject to the Lien of the Security Documents, to be complied
with.


 


(b)                                 Any release of
Collateral permitted by Section 11.03 shall be deemed not to impair the
Liens under this Indenture and the Security Agreement and the other Security
Documents in contravention thereof.  From
the date on which this Indenture is qualified under the TIA, any certificate or
opinion required under Section 314(d) of the TIA may be made by an
officer or legal counsel, as applicable, of the Company except in cases where Section 314(d) of
the TIA requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser or other expert
selected by the Company.


 


(c)                                  From the date
on which this Indenture is qualified under the TIA, notwithstanding anything to
the contrary in this Section 11.06, the Company and the Subsidiary Guarantors
shall not be required to comply with all or any portion of Section 314(d) of
the TIA if they reasonably determine that under the terms of Section 314(d) of
the TIA or any interpretation or guidance as to the meaning thereof of the SEC
and its staff, including “no action” letters or exemptive orders, all or any
portion of Section 314(d) of the TIA is inapplicable to any release
or series of releases of Collateral.


 


SECTION 11.07.                                        Collateral
Agent.


 


(a)                                  The Trustee and
each of the Holders by acceptance of the Securities hereby designates and
appoints the Collateral Agent as its collateral agent under this Indenture and
the Security Documents and the Trustee and each of the Holders by acceptance of
the Securities hereby irrevocably authorizes the Collateral Agent to take such
action on its behalf under the provisions of this Indenture and the Security
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Collateral Agent by the terms of this Indenture 


 


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and the Security Documents, together with
such powers as are reasonably incidental thereto.  The Collateral Agent agrees to act as such on
the express conditions contained in this Section 11.07.  The provisions of this Section 11.07 are
solely for the benefit of the Collateral Agent and none of the Trustee, any of
the Holders nor the Company or any of the Guarantors shall have any rights as a
third party beneficiary of any of the provisions contained herein other than as
expressly provided in Section 11.03. 
Notwithstanding any provision to the contrary contained elsewhere in
this Indenture and the Security Documents, the Collateral Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Collateral Agent have or be deemed to have any fiduciary relationship
with the Trustee, any Holder or the Company or any Guarantor, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Indenture and the Security Documents or otherwise exist
against the Collateral Agent.  Without limiting
the generality of the foregoing sentence, the use of the term “agent” in this
Indenture with reference to the Collateral Agent shall not be construed to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. 
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.  Except
as expressly otherwise provided in this Indenture, the Collateral Agent shall
have and may use its sole discretion with respect to exercising or refraining
from exercising any discretionary rights or taking or refraining from taking
any actions which the Collateral Agent is expressly entitled to take or assert
under this Indenture and the Security Documents, including the exercise of
remedies pursuant to Article Six, and any action so taken or not taken
shall be deemed consented to by the Trustee and the Holders.


 


(b)                                 The Collateral
Agent may execute any of its duties under this Indenture and the Security Documents
by or through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties.  The Collateral Agent shall not be responsible
for the negligence or misconduct of any agent, employee or attorney-in-fact
that it selects as long as such selection was made without negligence or
willful misconduct.


 


(c)                                  None of the
Collateral Agent or any of its agents or employees shall (i) be liable for
any action taken or omitted to be taken by any of them under or in connection
with this Indenture or the transactions contemplated hereby (except for its own
negligence or willful misconduct) or under or in connection with any Security
Document or the transactions contemplated thereby (except for its own negligence
or willful misconduct), or (ii) be responsible in any manner to the
Trustee or any Holder for any recital, statement, representation, warranty, covenant
or agreement made by the Company or any Guarantor, contained in this Indenture
or any indenture, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Collateral Agent under or in
connection with, this Indenture or any other indenture, the Security Documents,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Indenture or any other indenture or the Security Documents, or for any
failure of the Company or any Guarantor or any other party to this Indenture or
the Security Documents to perform its obligations hereunder or thereunder.  None of the Collateral Agent or any of its
agents or employees shall be under any obligation to the Trustee or any Holder
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Indenture 


 


104

















 


or any other indenture or the Security
Documents or to inspect the properties, books or records of the Company or any
Guarantor.


 


(d)                                 The Collateral
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, unless the Collateral Agent shall have received
written notice from the Trustee or the Company referring to this Indenture,
describing such Default or Event of Default and stating that such notice is a “notice
of default.”  The Collateral Agent shall
take such action with respect to such Default or Event of Default as may be requested
by the Trustee in accordance with Article Six (subject to this Section 11.07);
provided, however,
that unless and until the Collateral Agent has received any such request, the
Collateral Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable.


 


(e)                                  A resignation
or removal of the Collateral Agent and appointment of a successor Collateral
Agent shall become effective only upon the successor Collateral Agent’s
acceptance of appointment as provided in this Section 11.07(e).  The Collateral Agent may resign in writing at
any time by so notifying the Company, the Trustee and each trustee, agent or
representative of holders of Permitted Additional Pari Passu Obligations at
least 30 days prior to the proposed date of resignation.  The Company may remove the Collateral Agent
if: (i) the Collateral Agent is removed as Trustee under the Indenture; (ii) the
Collateral Agent (x) fails to meet the requirements for being a Trustee
under Section 7.10 (prior to the discharge or defeasance of this Indenture)
and (y) following the discharge or defeasance of this Indenture, fails to
meet the requirements for being the trustee, agent or representative of holders
of any extant Permitted Additional Pari Passu Obligations; (iii) the
Collateral Agent is adjudged a bankrupt or an insolvent or an order for relief
is entered with respect to the Collateral Agent under any Bankruptcy Law; (iv) a
custodian or public officer takes charge of the Collateral Agent or its
property; or (v) the Collateral Agent becomes incapable of acting. If the
Collateral Agent resigns or is removed or if a vacancy exists in the office of
Collateral Agent for any reason, the Company shall promptly appoint a successor
Collateral Agent which complies with the eligibility requirements contained in
this Indenture and each indenture, credit agreement or other agreements which
any Permitted Additional Pari Passu Obligations (other than Additional
Securities) are incurred.  If a successor
Collateral Agent does not take office within 10 days after the retiring
Collateral Agent resigns or is removed, the retiring Collateral Agent, the
Company or the holders of at least 10% in principal amount of the then outstanding
principal amount of (x) the Securities (other than any Additional
Securities except to the extent constituting Permitted Additional Pari Passu
Obligations) and (y) Permitted Additional Pari Passu Obligations (to the
extent the trustee, agent or representative of holders of such Permitted
Additional Pari Passu Obligations executed a joinder to the Security Agreement)
may petition any court of competent jurisdiction for the appointment of a
successor Collateral Agent. A successor Collateral Agent shall deliver a
written acceptance of its appointment to the retiring Collateral Agent and to
the Company.  Thereupon, the resignation
or removal of the retiring Collateral Agent shall become effective, and the
successor Collateral Agent shall have all the rights, powers and the duties of
the Collateral Agent under this Indenture and the Security Documents.  The successor Collateral Agent shall mail a
notice of its succession to the Trustee and each trustee, agent or
representative of holders of Permitted Additional Pari Passu Obligations.  The retiring Collateral Agent shall promptly
transfer all property held by it as Collateral Agent to the successor Collateral
Agent, provided that all sums owing to the
Collateral 


 


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Agent hereunder have been paid.  Notwithstanding replacement of the Collateral
Agent pursuant to this Section 11.07(e), the Company’s obligations under
this Section 11.07 and Section 11.12 shall continue for the benefit
of the retiring Collateral Agent.


 


(f)                                    The Trustee
shall initially act as Collateral Agent and shall be authorized to appoint
co-Collateral Agents as necessary in its sole discretion.  Except as otherwise explicitly provided
herein or in the Security Documents, neither the Collateral Agent nor any of
its officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any other Person or to take any other action whatsoever
with regard to the Collateral or any part thereof.  The Collateral Agent shall be accountable
only for amounts that it actually receives as a result of the exercise of such
powers, and neither the Collateral Agent nor any of its officers, directors,
employees or agents shall be responsible for any act or failure to act
hereunder, except for its own willful misconduct, gross negligence or bad
faith.


 


(g)                                 The Trustee, as
such and as Collateral Agent, is authorized and directed by the Holders and the
Holders by acquiring the Securities and deemed to have authorized the Trustee
and Collateral Agent to (i) enter into the Security Documents, (ii) bind
the Holders on the terms as set forth in the Security Documents and (iii) perform
and observe its obligations under the Security Documents.


 


(h)                                 The Collateral
Agent shall have no obligation whatsoever to the Trustee or any of the Holders
to assure that the Collateral exists or is owned by the Company and the Guarantors
or is cared for, protected or insured or has been encumbered, or that the Collateral
Agent’s Liens have been properly or sufficiently or lawfully created,
perfected, protected, maintained or enforced or are entitled to any particular
priority, or to determine whether all of the Grantor’s property constituting
collateral intended to be subject to the Lien and security interest of the Security
Documents has been properly and completely listed or delivered, as the case may
be, or the genuineness, validity, marketability or sufficiency thereof or title
thereto, or to exercise at all or in any particular manner or under any duty of
care, disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to the Collateral Agent pursuant to
this Indenture or any Security Document, it being understood and agreed that in
respect of the Collateral, or any act, omission or event related thereto, the
Collateral Agent may act in any manner it may deem appropriate, in its sole
discretion given the Collateral Agent’s own interest in the Collateral, and
that the Collateral Agent shall have no other duty or liability whatsoever to
the Trustee or any Holder as to any of the foregoing.


 


(i)                                     The Collateral
Agent (i) shall not be liable for any action it takes or omits to take in
good faith which it reasonably believes to be authorized or within its rights
or powers, or for any error of judgment made in good faith by an authorized
officer, unless it is proved that the Collateral Agent was negligent in
ascertaining the pertinent facts, (ii) shall not be liable for interest on
any money received by it except as the Collateral Agent may agree in writing
with the Company (and money held in trust by the Collateral Agent need not be
segregated from other funds except to the extent required by law), and (iii) may
consult with counsel of its selection and the advice or opinion of such counsel
as to matters of law shall be full and complete authorization 


 


106

















 


and protection from liability in respect of
any action taken, omitted or suffered by it in good faith and in accordance
with the advice or opinion of such counsel. 
The grant of permissive rights or powers to the Collateral Agent shall
not be construed to impose duties to act.


 


SECTION 11.08.                                        Purchaser
Protected.  No
purchaser or grantee of any property or rights purporting to be released shall
be bound to ascertain the authority of the Collateral Agent or Trustee to
execute the release or to inquire as to the existence of any conditions herein
prescribed for the exercise of such authority so long as the conditions set
forth in Section 11.04 have been satisfied.


 


SECTION 11.09.                                        Authorization
of Actions to be Taken by the Collateral Agent Under the Security Documents.  The Holders of Securities agree that the Collateral
Agent shall be entitled to the rights, privileges, protections, immunities,
indemnities and benefits provided to the Collateral Agent by the Security
Documents.  Furthermore, each holder of a
Security, by accepting such Security, consents to the terms of and authorizes
and directs the Trustee (in each of its capacities) and the Collateral Agent to
enter into and perform the Security Documents in each of its capacities
thereunder.


 


SECTION 11.10.                                        Authorization
of Receipt of Funds by the Trustee Under the Security Agreement.  The Trustee is authorized to receive any
funds for the benefit of Holders distributed under the Security Documents to
the Trustee, to apply such funds as provided in Section 6.10.


 


SECTION 11.11.                                        Powers
Exercisable by Receiver or Collateral Agent.  In case the Collateral shall be in the
possession of a receiver or trustee, lawfully appointed, the powers conferred
in this Article 11 upon the Company or any Guarantor, as applicable, with
respect to the release, sale or other disposition of such property may be
exercised by such receiver or trustee, and an instrument signed by such
receiver or trustee shall be deemed the equivalent of any similar instrument of
the Company or any Guarantor, as applicable, or of any officer or officers thereof
required by the provisions of this Article 11.


