**Exhibit 4.6(a)**

 

EXECUTION COPY

 

VARIETAL DISTRIBUTION MERGER SUB, INC.to be merged with and intoCDRV INVESTORS, INC. (to be renamed VWR FUNDING, INC.)

 as IssuerandTHE GUARANTORS PARTY HERETO

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 10.25%/11.25% SENIOR PIK TOGGLE NOTESDUE 2015

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 INDENTUREDATED AS OF JUNE 29, 2007

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 LAW DEBENTURE TRUST COMPANY OF NEW YORKas TrusteeDEUTSCHE BANK TRUST COMPANY AMERICASas Paying Agent and Registrar

 

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CROSS-REFERENCE TABLE(a)

 
| **Trust Indenture** | ** **          | ** **            |
|---------------------|---------------------|-----------------------|
| **Act Section**     | ** **          | **Indenture Section** |
| 310                 | (a)(1)              |                  | 7.10 |
|                | (a)(2)              |                  | 7.10 |
|                | (a)(3)              |                  | N.A. |
|                | (a)(4)              |                  | N.A. |
|                | (a)(5)              |                  | 7.10 |
|                | (b)                 |                  | 7.3; 7.10 |
|                | (c)                 |                  | N.A. |
|                | 311(a)              |                  | 7.11 |
|                | (b)                 |                  | 7.11 |
|                | (c)                 |                  | N.A. |
| 312                 | (a)                 |                  | 2.5 |
|                | (b)                 |                  | 12.3 |
|                | (c)                 |                  | 12.3 |
| 313                 | (a)                 |                  | 7.6 |
|                | (b)(1)              |                  | 7.6 |
|                | (b)(2)              |                  | 7.6; 7.7 |
|                | (c)                 |                  | 7.6; 12.2 |
|                | (d)                 |                  | 7.6 |
| 314                 | (a)                 |                  | 4.3; 12.5 |
|                | (b)                 |                  | N.A. |
|                | (c)(1)              |                  | 12.4 |
|                | (c)(2)              |                  | 12.4 |
|                | (c)(3)              |                  | N.A. |
|                | (d)                 |                  | N.A. |
|                | (e)                 |                  | 12.5 |
|                | (f)                 |                  | N.A. |
| 315                 | (a)                 |                  | 7.1 |
|                | (b)                 |                  | 7.5; 12.2 |
|                | (c)                 |                  | 7.1 |
|                | (d)                 |                  | 7.1 |
|                | (e)                 |                  | 6.11 |
| 316                 | (a) (last sentence) |                  | 2.9 |
|                | (a)(1)(A)           |                  | 6.5 |
|                | (a)(1)(B)           |                  | 6.4 |
|                | (a)(2)              |                  | N.A. |
|                | (b)                 |                  | 6.7 |

 

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(a)           ThisCross-Reference Table is not part of the Indenture.

 

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| **Trust Indenture** | ** ** | ** **            |
|---------------------|------------|-----------------------|
| **Act Section**     | ** ** | **Indenture Section** |
|                | (c)        |                  | 2.13 |
| 317                 | (a)(1)     |                  | 6.8 |
|                | (a)(2)     |                  | 6.9 |
|                | (b)        |                  | 2.4 |
| 318                 | (a)        |                  | 12.1 |
|                | (b)        |                  | N.A. |
|                | (c)        |                  | 12.1 |

 

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TABLE OF CONTENTS

 
| ** **                                  | ** ** | ** **                                         | ** ** | **Page** |
|---------------------------------------------|------------|----------------------------------------------------|------------|----------|
|                                        |       |                                               |       |     |
| ARTICLE I                                   |
|                                        |       |                                               |       |     |
| DEFINITIONS AND  INCORPORATION BY REFERENCE |
|                                        |       |                                               |       |     |
| SECTION 1.1                                 |       | Definitions                                        |       | 1        |
| SECTION 1.2                                 |       | Other Definitions                                  |       | 39       |
| SECTION 1.3                                 |       | Incorporation by Reference of Trust  Indenture Act |       | 40       |
| SECTION 1.4                                 |       | Rules of Construction                              |       | 40       |
|                                        |       |                                               |       |     |
| ARTICLE II                                  |
|                                        |       |                                               |       |     |
| THE NOTES                                   |
|                                        |       |                                               |       |     |
| SECTION 2.1                                 |       | Form and Dating                                    |       | 41       |
| SECTION 2.2                                 |       | Execution and Authentication                       |       | 43       |
| SECTION 2.3                                 |       | Registrar; Paying Agent                            |       | 44       |
| SECTION 2.4                                 |       | Paying Agent to Hold Money in Trust                |       | 44       |
| SECTION 2.5                                 |       | Holder Lists                                       |       | 45       |
| SECTION 2.6                                 |       | Book-Entry Provisions for Global Securities        |       | 45       |
| SECTION 2.7                                 |       | Replacement Notes                                  |       | 47       |
| SECTION 2.8                                 |       | Outstanding Notes                                  |       | 48       |
| SECTION 2.9                                 |       | Treasury Notes                                     |       | 48       |
| SECTION 2.10                                |       | Temporary Notes                                    |       | 48       |
| SECTION 2.11                                |       | Cancellation                                       |       | 49       |
| SECTION 2.12                                |       | Defaulted Interest                                 |       | 49       |
| SECTION 2.13                                |       | Record Date                                        |       | 49       |
| SECTION 2.14                                |       | Computation of Interest                            |       | 49       |
| SECTION 2.15                                |       | CUSIP Number                                       |       | 49       |
| SECTION 2.16                                |       | Special Transfer Provisions                        |       | 50       |
| SECTION 2.17                                |       | Issuance of Additional Notes                       |       | 51       |
|                                        |       |                                               |       |     |
| ARTICLE III                                 |
|                                        |       |                                               |       |     |
| REDEMPTION AND  PREPAYMENT                  |
|                                        |       |                                               |       |     |
| SECTION 3.1                                 |       | Notices to Trustee                                 |       | 52       |
| SECTION 3.2                                 |       | Selection of Notes to Be Redeemed                  |       | 52       |
| SECTION 3.3                                 |       | Notice of Redemption                               |       | 53       |
| SECTION 3.4                                 |       | Effect of Notice of Redemption                     |       | 54       |
| SECTION 3.5                                 |       | Deposit of Redemption of Purchase Price            |       | 54       |
| SECTION 3.6                                 |       | Notes Redeemed in Part                             |       | 55       |
| SECTION 3.7                                 |       | Optional Redemption                                |       | 55       |
| SECTION 3.8                                 |       | Mandatory Redemption                               |       | 56       |
| SECTION 3.9                                 |       | Offer to Purchase                                  |       | 57       |

 

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| ARTICLE IV             |
|------------------------|
|                   |   |   |   |   |
| COVENANTS              |
|                   |   |   |   |   |
| SECTION 4.1            |   | Payment of Notes |   | 58 |
| SECTION 4.2            |   | Maintenance of Office or Agency |   | 58 |
| SECTION 4.3            |   | Reports |   | 59 |
| SECTION 4.4            |   | Compliance Certificate |   | 60 |
| SECTION 4.5            |   | Taxes |   | 60 |
| SECTION 4.6            |   | Stay, Extension and Usury Laws |   | 61 |
| SECTION 4.7            |   | Limitation on Restricted Payments |   | 61 |
| SECTION 4.8            |   | Limitation on Dividends and Other Payment  Restrictions Affecting Subsidiaries |   | 69 |
| SECTION 4.9            |   | Limitation on Incurrence of Indebtedness and  Issuance of Preferred Stock |   | 71 |
| SECTION 4.10           |   | Limitation on Asset Sales |   | 77 |
| SECTION 4.11           |   | Limitation on Transactions with Affiliates |   | 80 |
| SECTION 4.12           |   | Limitation on Liens |   | 82 |
| SECTION 4.13           |   | Payments for Consent |   | 83 |
| SECTION 4.14           |   | Offer to Purchase upon Change of Control |   | 83 |
| SECTION 4.15           |   | Corporate Existence |   | 84 |
| SECTION 4.16           |   | Business Activities |   | 84 |
| SECTION 4.17           |   | Additional Guarantees |   | 84 |
| SECTION 4.18           |   | [Reserved] |   | 85 |
| SECTION 4.19           |   | Further Instruments and Acts |   | 85 |
| SECTION 4.20           |   | Covenant Suspension |   | 85 |
|                   |   |   |   |   |
| ARTICLE V              |
|                   |   |   |   |   |
| SUCCESSORS             |
|                   |   |   |   |   |
| SECTION 5.1            |   | Merger, Consolidation or Sale of Assets |   | 86 |
| SECTION 5.2            |   | Successor Corporation Substituted |   | 87 |
|                   |   |   |   |   |
| ARTICLE VI             |
|                   |   |   |   |   |
| DEFAULTS AND  REMEDIES |
|                   |   |   |   |   |
| SECTION 6.1            |   | Events of Default |   | 88 |
| SECTION 6.2            |   | Acceleration |   | 90 |
| SECTION 6.3            |   | Other Remedies |   | 91 |
| SECTION 6.4            |   | Waiver of Past Defaults |   | 91 |
| SECTION 6.5            |   | Control by Majority |   | 92 |
| SECTION 6.6            |   | Limitation on Suits |   | 92 |
| SECTION 6.7            |   | Rights of Holders of Notes to Receive  Payment |   | 92 |
| SECTION 6.8            |   | Collection Suit by Trustee |   | 93 |
| SECTION 6.9            |   | Trustee May File Proofs of Claim |   | 93 |

 

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| SECTION 6.10                            |   | Priorities                                                                                     |   | 93     |
|-----------------------------------------|--------|------------------------------------------------------------------------------------------------|--------|--------|
| SECTION 6.11                            |   | Undertaking for Costs                                                                          |   | 94     |
|                                    |   |                                                                                           |   |   |
| ARTICLE VII                             |
|                                    |   |                                                                                           |   |   |
| TRUSTEE                                 |
|                                    |   |                                                                                           |   |   |
| SECTION 7.1                             |   | Duties of Trustee                                                                              |   | 94     |
| SECTION 7.2                             |   | Rights of Trustee                                                                              |   | 95     |
| SECTION 7.3                             |   | Individual Rights of Trustee                                                                   |   | 97     |
| SECTION 7.4                             |   | Trustee’s Disclaimer                                                                      |   | 97     |
| SECTION 7.5                             |   | Notice of Defaults                                                                             |   | 97     |
| SECTION 7.6                             |   | Reports by Trustee to Holders of the Notes                                                     |   | 97     |
| SECTION 7.7                             |   | Compensation and Indemnity                                                                     |   | 98     |
| SECTION 7.8                             |   | Replacement of Trustee                                                                         |   | 99     |
| SECTION 7.9                             |   | Successor Trustee by Merger, Etc.                                                              |   | 100    |
| SECTION 7.10                            |   | Eligibility; Disqualification                                                                  |   | 100    |
| SECTION 7.11                            |   | Preferential Collection of Claims Against  the Company                                         |   | 100    |
| SECTION 7.12                            |   | Trustee’s Application for Instructions from  the Company                                  |   | 100    |
|                                    |   |                                                                                           |   |   |
| ARTICLE VIII                            |
|                                    |   |                                                                                           |   |   |
| DEFEASANCE;  DISCHARGE OF THE INDENTURE |
|                                    |   |                                                                                           |   |   |
| SECTION 8.1                             |   | Option to Effect Legal Defeasance or  Covenant Defeasance                                      |   | 101    |
| SECTION 8.2                             |   | Legal Defeasance                                                                               |   | 101    |
| SECTION 8.3                             |   | Covenant Defeasance                                                                            |   | 101    |
| SECTION 8.4                             |   | Conditions to Legal or Covenant Defeasance                                                     |   | 102    |
| SECTION 8.5                             |   | Deposited Money and Government Securities  to Be Held in Trust; Other Miscellaneous Provisions |   | 103    |
| SECTION 8.6                             |   | Repayment to Company                                                                           |   | 104    |
| SECTION 8.7                             |   | Reinstatement                                                                                  |   | 104    |
| SECTION 8.8                             |   | Discharge                                                                                      |   | 105    |
|                                    |   |                                                                                           |   |   |
| ARTICLE IX                              |
|                                    |   |                                                                                           |   |   |
| AMENDMENT,  SUPPLEMENT AND WAIVER       |
|                                    |   |                                                                                           |   |   |
| SECTION 9.1                             |   | Without Consent of Holders of the Notes                                                        |   | 106    |
| SECTION 9.2                             |   | With Consent of Holders of Notes                                                               |   | 107    |
| SECTION 9.3                             |   | Compliance with Trust Indenture Act                                                            |   | 108    |
| SECTION 9.4                             |   | Revocation and Effect of Consents                                                              |   | 108    |
| SECTION 9.5                             |   | Notation on or Exchange of Notes                                                               |   | 109    |
| SECTION 9.6                             |   | Trustee to Sign Amendments, Etc.                                                               |   | 109    |

 