 


SECTION 11.12.                                        Compensation
and Indemnification.  The
Collateral Agent shall be entitled to the compensation and indemnification set
forth in Section 7.07 (with the references to the Trustee therein being
deemed to refer to the Collateral Agent).


 


ARTICLE 12


 


APPLICATION OF TRUST MONIES


 


SECTION 12.01.                                        Collateral
Account.  In the event that the Company
or any Guarantor receives any cash and Cash Equivalents that, if such cash and
Cash Equivalents had been received by the Trustee or the Collateral Agent would
have constituted Trust Monies, then no later than 30 days following the first
date on which the Company or any Guarantor receives any such cash and Cash
Equivalents there shall be established and, at all times thereafter until this
Indenture shall have terminated, there shall be maintained with the Collateral
Agent the Collateral Account.  The Collateral
Account shall be established and maintained by the Collateral Agent at the
office of the Collateral Agent or as a deposit account or securities account
subject to 


 


107

















 


a control agreement in favor
of the Collateral Agent.  The Company
shall cause all cash and Cash Equivalents that would have constituted Trust
Monies had such cash and Cash Equivalents been received by the Trustee or the
Collateral Agent to be deposited in the Collateral Account and thereafter shall
be held by and under the sole dominion and control of the Collateral Agent for
its benefit and for the benefit of the Secured Parties (as defined in the
Security Agreement) as a part of the Collateral until released in accordance
with this Article 12.


 


SECTION 12.02.                                        Withdrawal of
Loss Proceeds.  To the
extent that any Trust Monies consist of Net Loss Proceeds, such Trust Monies
may be withdrawn by the Company and shall be paid by the Collateral Agent (upon
the direction of the Trustee) upon a written request by the Company delivered
to the Trustee and the Collateral Agent to reimburse the Company or Guarantor
for expenditures made, or to pay costs incurred, by the Company or such
Guarantor in connection with the repair, rebuilding or replacement of the
Collateral destroyed, damaged or taken, upon receipt by the Trustee and the
Collateral Agent of an Officers’ Certificate, dated not more then 30 days prior
to the date of the application for the withdrawal and payment of such Trust Monies
setting forth:


 


(1)                                  that
expenditures have been made, or costs incurred by the Company or such
Guarantor, as the case may be, in a specified amount in connection with certain
repairs, rebuildings and replacements of the Collateral, which shall be briefly
described;


 


(2)                                  that no part of
such expenditures or costs has been or is being made the basis for the
withdrawal of any Trust Monies in any previous or then pending application
pursuant to this Section 12.02;


 


(3)                                  that no part of
such expenditures or costs has been paid out of the proceeds of insurance upon
any part of the Collateral not required to be paid to the Collateral Agent
under the Security Documents;


 


(4)                                  that no Event
of Default shall have occurred and be continuing; and


 


(5)                                  that such
application or reinvestment complies with Section 4.15 and all conditions
precedent herein provided for relating to such withdrawal and payment have been
complied with.


 


Upon compliance with the foregoing provisions of
this Section 12.02 and Section 12.01, the Collateral Agent shall,
upon receipt of a written request by the Company, pay an amount of Net Loss
Proceeds constituting Trust Monies equal to the amount of the expenditures or
costs stated in the Officers’ Certificate required by this Section 12.02.


 


SECTION 12.03.                                        Withdrawal of
Net Cash Proceeds to Fund an Asset Sale Offer or Net Loss Proceeds to Fund an
Event of Loss Offer.  To the
extent that any Trust Monies consist of Net Cash Proceeds received by the
Collateral Agent pursuant to the provisions of Section 4.06 or Net Loss
Proceeds received by the Collateral Agent pursuant to the provisions of Section 4.15
and an Asset Sale Offer or Event of Loss Offer, as applicable, has been made in
accordance 


 


108

















 


therewith, such Trust Monies
may be withdrawn by the Company and shall be paid by the Trustee to the Paying
Agent for application in accordance with Section 4.06 or 4.15 upon written
notice by the Company to the Trustee and upon receipt by the Trustee and the
Collateral Agent of an Officers’ Certificate, dated not more than 10 days prior
to the date of purchase, stating:


 


(1)                                  that no Event
of Default shall have occurred and be continuing;


 


(2)                                  (x) that
such Trust Monies constitute Net Cash Proceeds or Net Loss Proceeds, as
applicable, (y) that pursuant to and in accordance with Section 4.06
or 4.15, the Company has made an Asset Sale Offer or Event of Loss Offer and (z) the
amount of Excess Proceeds or Excess Loss Proceeds, as applicable, to be applied
to the repurchase of the Securities and Permitted Additional Pari Passu
Obligations pursuant to the Asset Sale Offer or Event of Loss Offer;


 


(3)                                  the date of
purchase; and


 


(4)                                  that all
conditions precedent and covenants herein provided for relating to such
application of Trust Monies have been complied with.


 


Upon compliance with the foregoing provisions of
this Section 12.03, the Trustee shall apply the Trust Monies as directed
and specified by the Company.


 


SECTION 12.04.                                        Withdrawal of
Trust Monies for Investment in Replacement Assets.  In the event the Company intends to reinvest
Net Cash Proceeds of an Asset Sale in assets in compliance with Section 4.06
(“Replacement Assets”), such Net Cash Proceeds constituting Trust Monies
(the “Released Trust Monies”) may be withdrawn by the Company and shall
be paid by the Collateral Agent to the Company upon receipt by the Trustee and
the Collateral Agent of the following:


 


(a)                                  A notice from
the Company (i) referring to this Section 12.04, (ii) containing
all documents referred to below, (iii) describing with particularity the Released
Trust Monies, (iv) describing with particularity the Replacement Assets to
be invested in with respect to the Released Trust Monies and (v) accompanied
by a counterpart of the instruments proposed to give effect to the release
fully executed and acknowledged (if applicable) by all parties thereto other than
the Collateral Agent; and


 


(b)                                 An Officers’
Certificate certifying that (i) such Trust Monies constitute Net Cash Proceeds and are being reinvested in
compliance with Section 4.06, (ii) the release of the Released
Trust Monies complies with the terms and conditions of this Indenture, (iii) there
is no Event of Default (both before and after investing in the Replacement
Assets) in effect or continuing on the date thereof, (iv) the release of
the Released Trust Monies shall
not result in a Event of Default hereunder and (v) all conditions
precedent herein to such release have been complied with.


 


Upon compliance with the foregoing provisions, the
Trustee shall apply the Released Trust Monies as directed and specified by the
Company.


 


109














 


SECTION 12.05.                                        Investment of
Trust Monies.  So long as
no Event of Default shall have occurred and be continuing, all or any part of
any Trust Monies held by (or held in account subject to the sole control of)
the Collateral Agent shall from time to time be invested or reinvested by the
Collateral Agent in any Cash Equivalents pursuant to a written request by the
Company in the form of an Officers’ Certificate, which shall specify the Cash
Equivalents in which such Trust Monies shall be invested and shall certify that
such investments constitute Cash Equivalents; and the Collateral Agent shall
sell any such Cash Equivalent only upon receipt of such a written request by
the Company specifying the particular Cash Equivalent to be sold.  So long as no Event of Default occurs and is
continuing, any interest or dividends accrued, earned or paid on such Cash
Equivalents (in excess of any accrued interest or dividends paid at the time of
purchase) that may be received by the Collateral Agent shall be forthwith paid
to the Company.  Such Cash Equivalents
shall be held by the Collateral Agent as a part of the Collateral, subject to
the same provisions hereof as the cash used by it to purchase such Cash
Equivalents.


 


The Trustee and Collateral Agent shall not be liable
or responsible for any loss resulting from such investments or sales except
only for its own negligent action, its own negligent failure to act or its own
willful misconduct in complying with this Section 12.05.


 


SECTION 12.06.                                        Use of Trust
Monies; Retirement of Securities.  The Collateral Agent shall apply Trust Monies
not required to be applied to fund an Asset Sale Offer or Event of Loss Offer
or required to be held pending application to the acquisition of Replacement
Assets from time to time to the payment of the principal of, premium, and
interest on, any Securities and any Permitted Additional Pari Passu Obligations
by lot or by such other method as the Trustee shall deem to be fair and
appropriate (in such manner as complies with applicable legal requirements and
provided that the Trustee shall not select Securities or such other Permitted
Additional Pari Passu Obligations for purchase which would result in a Holder
with a principal amount of Securities or such other Permitted Additional Pari
Passu Obligations less than the applicable minimum denomination to the extent
practicable), on any redemption date or the maturity date or to the redemption
thereof or the purchase thereof upon tender or in the open market or at private
sale or upon any exchange or in any one or more of such ways, including,
without limitation, pursuant to a Change of Control Offer, an Asset Sale Offer
or an Event of Loss Offer, as the Company shall request in writing, upon
receipt by the Trustee and the Collateral Agent of the following:


 


(a)                                  resolutions of
the Board of Directors of the Company directing the application pursuant to
this Section 12.06 of a specified amount of Trust Monies and, in case any
such monies are to be applied to payment, designating the Securities and Permitted
Additional Pari Passu Obligations so to
be  paid and, in case any
such monies are to be applied to the purchase of Securities and Permitted
Additional Pari Passu Obligations, prescribing the method of purchase, the
price or prices to be paid and the maximum aggregate principal amount of
Securities and Permitted Additional Pari Passu Obligations to be purchased and
any other provisions of this Indenture governing such purchase;


 


110

















 


(b)                                 an Officers’ Certificate,
dated not more than 10 days prior to the date of the relevant application,
stating:


 


(1)                                  that no Event
of Default exists unless such Event of Default would be cured thereby; and


 


(2)                                  that all
conditions precedent and covenants herein provided for relating to such
application of Trust Monies have been complied with; and


 


(c)                                  an Opinion of
Counsel stating that, subject to customary assumptions, qualifications and
exceptions, the documents and the cash or Cash Equivalents, if any, which have
been or are therewith delivered to and deposited with the Collateral Agent
conform to the requirements of this Indenture and all conditions precedent
herein provided for relating to such application of Trust Monies have been
complied with.


 


Such Opinion of Counsel may
rely on an Officers’ Certificate of the Company.


 


Upon compliance with the foregoing provisions of
this Section 12.06, the Collateral Agent shall apply Trust Monies as
directed and specified by such resolution of the Board of Directors of the
Company.


 


A resolution of the Board of Directors of the
Company expressed to be irrevocable directing the application of Trust Monies
under this Section 12.06 to the payment of the principal of, premium and
interest on the Securities and any Permitted Additional Pari Passu Obligations
shall for all purposes of this Indenture be deemed the equivalent of the
deposit of money with the Collateral Agent in trust for such purpose.  Such Trust Monies and any cash deposited with
the Collateral Agent pursuant to clause (c) of this Section 12.06 for
the payment of accrued interest shall not, after compliance with the foregoing
provisions of this Section 12.06, be deemed to be part of the Collateral
or Trust Monies.


 


SECTION 12.07.                                        Disposition of
Securities Retired.  All Securities
received by the Trustee and for whose purchase Trust Monies are applied under Section 12.06,
if not otherwise cancelled, shall be promptly delivered to the Trustee for
cancellation and destruction in accordance with the Trustee’s customary procedures.


 


ARTICLE 13


 


MISCELLANEOUS


 


SECTION 13.01.                                        Trust Indenture
Act Controls.  From the
date on which this Indenture is qualified under the TIA, if and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an “incorporated provision”)
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.


 


111

















 


SECTION 13.02.                                        Notices.


 


(a)                                  Any notice or
communication required or permitted hereunder shall be in writing and delivered
in person, via facsimile or mailed by first-class mail addressed as follows:


 


if
to the Company or a Guarantor:


 


Freedom
Group, Inc. 

870 Remington Drive

Madison, NC  27025

Attention of:  Fredric E. Roth, Jr.

Facsimile:  (336) 548-8810


 


if
to the Trustee:


 


Wilmington
Trust FSB 

246 Goose Lane, Suite 105

Guilford, CT  06437

Attention of:  Joseph P. O’Donnell

Facsimile:  (203) 453-1183


 


The Company or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.


 


(b)                                 Any notice or communication
mailed to a Holder shall be mailed, first class mail, to the Holder at the Holder’s
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.


 


(c)                                  Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.  If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it, except that notices to the
Trustee are effective only if received.


 


Notwithstanding any other provision of this
Indenture or any Security, where this Indenture or any Security provides for
notice of any event (including any notice of redemption) to a Holder of a
Global Security (whether by mail or otherwise), such notice shall be sufficiently
given if given to the Depository for such Security (or its designee), pursuant
to the customary procedures of such Depository.


 


SECTION 13.03.                                        Communication
by the Holders with Other Holders.  The Holders may communicate pursuant to Section 312(b) of
the TIA with other Holders with respect to their rights under this Indenture or
the Securities.  The Company, the
Trustee, the Registrar and other Persons shall have the protection of Section 312(c) of
the TIA.


 


SECTION 13.04.                                        Certificate and
Opinion as to Conditions Precedent.  Upon any request or application by the
Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee at the request of the
Trustee:


 


112

















 


(a)                                  an Officers’
Certificate in form reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and


 


(b)                                 an Opinion of
Counsel in form reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.


 


SECTION 13.05.                                        Statements
Required in Certificate or Opinion.  Each certificate or opinion with respect to
compliance with a covenant or condition provided for in this Indenture (other
than pursuant to Section 4.09) shall include:


 


(a)                                  a statement
that the individual 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 individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and


 


(d)                                 a statement as
to whether or not, in the opinion of such individual, such covenant or
condition has been complied with; provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers’ Certificate or certificates of public
officials.


 


SECTION 13.06.                                        When Securities
Disregarded.  In
determining whether the Holders of the required principal amount of Securities
have concurred in any direction, waiver or consent, Securities owned by the
Company, any Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any Guarantor shall be disregarded and deemed not to be outstanding, except
that, for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so disregarded.  Subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.


 


SECTION 13.07.                                        Rules by
Trustee, Paying Agent and Registrar.  The Trustee may make reasonable rules for
action by or a meeting of the Holders. 
The Registrar and a Paying Agent may make reasonable rules for
their functions.


 


SECTION 13.08.                                        Legal Holidays.  If a payment date is not a Business Day,
payment shall be made on the next succeeding day that is a Business Day, and no
interest shall accrue on any amount that would have been otherwise payable on
such payment date if it were a Business Day for the intervening period.  If a regular record date is not a Business
Day, the record date shall not be affected.


 


113

















 


SECTION 13.09.                                        Governing
Law.  THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 13.10.                                        No Recourse
Against Others.  No
director, officer, employee, incorporator or holder of any equity interests in
the Company or of any Guarantor or any direct or indirect parent corporation,
as such, shall have any liability for any obligations of the Company or the
Guarantors under the Securities or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of Securities by accepting a Security
waives and releases all such liability.


 


SECTION 13.11.                                        Successors.  All agreements of the Company and each Guarantor
in this Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this
Indenture shall bind its successors.


 


SECTION 13.12.                                        Multiple
Originals.  The parties
may sign any number of copies of this Indenture.  Each signed copy shall be an original, but
all of them together represent the same agreement.  One signed copy is enough to prove this Indenture.


 


SECTION 13.13.                                        Table of
Contents; Headings.  The table
of contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.


 


SECTION 13.14.                                        Indenture
Controls.  If and to
the extent that any provision of the Securities limits, qualifies or conflicts
with a provision of this Indenture, such provision of this Indenture shall
control.


 


SECTION 13.15.                                        Severability.  In case any provision in this Indenture 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 and such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability.


 


SECTION 13.16.                                        Waiver of Jury
Trial.  EACH OF THE COMPANY, THE
GUARANTORS, THE TRUSTEE, THE PAYING AGENT, THE REGISTRAR, THE TRANSFER AGENT
AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


114

















 


IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.


 


	
   

  	
  FREEDOM GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S-1

















 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  RACI HOLDING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REMINGTON ARMS COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REMINGTON STEAM, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RA BRANDS, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE MARLIN FIREARMS COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  H&R 1871, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S-2

















 


	
   

  	
  DA ACQUISITIONS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BUSHMASTER HOLDINGS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BUSHMASTER FIREARMS INTERNATIONAL, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DPMS FIREARMS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-RPC, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S-3

















 


	
   

  	
  WILMINGTON TRUST FSB, as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S-4

















 


	
   

  	
  WILMINGTON TRUST FSB, as
  Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S-5














 


APPENDIX A


 


PROVISIONS
RELATING TO INITIAL SECURITIES, ADDITIONAL SECURITIES AND EXCHANGE SECURITIES


 


1.                                       Definitions.


 


1.1                                 Definitions.


 


For the purposes of this Appendix A the following
terms shall have the meanings indicated below:


 


“Clearstream” means Clearstream Banking,
société anonyme, or any successor securities clearing agency.


 


“Definitive Security” means a certificated
Initial Security or Exchange Security (bearing the Restricted Securities Legend
if the transfer of such Security is restricted by applicable law) that does not
include the Global Securities Legend.


 


“Depository” means, with respect to the
Securities, The Depository Trust Company, its nominees and their respective
successors.


 


“Euroclear” means the Euroclear Clearance
System or any successor securities clearing agency.


 


“Global Securities Legend” means the legend
set forth under that caption in the applicable Exhibit to this Indenture.


 


“IAI” means an institutional “accredited
investor” as described in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.


 


“Initial Purchasers” means Banc of America
Securities LLC, Deutsche Bank Securities Inc., Wells Fargo Securities, LLC,
Barclays Capital Inc., Jefferies & Company, Inc. and such other
initial purchasers party to the purchase agreement or future purchase
agreements entered into in connection with an offer and sale of Securities.


 


“Purchase Agreement” means (a) the
Purchase Agreement dated July 15, 2009, among the Company, the Guarantors
and the Initial Purchasers and (b) any other similar Purchase Agreement
relating to Additional Securities.


 


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


 


“Registration Rights Agreement” means (a) the
Registration Rights Agreement dated as of July 29, 2009 among the Company,
the Guarantors and the Initial Purchasers relating to the Securities and (b) any
other similar Registration Rights Agreement relating to Additional Securities.


 

















 


“Registered Exchange Offer” means the offer
by the Company, pursuant to the Registration Rights Agreement, to certain
Holders of Initial Securities, to issue and deliver to such Holders, in
exchange for their Initial Securities, a like aggregate principal amount of Exchange
Securities registered under the Securities Act.


 


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


 


“Regulation S Securities” means all Initial
Securities offered and sold outside the United States in reliance on
Regulation S.


 


“Restricted Period,” with respect to any
Securities, means the period of 40 consecutive days beginning on and including
the later of (a) the day on which such Securities are first offered to
persons other than distributors (as defined in Regulation S under the Securities
Act) in reliance on Regulation S, notice of which day shall be promptly given
by the Company to the Trustee, and (b) the Issue Date, and with respect to
any Additional Securities that are Transfer Restricted Definitive Securities,
it means the comparable period of 40 consecutive days.


 


“Restricted Securities Legend” means the legend
set forth in Section 2.2(f)(i) herein.


 


“Rule 501” means Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.


 


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


 


“Rule 144A Securities” means all Initial
Securities offered and sold to QIBs in reliance on Rule 144A.


 


“Securities Custodian” means the custodian
with respect to a Global Security (as appointed by the Depository) or any
successor person thereto, who shall initially be the Trustee.


 


“Shelf Registration Statement” means a
registration statement filed by the Company in connection with the offer and
sale of Initial Securities pursuant to the Registration Rights Agreement.


 


“Transfer Restricted Definitive Securities”
means Definitive Securities and any other Securities that bear or are required
to bear or are subject to the Restricted Securities Legend.


 


“Transfer Restricted Global Securities” means
Global Securities bearing the Restricted Securities Legend.


 


“Unrestricted Definitive Security” means
Definitive Securities and any other Securities that are not required to bear,
or are not subject to, the Restricted Securities Legend.


 


“Unrestricted Global Security” means a Global
Security that does not bear the Restricted Securities Legend.


 


2

















 


1.2                                 Other
Definitions.


 


	
  Term:

  	
   

  	
  Defined in Section:

  
	
   

  	
   

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.1(b)

  
	
  “Global Securities”

  	
   

  	
  2.1(b)

  
	
  “Regulation S Global Securities”

  	
   

  	
  2.1(b)

  
	
  “Rule 144A
  Global Securities”

  	
   

  	
  2.1(b)

  



 


2.                                       The Securities.


 


2.1                                 Form and
Dating; Global Securities.


 


(a)                                  The Initial
Securities issued on the date hereof will be (i) offered and sold by the
Company pursuant to the Purchase Agreement and (ii) resold, initially only
to (1) QIBs in reliance on Rule 144A and (2) Persons other than
U.S. Persons (as defined in Regulation S) in reliance on Regulation S.  Such Initial Securities may thereafter be
transferred to, among others, QIBs, purchasers in reliance on Regulation S and,
except as set forth below, IAIs in accordance with Rule 501.  Additional Securities offered after the date
hereof may be offered and sold by the Company from time to time pursuant to one
or more Purchase Agreements in accordance with applicable law.


 


(b)                                 Global
Securities.  (i)  Rule 144A
Securities initially shall be represented by one or more Securities in fully
registered, global form without interest coupons (collectively, the “Rule 144A
Global Securities”).  Regulation S
Securities initially shall be represented by one or more Securities in fully
registered, global form without interest coupons (collectively, the “Regulation
S Global Securities”).  The term “Global
Securities” means, collectively, the Rule 144A Global Securities and
the Regulation S Global Securities.  The
Global Securities shall bear the Global Security Legend.  The Global Securities initially shall (i) be
registered in the name of the Depository or the nominee of such Depository, in
each case for credit to an account of an Agent Member, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear the Restricted
Securities Legend.


 


Members of, or direct or indirect participants in,
the Depository, Euroclear or Clearstream (“Agent Members”) shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by the Depository or under the Global Securities.  The Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of the Global Securities 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 Depository or impair, as between the Depository,
Euroclear or Clearstream, as the case may be, and their respective Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.


 


(ii)                                   Transfers of
Global Securities shall be limited to transfer in whole, but not in part, to
the Depository, its successors or their respective nominees.  Interests of beneficial


 


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owners in the Global
Securities may be transferred or exchanged for Definitive Securities only in
accordance with the applicable rules and procedures of the Depository,
Euroclear or Clearstream, as the case may be, and the provisions of Section 2.2.  In addition, a Global Security shall be exchangeable
for Definitive Securities if (i) the Depository (x) notifies the
Company that it is unwilling or unable to continue as depository for such
Global Security and the Company thereupon fails to appoint a successor
depository or (y) has ceased to be a clearing agency registered under the
Exchange Act, or (ii) there shall have occurred and be continuing an Event
of Default with respect to such Global Security.  In all cases, Definitive Securities delivered
in exchange for any Global Security or beneficial interests therein shall be
registered in the names, and issued in any approved denominations, requested in
writing by or on behalf of the Depository, in accordance with its customary procedures.


 


(iii)                                    In connection
with the transfer of a Global Security as an entirety to beneficial owners
pursuant to subsection (i) of this Section 2.1(b), such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, to each beneficial owner identified by the Depository
in writing in exchange for its beneficial interest in such Global Security, an
equal aggregate principal amount of Definitive Securities of authorized denominations.


 


(iv)                                  Any Transfer
Restricted Definitive Security delivered in exchange for an interest in a
Global Security pursuant to Section 2.2 shall, except as otherwise
provided in Section 2.2, bear the Restricted Securities Legend.