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| ARTICLE X       |
|-----------------|
|            |   |   |   |   |
| [RESERVED]      |
|            |   |   |   |   |
| ARTICLE XI      |
|            |   |   |   |   |
| NOTE GUARANTEES |
|            |   |   |   |   |
| SECTION 11.1    |   | Guarantees |   | 110 |
| SECTION 11.2    |   | Execution and Delivery of Guarantee |   | 111 |
| SECTION 11.3    |   | Severability |   | 111 |
| SECTION 11.4    |   | Limitation of Guarantors’ Liability |   | 111 |
| SECTION 11.5    |   | Guarantors May Consolidate, Etc., on  Certain Terms |   | 112 |
| SECTION 11.6    |   | Releases Following Sale of Assets |   | 113 |
| SECTION 11.7    |   | Release of a Guarantor |   | 114 |
| SECTION 11.8    |   | Benefits Acknowledged |   | 114 |
|            |   |   |   |   |
| ARTICLE XII     |
|            |   |   |   |   |
| MISCELLANEOUS   |
|            |   |   |   |   |
| SECTION 12.1    |   | Trust Indenture Act Controls |   | 114 |
| SECTION 12.2    |   | Notices |   | 114 |
| SECTION 12.3    |   | Communication by Holders of Notes with  Other Holders of Notes |   | 116 |
| SECTION 12.4    |   | Certificate and Opinion as to Conditions  Precedent |   | 116 |
| SECTION 12.5    |   | Statements Required in Certificate or  Opinion |   | 116 |
| SECTION 12.6    |   | Rules by Trustee and Agents |   | 117 |
| SECTION 12.7    |   | No Personal Liability of Directors, Officers,  Employees and Stockholders |   | 117 |
| SECTION 12.8    |   | Governing Law |   | 117 |
| SECTION 12.9    |   | No Adverse Interpretation of Other  Agreements |   | 117 |
| SECTION 12.10   |   | Successors |   | 117 |
| SECTION 12.11   |   | Severability |   | 118 |
| SECTION 12.12   |   | Counterpart Originals |   | 118 |
| SECTION 12.13   |   | Table of Contents, Headings, Etc. |   | 118 |
| SECTION 12.14   |   | Acts of Holders |   | 118 |
|            |   |   |   |   |
| EXHIBITS        |   |   |   |   |
|            |   |   |   |   |
| Exhibit A  | FORM OF  NOTE |   |   |
| Exhibit B  | FORM OF NOTATIONAL GUARANTEE |   |   |
| Exhibit C  | FORM OF  CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO  RULE 144A |   |   |
| Exhibit D  | FORM OF CERTIFICATE TO BE DELIVERED IN  CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S |   |   |
|                 |  |  |  |  |  |

 

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This Indenture, dated as of June 29, 2007is by and among Varietal Distribution Merger Sub, Inc., a Delaware corporationthat shall be merged with and into CDRV Investors, Inc., a Delawarecorporation, as the surviving corporation (the “Company”), eachGuarantor (as defined herein), Law Debenture Trust Company of New York, astrustee (the “Trustee”), and Deutsche Bank Trust Company Americas, asregistrar and paying agent.

 

Each party agrees as follows for the benefitof each other and for the equal and ratable benefit of the holders of (i) theCompany’s 10.25%/11.25% Senior PIK Toggle Notes due 2015 issued on the datehereof (the “Initial Notes”) and (ii) Additional Notes (as definedherein and, together with the Initial Notes, the “Notes”). On or afterthe date hereof, Varietal Distribution Merger Sub, Inc. shall be merged withand into CDRV Investors, Inc., with CDRV Investors, Inc. continuing as thesurviving corporation and assuming all of the obligations of VarietalDistribution Merger Sub, Inc. under this Indenture:

 

# ARTICLE I

#  

# DEFINITIONS ANDINCORPORATION BY REFERENCE

#  

SECTION 1.1         Definitions.

 

“Acquired Debt” means, with respect toany specified Person:

 

(a)           Indebtedness of any other Personexisting at the time such other Person is merged with or into or became aRestricted Subsidiary of such specified Person, including Indebtedness incurredin connection with, or in contemplation of, or to provide all or any portion ofthe funds or credit support utilized in connection with, such other Personmerging with or into, or becoming a Restricted Subsidiary of, such specifiedPerson; and

 

(b)           Indebtedness secured by an existingLien encumbering any asset acquired by such specified Person.

 

“Acquisition Agreement” means thatcertain agreement and plan of merger dated as of May 2, 2007 between theVarietal Distribution Merger Sub, Inc., Holdings and CDRV Investors, Inc.,a Delaware corporation, as amended, modified and/or supplemented from time totime in accordance with the terms thereof, pursuant to which VarietalDistribution Merger Sub, Inc. will merge with and into CDRV Investors, Inc.,with CDRV Investors, Inc. surviving such merger and changing its name toVWR Funding, Inc.

 

“Additional Interest” means alladditional interest owing on the Notes pursuant to the Registration RightsAgreement.

 

“Additional Notes” means Notes (otherthan the Initial Notes) issued pursuant to Article II hereof and otherwisein compliance with the provisions of this Indenture.

 

“Affiliate” of any specified Personmeans any other Person directly or indirectly controlling or controlled by orunder direct or indirect common control with such specified Person. Forpurposes of this definition, “control” (including, with correlative meanings,the 

 

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terms “controlling,”“controlled by” and “under common control with”), as used with respect to anyPerson, shall mean the possession, directly or indirectly, of the power todirect or cause the direction of the management or policies of such Person,whether through the ownership of voting securities, by agreement or otherwise.

 

“Agent” means any Registrar, PayingAgent or co-registrar.

 

“Applicable Premium” means, withrespect to any Note on any applicable redemption date, the excess of:

 

(a)           the present value at such redemptiondate of (i) the redemption price at July 15, 2011 (such redemptionprice being set forth in Section 3.7) plus (ii) all requiredinterest payments due on the Notes through July 15, 2011 (excludingaccrued but unpaid interest to the date of redemption), computed using adiscount rate equal to the Treasury Rate as of such redemption date plus 50basis points; over

 

(b)           the then outstanding principal amountof the Notes.

 

“Asset Sale” means (i) the sale,conveyance, transfer, lease (as lessor) or other voluntary disposition (whetherin a single transaction or a series of related transactions) of property or assets(including by way of a Sale and Lease-Back Transaction) of the Company (otherthan the sale of Equity Interests of the Company) or any of its RestrictedSubsidiaries (each referred to in this definition as a “disposition”) or(ii) the issuance or sale of Equity Interests of any Restricted Subsidiary(whether in a single transaction or a series of related transactions), in eachcase, other than:

 

(a)           a disposition of Cash Equivalents orInvestment Grade Securities or obsolete, damaged or worn out property orequipment in the ordinary course of business or inventory (or other assets)held for sale in the ordinary course of business and dispositions of propertyno longer used or useful in the conduct of the business of the Company and itsRestricted Subsidiaries or the disposition of inventory in the ordinary courseof business;

 

(b)           the disposition of all orsubstantially all of the assets of the Company in a manner permitted pursuantto Section 5.1 or any disposition that constitutes a Change of Control;

 

(c)           the making of any Restricted Paymentor Permitted Investment that is permitted to be made, and is made, pursuant to Section4.7 or the granting of a Lien permitted by Section 4.12;

 

(d)           any disposition of assets or issuanceor sale of Equity Interests of any Restricted Subsidiary (other than directors’qualifying shares or shares required by applicable law to be held by a Personother than the Company or a Restricted Subsidiary) in any transaction or seriesof transactions with an aggregate fair market value of less than $25.0 million;

 

2

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(e)           any disposition of property or assetsor issuance of securities by a Restricted Subsidiary to the Company or by theCompany or a Restricted Subsidiary to another Restricted Subsidiary;

 

(f)            the lease, assignment, sublease,license or sublicense of any real or personal property in the ordinary courseof business;

 

(g)           any issuance or sale of EquityInterests in, or Indebtedness or other securities of, an UnrestrictedSubsidiary;

 

(h)           foreclosures on assets or transfersby reason of eminent domain;

 

(i)            disposition of an account receivablein connection with the collection or compromise thereof;

 

(j)            sales of accounts receivable, orparticipations therein, in connection with any Receivables Facility;

 

(k)           the issuance by a RestrictedSubsidiary of Disqualified Stock or Preferred Stock that is permitted by Section4.9;

 

(l)            any financing transaction withrespect to property built or acquired by the Company or any RestrictedSubsidiary after the Issue Date, including Sale and Lease-Back Transactions andReceivables Facility financings permitted under this Indenture;

 

(m)          transfers of property subject tocasualty or condemnation proceedings (including in lieu thereof) upon thereceipt of the net cash proceeds therefor;

 

(n)           the abandonment of intellectualproperty rights in the ordinary course of business, which in the reasonablegood faith determination of the Company or a Restricted Subsidiary are notmaterial to the conduct of the business of the Company and its RestrictedSubsidiaries taken as a whole;

 

(o)           voluntary terminations of HedgingObligations;

 

(p)           Dispositions permitted under thisIndenture (including Sale and Lease-Back Transactions) by a Foreign Subsidiarydesigned to generate foreign distributable reserves;

 

(q)           any Permitted Asset Swap; and

 

(r)            Sale and Lease-Back Transactionsinvolving (i) real property owned on the Issue Date, (ii) propertyacquired not more than 180 days prior to such Sale and Lease-Back Transactionfor cash in an amount at least equal to the cost of such property and(iii) other property for cash consideration if the sale is treated as anAsset Sale.

 

“Asset Sale Offer” means an Offer to Purchaserequired to be made by the Company or a Restricted Subsidiary pursuant to Section4.10 to all Holders.

 

3

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

 

“Beneficial Owner” has the meaningassigned to such term in Rule 13d-3 and Rule 13d-5 under the ExchangeAct, except that in calculating the beneficial ownership of any particular “person”(as that term is used in Section 13(d)(3) of the Exchange Act), such “person”will be deemed to have beneficial ownership of all securities that such “person”has the right to acquire by conversion or exercise of other securities, whethersuch right is currently exercisable or is exercisable only upon the occurrenceof a subsequent condition. The terms “Beneficially Owns,” “Beneficially Owned”and “Beneficial Ownership” have a corresponding meaning.

 

“Board of Directors” means:

 

(a)           with respect to a corporation, theboard of directors of the corporation;

 

(b)           with respect to a partnership, theboard of directors of the general partner of the partnership; and

 

(c)           with respect to any other Person, theboard or committee of such Person serving a similar function.

 

“Board Resolution” means a copy of a resolutioncertified by the Secretary or an Assistant Secretary of the Company or anyRestricted Subsidiary to have been duly adopted by the Board of Directors,unless the context specifically requires that such resolution be adopted by amajority of the Disinterested Directors, in which case by a majority of suchdirectors, and to be in full force and effect on the date of such certificationand delivered to the Trustee.

 

“Business Day” means any day otherthan a Legal Holiday.

 

“Calculation Date” has the meaning setforth in the definition of “Fixed Charge Coverage Ratio.”

 

“Capital Stock” means:

 

(1)           in the case of a corporation, capitalstock;

 

(2)           in the case of an association orbusiness entity, any and all shares, interests, participations, rights or otherequivalents (however designated) of capital stock;

 

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

 

(4)           any other interest or participationthat confers on a Person the right to receive a share of the profits and lossesof, 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 theliability in respect of a capital lease that would at such time be required 

 

4

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to becapitalized and reflected as a liability on a balance sheet (excluding thefootnotes thereto) in accordance with GAAP (except for temporary treatment ofconstruction-related expenditures under EITF 97-10, “The Effect of LesseeInvolvement in Asset Construction,” which will ultimately be treated asoperating leases upon a Sale and Lease-Back Transaction).

 

“Cash Contribution Amount” means theaggregate amount of cash contributions made to the capital of the Company orany other Guarantor described in the definition of “Contribution Indebtedness.”

 

“Cash Equivalents” shall mean:

 

(a)           U.S. dollars;

 

(b)           (i)            Sterling,Singapore Dollars, Swedish Kroner, Canadian Dollars, euro, or any nationalcurrency of any participating member state of the economic and monetary unioncontemplated by the Treaty on European Union; or

 

(ii)            in the caseof the Company or a Restricted Subsidiary, such local currencies held by themfrom time to time in the ordinary course of business;

 

(c)           securities issued or directly andfully and unconditionally guaranteed or insured by the U.S. government or anyagency or instrumentality thereof the securities of which are unconditionallyguaranteed as a full faith and credit obligation of such government withmaturities of 24 months or less from the date of acquisition;

 

(d)           certificates of deposit, timedeposits and eurodollar time deposits with maturities of one year or less fromthe date of acquisition, bankers’ acceptances with maturities not exceeding oneyear and overnight bank deposits, in each case with (i) any lender underthe Credit Agreement or an Affiliate thereof or (ii) any commercial bankhaving capital and surplus of not less than $250.0 million in the case of U.S.banks and $100.0 million (or the U.S. dollar equivalent as of the date ofdetermination) in the case of non-U.S. banks;

 

(e)           repurchase obligations for underlyingsecurities of the types described in clauses (c) and (d) aboveentered into with any financial institution meeting the qualificationsspecified in clause (d) above;

 

(f)            commercial paper rated at least P-2by Moody’s or at least A-2 by S&P and in each case maturing within 24months after the date of creation thereof;

 

(g)           marketable short-term money marketand similar securities having a rating of at least P-2 or A-2 from either Moody’sor S&P, respectively (or, if at any time neither Moody’s nor S&P shallbe rating such obligations, an equivalent rating from another Rating Agency)and in each case maturing within 24 months after the date of creation thereof;

 

(h)           investment funds investing 95% oftheir assets in securities of the types described in clauses (a) through(g) above;

 

5

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(i)            readily marketable directobligations issued by any state, commonwealth or territory of the United Statesor any political subdivision or taxing authority thereof having an InvestmentGrade Rating from either Moody’s or S&P with maturities of 24 months orless from the date of acquisition;

 

(j)            Indebtedness or Preferred Stockissued by Persons with a rating of “A” or higher from S&P or “A2” or higherfrom Moody’s with maturities of 24 months or less from the date of acquisition;

 

(k)           Investments with average maturitiesof 12 months or less from the date of acquisition in money market funds ratedA- (or the equivalent thereof) or better by S&P or A3 (or the equivalentthereof) or better by Moody’s:

 

(l)            shares of investment companies thatare registered under the Investment Company Act of 1940 and substantially allthe investments of which are one or more of the types of securities describedin clauses (a) through (k) above; and

 

(m)          in the case of any Foreign Subsidiary,investments of comparable tenure and credit quality to those described in theforegoing clauses (a) through (l) above or other high quality short terminvestments, in each case, customarily utilized in countries in which suchForeign Subsidiary operates for short term cash management purposes.