 


(v)                                 Notwithstanding
the foregoing, through the Restricted Period, a beneficial interest in such
Regulation S Global Security may be held only through Euroclear or Clearstream
unless delivery is made in accordance with the applicable provisions of Section 2.2.


 


(vi)                                  The Holder of
any Global Security may grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent Members, to
take any action which a Holder is entitled to take under this Indenture or the
Securities.


 


2.2                                 Transfer and
Exchange.


 


(a)                                  Transfer and
Exchange of Global Securities.  A Global Security may not be transferred as a
whole except as set forth in Section 2.1(b).  Global Securities will not be exchanged by
the Company for Definitive Securities except under the circumstances described
in Section 2.1(b)(ii).  Global Securities
also may be exchanged or replaced, in whole or in part, as provided in Sections
2.08 and 2.10 of this Indenture. 
Beneficial interests in a Global Security may be transferred and
exchanged as provided in Section 2.2(b) or 2.2(g).


 


(b)                                 Transfer and
Exchange of Beneficial Interests in Global Securities.  The transfer and exchange of beneficial
interests in the Global Securities shall be effected through the Depository, in
accordance with the provisions of this Indenture and the applicable rules and
procedures of the Depository.  Beneficial
interests in Transfer Restricted Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. 
Transfers and exchanges of beneficial interests in the Global Securities
also 


 


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shall require compliance
with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:


 


(i)                                 Transfer of
Beneficial Interests in the Same Global Security.  Beneficial interests in any Transfer
Restricted Global Security may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Transfer Restricted
Global Security in accordance with the transfer restrictions set forth in the
Restricted Securities Legend; provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in a Regulation S Global Security 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).  A
beneficial interest in an Unrestricted Global Security may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security.  No written
orders or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.2(b)(i).


 


(ii)                                   All Other
Transfers and Exchanges of Beneficial Interests in Global Securities.  In connection with all transfers and
exchanges of beneficial interests in any Global Security that is not subject to
Section 2.2(b)(i), the transferor of such beneficial interest must deliver
to the Registrar (1) a written order from an Agent Member given to the Depository
in accordance with the applicable rules and procedures of the Depository
directing the Depository to credit or cause to be credited a beneficial interest
in another Global Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
applicable rules and procedures of the Depository containing information
regarding the Agent Member account to be credited with such increase; provided that in no event shall a beneficial interest in a
Global Security be credited, or an Unrestricted Definitive Security be issued,
to a Person who is an affiliate (as defined in Rule 144) of the
Company.  Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Securities contained in this Indenture and the Securities or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Security pursuant to Section 2.2(g).


 


(iii)                                    Transfer of
Beneficial Interests to Another Transfer Restricted Global Security.  A beneficial interest in a Transfer
Restricted Global Security may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Transfer Restricted
Global Security if the transfer complies with the requirements of Section 2.2(b)(ii) above
and the Registrar receives the following:


 


(A)                              if the
transferee will take delivery in the form of a beneficial interest in a Rule 144A
Global Security, then the transferor must deliver a certificate in the form
attached to the applicable Security; and


 


(B)                                if the
transferee will take delivery in the form of a beneficial interest in a Regulation
S Global Security, then the transferor must deliver a certificate in the form
attached to the applicable Security.


 


(iv)                                  Transfer and
Exchange of Beneficial Interests in a Transfer Restricted Global Security for
Beneficial Interests in an Unrestricted Global Security.  A beneficial


 


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interest in a Transfer Restricted
Global Security may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Security or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security if the exchange or transfer complies with the requirements of Section 2.2(b)(ii) above
and the Registrar receives the following:


 


(A)                              if the holder
of such beneficial interest in a Transfer Restricted Global Security proposes
to exchange such beneficial interest for a beneficial interest in an
Unrestricted Global Security, a certificate from such holder in the form attached
to the applicable Security; or


 


(B)                                if the holder
of such beneficial interest in a Transfer Restricted Global Security 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
Security, a certificate from such holder in the form attached to the applicable
Security,


 


and, in each such case, if
the Registrar so requests or if the applicable rules and procedures of the
Depository, Euroclear or Clearstream, as applicable, 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 Restricted Securities
Legend are no longer required in order to maintain compliance with the
Securities Act.  If any such transfer or
exchange is effected pursuant to this subparagraph (iv) at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue
and, upon receipt of an written order of the Company in the form of an Officers’
Certificate in accordance with Section 2.01, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred or exchanged pursuant to this subparagraph (iv).


 


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


 


(c)                                  Transfer and
Exchange of Beneficial Interests in Global Securities for Definitive Securities.  A beneficial interest in a Global Security
may not be exchanged for a Definitive Security except under the circumstances
described in Section 2.1(b)(ii).  A
beneficial interest in a Global Security may not be transferred to a Person who
takes delivery thereof in the form of a Definitive Security except under the
circumstances described in Section 2.1(b)(ii).


 


(d)                                 Transfer and
Exchange of Definitive Securities for Beneficial Interests in Global Securities.  Transfers and exchanges of beneficial
interests in the Global Securities shall require compliance with either subparagraph
(i), (ii) or (iii) below, as applicable:


 


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


 


(A)                              if the Holder
of such Transfer Restricted Definitive Security proposes to exchange such
Transfer Restricted Definitive Security for a beneficial interest in a Transfer
Restricted Global Security, a certificate from such Holder in the form attached
to the applicable Security;


 


(B)                                if such
Transfer Restricted Definitive Security is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate from
such Holder in the form attached to the applicable Security;


 


(C)                                if such
Transfer Restricted Definitive Security is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate from such Holder in the form attached
to the applicable Security;


 


(D)                               if such
Transfer Restricted Definitive Security is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144 under the Securities Act, a certificate from such Holder in
the form attached to the applicable Security;


 


(E)                                 if such
Transfer Restricted Definitive Security is being transferred to an IAI in reliance
on an exemption from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate from such Holder in the form attached to the applicable Security, including
the certifications, certificates and Opinion of Counsel, if applicable; or


 


(F)                                 if such
Transfer Restricted Definitive Security is being transferred to the Company or
a Subsidiary thereof, a certificate from such Holder in the form attached to
the applicable Security;


 


the
Trustee shall cancel the Transfer Restricted Definitive Security, and increase
or cause to be increased the aggregate principal amount of  the appropriate Transfer Restricted Global Security.


 


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


 


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(A)                              if the Holder
of such Transfer Restricted Definitive Security proposes to exchange such
Transfer Restricted Definitive Security for a beneficial interest in an
Unrestricted Global Security, a certificate from such Holder in the form
attached to the applicable Security; or


 


(B)                                if the Holder
of such Transfer Restricted Definitive Securities proposes to transfer such
Transfer Restricted Definitive Security to a Person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Security, a certificate from such Holder in the form attached to the applicable
Security,


 


and,
in each such case, if the Registrar so requests or if the applicable rules and
procedures of the Depository, Euroclear or Clearstream, as applicable, 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 Restricted Securities Legend are no longer required in order to maintain
compliance with the Securities Act.  Upon
satisfaction of the conditions of this subparagraph (ii), the Trustee shall
cancel the Transfer Restricted Definitive Securities and increase or cause to
be increased the aggregate principal amount of the Unrestricted Global
Security.  If any such transfer or
exchange is effected pursuant to this subparagraph (ii) at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue
and, upon receipt of an written order of the Company in the form of an Officers’
Certificate, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the aggregate principal
amount of Transfer Restricted Definitive Securities transferred or exchanged
pursuant to this subparagraph (ii).


 


(iii)                                    Unrestricted
Definitive Securities to Beneficial Interests in Unrestricted Global Securities.  A Holder of an Unrestricted Definitive
Security may exchange such Unrestricted Definitive Security for a beneficial
interest in an Unrestricted Global Security or transfer such Unrestricted
Definitive Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security at any time.  Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Security and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Securities.  If any such transfer or exchange is effected
pursuant to this subparagraph (iii) at a time when an Unrestricted Global
Security has not yet been issued, the Company shall issue and, upon receipt of
an written order of the Company in the form of an Officers’ Certificate, the
Trustee shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the aggregate principal amount of
Unrestricted Definitive Securities transferred or exchanged pursuant to this
subparagraph (iii).


 


(iv)                                  Unrestricted
Definitive Securities to Beneficial Interests in Transfer Restricted Global
Securities.  An
Unrestricted Definitive Security cannot be exchanged for, or transferred to a
Person who takes delivery thereof in the form of, a beneficial interest in a
Transfer Restricted Global Security.


 


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(e)                                  Transfer and
Exchange of Definitive Securities for Definitive Securities.  Upon request by a Holder of Definitive
Securities and such Holder’s compliance with the provisions of this Section 2.2(e),
the Registrar shall register the transfer or exchange of Definitive Securities.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Securities 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 2.2(e).


 


(i)                                 Transfer
Restricted Definitive Securities to Transfer Restricted Definitive Securities.  A Transfer Restricted Definitive Security may
be transferred to and registered in the name of a Person who takes delivery
thereof in the form of a Transfer Restricted Definitive Security if the
Registrar receives the following:


 


(A)                              if the transfer
will be made pursuant to Rule 144A under the Securities Act, then the
transferor must deliver a certificate in the form attached to the applicable
Security;


 


(B)                                if the transfer
will be made pursuant to Rule 903 or Rule 904 under the Securities
Act, then the transferor must deliver a certificate in the form attached to the
applicable Security;


 


(C)                                if the transfer
will be made pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate in the form attached to the applicable Security;


 


(D)                               if the transfer
will be made to an IAI in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (A) through
(D) above, a certificate in the form attached to the applicable Security;
and


 


(E)                                 if such
transfer will be made to the Company or a Subsidiary thereof, a certificate in
the form attached to the applicable Security.


 


(ii)                                   Transfer
Restricted Definitive Securities to Unrestricted Definitive Securities.  Any Transfer Restricted Definitive Security
may be exchanged by the Holder thereof for an Unrestricted Definitive Security
or transferred to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security if the Registrar receives the following:


 


(1)                                  if the Holder
of such Transfer Restricted Definitive Security proposes to exchange such
Transfer Restricted Definitive Security for an Unrestricted Definitive
Security, a certificate from such Holder in the form attached to the applicable
Security; or


 


9














 


(2)                                  if the Holder
of such Transfer Restricted Definitive Security proposes to transfer such Securities
to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Security, a certificate from such Holder in the form attached to the
applicable Security,


 


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


 


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


 


(iv)                              Unrestricted
Definitive Securities to Transfer Restricted Definitive Securities.  An Unrestricted Definitive Security cannot be
exchanged for, or transferred to a Person who takes delivery thereof in the
form of, a Transfer Restricted Definitive Security.


 


At such time as all beneficial interests in a
particular Global Security have been exchanged for Definitive Securities or a
particular Global Security has been redeemed, repurchased or canceled in whole
and not in part, each such Global Security shall be returned to or retained and
canceled by the Trustee in accordance with Section 2.11.  At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depository, 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 Security, such other Global Security shall be increased accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depository, at the direction of the Trustee to reflect such increase.


 


(f)                                    Legend.


 


(i)                                     Except as
permitted by the following paragraphs (ii), (iii) or (iv), each Security
certificate evidencing the Global Securities and the Definitive Securities (and
all Securities issued in exchange therefor or in substitution thereof) shall
bear a legend in substantially the following form (each defined term in the
legend being defined as such for purposes of the legend only):


 


“THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND MAY


 


10

















 


NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:


 


(1)                                  REPRESENTS THAT
IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, IS A “QUALIFIED INSTITUTIONAL BUYER”
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2)                                  AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE (AS DEFINED IN THE NEXT PARAGRAPH), EXCEPT:


 


(A)                              TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, OR


 


(B)                                PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


(C)                                TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


(D)                               PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.


 


THE
RESALE RESTRICTION TERMINATION DATE WILL BE THE DATE (1) THAT IS AT LEAST
ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF AND (2) ON WHICH THE
COMPANY INSTRUCTS THE TRUSTEE THAT THIS LEGEND SHALL BE DEEMED REMOVED FROM
THIS SECURITY, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE RELATING
TO THIS SECURITY.


 


PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE
COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL
OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED
IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE
WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS 


 


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MADE
AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.”


 


Each Regulation S Security
that is a Temporary Security issued pursuant to Section 2.10 shall bear a
legend in substantially in the following form:


 


“THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL SECURITY THAT IS A
TEMPORARY SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR DEFINITIVE SECURITY, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”


 


Each Definitive Security
shall bear the following additional legends:


 


“IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.”


 


Each Security issued hereunder that has more than a de minimis amount
of original issue discount for U.S. Federal Income Tax purposes shall bear a
legend in substantially the following form:


 


“THIS
SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271
ET SEQ. OF THE INTERNAL REVENUE CODE.  TO
OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD
TO MATURITY FOR SUCH SECURITIES, A HOLDER MAY SUBMIT WRITTEN REQUEST FOR
SUCH INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS:  FREEDOM GROUP, INC., 870 REMINGTON DRIVE,
MADISON, NC 27025, ATTENTION:  GENERAL
COUNSEL.”


 


(ii)                                  Upon any sale
or transfer of a Transfer Restricted Definitive Security that is a Definitive
Security, the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Definitive Security for a Definitive Security that does not
bear the legends set forth above and rescind any restriction on the transfer of
such Transfer Restricted Definitive Security if the Holder certifies in writing
to the Registrar that its request for such exchange was made in reliance on Rule 144
(such certification to be in the form set forth on the reverse of the Initial
Security).


 


(iii)                               After a
transfer of any Initial Securities during the period of the effectiveness of a
Shelf Registration Statement with respect to such Initial  Securities, all requirements pertaining to
the Restricted Securities Legend on such Initial Securities shall cease to
apply and the requirements that any such Initial Securities be issued in global
form shall continue to apply.


 


(iv)                              Upon the
consummation of a Registered Exchange Offer with respect to the Initial
Securities pursuant to which Holders of such Initial Securities are offered
Exchange 


 


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Securities in exchange for
their Initial Securities, all requirements pertaining to Initial Securities
that Initial Securities be issued in global form shall continue to apply, and
Exchange Securities in global form  without
the Restricted Securities Legend shall be available to Holders that exchange
such Initial Securities in such Registered Exchange Offer.


 


(v)                                 Upon a sale or
transfer after the expiration of the Restricted Period of any Initial Security
acquired pursuant to Regulation S, all requirements that such Initial Security
bear the Restricted Securities Legend shall cease to apply and the requirements
requiring any such Initial Security be issued in global form shall continue to
apply.


 


(vi)                              Any Additional
Securities sold in a registered offering shall not be required to bear the
Restricted Securities Legend.


 


(g)                                 Cancellation or
Adjustment of Global Security.  At such time as all beneficial interests in a
particular Global Security have been exchanged for Definitive Securities or a particular
Global Security has been redeemed, repurchased or canceled in whole and not in
part, each such Global Security shall be returned to or retained and canceled
by the Trustee in accordance with Section 2.11 of this Indenture.  At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depository, 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 Security, such other Global Security shall be increased accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depository, at the direction of the Trustee to reflect such increase.


 


(h)                                 Obligations
with Respect to Transfers and Exchanges of Securities.


 


(i)                                     To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate, Definitive Securities and Global Securities at the
Registrar’s request.


 


(ii)                                  No service
charge shall be made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax, assessments,
or similar governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable upon
exchanges pursuant to Sections 3.06, 4.06, 4.08 and 9.05 of this
Indenture).


 


(iii)                               Prior to the
due presentation for registration of transfer of any Security, the Company, the
Trustee, a Paying Agent or the Registrar may deem and treat the person in whose
name a Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and interest on such Security and
for all other purposes whatsoever, whether or not such Security is overdue, and
none of the Company, the Trustee, a Paying Agent or the Registrar  shall be affected by notice to the contrary.


 


13

















 


(iv)                              All Securities
issued upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same debt and shall be entitled to the same benefits under
this Indenture as the Securities surrendered upon such transfer or exchange.


 


(i)                                     No Obligation
of the Trustee.


 


(i)                                     The Trustee
shall have no responsibility or obligation to any beneficial owner of a Global
Security, a member of, or a participant in the Depository or any other Person
with respect to the accuracy of the records of the Depository or its nominee or
of any participant or member thereof, with respect to any ownership interest in
the Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depository) of any notice
(including any notice of redemption or repurchase) or the payment of any
amount, under or with respect to such Securities.  All notices and communications to be given to
the Holders and all payments to be made to the Holders under the Securities
shall be given or made only to the registered Holders (which shall be the
Depository or its nominee in the case of a Global Security).  The rights of beneficial owners in any Global
Security shall be exercised only through the Depository subject to the
applicable rules and procedures of the Depository.  The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its members, participants and any beneficial owners.


 


(ii)                                  The Trustee
shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among Depository participants,
members or beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.


 


(j)                                     [INTENTIONALLY
OMITTED].


 


(k)                                  Transfers of Securities
Held by Affiliates. 
Notwithstanding anything to the contrary in this Section 2.2 any
certificate (i) evidencing a Security that has been transferred to an
affiliate (as defined in Rule 405 of the Securities Act) of the Company,
as evidenced by a notation on the certificate of transfer or certificate of
exchange for such transfer or in the representation letter delivered in respect
thereof, or (ii) evidencing a Security that has been acquired from an
affiliate (other than by an affiliate) in a transaction or a chain of
transactions not involving any public offering, as evidenced by a notation on
the certificate of transfer or certificate of exchange for such transfer or in
the representation letter delivered in respect thereof, shall, until one year
after the last date on which either the Company or any affiliate of the Company
was an owner of such Security, in each case, be in the form of a permanent
Definitive Security and bear the Restricted Securities Legend subject to the
restrictions in this Section 2.2. 
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to this Section 2.2(k).  The Company, at its sole cost and expense,
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable advance written notice to the Trustee.


 


14

















 


EXHIBIT A


 


[FORM OF FACE OF INITIAL SECURITY]


 


[Global Securities Legend]


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.


 


[Restricted Securities Legend]


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:


 


(1)                                  REPRESENTS THAT
IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, IS A “QUALIFIED INSTITUTIONAL BUYER”
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES
SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2)                                  AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE (AS DEFINED IN THE NEXT PARAGRAPH), EXCEPT:


 


(A)                              TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, OR


 

















 


(B)                                PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


(C)                                TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


(D)                               PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.


 


THE RESALE RESTRICTION TERMINATION DATE WILL BE THE
DATE (1) THAT IS AT LEAST ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE
HEREOF AND (2) ON WHICH THE COMPANY INSTRUCTS THE TRUSTEE THAT THIS LEGEND
SHALL BE DEEMED REMOVED FROM THIS SECURITY, IN ACCORDANCE WITH THE PROCEDURES
DESCRIBED IN THE INDENTURE RELATING TO THIS SECURITY.


 


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN
ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE
RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


[Temporary Regulation S Security Legend]


 


THE
RIGHTS ATTACHING TO THIS REGULATION S GLOBAL SECURITY THAT IS A TEMPORARY
SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
DEFINITIVE SECURITY, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).


 


[OID Legend]


 


THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE.  TO OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL
ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH SECURITIES, A HOLDER MAY SUBMIT
WRITTEN REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE FOLLOWING
ADDRESS:  FREEDOM GROUP, INC., 870
REMINGTON DRIVE, MADISON, NC 27025, ATTENTION: 
GENERAL COUNSEL.


 


Each Definitive Security shall bear the following
additional legend:


 


IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES


 


2

















 


AND
OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


3














 


[FORM OF INITIAL SECURITY]


 


	
  No.

  	
  $                    

  



 


101⁄4%
Senior Secured Note due 2015


 


CUSIP No. [144A: 35638P
AA8 / Reg S: U31331 AA6]

ISIN No. [144A: US35638PAA84 / Reg S: USU31331AA63]


 


FREEDOM GROUP, INC., a Delaware corporation,
promises to pay to
[                   ],
or registered assigns, the principal sum
of                 Dollars
[or such greater or lesser amount as is indicated on the Schedule of Increases
or Decreases in Global Security attached hereto]* on August 1, 2015.


 


Interest
Payment Dates:  February 1 and August 1.


 


Record
Dates:  January 15 and July 15.


 


Additional provisions of this Security are set forth
on the other side of this Security.


 


IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.


 


 


	
   

  	
  FREEDOM GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  TRUSTEE’S
  CERTIFICATE OF AUTHENTICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WILMINGTON TRUST FSB, 

  as Trustee, certifies that this is

  one of the Securities

  referred to in the Indenture. 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  



 


4

















 






*/          If the Security is to be issued in global form, add
the Global Securities Legend and the attachment from Exhibit A
captioned “TO BE ATTACHED TO GLOBAL SECURITIES - SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY.”


 


5

















 


[FORM OF REVERSE SIDE OF INITIAL SECURITY]


 


101⁄4% Senior Secured Note due 2015


 


1.             Interest


 


(a)           FREEDOM GROUP, INC., a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the “Company”), promises to
pay interest on the principal amount of this Security at the rate per annum
shown above.  The Company shall pay interest
semiannually on February 1 and August 1 of each year, commencing February 1,
2010.(a)  Interest on
the Securities shall accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid or duly
provided for, from July 29, 2009(a) until the principal hereof is
due.  Interest shall be computed on the
basis of a 360-day year of twelve 30-day months.  The Company shall pay interest on overdue
principal at the rate borne by the Securities, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.


 


(b)           Registration Rights Agreement.  The Holder of this Security is entitled to
the benefits of a Registration Rights Agreement, dated as of July 29,
2009, among the Company, the Guarantors and the Initial Purchasers.


 


2.             Method of Payment


 


The Company shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders at the
close of business on the January 15 or July 15 next preceding the
interest payment date even if Securities are canceled after the record date and
on or before the interest payment date (whether or not a Business Day).  The Holders must surrender Securities to a
Paying Agent to collect principal payments. 
The Company shall pay principal, premium, if any, and interest in money
of the United States of America that at the time of payment is legal
tender for payment of public and private debts. 
Payments in respect of the Securities represented by a Global Security
(including principal, premium, if any, and interest) shall be made by wire
transfer of immediately available funds to the accounts specified by The Depository
Trust Company or any successor depositary. 
The Company will make all payments in respect of a certificated Security
(including principal, premium, if any, and interest), at the office of each
Paying Agent, except that, at the option of the Company, payment of interest
may be made by mailing a check to the registered address of each Holder
thereof; provided, however,
that payments on the Securities may also be made, in the case of a Holder of at
least $1,000,000 aggregate principal amount of Securities, by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or a Paying Agent to such effect designating such
account no 


 






(a)           With respect to Securities
issued on the Issue Date.


 


6

















 


later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).


 


3.             Paying Agent and Registrar


 


Initially, Wilmington Trust FSB (the “Trustee”)
will act as Paying Agent and Registrar. 
The Company may appoint and change any Paying Agent or Registrar without
notice.  The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.


 


4.             Indenture


 


The Company issued the Securities under an Indenture
dated as of July 29, 2009 (the “Indenture”), among the Company, the
Guarantors and the Trustee.  The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”).  Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture.  The Securities are subject to all terms and
provisions of the Indenture, and the Holders are referred to the Indenture and
the TIA for a statement of such terms and provisions.  To the extent any provision of this Security
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling.