 

Notwithstanding the foregoing, CashEquivalents shall include amounts denominated in currencies other than thoseset forth in clauses (a) and (b) above, provided that suchamounts are converted into any currency listed in clauses (a) and(b) as promptly as practicable and in any event within ten Business Daysfollowing the receipt of such amounts.

 

“Cash Pooling Arrangements” means adeposit account arrangement among a single depository institution, the Companyand one or more Foreign Subsidiaries involving the pooling of cash deposits inand overdrafts in respect of one or more deposit accounts (each located outsideof the United States and any States and territories thereof) with suchinstitution by the Company and such Foreign Subsidiaries for cash managementpurposes.

 

“Certificated Notes” means Notes thatare in the form of Exhibit A attached hereto other than GlobalNotes.

 

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

 

(a)           the sale, lease, transfer or otherconveyance, in one or a series of related transactions, of all or substantiallyall of the assets of the Company and its Subsidiaries, taken as a whole, to anyPerson other than to a Permitted Holder;

 

(b)           the acquisition by any Person orgroup (within the meaning of Section 13(d)(3) orSection 14(d)(2) of the Exchange Act, or any successor provision), includingany group acting for the purpose of acquiring, holding or disposing ofsecurities (within the meaning of Rule 13d-5(b)(1) under the ExchangeAct), other than the Permitted Holders, in a single transaction or in a relatedseries of transactions, by way of merger, consolidation or other businesscombination or purchase of Beneficial 

 

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Ownership,directly or indirectly, of 50% or more of the total voting power of the VotingStock of the Company or any of its direct or indirect parent entities,including, without limitation, Parent; or

 

(c)           the first day on which the majorityof the Board of Directors of the Company then in office shall cease to consistof Continuing Directors.

 

“Change of Control Offer” means anOffer to Purchase required to be made by the Company pursuant to Section 4.14to all Holders.

 

“Code” means the United StatesInternal Revenue Code of 1986, as amended from time to time, and theregulations promulgated and rulings issued thereunder. Section referencesto the Code are to the Code, as in effect on the Issue Date, and any subsequentprovisions of the Code, amendatory thereof, supplemental thereto or substitutedtherefor.

 

“Commission” means the U.S. Securitiesand Exchange Commission.

 

“Common Stock” of any Person meansCapital Stock in such Person that do not rank prior, as to the payment ofdividends or as to the distribution of assets upon any voluntary or involuntaryliquidation, dissolution or winding up of such Person, to Capital Stock of anyother class in such Person.

 

“Company” means initially, VarietalDistribution Merger Sub, Inc. and, upon consummation of the merger contemplatedby the Acquisition Agreement, CDRV Investors, Inc. (to be renamed VWR Funding,Inc.), and any successor thereto.

 

“Consolidated Depreciation andAmortization Expense” means, with respect to any Person for any period, thetotal amount of depreciation and amortization expense, including the amortizationof deferred financing fees, and other non-cash charges (excluding any non-cashitem that represents an accrual or reserve for a cash expenditure for a futureperiod) of such Person and its Restricted Subsidiaries for such period on aconsolidated basis and otherwise determined in accordance with GAAP.

 

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

 

(a)           consolidated interest expense of suchPerson and its Restricted Subsidiaries for such period, to the extent suchexpense was deducted (and not added back) in computing Consolidated Net Income(including (i) amortization of original issue discount resulting from theissuance of Indebtedness at less than par, (ii) all commissions, discountsand other fees and charges owed with respect to letters of credit or bankersacceptances, (iii) non-cash interest expense (but excluding any non-cashinterest expense attributable to the movement in the mark-to-market valuationof Hedging Obligations or other derivative instruments pursuant to GAAP),(iv) the interest component of Capitalized Lease Obligations, (v) netpayments, if any, pursuant to interest rate Hedging Obligations with respect toIndebtedness, (vi) net losses on Hedging Obligations or other derivativeinstruments entered into for the purpose of hedging interest rate risk and(vii) costs of surety bonds in connection with financing activities, andexcluding 

 

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(x) amortizationof deferred financing fees, debt issuance costs, commissions, fees andexpenses, (y) any expensing of bridge, commitment and other financing feesand (z) commissions, discounts, yield and other fees and charges(including any interest expense) related to any Receivables Facility); plus

 

(b)           consolidated capitalized interest ofsuch Person and its Restricted Subsidiaries for such period, whether paid oraccrued; less

 

(c)           interest income of such Person andits Restricted Subsidiaries for such period.

 

For purposes of this definition, interest ona Capitalized Lease Obligation shall be deemed to accrue at an interest ratereasonably determined by the Company to be the rate of interest implicit insuch Capitalized Lease Obligation in accordance with GAAP.

 

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

 

(a)           any pro formaafter-tax effect (using a reasonable estimate based on applicable tax rates) ofextraordinary, non-recurring or unusual gains or losses (less all fees andexpenses relating thereto) or expenses (including relating to theTransactions), severance, integration costs, relocation costs and curtailmentsor modifications to pension and post-retirement employee benefit plans shall beexcluded,

 

(b)           the Net Income forsuch period shall not include the cumulative effect of a change in accountingprinciples during such period,

 

(c)           any pro formaafter-tax effect (using a reasonable estimate based on applicable tax rates) ofincome (loss) from disposed or discontinued operations and any net after-taxgains or losses on disposal of disposed, abandoned or discontinued operationsshall be excluded,

 

(d)           any pro formaafter-tax effect (using a reasonable estimate based on applicable tax rates) ofgains or losses (less all accrued fees and expenses relating thereto) attributableto asset dispositions other than in the ordinary course of business, as determinedin good faith by the Company, shall be excluded,

 

(e)           the Net Income forsuch period of any Person that is not a Subsidiary, or is an UnrestrictedSubsidiary, or that is accounted for by the equity method of accounting, shallbe excluded; provided, that Consolidated Net Income of such Person shall be increasedby the amount of dividends or distributions or other payments that are actuallypaid in cash (or to the extent converted into cash) to such Person or aSubsidiary thereof that is the Company or a Restricted Subsidiary in respect ofsuch period,

 

(f)            solely for thepurpose of determining the amount available for Restricted Payments underclause (3) of the first paragraph of Section 4.7, the Net Incomefor such 

 

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period of any Restricted Subsidiary (other than any Guarantor) shall beexcluded if the declaration or payment of dividends or similar distributions bythat Restricted Subsidiary of its Net Income is not at the date ofdetermination wholly permitted without any prior governmental approval (whichhas not been obtained) or, directly or indirectly, by the operation of theterms of its charter or any agreement, instrument, judgment, decree, order,statute, rule, or governmental regulation applicable to that RestrictedSubsidiary or its stockholders, unless such restriction with respect to thepayment of dividends or similar distributions has been legally waived,provided, that Consolidated Net Income of the Company will be increased by theamount of dividends or other distributions or other payments actually paid incash (or to the extent converted into cash) to the Company or a RestrictedSubsidiary thereof in respect of such period, to the extent not already includedtherein,

 

(g)           effects of purchaseaccounting adjustments (including the effects of such adjustments pushed downto such Person and such Subsidiaries) in component amounts required orpermitted by GAAP, resulting from the application of purchase accounting inrelation to the Transactions or any consummated acquisition or the amortizationor write-up, write-down or write-off of any amounts thereof, net of taxes,shall be excluded,

 

(h)           any pro formaafter-tax effect (using a reasonable estimate based on applicable tax rates) ofincome (loss) from the early extinguishment of Indebtedness or HedgingObligations or other derivative instruments shall be excluded,

 

(i)            any pro formaafter-tax effect (using a reasonable estimate based on applicable tax rates)impairment charge or asset write-off, write-up or write-down, in each case, pursuant to GAAP and theamortization of intangibles arising (including goodwill and organizational costs) pursuant to GAAP shall beexcluded,

 

(j)            any pro formaafter-tax effect (using a reasonable estimate based on applicable tax rates)non-cash compensation expense recorded from grants of stock appreciation orsimilar rights, stock options, restricted stock or other rights shall beexcluded,

 

(k)           any fees andexpenses incurred during such period, or any amortization thereof for suchperiod, in connection with the Transactions and any acquisition, Investment,Disposition, dividend or similar Restricted Payments, issuance or repayment ofIndebtedness, issuance of Equity Interests, refinancing or recapitalizationtransaction or amendment or modification of any debt instrument (in each case,including any such transaction consummated prior to the Issue Date and any suchtransaction undertaken but not completed) and any charges or non-recurringmerger costs incurred during such period as a result of any such transactionshall be excluded, and

 

(l)            accruals andreserves that are established within twelve months after the Issue Date thatare so required to be established as a result of the Transactions in accordancewith GAAP shall be excluded.

 

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Notwithstanding the foregoing, for thepurpose of Section 4.7 only, there shall be excluded from ConsolidatedNet Income any income arising from any sale or other disposition of RestrictedInvestments made by the Company and its Restricted Subsidiaries, anyrepurchases and redemptions of Restricted Investments made by the Company andits Restricted Subsidiaries, any repayments of loans and advances whichconstitute Restricted Investments made by the Company and any RestrictedSubsidiary, any sale of the stock of an Unrestricted Subsidiary or anydistribution or dividend from an Unrestricted Subsidiary, in each case only tothe extent such amounts increase the amount of Restricted Payments permittedunder clause (3)(d) of the first paragraph of Section 4.7.

 

“Contingent Obligations” means, withrespect to any Person, any obligation of such Person guaranteeing or having theeconomic effect of guaranteeing any leases, dividends or other obligations thatdo not constitute Indebtedness (“primary obligations”) of any otherPerson (the “primary obligor”) in any manner, whether directly orindirectly, including, without limitation, any obligation of such Person,whether or not contingent, (i) to purchase any such primary obligation orany property constituting direct or indirect security therefor, (ii) toadvance or supply funds (A) for the purchase or payment of any suchprimary obligation or (B) to maintain working capital or equity capital ofthe primary obligor or otherwise to maintain the net worth or solvency of theprimary obligor, or (iii) to purchase property, securities or servicesprimarily for the purpose of assuring the owner of any such primary obligationof the ability of the primary obligor to make payment of such primaryobligation against loss in respect thereof or (iv) as an account partywith respect of any letter of credit, letter of guaranty or bankers’ acceptance.

 

“Continuing Directors” means, as ofany date of determination, individuals who (i) were members of such Boardof Directors on the Issue Date or (ii) were either (x) nominated forelection or elected to such Board of Directors with the approval of a majorityof the Continuing Directors who were members of such Board of Directors at thetime of nomination or election, (y) appointed, approved or recommended bya majority of the then Continuing Directors or (z) designated or appointedby a Permitted Holder.

 

“Contribution Indebtedness” meansIndebtedness of the Company or any Guarantor in an aggregate principal amountnot greater than two times the aggregate amount of cash contributions (otherthan Excluded Contributions) made to the capital of the Company or suchGuarantor after the Issue Date; provided that:

 

(a)           if the aggregate principal amount ofsuch Contribution Indebtedness is greater than one times such cash contributionamount to the capital of the Company or such Guarantor, as applicable, theamount of such excess shall be (i) Subordinated Indebtedness (other thanSecured Indebtedness) and (ii) Indebtedness with a Stated Maturity laterthan the Stated Maturity of the Notes, and

 

(b)           such cash contribution amount is notapplied to make Restricted Payments.

 

“Corporate Trust Office of the Trustee”shall be at the address of the Trustee specified in Section 12.2hereof or such other address as to which the Trustee shall specify for receiptof notices under this Indenture.

 

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“Credit Agreement” means that certaincredit agreement, to be dated as of the Issue Date, among the Company, Bank ofAmerica, N.A. as Administrative Agent and Collateral Agent, Banc of AmericaSecurities LLC, Goldman Sachs Credit Partners L.P. and J.P. Morgan SecuritiesInc., as Joint Lead Arrangers and Joint Bookrunners, the lenders party theretoand certain other parties specified therein, providing for$1,415.0 million of U.S. dollar and euro term loans and $250.0 millionof revolving credit borrowings (including the issuance of letters of credit),including any related notes, guarantees, collateral documents, instruments andagreements executed in connection therewith, and in each case as amended,restated, supplemented, modified, renewed, refunded, replaced (whether atmaturity or thereafter) or refinanced from time to time in one or moreagreements or indentures (in each case with the same or new agents, lenders orinstitutional investors), including any agreement adding or changing theborrower or any guarantor or extending the maturity thereof or otherwiserestructuring all or any portion of the Indebtedness thereunder or increasingthe amount loaned or issued thereunder or altering the maturity thereof (providedthat such increase in borrowings is permitted under Section 4.9).

 

“Credit Facilities” means, withrespect to the Company, one or more debt facilities (including, withoutlimitation, the Credit Agreement) or commercial paper facilities or Debt Issuances,in each case, with banks, investment banks, insurance companies, mutual fundsand/or other institutional lenders or investors providing for revolving creditloans, term loans, receivables or inventory financing (including through thesale of receivables or inventory to such lenders or to special purpose entitiesformed to borrow from (or sell receivables to) such lenders against suchreceivables or inventory) or letters of credit or Debt Issuances, in each case,as amended, restated, modified, renewed, refunded, replaced, supplemented orrefinanced, including refinancing with Debt Issuances, in whole or in part andwithout limitation as to amounts, terms, conditions, covenants and otherprovisions, from time to time. Indebtedness under Credit Facilities outstandingon the date on which the Notes are first issued and authenticated under thisIndenture (after giving effect to the use of proceeds thereof) shall be deemedto have been incurred on such date in reliance on the exception provided byclause (1) of the second paragraph of Section 4.9.

 

“Debt Issuances” means, with respectto the Company or any Restricted Subsidiary, one or more issuances after theIssue Date of Indebtedness evidenced by notes, debentures, bonds or other similarsecurities or instruments.

 

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

 

“Depositary” means, with respect tothe Notes issuable or issued in whole or in part in global form, the Personspecified in Section 2.3 hereof as the Depositary with respect tothe Notes, until a successor shall have been appointed and become such pursuantto Section 2.6 hereof, and, thereafter, “Depositary” shall mean orinclude such successor.

 

“Designated Non-cash Consideration”means the fair market value of non-cash consideration received by the Companyor any of its Restricted Subsidiaries in connection with an Asset Sale that isso designated as Designated Non-cash Consideration pursuant to an Officers’ Certificatesetting forth the basis of such valuation, less the amount of cash or Cash 

 

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Equivalents receivedin connection with a subsequent sale of such Designated Non-cash Consideration.

 

“Designated Preferred Stock” meansPreferred Stock of the Company or any direct or indirect parent company of theCompany (other than Disqualified Stock of the Company), that is issued for cash(other than to Parent or any of its Subsidiaries or an employee stock ownershipplan or trust established by the Company or any of its Subsidiaries) and is sodesignated as Designated Preferred Stock, pursuant to an Officers’ Certificate,on the issuance date thereof, the cash proceeds of which are excluded from thecalculation set forth in clause (3) of the first paragraph of Section4.7.

 

“Disqualified Stock” means, withrespect to any Person, any Capital Stock of such Person which, by its terms (orby the terms of any security into which it is convertible or for which it isputable or exchangeable), or upon the happening of any event, matures or ismandatorily redeemable (other than as a result of a change of control or assetsale), pursuant to a sinking fund obligation or otherwise, or is redeemable atthe option of the holder thereof (other than as a result of a change of controlor asset sale), in whole or in part, in each case prior to the earlier of thefinal maturity date of the Notes or the date the Notes are no longeroutstanding; provided, however, that if such Capital Stock is issued to any plan for thebenefit of employees of the Company or any of its Subsidiaries or by any suchplan to such employees, such Capital Stock shall not constitute DisqualifiedStock solely because it may be required to be repurchased by the Company or anyof its Subsidiaries in order to satisfy applicable statutory or regulatoryobligations.

 

“Domestic Subsidiaries” means, withrespect to any Person, any subsidiary of such Person other than a ForeignSubsidiary.

 

“DTC” means The Depository TrustCompany and any successor.

 

“EBITDA” means, with respect to anyPerson for any period, the Consolidated Net Income of such Person and itsRestricted Subsidiaries for such period

 

(a)           increased (without duplication) by:

 

(i)            provision for taxesbased on income or profits or capital (or any alternative tax in lieu thereof),including, without limitation, foreign, state, franchise and similar taxes andforeign withholding taxes of such Person and such subsidiaries paid or accruedduring such period deducted (and not added back) in computing Consolidated NetIncome, including payments made pursuant to any tax sharing agreements orarrangements among the Company, its Restricted Subsidiaries and any direct orindirect parent company of the Company (so long as such tax sharing paymentsare attributable to the operations of the Company and its Restricted Subsidiaries);plus

 

(ii)           Fixed Charges ofsuch Person and such subsidiaries for such period to the extent the same wasdeducted (and not added back) in calculating such Consolidated Net Income; plus

 

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(iii)          ConsolidatedDepreciation and Amortization Expense of such Person and such subsidiaries forsuch period to the extent the same were deducted (and not added back) incomputing Consolidated Net Income; plus

 

(iv)          any fees, costs,commissions, expenses or other charges (other than Depreciation or AmortizationExpense) related to any Equity Offering, Permitted Investment, acquisition,disposition, recapitalization or the incurrence or repayment of Indebtednesspermitted to be incurred under this Indenture (including a refinancing thereof)(whether or not successful), including (w) any expensing of bridge,commitment or other financing fees, (x) such fees, costs, commissions,expenses or other charges related to the offering of the Notes, the SeniorSubordinated Notes and the Credit Facilities, (y) any such fees, costs(including call premium), commissions, expenses or other charges related to anyamendment or other modification of the Existing Notes, the Notes, the SeniorSubordinated Notes and the Credit Facilities and (z) commissions,discounts, yield and other fees and charges (including any interest expense)related to any Receivables Facility, and, in each case, deducted (and not addedback) in computing Consolidated Net Income; plus

 

(v)           the amount of anybusiness optimization expense and restructuring charge or reserve deducted (andnot added back) in such period in computing Consolidated Net Income, includingany restructuring costs incurred in connection with acquisitions after theIssue Date, costs related to the closure and/or consolidation of facilities,retention charges, contract termination costs, future lease commitments,systems establishment costs, conversion costs and excess pension charges,consulting fees and any one-time expense relating to enhanced accountingfunction, or costs associated with becoming a standalone entity or publiccompany incurred in connection with any of the foregoing; provided thatthe aggregate amount of expenses added pursuant to this clause (v) shallnot exceed an amount equal to 10% of EBITDA of the Company for the period offour consecutive fiscal quarters most recently ended prior to the determinationdate (without giving effect to any adjustments pursuant to this clause (v) orclause (xii) below); plus

 

(vi)          any other non-cashcharges, expenses or losses including any write-offs or write-downs and anynon-cash expense relating to the vesting of warrants, reducing Consolidated NetIncome for such period (provided that if any such non-cash chargesrepresent an accrual or reserve for potential cash items in any future period,the cash payment in respect thereof in such future period shall be subtractedfrom EBITDA in such future period to the extent paid, and excludingamortization of a prepaid cash item that was paid in a prior period); plus

 

(vii)         the amount of anyminority interest expense consisting of subsidiary income attributable tominority equity interests of third parties in any non-Wholly Owned Subsidiarydeducted (and not added back) in such period in calculating Consolidated NetIncome; plus

 

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(viii)        the amount ofmanagement, monitoring, consulting, transaction and advisory fees and relatedexpenses paid in such period to the Sponsor pursuant to the ManagementAgreement (as in effect on the Issue Date) deducted (and not added back) incomputing Consolidated Net Income; plus

 

(ix)           the amount of losson sale of receivables and related assets to the Receivables Subsidiary inconnection with a Receivables Facility deducted (and not added back) incomputing Consolidated Net Income; plus

 

(x)            costs or expensededucted (and not added back) in computing Consolidated Net Income by suchPerson or any such subsidiary pursuant to any management equity plan or stockoption plan or any other management or employee benefit plan or agreement orany stock subscription or shareholder agreement, to the extent that such cost orexpenses are funded with cash proceeds contributed to the capital of theCompany or net cash proceeds of an issuance of Equity Interest of the Company(other than Disqualified Stock) solely to the extent that such net cashproceeds are excluded from the calculation of the amount available for RestrictedPayments under clause (3) of the first paragraph of Section 4.7; plus

 

(xi)           for the year endedDecember 31, 2006, $11.5 million relating to prior cost-reductionactions, acquisitions and signed agreements, recorded on a quarterly basis; plus

 

(xii)          the amount of netcost savings and acquisition synergies projected by the Company in good faithto be realized during such period (calculated on a pro forma basis as thoughsuch cost savings had been realized on the first day of such period) as aresult of specified actions taken or initiated in connection with theTransactions or any acquisition or disposition by the Company or any RestrictedSubsidiary, net of the amount of actual benefits realized during such periodthat are otherwise included in the calculation of EBITDA from such actions; providedthat (A) such cost savings are reasonably identifiable and factually supportableas evidenced in an Officers Certificate, (B) such actions are taken within18 months after the Issue Date or the date of such acquisition or dispositionand (C) the aggregate amount of cost savings added pursuant to thisclause (xii) shall not exceed an amount equal to the greater of(x) $35 million and (y) 10% of EBITDA of the Company for theperiod of four consecutive fiscal quarters most recently ended prior to thedetermination date (without giving effect to any adjustments pursuant toclause (v) above or this clause (xii)); plus

 

(xiii)         any net after-taxnon-recurring, extraordinary or unusual gains or losses (less all fees and expensesrelating thereto) or expenses; plus

 

(xiv)        to the extent coveredby insurance and actually reimbursed or otherwise paid, or, so long as theCompany has made a determination that there exists reasonable evidence thatsuch amount will in fact be reimbursed or otherwise paid by the insurer andonly to the extent that such amount is (A) not 

 

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denied by theapplicable carrier in writing within 180 days and (B) in fact reimbursedor otherwise paid within 365 days of the date of such evidence (with adeduction for any amount so added back to the extent not so reimbursed orotherwise paid within such 365 days), expenses with respect to liability orcasualty events and expenses or losses relating to business interruption; plus

 

(xv)         expenses to theextent covered by contractual indemnification or refunding provisions in favorof the Company or a Restricted Subsidiary and actually paid or refunded, or, solong as the Company has made a determination that there exists reasonableevidence that such amount will in fact be paid or refunded by the indemnifyingparty or other obligor and only to the extent that such amount is (A) notdenied by the applicable indemnifying party or obligor in writing within 90days and (B) in fact reimbursed within 180 days of the date of suchevidence (with a deduction for any amount so added back to the extent not soreimbursed within such 180 days); plus

 

(xvi)        any non-cash increasein expenses (A) resulting from the revaluation of inventory (including anyimpact of changes to inventory valuation policy methods including changes incapitalization of variances) or (B) due to purchase accounting associatedwith the Transactions;

 

(b)           decreased by (without duplication)(i) non-cash gains increasing Consolidated Net Income of such Person andsuch subsidiaries for such period, excluding any non-cash gains to the extentthey represent the reversal of an accrual or reserve for a potential cash itemthat reduced EBITDA in any prior period and (ii) the minority interestincome consisting of subsidiary losses attributable to minority equityinterests of third parties in any non-Wholly Owned Subsidiary to the extentsuch minority interest income is included in Consolidated Net Income; and

 

(c)           increased or decreased by (withoutduplication):

 

(i)            any net gain orloss resulting in such period from Hedging Obligations and the application ofStatement of Financial Accounting Standards No. 133 and InternationalAccounting Standards No. 39 and their respective related pronouncements andinterpretations; plus or minus, as applicable,

 

(ii)           any net gain orloss included in calculating Consolidated Net Income resulting in such periodfrom currency translation gains or losses related to currency remeasurements ofindebtedness (including any net loss or gain resulting from hedge agreementsfor currency exchange risk).

 

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

 

“Equity Offering” means any public orprivate sale of Common Stock or Preferred Stock of the Company or any of itsdirect or indirect parent companies (excluding Disqualified Stock of suchentity), other than (i) public offerings with respect to Common Stock ofthe Company or 

 

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of any of itsdirect or indirect parent companies registered on Form S-4 or Form S-8,(ii) any such public or private sale that constitutes an ExcludedContribution or (iii) an issuance to any Subsidiary of the Company.

 

“Exchange Act” means the SecuritiesExchange Act of 1934, as amended, and the rules and regulations of the Commissionpromulgated thereunder.

 

“Exchange Notes” means the series ofNotes to be issued under this Indenture in exchange for the Initial Notespursuant to the Registration Rights Agreement.

 

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

 

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

 

“Excluded Contribution” means net cashproceeds, marketable securities or Qualified Proceeds, in each case received bythe Company and its Restricted Subsidiaries from:

 

(a)           contributions to its common equitycapital; and

 

(b)           the sale (other than to a Subsidiaryor to any management equity plan or stock option plan or any other managementor employee benefit plan or agreement of the Company or any Subsidiary) ofCapital Stock (other than Disqualified Stock and Designated Preferred Stock),

 

in each casedesignated as Excluded Contributions pursuant to an Officers’ Certificate onthe date such capital contributions are made or the date such Equity Interestsare sold, as the case may be, which are excluded from the calculation set forthin clause (3) of the first paragraph of Section 4.7.