 


The Securities are senior secured obligations of the
Company.  This Security is one of the
Initial Securities referred to in the Indenture.  The Securities include the Initial Securities
and any Exchange Securities issued in exchange for Initial Securities pursuant
to the Indenture.  The Initial Securities
and any Exchange Securities are treated as a single class of securities under
the Indenture.  The Indenture imposes
certain limitations on the ability of the Company and its Restricted Subsidiaries
to, among other things, make certain Investments and other Restricted Payments,
pay dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of the Company
and such Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens and make asset sales.  The Indenture also imposes limitations on the
ability of the Company and each Guarantor to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all of its
property.


 


To guarantee the due and punctual payment of the
principal and interest, on the Securities and all other amounts payable by the
Company under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according
to the terms of the Securities and the Indenture, the Guarantors have, jointly
and severally, unconditionally guaranteed the Guaranteed Obligations on a
senior secured basis pursuant to the terms of the Indenture.


 


5.             Optional Redemption


 


Except as set forth in the following two paragraphs,
the Securities shall not be redeemable at the option of the Company prior to August 1,
2012.  Thereafter, the Securities shall 


 


7

















 


be redeemable at the option
of the Company, in whole at any time or in part from time to time, upon on not
less than 30 nor more than 60 days’ prior notice, at the following
redemption prices (expressed as a percentage of principal amount), plus accrued
and unpaid interest, to the redemption date (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month period commencing
on August 1 of the years set forth below:


 




	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2012

  	
   

  	
  105.125

  	
  %

  
	
  2013

  	
   

  	
  102.563

  	
  %

  
	
  2014 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


In addition, at any time prior to August 1,
2012, the Company may redeem the Securities at its option, in whole at any time
or in part from time to time, upon not less than 30 nor more than 60 days’
prior notice, at a redemption price equal to 100% of the principal amount of
the Securities redeemed plus the Applicable Premium as of, and accrued and
unpaid interest, to, the applicable redemption date (subject to the right of
the Holders of record on the relevant record date to receive interest due on
the relevant interest payment date).


 


In addition, at any time and from time to time prior
to August 1, 2012, but not more than once in any twelve-month period, the
Company may redeem up to 10% of the original aggregate principal amount of the
Securities at a redemption price (expressed as a percentage of principal amount
thereof) of 103%, plus accrued and unpaid interest, if any, to the applicable redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date).


 


Notwithstanding the foregoing, at any time and from
time to time on or prior to August 1, 2012, the Company may redeem in the
aggregate up to 35% of the original aggregate principal amount of the
Securities (calculated after giving effect to any issuance of Additional
Securities) with the net cash proceeds of one or more Equity Offerings (1) by
the Company or (2) by any direct or indirect parent of the Company, in
each case, to the extent the net cash proceeds thereof are contributed to the
common equity capital of the Company or used to purchase Capital Stock (other
than Disqualified Stock) of the Company from it, at a redemption price (expressed
as a percentage of the principal amount thereof) equal to 110.25% plus, accrued
and unpaid interest, if any, to the redemption date (subject to the right of
the Holders of record on the relevant record date to receive interest due on
the relevant interest payment date); provided, however,
that at least 65% of the original aggregate principal amount of the Securities
(calculated after giving effect to any issuance of Additional Securities) must
remain outstanding after each such redemption; and provided, further, that such redemption shall
occur within 90 days after the date on which any such Equity Offering is
consummated upon not less than 30 nor more than 60 days’ notice mailed to each
Holder of Securities being redeemed and otherwise in accordance with the
procedures set forth in the Indenture.


 


In addition, if such redemption is subject to
satisfaction of one or more conditions precedent, such notice of redemption
shall describe each such condition, and if applicable, shall 


 


8

















 


state that, in the Company’s
discretion, the redemption date may be delayed until such time as any or all
such conditions shall be satisfied, or such redemption may not occur and such
notice may be rescinded in the event that any or all such conditions shall not
have been satisfied by the stated redemption date, or by the redemption date as
so delayed.


 


6.             Sinking Fund


 


The Securities are not subject to any sinking fund.


 


7.             Notice of Redemption


 


Notice of redemption will be mailed by first-class
mail at least 30 days but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at his, her or its registered
address or otherwise in accordance with the procedures of The Depository Trust
Company.  Securities in denominations
larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000 to the extent practicable.  If
money sufficient to pay the redemption price of and accrued and unpaid interest
on all Securities (or portions thereof) to be redeemed on the redemption date
is deposited with a Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date, interest ceases to
accrue on such Securities (or such portions thereof) called for redemption.


 


8.             Repurchase of Securities at
the Option of Holders upon Change of Control, Asset Sales and Event of Loss


 


Upon the occurrence of a Change of Control, each
Holder shall have the right, subject to certain conditions specified in the
Indenture, to cause the Company to repurchase all or any part of such Holder’s Securities
at a purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to the
right of the Holders of record on the relevant record date to receive interest
due on the relevant interest payment date), as provided in, and subject to the
terms of, the Indenture.


 


In accordance with Sections 4.06 and 4.15 of
the Indenture, the Company will be required to offer to purchase Securities
upon the occurrence of certain events.


 


9.             Denominations; Transfer;
Exchange


 


The Securities are in registered form, without
coupons, in denominations of $2,000 and any integral multiple of $1,000 in
excess thereof.  A Holder shall register
the transfer of or exchange of Securities in accordance with the
Indenture.  Upon any registration of
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture.  The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be
redeemed) or to transfer or exchange any Securities for a period of
15 days prior to a selection of Securities to be redeemed.


 


9

















 


10.           Persons Deemed Owners


 


The registered Holder of this Security shall be
treated as the owner of it for all purposes.


 


11.           Unclaimed Money


 


If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and a Paying Agent shall pay the
money back to the Company at its written request unless an abandoned property
law designates another Person.  After any
such payment, the Holders entitled to the money must look to the Company for
payment as general creditors and the Trustee and a Paying Agent shall have no
further liability with respect to such monies.


 


12.           Discharge and Defeasance


 


Subject to certain conditions, the Company at any
time may terminate some of or all its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal of, and interest on the Securities to
redemption, or maturity, as the case may be.


 


13.           Amendment, Waiver


 


Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended with the
written consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Securities (voting as a single class) and (ii) any
past default or compliance with any provisions may be waived with the written
consent of the Holders of at least a majority in principal amount of the outstanding
Securities.  Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend the Indenture or the Securities (i) to cure any
ambiguity, omission, defect or inconsistency; (ii) to comply with Article 5
of the Indenture; (iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities; (iv) to add additional
Guarantees with respect to the Securities or to secure the Securities; (v) to
add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power conferred in the Indenture upon the Company; (vi) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (vii) to make any change
that does not adversely affect the rights of any Holder; (viii)  to
provide for the issuance of the Exchange Securities or Additional Securities; (ix) to
provide for the release of Collateral from the Liens of the Indenture and the
Security Documents when permitted or required by the Security Documents, the
Intercreditor Agreement or the Indenture; or (x) to secure any Permitted
Additional Pari Passu Obligations under the Security Documents and to appropriately
include the same in the Intercreditor Agreement.


 


14.           Defaults and Remedies


 


If an Event of Default occurs (other than an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company) and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the outstanding Securities, in each case, 


 


10

















 


by notice to the Company,
may declare the principal of, premium, if any, and accrued but unpaid interest
on all the Securities to be due and payable. 
If an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company occurs, the principal of, premium,
if any, and interest on all the Securities shall become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders.  Under certain circumstances,
the Holders of a majority in principal amount of the outstanding Securities may
rescind any such acceleration with respect to the Securities and its consequences.


 


If an Event of Default occurs and is continuing, the
Trustee shall be under no obligation to exercise any of the rights or powers
under the Indenture at the request or direction of any of the Holders unless
such Holders have offered to the Trustee indemnity or security satisfactory to
it against any loss, liability or expense and certain other conditions are
complied with.  Except to enforce the
right to receive payment of principal, premium (if any) or interest when due,
no Holder may pursue any remedy with respect to the Indenture or the Securities
unless (i) such Holder has previously given the Trustee notice that an
Event of Default is continuing, (ii) the Holders of at least 25% in
principal amount of the outstanding Securities have requested the Trustee in
writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv) 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 (v) the Holders
of a majority in principal amount of the outstanding Securities have not given
the Trustee a direction inconsistent with such request within such 60-day
period.  Subject to certain restrictions,
the Holders of a majority in principal amount of the outstanding Securities are
given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee.  The
Trustee, however, may refuse to follow any direction that conflicts with law or
the Indenture or that the Trustee determines is unduly prejudicial to the
rights of any other Holder or that would involve the Trustee in personal liability.  Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.


 


15.           Trustee Dealings with the
Company


 


Subject to certain limitations imposed by the TIA,
the Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with and
collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.


 


16.           No Recourse Against Others


 


No director, officer, employee, incorporator or
holder of any equity interests in the Company or of any Guarantor or any direct
or indirect parent corporation, as such, shall have any liability for any
obligations of the Company or the Guarantors under the Securities, the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation.  Each Holder of
Securities by accepting a Security waives and releases all such liability.


 


11

















 


17.           Authentication


 


This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Security.


 


18.           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 rights of survivorship and not
as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).


 


19.           Governing Law


 


THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


20.           CUSIP Numbers, ISINs and
Common Codes


 


The Company has caused CUSIP numbers and ISINs to be
printed on the Securities and has directed the Trustee to use CUSIP numbers and
ISINs.  No representation is made as to
the accuracy of such numbers either as printed on the Securities or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


 


The Company will furnish to any Holder of Securities upon written
request and without charge to the Holder a copy of the Indenture which has in
it the text of this Security.


 


12

















 


ASSIGNMENT FORM


 


To assign this Security, fill in the form
below:


 


I or we assign and transfer this Security to:




 


 





(Print or type assignee’s name, address and
zip code)




 


 





(Insert assignee’s soc. sec. or tax I.D. No.)


 


and irrevocably
appoint                           agent
to transfer this Security 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 other side of this Security.


 


Signature
Guarantee:


 




	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  Signature
  must be guaranteed by a participant in a recognized signature guaranty
  medallion program or other signature guarantor program reasonably acceptable
  to the Trustee 

  	
   

  	
  Signature
  of Signature Guarantee 

  






 


13






 


 










 


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER RESTRICTED SECURITIES


 


This certificate relates to $                  
principal amount of Securities held in (check applicable space)         
book-entry or           
definitive form by the undersigned.


 


The undersigned:


 


	
  o

  	
  has
  requested the Trustee by written order to deliver in exchange for its
  beneficial interest in the Global Security held by the Depository a Security
  or Securities in definitive, registered form of authorized denominations and
  an aggregate principal amount equal to its beneficial interest in such Global
  Security (or the portion thereof indicated above); and

  
	
   

  	
   

  
	
   

  	
   

  	
  check
  the following, if applicable:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  o

  	
  is
  an affiliate of the Company as contemplated in Section 2.2(k) of Appendix
  A to the Indenture; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  o

  	
  is
  exchanging this Security in connection with an expected transfer to an
  affiliate of the Company as contemplated in Section 2.2(k) of
  Appendix A to the Indenture.

  
	
   

  	
   

  	
   

  
	
  o

  	
  has
  requested the Trustee by written order to exchange or register the transfer
  of a Security or Securities; and

  
	
   

  	
   

  
	
   

  	
   

  	
  check
  the following, if applicable:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  o

  	
  is
  an affiliate of the Company as contemplated in Section 2.2(k) of Appendix
  A to the Indenture; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  o

  	
  the
  transferee is an affiliate of the Company as contemplated in
  Section 2.2(k) of Appendix A to the Indenture.