 

“Existing Notes” means VWRInternational, Inc.’s 6 7/8% Senior Notes due 2012, VWR International, Inc.’s8% Senior Subordinated Notes due 2014, CDRV Investment Holdings Corporation’s9 5/8% Senior Discount Notes due 2015 and the Company’s Senior FloatingRate Notes due 2011.

 

“Expiration Date” has the meaning setforth in the definition of “Offer to Purchase.”

 

“Fixed Charge Coverage Ratio” means,with respect to any Person for any period consisting of such Person and itsRestricted Subsidiaries’ most recently ended four fiscal quarters for whichinternal financial statements are available, the ratio of EBITDA of such Personfor such period to the Fixed Charges of such Person for such period. In theevent that the Company or any Restricted Subsidiary incurs, assumes, guaranteesor repays any Indebtedness or issues or redeems Disqualified Stock or PreferredStock, in each case subsequent to the commencement of the period for which theFixed Charge Coverage Ratio is being calculated but prior to the event forwhich the calculation of the Fixed Charge Coverage Ratio is made (the “CalculationDate”), then the Fixed Charge Coverage Ratio shall be calculated giving proforma effect to such incurrence, assumption, guarantee or repayment ofIndebtedness, or such issuance or redemption of Disqualified Stock or PreferredStock, as if the same had occurred at the beginning of the 

 

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applicablefour-quarter period and as if the Company or Restricted Subsidiary had notearned the interest income actually earned during such period in respect ofsuch cash used to repay, repurchase, defease or otherwise discharge suchIndebtedness.

 

If Investments, acquisitions, dispositions,mergers or consolidations have been made by the Company or any RestrictedSubsidiary during the four-quarter reference period or subsequent to such referenceperiod and on or prior to or simultaneously with the Calculation Date, then theFixed Charge Coverage Ratio shall be calculated on a pro forma basis assumingthat all such Investments, acquisitions, dispositions, mergers orconsolidations (and the change in any associated Fixed Charge obligations andthe change in EBITDA resulting therefrom) had occurred on the first day of thefour-quarter reference period.

 

If since the beginning of such period anyPerson (that subsequently became a Restricted Subsidiary or was merged with orinto the Company or any Restricted Subsidiary since the beginning of suchperiod) shall have made any Investment, acquisition, disposition, merger or consolidationthat would have required adjustment pursuant to this definition, then the FixedCharge Coverage Ratio shall be calculated giving pro forma effect thereto forsuch period as if such Investment, acquisition, disposition, merger orconsolidation had occurred at the beginning of the applicable four-quarterperiod.

 

For purposes of this definition, whenever proforma effect is to be given to an Investment, acquisition, disposition, mergeror consolidation (including, without limitation, the Transactions) and theamount of income or earnings relating thereto, the pro forma calculations shallbe determined in good faith by a responsible financial or accounting Officer ofthe Company and shall comply with the requirements of Rule 11-02 ofRegulation S-X promulgated by the Commission, except that such pro formacalculations may include operating expense reductions for such period resultingfrom the transaction which is being given pro forma effect that (A) havebeen realized or (B) for which the steps necessary for realization havebeen taken (or are taken concurrently with such transaction) or (C) forwhich the steps necessary for realization are reasonably expected to be takenwithin the 18-month period following such transaction and, in each case,including, but not limited to, (a) reduction in personnel expenses,(b) reduction of costs related to administrative functions,(c) reduction of costs related to leased or owned properties and(d) reductions from the consolidation of operations and streamlining ofcorporate overhead, provided that, in each case, such adjustments areset forth in an Officers’ Certificate signed by the Company’s chief financialofficer and another Officer which states (i) the amount of such adjustmentor adjustments, (ii) in the case of items (B) or (C) above, thatsuch adjustment or adjustments are based on the reasonable good faith beliefsof the Officers executing such Officers’ Certificate at the time of suchexecution and (iii) that any related incurrence of Indebtedness ispermitted pursuant to this Indenture. If any Indebtedness bears a floating rateof interest and is being given pro forma effect, the interest on such Indebtednessshall be calculated as if the rate in effect on the Calculation Date had beenthe applicable rate for the entire period (taking into account any HedgingObligations applicable to such Indebtedness if the related hedge has a remainingterm in excess of twelve months).

 

Interest on a Capitalized Lease Obligationshall be deemed to accrue at the interest rate reasonably determined by aresponsible financial or accounting officer of the Company to be the rate ofinterest implicit in such Capitalized Lease Obligation in accordance with GAAP.For 

 

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purposes ofmaking the computation referred to above, interest on any Indebtedness under arevolving credit facility computed on a pro forma basis shall be computed basedupon the average daily balance of such Indebtedness during the applicableperiod. Interest on Indebtedness that may optionally be determined at aninterest rate based upon a factor of a prime or similar rate, a eurocurrencyinterbank offered rate, or other rate, shall be deemed to have been based uponthe rate actually chosen, or, if none, then based upon such optional ratechosen as the Company may designate.

 

“Fixed Charges” means, with respect toany Person for any period, the sum of, without duplication,(a) Consolidated Interest Expense (excluding all non-cash interest expenseand amortization/accretion of original issue discount (including any originalissue discount created by fair value adjustments to Indebtedness in existenceas of the Issue Date as a result of purchase accounting)) of such Person forsuch period, (b) all cash dividends paid during such period (excludingitems eliminated in consolidation) on any series of Preferred Stock of suchPerson and its Subsidiaries and (c) all dividends paid during such period(excluding items eliminated in consolidation) on any series of DisqualifiedStock of such Person and its Subsidiaries.

 

“Foreign Subsidiary” means, withrespect to any Person, (a) any subsidiary of such Person that is organizedand existing under the laws of any jurisdiction outside the United States ofAmerica or (b) any subsidiary of such Person that has no material assetsother than the Capital Stock of one or more subsidiaries described in clause(a) and other assets relating to an ownership interest in any such CapitalStock or subsidiaries.

 

“Foreign Subsidiary Reorganization”means the reorganization of the Company’s Foreign Subsidiaries (including, thecreation of a new holding company subsidiary to hold substantially all of thecapital stock of the Company’s foreign subsidiaries).

 

“GAAP” means generally acceptedaccounting principles in the United States in effect on the date of thisIndenture, except for any reports required to be delivered pursuant to Section4.3, which shall be prepared in accordance with GAAP in effect on the datethereof. For purposes of this Indenture, the term “consolidated” with respectto any Person means such Person consolidated with its Restricted Subsidiariesand does not include any Unrestricted Subsidiary.

 

“Global Note Legend” means the legendidentified as such in Exhibit A hereto.

 

“Global Notes” means the Notes thatare in the form of Exhibit A hereto issued in global form andregistered in the name of the Depositary or its nominee. Notwithstandinganything to the contrary contained herein, notices, delivery and payment withrespect to the Global Notes will be through the facilities of DTC.

 

“guarantee” means a guarantee otherthan by endorsement of negotiable instruments for collection in the ordinarycourse of business, direct or indirect, in any manner including, withoutlimitation, through letters of credit or reimbursement agreements in respectthereof, of all or any part of any Indebtedness or other obligations. When usedas a verb, “guarantee” shall have a corresponding meaning.

 

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“Guarantee” means any guarantee of theobligations of the Company under this Indenture and the Notes by a Guarantor inaccordance with the provisions of this Indenture. When used as a verb, “Guarantee”shall have a corresponding meaning.

 

“Guarantor” means any Person thatincurs a Guarantee of the Notes; provided that upon the release anddischarge of such Person from its Guarantee in accordance with this Indenture,such Person shall cease to be a Guarantor. On the Issue Date, the Guarantorswill be each Domestic Subsidiary of the Company that is a Restricted Subsidiaryand a guarantor under the Credit Agreement.

 

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

 

(a)           currency exchange, interest rate orcommodity swap agreements, currency exchange, interest rate or commodity capagreements and currency exchange, interest rate or commodity collar agreements;and

 

(b)           other agreements or arrangementsdesigned to manage, hedge or protect such Person with respect to fluctuationsin currency exchange, interest rates or commodity, raw materials, utilities andenergy prices.

 

“Holder” means a Person in whose namea Note is registered in the security register.

 

“Holdings” means VWRInvestors, Inc. and any successor.

 

“Indebtedness” means, with respect toany Person,

 

(a)           any indebtedness (including principaland premium) of such Person, whether or not contingent:

 

(i)            in respect ofborrowed money,

 

(ii)           evidenced by bonds,notes, debentures or similar instruments,

 

(iii)          evidenced by  letters of credit (or, without duplication,reimbursement agreements in respect thereof),

 

(iv)          Capitalized LeaseObligations,

 

(v)           representing thedeferred and unpaid balance of the purchase price of any property (other thanCapitalized Lease Obligations), except (A) any such balance thatconstitutes a trade payable or similar obligation to a trade creditor in eachcase accrued in the ordinary course of business, (B) liabilities accruedin the ordinary course of business and (C) earn-outs and other contingentpayments in respect of acquisitions except to the extent that the liability onaccount of any such earn-outs or contingent payment becomes fixed, or

 

(vi)          representing anyinterest rate Hedging Obligations,

 

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if and to theextent that any of the foregoing Indebtedness (other than letters of credit andHedging Obligations) would appear as a liability upon a balance sheet(excluding the footnotes thereto) of such Person prepared in accordance withGAAP,

 

(b)           to the extent not otherwise included,any obligation by such Person to be liable for, or to pay, as obligor,guarantor or otherwise, the Indebtedness of another Person (other than byendorsement of negotiable instruments for collection in the ordinary course ofbusiness),

 

(c)           Disqualified Stock of such Person,and

 

(d)           to the extent not otherwise included,Indebtedness of another Person secured by a Lien on any asset (other than aLien on Capital Stock of an Unrestricted Subsidiary) owned by such Person (whetheror not such Indebtedness is assumed by such Person);

 

provided, however, that notwithstanding the foregoing,Indebtedness shall be deemed not to include (A) Contingent Obligationsincurred in the ordinary course of business (B) items that would appear as a liability on a balance sheetprepared in accordance with GAAP as a result of the application of EITF 97-10, “TheEffect of Lessee Involvement in Asset Construction,” and (C) obligationswith respect to Receivables Facilities. The amount of Indebtedness of anyperson under clause (d) above shall be deemed to equal the lesser of(x) the aggregate unpaid amount of such Indebtedness secured by such Lienand (y) the fair market value of the property encumbered thereby asdetermined by such person in good faith.

 

“Indenture” means this Indenture, asamended or supplemented from time to time.

 

“Independent Financial Advisor” meansan accounting, appraisal or investment banking firm or consultant  of nationally recognized standing that is, inthe good faith judgment of the Board of Directors of the Company, qualified toperform the task for which it has been engaged.

 

“Initial Notes” has the meaning setforth in the preamble hereto.

 

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

 

“Investment Grade Securities” shallmean:

 

(a)           securities issued or directly andfully guaranteed or insured by the United States government or any agency orinstrumentality thereof (other than Cash Equivalents);

 

(b)           debt securities or debt instrumentswith an Investment Grade Rating, but excluding any debt securities orinstruments constituting loans or advances among the Company and its Subsidiaries;

 

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(c)           investments in any fund that investsexclusively in investments of the type described in clauses (a) and(b) which fund may also hold immaterial amounts of cash pending investmentor distribution; and

 

(d)           corresponding instruments incountries other than the United States customarily utilized for high qualityinvestments.

 

“Investments” means, with respect toany Person, all direct or indirect investments by such Person in other Persons(including Affiliates) in the forms of loans (including guarantees or otherobligations), advances or capital contributions (including by means of anytransfer of cash or other property to others or any payment for property orservices for the account or use of others, but excluding accounts receivable,trade credit, advances to customers, commission, travel, entertainment,relocation, payroll and similar advances to officers and employees, in eachcase made in the ordinary course of business), purchases or other acquisitionsfor consideration of Indebtedness, Equity Interests or other securities issuedby any other Person and investments that are required by GAAP to be classifiedon the balance sheet (excluding the footnotes) of such Person in the same manneras the other investments included in this definition to the extent suchtransactions involve the transfer of cash or other property. If the Company orany Subsidiary of the Company sells or otherwise disposes of any EquityInterests of any direct or indirect Restricted Subsidiary of the Company suchthat, after giving effect to any such sale or disposition, such Person is nolonger a Subsidiary of the Company, the Company will be deemed to have made anInvestment on the date of any such sale or disposition equal to the fair marketvalue of the Equity Interests of such Subsidiary not sold or disposed of in anamount determined as provided in the third paragraph of Section 4.7.

 

For purposes of the definition of “UnrestrictedSubsidiary” and Section 4.7 (i) ”Investments” shall include theportion (proportionate to the Company’s equity interest in such Subsidiary) ofthe fair market value of the net assets of a Subsidiary of the Company at thetime that such Subsidiary is designated an Unrestricted Subsidiary; provided,however, that upon a redesignation of such Subsidiary as a RestrictedSubsidiary, the Company shall be deemed to continue to have a permanent “Investment”in an Unrestricted Subsidiary in an amount (if positive) equal to (x) theCompany’s “Investment” in such Subsidiary at the time of such redesignationless (y) the portion (proportionate to the Company’s equity interest insuch Subsidiary) of the fair market value of the net assets of such Subsidiaryat the time of such redesignation; (ii) any property transferred to orfrom an Unrestricted Subsidiary shall be valued at its fair market value at thetime of such transfer, in each case as determined in good faith by the Board ofDirectors of the Company and (iii) any transfer of Capital Stock thatresults in an entity which became a Restricted Subsidiary after the Issue Dateceasing to be a Restricted Subsidiary shall be deemed to be an Investment in anamount equal to the fair market value (as determined by the Board of Directorsof the Company in good faith as of the date of initial acquisition) of the CapitalStock of such entity owned by the Company and its Restricted Subsidiaries immediatelyafter such transfer.

 

“Issue Date” means June 29, 2007.

 

“Legal Holiday” means a Saturday, aSunday or a day on which banking institutions in the City of New York, the cityin which the principal Corporate Trust Office of the Trustee is 

 

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located or ata place of payment are authorized by law, regulation or executive order toremain closed. If a payment date is a Legal Holiday, payment shall be made atthat place on the next succeeding day that is not a Legal Holiday, and nointerest shall accrue for the intervening period.

 

“Lien” means, with respect to anyasset, any mortgage, lien, pledge, charge, security interest or encumbrance ofany kind in respect of such asset, whether or not filed, recorded or otherwiseperfected under applicable law, including any conditional sale or other titleretention agreement, any lease in the nature thereof, and any agreement to givea security interest in such asset; provided that in no event shall anoperating lease be deemed to constitute a Lien.

 

“Management Agreement” means,collectively, (a) the Management Services Agreement dated as of the IssueDate, by and among certain management companies associated with the Sponsor andthe Company and any direct or indirect parent company and (b) the MDP UnitPurchase Agreement, in each case, as in effect on the Issue Date or otherwiseamended, modified or supplemented.

 

“MDP Unit Purchase Agreement” meansthe MDP Unit Purchase Agreement dated as of the Issue Date among VarietalDistribution Holdings, LLC, Madison Dearborn Capital Partners Y-A, L.P.,Madison Dearborn Capital Partners Y-C, L.P., and Madison Dearborn Partners VExecutive-A, L.P.

 

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

 

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

 

“Net Proceeds” shall mean  withrespect to any Asset Sale, the proceeds thereof in the form of cash and CashEquivalents (including any such proceeds subsequently received (as and whenreceived) in respect of deferred payments or noncash consideration initiallyreceived, net of any costs relating to the disposition thereof), net of(i) out-of-pocket expenses incurred (including reasonable and customarybroker’s fees or commissions, investment banking, consultant, legal, accountingor similar fees, survey costs, title insurance premiums, and related search andrecording charges, transfer, deed, recording and similar taxes incurred by theCompany and its Restricted Subsidiaries in connection therewith), and the Company’sgood faith estimate of taxes paid or payable (including payments under any taxsharing agreement or arrangement), in connection with such Asset Sale(including, in the case of any such Asset Sale in respect of property of anyForeign Subsidiary, taxes payable upon the repatriation of any such proceeds),(ii) amounts provided as a reserve, in accordance with GAAP, against any(x) liabilities under any indemnification obligations or purchase priceadjustment associated with such Asset Sale and (y) other liabilitiesassociated with the asset disposed of and retained by the Company or any of itsRestricted Subsidiaries after such disposition, including pension and otherpost-employment benefit liabilities and liabilities related to environmentalmatters (provided that to the extent and at the time any such amountsare released from such reserve, such amounts shall constitute Net Proceeds),(iii) the principal amount, premium or penalty, if any, interest and 

 

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other amountson any Indebtedness or other obligation which is secured by a Lien on the assetsold and (iv) in the case of any such Asset Sale by a non-Wholly Owned RestrictedSubsidiary, the pro rata portion of the Net Proceeds thereof (calculatedwithout regard to this clause (iv)) attributable to minority interests and notavailable for distribution to or for the account of the Company or a WhollyOwned Restricted Subsidiary as a result thereof.

 

“Note Custodian” means the Trusteewhen serving as custodian for the Depositary with respect to the Global Notes,or any successor entity thereto.

 

“Notes” means the10.25%/11.25% Senior Notes due 2015 of the Company issued on the datehereof and any Additional Notes, including any Exchange Notes, and shallinclude any increase in the principal amount thereof as a result of a PIKPayment in accordance with this Indenture. The Notes and the Additional Notes(including any Exchange Notes), if any, shall be treated as a single class forall purposes under this Indenture*.*

 

“Obligations” means any principal,interest, premium, penalties, fees, indemnifications, reimbursements(including, without limitation, reimbursement obligations with respect toletters of credit), costs, expenses, damages and other liabilities, andguarantees of payment of such principal, interest, premium, penalties, fees,indemnifications, reimbursements, costs, expenses, damages and otherliabilities, payable under the documentation governing any Indebtedness.

 

“Offer” has the meaning set forth inthe definition of “Offer to Purchase.”

 

“Offer to Purchase” means a writtenoffer (the “Offer”) sent by the Company by first class mail, postageprepaid, to each Holder at his address appearing in the security register onthe date of the Offer, offering to purchase up to the aggregate principalamount of Notes set forth in such Offer at the purchase price set forth in suchOffer (as determined pursuant to this Indenture). Unless otherwise required byapplicable law, the Offer shall specify an expiration date (the “ExpirationDate”) of the Offer to Purchase which shall be, subject to any contraryrequirements of applicable law, not less than 30 days or more than60 days after the date of mailing of such Offer and a settlement date (the“Purchase Date”) for purchase of Notes within five (5) Business Daysafter the Expiration Date. The Company shall notify the Trustee at least15 days (or such shorter period as is acceptable to the Trustee) prior tothe mailing of the Offer of the Company’s obligation to make an Offer toPurchase, and the Offer shall be mailed by the Company or, at the Company’srequest, by the Trustee in the name and at the expense of the Company. TheOffer shall contain all instructions and materials necessary to enable suchHolders to tender Notes pursuant to the Offer to Purchase. The Offer shall alsostate:

 

(1)           the Section of this Indenturepursuant to which the Offer to Purchase is being made;

 

(2)           the Expiration Date and the PurchaseDate;

 

(3)           the aggregate principal amount of theoutstanding Notes offered to be purchased pursuant to the Offer to Purchase(including, if less than 100%, the manner by which such amount has beendetermined pursuant to Section 4.10 hereof or Section 4.14hereof) (the “Purchase Amount”);

 

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(4)           the purchase price to be paid by theCompany for each $1,000 principal amount of Notes accepted for payment (asspecified pursuant to this Indenture) (the “Purchase Price”);

 

(5)           that the Holder may tender all or anyportion of the Notes registered in the name of such Holder and that any portionof a Note tendered must be tendered in denominations of $2,000 principal amountor integral multiples of $1,000 thereof;

 

(6)           the place or places where Notes areto be surrendered for tender pursuant to the Offer to Purchase, if applicable;

 

(7)           that, unless the Company defaults inmaking such purchase, any Note accepted for purchase pursuant to the Offer toPurchase will cease to accrue interest on and after the Purchase Date, but thatany Note not tendered or tendered but not purchased by the Company pursuant tothe Offer to Purchase will continue to accrue interest at the same rate;

 

(8)           that, on the Purchase Date, thePurchase Price will become due and payable upon each Note accepted for paymentpursuant to the Offer to Purchase;

 

(9)           that each Holder electing to tender aNote pursuant to the Offer to Purchase will be required to surrender such Noteor cause such Note to be surrendered at the place or places set forth in theOffer prior to the close of business on the Expiration Date (such Note being,if the Company or the Trustee so requires, duly endorsed by, or accompanied bya written instrument of transfer in form satisfactory to the Company and theTrustee duly executed by, the Holder thereof or his attorney duly authorized inwriting);

 

(10)         that Holders will be entitled towithdraw all or any portion of Notes tendered if the Company (or its PayingAgent) receives, not later than the close of business on the Expiration Date, atelegram, telex, facsimile transmission or letter setting forth the name of theHolder, the aggregate principal amount of the Notes the Holder tendered, thecertificate number of the Note the Holder tendered and a statement that suchHolder is withdrawing all or a portion of his tender;

 

(11)         that (a) ifNotes having an aggregate principal amount less than or equal to the PurchaseAmount are duly tendered and not withdrawn pursuant to the Offer to Purchase,the Company shall purchase all such Notes and (b) if Notes having anaggregate principal amount in excess of the Purchase Amount are tendered andnot withdrawn pursuant to the Offer to Purchase, the Company shall purchaseNotes having an aggregate principal amount equal to the Purchase Amount on apro rata basis (with such adjustments as may bedeemed appropriate so that only Notes in denominations of $2,000 principalamount or integral multiples of $1,000 thereof shall be purchased); and

 

(12)         if applicable, that, in the case of anyHolder whose Note is purchased only in part, the Company shall execute, and theTrustee shall authenticate and deliver to the Holder of such Note withoutservice charge, a new Note or Notes, of any authorized denomination asrequested by such Holder, in the aggregate principal amount equal to 

 

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and inexchange for the unpurchased portion of the aggregate principal amount of theNotes so tendered.

 

“Offering Memorandum” means the finaloffering memorandum related to the issuance of the Notes on the Issue Date,dated June 26, 2007.

 

“Officer” means the Chief ExecutiveOfficer, the President, the Chief Financial Officer, the Chief Operating Officer,principal accounting officer, controller, any Executive Vice President, SeniorVice President or Vice President, the Treasurer or Assistant Treasurer or theSecretary or any Assistant Secretary of the Company.

 

“Officers’ Certificate” means acertificate signed on behalf of the Company, by two Officers of the Company,one of whom is the principal executive officer, the principal financial officer,the treasurer or the principal accounting officer of the Company that meets therequirements set forth in this Indenture.

 

“Opinion of Counsel” means an opinionfrom legal counsel who is reasonably acceptable to the Trustee. The counsel maybe an employee of or counsel to the Company or any Subsidiary of the Company.

 

“Parent” means Varietal DistributionHoldings, LLC and any successor.

 

“Partial PIK Interest” has the meaningset forth in Exhibit A hereto.

 

“Participant” means, with respect toDTC, a Person who has an account with DTC.

 

“Paying Agent” means any Personauthorized by the Company to pay the principal of, premium, if any, or intereston any Notes on behalf of the Company.

 

“Permitted Asset Swap” means, to theextent allowable under Section 1031 of the Code, the concurrent purchase andsale or exchange of Related Business Assets or a combination of RelatedBusiness Assets (excluding any boot thereon) between the Company or any of itsRestricted Subsidiaries and another Person.

 

“Permitted Business” means thebusiness and any services, activities or businesses incidental, or directlyrelated or similar to, or complementary to any line of business engaged in bythe Company and its Subsidiaries as of the Issue Date or any business activitythat is a reasonable extension, development or expansion thereof or ancillarythereto.

 

“Permitted Debt” has the meaningassigned to such term in Section 4.9.

 

“Permitted Holders” means (i) theSponsor, (ii) any Person making an Investment in Parent concurrently withSponsor on or following the Issue Date, (iii) any Person who is an Officeror otherwise a member of management of the Company or any of its Subsidiarieson the Issue Date, provided that if such Officers and members ofmanagement beneficially own more shares of Voting Stock of either of theCompany or any of its direct or indirect parent entities than the number ofsuch shares beneficially owned by all the Officers as of the Issue Date orissued within 90 days thereafter, such excess shall be deemed not to bebeneficially owned by 

 

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PermittedHolders, (iv) any Related Party of any of the foregoing Persons and(iv) any “group” (within the meaning of Section 13(d)(3) orSection 14(d)(2) of the Exchange Act or any successor provision) ofwhich any of the foregoing are members, provided that in the case ofsuch “group” and without giving effect to the existence of such “group” or anyother “group,” such Persons specified in clause (i), (ii), (iii) or(iv) above (subject, in the case of Officers, to the foregoinglimitation), collectively, have beneficial ownership, directly or indirectly,of more than 50% of the total voting power of the Voting Stock of the Companyor any of its direct or indirect parent entities held by such “group,” and providedfurther, that, in no event shall the Sponsor own a lesser percentage ofthe Voting Stock than any other person or group referred to inclauses (ii), (iii) or (iv).