  



 


In connection with any transfer of any of the
Securities evidenced by this certificate occurring prior to the expiration of
the period referred to in Rule 144 under the Securities Act, the undersigned
confirms that such Securities are being transferred in accordance with its
terms:


 


CHECK ONE BOX BELOW


 


	
   

  	
  (1)

  	
  o

  	
  to
  the Company; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  o

  	
  to
  the Registrar for registration in the name of the Holder, without transfer;
  or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  o

  	
  pursuant to an effective
  registration statement under the Securities Act of 1933; or

  



 


14

















 


	
   

  	
  (4)

  	
  o

  	
  inside
  the United States to a “qualified institutional buyer” (as defined in Rule 144A
  under the Securities Act of 1933) that purchases for its own account or for
  the account of a qualified institutional buyer to whom notice is given that
  such transfer is being made in reliance on Rule 144A, in each case
  pursuant to and in compliance with Rule 144A under the Securities Act of
  1933; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  o

  	
  outside
  the United States in an offshore transaction within the meaning of
  Regulation S under the Securities Act in compliance with Rule 904 under
  the Securities Act of 1933 and such Security shall be held immediately after
  the transfer through Euroclear or Clearstream until the expiration of the
  Restricted Period (as defined in the Indenture); or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  o

  	
  to
  an institutional “accredited investor” (as defined in Rule 501(a)(1),
  (2), (3) or (7) under the Securities Act of 1933) that has
  furnished to the Trustee a signed letter containing certain representations
  and agreements; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  o

  	
  pursuant
  to another available exemption from registration provided by Rule 144
  under the Securities Act of 1933.

  



 


Unless one of the boxes is checked, the
Trustee will refuse to register any of the Securities evidenced by this
certificate in the name of any Person other than the registered Holder thereof;
provided, however,
that if box (5), (6) or (7) is checked, the Trustee may require,
prior to registering any such transfer of the Securities, such legal opinions,
certifications and other information as the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
of 1933.


 




	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your Signature

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  Signature
  must be guaranteed by a participant in a recognized signature guaranty
  medallion program or other signature guarantor program reasonably acceptable
  to the Trustee 

  	
   

  	
  Signature
  of Signature Guarantee 

  
					








 





 


TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.


 


The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with respect to
which it exercises sole investment discretion and that


 


15

















 


it and any such account is a
“qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order
to claim the exemption from registration provided by Rule 144A.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NOTICE:
  To be executed by an executive officer

  



 


16

















 


[TO BE ATTACHED TO GLOBAL SECURITIES]


 


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY


 


The initial principal amount of this Global Security
is set forth on the face hereof.  The
following increases or decreases in this Global Security have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of decrease

  in Principal Amount

  of this Global

  Security

  	
   

  	
  Amount of increase in

  Principal Amount of 

  this Global Security

  	
   

  	
  Principal amount of this

  Global Security following

  such decrease or increase

  	
   

  	
  Signature of authorized

  signatory of Trustee or

  Securities Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


17

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Security purchased
by the Company pursuant to Section 4.06 (Asset Sale), 4.08 (Change of
Control) or 4.15 (Event of Loss) of the Indenture, check the box:


 


Asset Sale  o            Change of
Control  o            Event of Loss  o


 


If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 4.06 (Asset Sale),
4.08 (Change of Control) or 4.15 (Event of Loss) of the Indenture, state
the amount ($1,000 or an integral multiple thereof):


 


$


 


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  
	
   

  	
   

  



 


	
  Signature Guarantee:

  	
   

  	
   

  



 


Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other signature guarantor program
reasonably acceptable to the Trustee


 


18

















 


EXHIBIT B


 


[FORM OF FACE OF EXCHANGE SECURITY]

[Global Securities Legend]


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.


 

















 


	
  No.

  	
  $                    

  



 


101⁄4%
Senior Secured Note due 2015


 


CUSIP
No.

ISIN No.


 


FREEDOM GROUP, INC., a Delaware corporation,
promises to pay
to [                              ],
or registered assigns, the principal sum
of                 Dollars
[or such greater or lesser amount as is indicated on the Schedule of Increases
or Decreases in Global Security attached hereto]* on August 1, 2015.


 


Interest Payment Dates:  February 1 and August 1.


 


Record Dates: 
January 15 and July 15.


 


Additional provisions of this Security are set forth
on the other side of this Security.


 


IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.


 


	
   

  	
  FREEDOM GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  
	
   

  	
   

  
	
  TRUSTEE’S
  CERTIFICATE OF AUTHENTICATION

  	
   

  
	
   

  	
   

  
	
  WILMINGTON
  TRUST FSB,

  	
   

  
	
  as Trustee, certifies that this is

  one of the Securities referred to

  in the Indenture. 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  



 


2

















 






*/                     If the Security is to be
issued in global form, add the Global Securities Legend and the attachment from
Exhibit A captioned “TO BE ATTACHED TO GLOBAL SECURITIES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY.”


 


3














 


[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]


 


101⁄4% Senior Secured Note due 2015


 


1.                                       Interest


 


FREEDOM GROUP, INC., a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the “Company”), promises to
pay interest on the principal amount of this Security at the rate per annum
shown above.  The Company shall pay
interest semiannually on February 1 and August 1 of each year,
commencing February 1, 2010.(a)  Interest on the Securities
shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from July 29,
2009[a] until the principal hereof is due.  Interest shall be computed on the basis of a
360-day year of twelve 30-day months. 
The Company shall pay interest on overdue principal at the rate borne by
the Securities, and it shall pay interest on overdue installments of interest
at the same rate to the extent lawful.


 


2.                                       Method of
Payment


 


The Company shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders at the
close of business on the January 15 or July 15 next preceding the
interest payment date even if Securities are canceled after the record date and
on or before the interest payment date (whether or not a Business Day).  The Holders must surrender Securities to a
Paying Agent to collect principal payments. 
The Company shall pay principal, premium, if any, and interest in money
of the United States of America that at the time of payment is legal
tender for payment of public and private debts. 
Payments in respect of the Securities represented by a Global Security
(including principal, premium and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company or any successor depositary.  The
Company will make all payments in respect of a certificated Security (including
principal, premium, if any, and interest), at the office of a Paying Agent,
except that, at the option of the Company, payment of interest may be made by
mailing a check to the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of at
least $1,000,000 aggregate principal amount of Securities, by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or a Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).


 






(a)                                  With respect to
the Securities issued on the Issue Date.


 


4

















 


3.                                       Paying Agent
and Registrar


 


Initially, Wilmington Trust FSB (the “Trustee”)
will act as Paying Agent and Registrar. 
The Company may appoint and change any Paying Agent or Registrar without
notice.  The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.


 


4.                                       Indenture


 


The Company issued the Securities under an Indenture
dated as of July 29, 2009 (the “Indenture”), among the Company, the
Guarantors and the Trustee.  The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”).  Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture.  The Securities are subject to all terms and
provisions of the Indenture, and the Holders are referred to the Indenture and
the TIA for a statement of such terms and provisions.  To the extent any provision of this Security
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling.


 


The Securities are senior secured obligations of the
Company.  This Security is one of the
Exchange Securities referred to in the Indenture.  The Securities include the Initial Securities,
the Additional Securities and any Exchange Securities issued in exchange for
the Initial Securities pursuant to the Indenture.  The Initial Securities and Exchange
Securities are treated as a single class of securities under the
Indenture.  The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, make certain Investments and other Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of the Company
and such Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens and make Asset Sales.  The Indenture also imposes limitations on the
ability of the Company and each Guarantor to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all of its
property.


 


To guarantee the due and punctual payment of the
principal and interest, if any, on the Securities and all other amounts payable
by the Company under the Indenture and the Securities when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Securities and the Indenture, the Guarantors
have, jointly and severally, unconditionally guaranteed the Guaranteed
Obligations on a senior secured basis pursuant to the terms of the Indenture.


 


5.                                       Optional
Redemption


 


Except as set forth in the following three
paragraphs, the Securities shall not be redeemable at the option of the Company
prior to August 1, 2012. 
Thereafter, the Securities shall be redeemable at the option of the
Company, in whole at any time or in part from time to time, upon on not less
than 30 nor more than 60 days’ prior notice, at the following redemption prices
(expressed as a percentage of principal amount), plus accrued and unpaid
interest, if any, 


 


5

















 


to the redemption date
(subject to the right of the Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on August 1 of the years set forth below:


 


	
  Year

  	
   

  	
  Redemption
  

  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2012

  	
   

  	
  105.125

  	
  %

  
	
  2013

  	
   

  	
  102.563

  	
  %

  
	
  2014 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In addition, prior to August 1, 2012, the
Company may redeem the Securities at its option, in whole at any time or in
part from time to time, upon not less than 30 nor more than 60 days’ prior
notice, at a redemption price equal to 100% of the principal amount of the
Securities redeemed plus the Applicable Premium as of, and accrued and unpaid
interest to, the applicable redemption date (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).


 


In addition, at any time and from time to time prior
to August 1, 2012, but not more than once in any twelve-month period, the
Company may redeem up to 10% of the original aggregate principal amount of the
Securities at a redemption price (expressed as a percentage of principal amount
thereof) of 103%, plus accrued and unpaid interest, if any, to the applicable redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date).


 


Notwithstanding the foregoing, at any time and from
time to time on or prior to August 1, 2012, the Company may redeem in the
aggregate up to 35% of the original aggregate principal amount of the
Securities (calculated after giving effect to any issuance of Additional Securities),
with the net cash proceeds of one or more Equity Offerings (1) by the Company
or (2) by any direct or indirect parent of the Company, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Company or used to purchase Capital Stock (other than
Disqualified Stock) of the Company from it, at a redemption price (expressed as
a percentage of the principal amount thereof) equal to 110.25% plus accrued and
unpaid interest, if any, to the redemption date (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided, however,
that at least 65% of the original aggregate principal amount of the Securities
(calculated after giving effect to any issuance of Additional Securities) must
remain outstanding after each such redemption; and provided, further, that such redemption shall
occur within 90 days after the date on which any such Equity Offering is
consummated upon not less than 30 nor more than 60 days’ notice mailed to each
Holder of Securities being redeemed and otherwise in accordance with the
procedures set forth in the Indenture.


 


In addition, if such redemption is subject to
satisfaction of one or more conditions precedent, such notice of redemption
shall describe each such condition, and if applicable, shall state that, in the
Company’s discretion, the redemption date may be delayed until such time as any
or all such conditions shall be satisfied, or such redemption may not occur and
such notice 


 


6

















 


may be rescinded in the
event that any or all such conditions shall not have been satisfied by the
stated redemption date, or by the redemption date as so delayed.


 


6.                                       Sinking Fund


 


The Securities are not subject to any sinking fund.


 


7.                                       Notice of
Redemption


 


Notice of redemption will be mailed by first-class
mail at least 30 days but not more than 60 days before the redemption date
to each Holder of Securities to be redeemed at his, her or its registered
address or otherwise in accordance with the procedures of The Depository Trust
Company.  Securities in denominations
larger than $2,000 may be redeemed in part but only in whole multiples of $1,000
to the extent practicable.  If money
sufficient to pay the redemption price of and accrued and unpaid interest on
all Securities (or portions thereof) to be redeemed on the redemption date is
deposited with a Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to
accrue on such Securities (or such portions thereof) called for redemption.


 


8.                                       Repurchase of
Securities at the Option of the Holders upon Change of Control, Asset Sales and
Event of Loss


 


Upon the occurrence of a Change of Control, each
Holder shall have the right, subject to certain conditions specified in the
Indenture, to cause the Company to repurchase all or any part of such Holder’s
Securities at a purchase price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of the Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), as provided in,
and subject to the terms of, the Indenture.


 


In accordance with Sections 4.06 and 4.15 of
the Indenture, the Company will be required to offer to purchase Securities
upon the occurrence of certain events.


 


9.                                       Denominations;
Transfer; Exchange


 


The Securities are in registered form without
coupons in denominations of $2,000 and any integral multiple of $1,000 in
excess thereof.  A Holder shall register
the transfer of or exchange of Securities in accordance with the
Indenture.  Upon any registration of
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture.  The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Securities for a period of 15 days prior to
a selection of Securities to be redeemed.