 

“Permitted Investments” means

 

(1)           any Investment by the Company in anyRestricted Subsidiary or by a Restricted Subsidiary in the Company or anotherRestricted Subsidiary;

 

(2)           any Investment in cash and CashEquivalents or Investment Grade Securities;

 

(3)           any Investment by the Company or anyRestricted Subsidiary in a Person that is engaged in a Permitted Business if asa result of such Investment (A) such Person becomes a RestrictedSubsidiary or (B) such Person, in one transaction or a series of relatedtransactions, is merged, consolidated or amalgamated with or into, or transfersor conveys substantially all of its assets to, or is liquidated into, the Companyor a Restricted Subsidiary, and, in each case, any Investment held by suchPerson; provided that such Investment was not acquired by such Person incontemplation of such acquisition, merger, consolidation or transfer;

 

(4)           any Investment in securities or otherassets not constituting cash or Cash Equivalents or Investment Grade Securitiesand received in connection with an Asset Sale made pursuant to Section 4.10or any other disposition of assets not constituting an Asset Sale;

 

(5)           any Investment existing on the IssueDate or made pursuant to binding commitments in effect on the Issue Date or anInvestment consisting of any extension, modification, replacement, renewal ofany Investment existing on the Issue Date; provided that the amount ofany such Investment may be increased (x) as required by the terms of suchInvestment as in existence on the Issue Date or (y) as otherwise permittedunder this Indenture;

 

(6)           loans and advances to, or guaranteesof Indebtedness of, directors, employees, officers and consultants not inexcess of $15.0 million outstanding at any one time, in the aggregate;

 

(7)           any Investment acquired by theCompany or any Restricted Subsidiary (A) in exchange for any otherInvestment or accounts receivable held by the Company or Restricted Subsidiaryin connection with or as a result of a bankruptcy, workout, reorganization orrecapitalization of the issuer of such other Investment or accounts 

 

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receivable or(B) as a result of a foreclosure by the Company or Restricted Subsidiarywith respect to any secured Investment or other transfer of title with respectto any secured Investment in default;

 

(8)           Hedging Obligations permitted underclause (10) of the definition of “Permitted Debt”;

 

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

 

(10)         any Investment by the Company or aRestricted Subsidiary having an aggregate fair market value, taken togetherwith all other Investments made pursuant to this clause (10) that are atthat time outstanding not to exceed $100.0 million (with the fair marketvalue of each Investment being measured at the time made and without giving effectto subsequent changes in value); provided that if such Investment is inCapital Stock of a Person that subsequently becomes a Restricted Subsidiary,such Investment shall thereafter be deemed permitted under clause (1) aboveand shall not be included as having been made pursuant to this clause (10);

 

(11)         Investments the payment for whichconsists of Equity Interests of the Company or any of its direct or indirectparent companies (exclusive of Disqualified Stock); provided that suchEquity Interests will not increase the amount available for Restricted Paymentsunder clause (3)(b) of the first paragraph of Section 4.7;

 

(12)         guarantees (including Guarantees) ofIndebtedness permitted under Section 4.9 and performance guaranteesconsistent with past practice, and the creation of liens on the assets of theCompany or any of its Restricted Subsidiaries in compliance with Section4.12;

 

(13)         Investments consisting of licensing ofintellectual property pursuant to joint marketing arrangements with otherPersons;

 

(14)         Investments relating to a ReceivablesSubsidiary that, in the good faith determination of the Company, are necessaryor advisable to effect a Receivables Facility;

 

(15)         Investments consisting of earnest moneydeposits required in connection with a purchase agreement or other acquisition;

 

(16)         any transaction to the extent itconstitutes an Investment that is permitted and made in accordance with theprovisions of the second paragraph of Section 4.11, except transactionspermitted by clause (2), (6), (8), (10), (12) or (13);

 

(17)         Investments consisting of purchases andacquisitions of inventory, supplies, material or equipment;

 

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(18)         Investments in the ordinary course ofbusiness consisting of endorsements for collection or deposit;

 

(19)         additional Investments in jointventures in an aggregate amount not to exceed $20.0 million at any timeoutstanding;

 

(20)         loans and advances relating toindemnification or reimbursement of any officers, directors or employees inrespect of liabilities relating to their serving in any such capacity or asotherwise permitted under Section 4.11;

 

(21)         Investments in the nature of pledges ordeposits with respect to leases or utilities provided to third parties in theordinary course of business;

 

(22)         Investments in industrial developmentor revenue bonds or similar obligations secured by assets leased to andoperated by the Company or any of its Subsidiaries that were issued in connectionwith the financing of such assets, so long as the Company or any such Subsidiarymay obtain title to such assets at any time by optionally canceling such bondsor obligations, paying a nominal fee and terminating such financing transaction;

 

(23)         deposits made by the Company andForeign Subsidiaries in Cash Pooling Arrangements;

 

(24)         Investments made in connection with theForeign Subsidiary Reorganization;

 

(25)         Investments in (i) new offshorefinance companies, including, without limitation, non-Wholly-Owned Subsidiariesand (ii) new Foreign Subsidiaries that would engage in transactions withother Foreign Subsidiaries to maximize tax efficiency and dividend capacity;and

 

(26)         extensions of trade credit in theordinary course of business.

 

“Permitted Liens” means the followingtypes of Liens:

 

(1)           deposits of cash or government bondsmade in the ordinary course of business to secure surety or appeal bonds towhich such Person is a party;

 

(2)           Liens in favor of issuers of stay,customs, performance, surety, bid, indemnity, warranty, release, appeal orsimilar bonds or with respect to other regulatory requirements or letters ofcredit or bankers’ acceptance issued, and completion guarantees provided for,in each case pursuant to the request of and for the account of such Person inthe ordinary course of its business or consistent with past practice;

 

(3)           Liens on property or shares of stockof a Person at the time such Person becomes a Subsidiary; provided,**however, that such Liens are not created or incurredin connection with, or in contemplation of, or to provide all or any portion ofthe funds or credit support utilized in connection with, such other Personbecoming such a Subsidiary; 

 

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provided further, however, that such Liens may not extend toany other property owned by the Company or any Restricted Subsidiary;

 

(4)           Liens on property at the time theCompany or a Restricted Subsidiary acquired the property, including anyacquisition by means of a merger or consolidation with or into the Company orany of its Restricted Subsidiaries; provided, however, that such Liens are not created orincurred in connection with, or in contemplation of, or to provide all or anyportion of the funds or credit support utilized for, such acquisition; providedfurther, however, that such Liens may not extend to any otherproperty owned by the Company or any Restricted Subsidiary;

 

(5)           Liens securing Hedging Obligations solong as the related Indebtedness is permitted to be incurred under thisIndenture and is secured by a Lien on the same property securing such HedgingObligation;

 

(6)           Liens on specific items of inventoryor other goods and proceeds of any Person securing such Person’s obligations inrespect of bankers’ acceptances or letters of credit issued or created for theaccount of such Person to facilitate the purchase, shipment or storage of suchinventory or other goods and pledges or deposits in the ordinary course ofbusiness securing inventory purchases from vendors;

 

(7)           Liens in favor of the Company or anyRestricted Subsidiary;

 

(8)           Liens to secure any Indebtedness thatis incurred to refinance any Indebtedness that has been secured by a Lienexisting on the Issue Date or referred to in clauses (3), (4) and(l9)(B) of this definition; provided, however, that such Liens (x) are no lessfavorable to the Holders of the Notes taken as a whole and (y) do notextend to or cover any property or assets of the Company or any of itsRestricted Subsidiaries not securing the Indebtedness so refinanced;

 

(9)           Liens on accounts receivable andrelated assets incurred in connection with a Receivable Facility incurredpursuant to clause (18) of the definition of “Permitted Debt”;

 

(10)         Liens for taxes, assessments or othergovernmental charges or levies not overdue by more than forty-five (45) days orthe nonpayment of which in the aggregate would not reasonably be expected toresult in a material adverse effect, or which are being contested in good faithby appropriate proceedings promptly instituted and diligently conducted or forproperty taxes on property that the Company or one of its Subsidiaries hasdetermined to abandon if the sole recourse for such tax, assessment, charge,levy or claim is to such property;

 

(11)         judgment liens in respect of judgmentsthat do not constitute an Event of Default;

 

(12)         pledges, deposits or security underworkmen’s compensation, unemployment insurance and other social security lawsor regulations, or deposits to secure the performance of tenders, contracts(other than for the payment of Indebtedness) 

 

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or leases, ordeposits to secure public or statutory obligations, or deposits as security forcontested taxes or import or customs duties or for the payment of rent, ordeposits or other security securing liabilities to insurance carriers underinsurance or self-insurance arrangements or earnest money deposits required inconnection with a purchase agreement or other acquisition, in each caseincurred in the ordinary course of business or consistent with past practice;

 

(13)         carriers’, warehousemen’s, mechanics’,materialmen’s, repairmen’s and other like Liens imposed by applicable law,(i) arising in the ordinary course of business and securing obligationsthat are not overdue by more than sixty (60) days, (ii) (A) that arebeing contested in good faith by appropriate proceedings and (B) theCompany or a Restricted Subsidiary has set aside on its books adequate reserveswith respect thereto in accordance with GAAP or (iii) the existence ofwhich would not reasonably be expected to result in a material adverse effect;

 

(14)         minor survey exceptions, encumbrances,ground leases, easements or reservations of, or rights of others for, licenses,rights of way, sewers, electric lines, telegraph and telephone lines and othersimilar purposes, or zoning, building codes or other restrictions (including,without limitation, minor defects or irregularities in title and similarencumbrances) as to the use of real properties or Liens incidental to theconduct of business or to the ownership of properties that do not in theaggregate materially adversely affect the value of said properties ormaterially impair their use in the operation of the business;

 

(15)         leases, licenses, subleases orsublicenses (including, without limitation, licenses and sublicenses ofintellectual property) granted to others in the ordinary course of businessthat do not  interfere in any materialrespect with the business of the Company or any of its material RestrictedSubsidiaries or which do not by their own terms secure any Indebtedness;

 

(16)         the rights reserved or vested in anyPerson by the terms of any lease, license, franchise, grant or permit held bythe Company or any of its Restricted Subsidiaries or by a statutory provision,to terminate any such lease, license, franchise, grant or permit, or to requireannual or periodic payments as a condition to the continuance thereof;

 

(17)         banker’s Liens, rights of set-off orsimilar rights and remedies as to deposit accounts or other funds maintainedwith a depositary institution;

 

(18)         Liens arising from Uniform CommercialCode financing statement filings regarding operating leases or consignmentsentered into by the Company and its Restricted Subsidiaries in the ordinarycourse of business;

 

(19)         (A) other Liens securingIndebtedness for borrowed money or other obligations with a principal amountnot exceeding $35.0 million at any time and (B) Liens securingIndebtedness incurred to finance the construction, purchase or lease of, or repairs,improvements or additions to, property of such Person; provided, however,

 

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that(x) the Lien may not extend to any other property (except for accessionsto such property) owned by such Person or any of its Restricted Subsidiaries atthe time the Lien is incurred, (y) such Liens attach concurrently with orwithin 270 days after the acquisition, repair, replacement, construction orimprovement (as applicable) of the property subject to such Liens and(z) with respect to Capitalized Lease Obligations, such Liens do not atany time extend to or cover any assets (except for accessions to such assets)other than the assets subject to such Capitalized Lease Obligations; providedthat individual financings of property provided by one lender may becross-collateralized to other financings of equipment provided by such lender;

 

(20)         Liens (i) of a collection bankarising under Section 4-210 of the Uniform Commercial Code on items in thecourse of collection, (ii) attaching to commodity trading accounts orother commodities brokerage accounts incurred in the ordinary course ofbusiness and (iii) in favor of a banking institution arising as a matterof law encumbering deposits (including the right of set-off) and which arewithin the general parameters customary in the banking industry;

 

(21)         Liens encumbering reasonable customaryinitial deposits and margin deposits and similar Liens attaching to commoditytrading accounts or other brokerage accounts incurred in the ordinary course ofbusiness and not for speculative purposes;

 

(22)         Liens that are contractual rights ofset-off (i) relating to the establishment of depository relations withbanks not given in connection with the issuance of Indebtedness,(ii) relating to pooled deposit or sweep accounts of the Company or anyRestricted Subsidiary to permit satisfaction of overdraft or similarobligations incurred in the ordinary course of business of the Company and itsRestricted Subsidiaries or (iii) relating to purchase orders and otheragreements entered into by the Company or any Restricted Subsidiary in theordinary course of business;

 

(23)         Liens solely on any cash earnest moneydeposits made by the Company or any of its Restricted Subsidiaries inconnection with any letter of intent or purchase agreement permitted under thisIndenture;

 

(24)         Liens with respect to the assets of aRestricted Subsidiary that is not a Guarantor securing Indebtedness of suchRestricted Subsidiary incurred in accordance with Section 4.9;

 

(25)         Liens to secure Indebtedness incurredpursuant to clauses (21) and (27) of the definition of “Permitted Debt”;

 

(26)         Liens arising by operation of law underArticle 2 of the Uniform Commercial Code in favor of a reclaiming sellerof goods or buyer of goods;

 

(27)         security given to a public or privateutility or any governmental authority as required in the ordinary course ofbusiness;

 

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(28)         landlords’ and lessors’ Liens inrespect of rent not in default for more than sixty days or the existence ofwhich, individually or in the aggregate, would not reasonably be expected toresult in a material adverse effect;

 

(29)         Liens in favor of customs and revenuesauthorities imposed by applicable law arising in the ordinary course ofbusiness in connection with the importation of goods and securing obligations(i) with respect to customs duties in the ordinary course of business,(ii) that are not overdue by more than sixty (60) days,(iii) (A) that are being contested in good faith by appropriateproceedings and (B) the Company or Restricted Subsidiary has set aside onits books adequate reserves with respect thereto in accordance with GAAP or(iv) the existence of which would not reasonably be expected to result ina material adverse effect;

 

(30)         Liens on securities which are thesubject of repurchase agreements incurred in the ordinary course of business;

 

(31)         Liens on the Capital Stock ofUnrestricted Subsidiaries;

 

(32)         Liens on inventory or equipment of theCompany or any of its Restricted Subsidiaries granted in the ordinary course ofbusiness to the Company’s or such Restricted Subsidiary’s clients or customersat which such inventory or equipment is located;

 

(33)         pledges or deposits made in theordinary course of business to secure liability to insurance carriers and Lienson insurance policies and the proceeds thereof (whether accrued or not), rightsor claims against an insurer or other similar asset securing insurance premiumfinancings permitted under clause (22) of the definition of “Permitted Debt”;

 

(34)         Liens on cash deposits of the Companyand Foreign Subsidiaries subject to a Cash Pooling Arrangement or otherwiseover bank accounts of the Company and Foreign Subsidiaries maintained as partof the Cash Pooling Arrangement, in each case securing liabilities foroverdrafts of the Company and Foreign Subsidiaries participating in such CashPooling Arrangements;

 

(35)         any encumbrance or retention (includingput and call agreements and rights of first refusal) with respect to the EquityInterests of any joint venture or similar arrangement pursuant to the jointventure or similar agreement with respect to such joint venture or similar arrangement;

 

(36)         Liens on property subject to Sale andLease-Back Transactions permitted hereunder and general intangibles relatedthereto; and

 

(37)         Liens consisting of customarycontractual restrictions on cash and Cash Equivalents.