 


7

















 


10.                                 Persons Deemed
Owners


 


The registered Holder of this Security shall be
treated as the owner of it for all purposes.


 


11.                                 Unclaimed Money


 


If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and a Paying Agent shall pay the
money back to the Company at its written request unless an abandoned property
law designates another Person.  After any
such payment, the Holders entitled to the money must look to the Company for
payment as general creditors and the Trustee and a Paying Agent shall have no
further liability with respect to such monies.


 


12.                                 Discharge and
Defeasance


 


Subject to certain conditions, the Company at any
time may terminate some of or all its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to redemption,
or maturity, as the case may be.


 


13.                                 Amendment,
Waiver


 


Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended with the
written consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Securities (voting as a single class) and (ii) any
past default or compliance with any provisions may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities.  Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Company and the Trustee may amend the Indenture or the Securities (i) to
cure any ambiguity, omission, defect or inconsistency; (ii) to comply with
Article 5 of the Indenture; (iii) to provide for uncertificated Securities
in addition to or in place of certificated Securities; (iv) to add
additional Guarantees with respect to the Securities or to secure the
Securities; (v) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power conferred in the Indenture upon
the Company; (vi) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA; (vii) to
make any change that does not adversely affect the rights of any Holder; (viii) 
to provide for the issuance of the Exchange Securities or Additional
Securities; (ix) to provide for the release of Collateral from the Liens
of the Indenture and the Security Documents when permitted or required by the
Security Documents, the Intercreditor Agreement or the Indenture; or (x) to
secure any Permitted Additional Pari Passu Obligations under the Security
Documents and to appropriately include the same in the Intercreditor Agreement.


 


14.                                 Defaults and
Remedies


 


If an Event of Default occurs (other than an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company) and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the outstanding Securities, in each case, 


 


8

















 


by notice to the Company,
may declare the principal of, premium, if any, and accrued but unpaid interest
on all the Securities to be due and payable. 
If an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company occurs, the principal of, premium,
if any, and interest on all the Securities shall become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders.  Under certain circumstances,
the Holders of a majority in principal amount of the outstanding Securities may
rescind any such acceleration with respect to the Securities and its consequences.


 


If an Event of Default occurs and is continuing, the
Trustee shall be under no obligation to exercise any of the rights or powers
under the Indenture at the request or direction of any of the Holders unless
such Holders have offered to the Trustee indemnity or security satisfactory to
it against any loss, liability or expense and certain other conditions are
complied with.  Except to enforce the
right to receive payment of principal, premium (if any) or interest when due,
no Holder may pursue any remedy with respect to the Indenture or the Securities
unless (i) such Holder has previously given the Trustee notice that an
Event of Default is continuing, (ii) the Holders of at least 25% in
principal amount of the outstanding Securities have requested the Trustee in
writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv) 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 (v) the
Holders of a majority in principal amount of the outstanding Securities have
not given the Trustee a direction inconsistent with such request within such
60-day period.  Subject to certain
restrictions, the Holders of a majority in principal amount of the outstanding
Securities are given the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee.  The Trustee, however, may refuse to follow
any direction that conflicts with law or the Indenture or that the Trustee determines
is unduly prejudicial to the rights of any other Holder or that would involve
the Trustee in personal liability.  Prior
to taking any action under the Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.


 


15.                                 Trustee
Dealings with the Company


 


Subject to certain limitations imposed by the TIA,
the Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with and
collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.


 


16.                                 No Recourse
Against Others


 


No director, officer, employee, incorporator or
holder of any equity interests in the Company or of any Guarantor or any direct
or indirect parent corporation, as such, shall have any liability for any
obligations of the Company or the Guarantors under the Securities, the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation.  Each Holder of
Securities by accepting a Security waives and releases all such liability.


 


9

















 


17.                                 Authentication


 


This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.


 


18.                                 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 rights of survivorship and not
as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).


 


19.                                 Governing Law


 


THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


20.                                 CUSIP Numbers,
ISINs and Common Codes


 


The Company has caused CUSIP numbers and ISINs to be
printed on the Securities and has directed the Trustee to use CUSIP numbers and
ISINs.  No representation is made as to
the accuracy of such numbers either as printed on the Securities or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


 


The Company will furnish to any Holder of Securities upon written
request and without charge to the Holder a copy of the Indenture which has in
it the text of this Security.


 


10

















 


ASSIGNMENT FORM


 


To
assign this Security, fill in the form below:


 


I or we assign and transfer this Security to:


 




 





(Print or type assignee’s name, address and
zip code)


 




 





(Insert assignee’s soc. sec. or tax I.D. No.)


 


and irrevocably
appoint                           agent
to transfer this Security 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 other side of this Security.

  



 


	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:
  

  	
   

  	
   

  	
   

  	
   

  
	
  Signature
  must be guaranteed by a participant in a recognized signature guaranty
  medallion program or other signature guarantor program reasonably acceptable
  to the Trustee

  	
   

  	
   

  	
  Signature
  of Signature Guarantee

  
					



 


11

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Security purchased
by the Company pursuant to Section 4.06 (Asset Sale), 4.08 (Change of
Control) or 4.15 (Event of Loss) of the Indenture, check the box:


 




	
  Asset
  Sale o

  	
   

  	
  Change of Control o

  	
   

  	
  Event of Loss o

  






 


If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 4.06 (Asset Sale),
4.08 (Change of Control) or 4.15 (Event of Loss) of the Indenture, state
the amount ($1,000 or an integral multiple thereof):


 


	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
  Signature must be guaranteed by a participant in a
  recognized signature guaranty medallion program or other signature guarantor
  program reasonably acceptable to the Trustee.

  
							



 


12

















 


[TO BE ATTACHED TO GLOBAL SECURITIES]


 


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY


 


The initial principal amount of this Global Security
is set forth on the face hereof.  The
following increases or decreases in this Global Security have been made:


 


	
  Date
  of

  Exchange

  	
   

  	
  Amount of decrease

  in Principal Amount 

  of this Global 

  Security

  	
   

  	
  Amount of increase in

  Principal Amount of 

  this Global Security

  	
   

  	
  Principal amount of this

  Global Security following

  such decrease or increase

  	
   

  	
  Signature of authorized

  signatory of Trustee or

  Securities Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


13














 


EXHIBIT C


 


Form of

Transferee Letter of Representation


 


Freedom
Group, Inc.


 


c/o
Wilmington Trust FSB 

246 Goose Lane, Suit 105

Guilford, CT 06437


 


Ladies and Gentlemen:


 


This certificate is delivered to request a transfer
of $[          ] principal amount
of the 101⁄4% Senior Secured Notes due 2015 (the “Securities”) of FREEDOM
GROUP, INC. (the “Company”).


 


Upon transfer, the Securities would be registered in
the name of the new beneficial owner as follows:


 


	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  
	
  Taxpayer
  ID Number:

  	
   

  	
   

  
				



 


The undersigned represents and warrants to you that:


 


1.                                       We are an
institutional “accredited investor” (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities
Act”)), purchasing for our own account or for the account of such an
institutional “accredited investor” at least $250,000 principal amount
of the Securities, and we are acquiring the Securities not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act.  We have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Securities, and we invest in or
purchase securities similar to the Securities in the normal course of our
business.  We, and any accounts for which
we are acting, are each able to bear the economic risk of our or its investment.


 


2.                                       We understand
that the Securities have not been registered under the Securities Act and,
unless so registered, may not be sold except as permitted in the following sentence.  We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is one year after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the “Resale Restriction Termination Date”) only (a) to
the Company, (b) pursuant to a registration statement that has been
declared effective under the Securities Act, (c) in a transaction complying
with the requirements of Rule 144A under the Securities Act (“Rule 144A”),
to a person we 


 

















 


reasonably believe is a
qualified institutional buyer under Rule 144A (a “QIB”) that is
purchasing for its own account or for the account of a QIB and to whom notice
is given that the transfer is being made in reliance on Rule 144A, (d) pursuant
to offers and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act that is purchasing for its own account or for the account of
such an institutional “accredited investor,” in each case in a minimum
principal amount of Securities of $250,000, or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance with any
applicable state securities laws.  The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date.  If any
resale or other transfer of the Securities is proposed to be made pursuant to
clause (e) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee substantially in the
form of this letter to the Company and the Trustee, which shall provide, among
other things, that the transferee is an institutional “accredited investor”
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act and that it is acquiring such Securities for investment purposes
and not for distribution in violation of the Securities Act.  Each purchaser acknowledges that the Company
and the Trustee reserve the right prior to the offer, sale or other transfer
prior to the Resale Restriction Termination Date of the Securities pursuant to
clause (d), (e) or (f) above to require the delivery of an
opinion of counsel, certifications or other information satisfactory to the
Company and the Trustee.


 


	
  Dated:

  	
   

  	
   

  	
  TRANSFEREE:

  	
   

  	
  ,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
							



 


2

















 


EXHIBIT D


 


[FORM OF SUPPLEMENTAL INDENTURE]


 


SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”) dated as of
[            ],
among [GUARANTOR] (the “New Guarantor”), a subsidiary of FREEDOM GROUP,
INC. (or its successor), a Delaware corporation (the “Company”), and
WILMINGTON TRUST FSB,  as trustee under
the indenture referred to below (the “Trustee”).


 


W I T N E S S E T H
:


 


WHEREAS the Company and the existing Guarantors have
heretofore executed and delivered to the Trustee an Indenture (as amended,
supplemented or otherwise modified, the “Indenture”) dated as of July 29,
2009, providing for the issuance of the Company’s 101⁄4% Senior Secured Notes due
2015 (the “Securities”), initially in the aggregate principal amount of
$200,000,000;


 


WHEREAS Section 4.11 of the Indenture provides
that under certain circumstances the Company is required to cause the New
Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor shall unconditionally guarantee all the
Company’s obligations under the Securities pursuant to a Guarantee on the terms
and conditions set forth herein; and


 


WHEREAS pursuant to Section 9.01 of the Indenture,
the Trustee, the Company and the existing Guarantors are authorized to execute
and deliver this Supplemental Indenture;


 


NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Company, and the Trustee mutually covenant and agree for
the equal and ratable benefit of the holders of the Securities as follows:


 


1.                                       Defined Terms.  As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein
as therein defined, except that the term “Holders” in this Guarantee
shall refer to the term “Holders” as defined in the Indenture and the Trustee
acting on behalf of and for the benefit of such Holders.  The words “herein,” “hereof” and hereby and
other words of similar import used in this Supplemental Indenture refer to this
Supplemental Indenture as a whole and not to any particular section hereof.


 


2.                                       Agreement to
Guarantee.  The New
Guarantor hereby agrees, jointly and severally with all existing Guarantors (if
any), to unconditionally guarantee the Company’s obligations under the
Securities on the terms and subject to the conditions set forth in Article 10
of the Indenture and to be bound by all other applicable provisions of the
Indenture and the Securities and to perform all of the obligations and
agreements of a Guarantor under the Indenture.


 


3.                                       Ratification of
Indenture; Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all 


 

















 


the terms, conditions and
provisions thereof shall remain in full force and effect.  This Supplemental Indenture shall form a part
of the Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.


 


4.                                       Notices.  All notices or other communications to the
New Guarantor shall be given as provided in Section 13.02 of the
Indenture.


 


5.                                       Governing Law.  THIS SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


6.                                       Trustee Makes
No Representation.  The Trustee
makes no representation as to the validity or sufficiency of this Supplemental
Indenture.


 


7.                                       Counterparts.  The parties may sign any number of copies of
this Supplemental Indenture.  Each signed
copy shall be an original, but all of them together represent the same agreement.


 


8.                                       Effect of
Headings.  The Section headings
herein are for convenience only and shall not affect the construction thereof.


 


2

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed as of the date first above
written.


 


	
   

  	
  [NEW GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FREEDOM GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST FSB, AS
  TRUSTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


3