 

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

 

“PIK Interest” has the meaning setforth in Exhibit A hereto.

 

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

 

“Purchase Amount” has the meaning setforth in the definition of “Offer to Purchase.”

 

“Purchase Date” has the meaning setforth in the definition of “Offer to Purchase.”

 

“Purchase Price” has the meaning setforth in the definition of “Offer to Purchase.”

 

“Qualified Proceeds” means assets thatare used or useful in, or Capital Stock of any Person engaged in, a PermittedBusiness; provided that the fair market value of any such assets orCapital Stock shall be determined by the Board of Directors of the Company ingood faith.

 

“Rating Agencies” means(1) S&P and Moody’s or (2) if S&P or Moody’s or both of themare not making ratings publicly available, a nationally recognized statisticalrating organization within the meaning of Rule 15c3-1(c)(2) under theExchange Act, as the case may be, selected by the Company, which will besubstituted for S&P or Moody’s or both, as the case may be.

 

“Receivables Facility” shall mean anyof one or more receivables financing facilities as amended, supplemented,modified, extended, renewed, restated or refunded from time to time, theobligations of which are non-recourse (except for customary representations,warranties, covenants and indemnities made in connection with such facilities)to the Company or any of its Restricted Subsidiaries (other than a ReceivablesSubsidiary) pursuant to which the Company or any of its Restricted Subsidiariessells their accounts receivable to either (A) a Person that is not aRestricted Subsidiary or (B) a Receivables Subsidiary that in turn sellsits accounts receivable to a Person that is not a Restricted Subsidiary.

 

“Receivables Fees” shall meandistributions or payments made directly or by means of discounts with respectto any accounts receivable or participation interest therein issued or sold inconnection with, and other fees paid to a Person that is not a Restricted Subsidiaryin connection with, any Receivables Facility.

 

“Receivables Subsidiary” shall meanany subsidiary formed for the purpose of, and that solely engages only in oneor more Receivables Facilities and other activities reasonably related thereto.

 

“RecordDate” for the interest or Additional Interest, if any, payable onany applicable Interest Payment Date means January 1 or July 1(whether or not on a Business Day) next preceding such Interest Payment Date.

 

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“Redemption Price,” when used withrespect to any Note to be redeemed, means the price at which it is to beredeemed pursuant to this Indenture.

 

“Refunding Capital Stock” has themeaning ascribed to such term in clause (2) of the second paragraph of Section4.7.

 

“Registration Rights Agreement” meansthe Registration Rights Agreement dated as of the Issue Date between theCompany, the Guarantors and Goldman, Sachs & Co., Banc of AmericaSecurities LLC, J.P. Morgan Securities Inc. and Deutsche Bank Securities Inc.,as representatives of the initial purchasers relating to the Notes.

 

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

 

“Related Business Assets” means assets(other than cash or Cash Equivalents) used or useful in a Permitted Business, providedthat any assets received by the Company or a Restricted Subsidiary in exchangefor assets transferred by the Company or a Restricted Subsidiary shall not bedeemed to be Related Business Assets if they consist of securities of a Person,unless upon a receipt of the securities of such Person, such Person wouldbecome a Restricted Subsidiary.

 

“Related Party” means (a) withrespect to Madison Dearborn Partners, LLC, (i) any investment fund controlledby or under common control with Madison Dearborn Partners, LLC, any officer,director or person performing an equivalent function of the foregoing persons,or any entity controlled by any of the foregoing Persons and (ii) anyspouse or lineal descendant (including by adoption and stepchildren) of theofficers and directors referred to clause (a)(i); and (b) with respect toany officer of the Company or its Subsidiaries, (i) any spouse or lineal descendant(including by adoption and stepchildren) of the officer and (ii) anytrust, corporation or partnership or other entity, in each case to the extentnot an operating company, of which an 80% or more controlling interest is heldby the beneficiaries, stockholders, partners or owners who are the officer, anyof the persons described in clause (b)(i) above or any combination ofthese identified relationships.

 

“Resale Restriction Termination Date”means for any Transfer Restricted Note (or beneficial interest therein), thatis (a) not a Regulation S Global Note (or Certificated Note issued inrespect thereof pursuant to Section 2.6(b)), two years (or suchother period specified in Rule 144(k)) from the Issue Date or, if anyAdditional Notes that are Transfer Restricted Notes have been issued before theResale Restriction Termination Date for any Transfer Restricted Notes, from thelatest such original issue date of such Additional Notes, and (b) aRegulation S Global Note (or Certificated Note issued in respect thereofpursuant to Section 2.6(b)), the date on or after the 40th consecutiveday beginning on and including the later of (i) the day on which any Notesrepresented thereby are offered to persons other than distributors (as definedin Regulation S) pursuant to Regulation S and (ii) the issuedate for such Notes.

 

“Responsible Officer” means, when usedwith respect to the Trustee, any officer assigned to the Corporate Trust Officeof the Trustee having direct responsibility for the administration of thisIndenture.

 

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

 

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“Restricted Notes Legend” means thelegend identified as such in Exhibit A hereto.

 

“Restricted Payment” means as definedin Section 4.7:

 

“Restricted Subsidiary” means, at anytime, any direct or indirect Subsidiary of the Company (including any ForeignSubsidiary) that is not then an Unrestricted Subsidiary;**provided,**however, that upon the occurrence of an UnrestrictedSubsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall beincluded in the definition of Restricted Subsidiary.

 

“Retired Capital Stock” has themeaning ascribed to such term in clause (2) of the second paragraph of Section4.7.

 

“S&P” means Standard and Poor’sRatings Services, a division of The McGraw-Hill Companies, Inc., and anysuccessor to its rating business.

 

“Saleand Lease-Back Transaction” means any arrangement with any Personproviding for the leasing by the Company or any Restricted Subsidiary of anyreal or tangible personal property, which property has been or is to be sold ortransferred by the Company or such Restricted Subsidiary to such Person incontemplation of such leasing.

 

“Secured Indebtedness” means anyIndebtedness secured by a Lien permitted to be incurred by this Indenture.

 

“Secured Indebtedness Leverage Ratio”means, with respect to any Person, at any date the ratio of (i) SecuredIndebtedness of such Person and its Restricted Subsidiaries as of such date ofcalculation (determined on a consolidated basis in accordance with GAAP) to(ii) EBITDA of such Person for the four full fiscal quarters for whichinternal financial statements are available immediately preceding such date onwhich such additional Indebtedness is incurred. In the event that the Companyor any of its Restricted Subsidiaries incurs or redeems any Indebtednesssubsequent to the commencement of the period for which the Secured IndebtednessLeverage Ratio is being calculated but prior to the event for which thecalculation of the Secured Indebtedness Leverage Ratio is made (the “SecuredLeverage Calculation Date”), then the Secured Indebtedness Leverage Ratioshall be calculated giving**pro**forma**effect to suchIncurrence or redemption of Indebtedness as if the same had occurred at thebeginning of the applicable four-quarter period. The Secured IndebtednessLeverage Ratio shall be calculated in a manner consistent with the definitionof “Fixed Charge Coverage Ratio,” including any**pro**forma**calculationsto EBITDA (including for acquisitions).

 

“Secured Leverage Calculation Date”has the meaning set forth in the definition of “Secured Indebtedness LeverageRatio.”

 

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

 

“SeniorSubordinated Indenture” means the Indenture dated as of the IssueDate between the Company, the Guarantors and Law Debenture Trust Company of NewYork, as trustee, Deutsche Bank Trust Company Americas, as registrar and payingagent, and Deutsche Bank AG, 

 

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London Branch,as paying agent and depositary, pursuant to which the Senior Subordinated Noteswere issued, as amended or supplemented from time to time.

 

“Senior Subordinated Notes” means upto $353.3 million and €125.0 million aggregate principal amount of the 10.75%Senior Subordinated Notes due 2017 of the Company.

 

“Shelf Registration Statement” meansthe Shelf Registration Statement as defined in the Registration RightsAgreement.

 

“Significant Subsidiary” means anyRestricted Subsidiary that would be “significant subsidiary” as defined inArticle 1, Rule 1-02 of Regulation S-X, promulgated pursuant to theSecurities Act, as such Regulation is in effect on the date hereof.

 

“Sponsor” means Madison Dearborn Partners,LLC and its Affiliates (other than a portfolio company thereof).

 

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

 

“Subordinated Indebtedness” means(a) with respect to the Company, any Indebtedness of the Company that isby its terms subordinated in right of payment to the Notes and (b) withrespect to any Guarantor of the Notes, any Indebtedness of such Guarantor thatis by its terms subordinated in right of payment to its Guarantee of the Notes.

 

“Subsidiary” means, with respect toany specified Person:

 

(a)           any corporation, association or otherbusiness entity, of which more than 50% of the total voting power of shares ofCapital Stock entitled (without regard to the occurrence of any contingency) tovote in the election of directors, managers or trustees thereof is at the timeowned or controlled, directly or indirectly, by that Person or one or more ofthe other Subsidiaries of that Person (or a combination thereof); and

 

(b)           any partnership, joint venture,limited liability company or similar entity of which (x) more than 50% ofthe capital accounts, distribution rights, total equity and voting interests orgeneral or limited partnership interests, as applicable, are owned orcontrolled, directly or indirectly, by such Person or one or more of the otherSubsidiaries of that Person or a combination thereof whether in the form ofmembership, general, special or limited partnership or otherwise and(y) such Person or any Wholly Owned Restricted Subsidiary of such Personis a controlling general partner or otherwise controls such entity.

 

“TIA” means the Trust Indenture Act of1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended, as in effect on the datehereof.

 

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“Total Assets” means total assets ofthe Company and its Restricted Subsidiaries on a consolidated basis prepared inaccordance with GAAP, shown on the most recent balance sheet of the Company andits Restricted Subsidiaries as may be expressly stated.

 

“Total Net Tangible Assets” meanstotal assets of the Company and its Restricted Subsidiaries, less all goodwill,trade names, trademarks, patents and any other like intangibles, all on aconsolidated basis prepared in accordance with GAAP, shown on the most recentbalance sheet of the Company and its Restricted Subsidiaries as may beexpressly stated.

 

“Transaction Expenses” means any feesor expenses incurred or paid by the Company or any Restricted Subsidiary inconnection with the Transactions, including payments to officers, employees anddirectors as change of control payments, severance payments, special orretention bonuses and charges for repurchase or rollover of, or modificationsto, stock options or other equity interests.

 

“Transactions” means (i) thetransactions contemplated by the Acquisition Agreement, (ii) the entryinto the Credit Agreement and incurrence of Indebtedness thereunder on theIssue Date by the Company and the guarantors thereunder,(iii) (A) the issuance of the Notes and the provision of Guaranteesby the Guarantors and (B) the issuance of the Senior Subordinated Notesand the provision of guarantees by the guarantors thereof, (iv) therefinancing of certain existing indebtedness of CDRV Investors, Inc. ascontemplated in the Offering Memorandum, (v) the payment of fees andexpenses related to each of the foregoing and (vi) all other transactionsrelating to any of the foregoing in each case, as contemplated as of the IssueDate pursuant to the terms of the Acquisition Agreement.

 

“Transfer Restricted Notes” meansNotes that bear or are required to bear the Restricted Notes Legend.

 

“Treasury Rate” means, as of theapplicable redemption date, the yield to maturity as of such redemption date ofUnited States Treasury securities with a constant maturity (as compiled andpublished in the most recent Federal Reserve Statistical Release H. 15 (519)that has become publicly available at least two (2) Business Days prior to suchredemption date (or, if such Statistical Release is no longer published, anypublicly available source of similar market data)) most nearly equal to theperiod from such redemption date to July 15, 2011; provided, however,that if the period from such redemption date to July 15, 2011 is less thanone year, the weekly average yield on actually traded United States Treasurysecurities adjusted to a constant maturity of one year will be used.

 

“Trustee” has the meaning set forth inthe preamble to this Indenture.

 

“Unrestricted Subsidiary” means(i) any Subsidiary of the Company that at the time of determination is anUnrestricted Subsidiary (as designated by the Board of Directors of theCompany, as provided below) and (ii) any Subsidiary of an UnrestrictedSubsidiary. The Board of Directors of the Company may designate any Subsidiaryof the Company (including any existing Subsidiary and any newly acquired ornewly formed Subsidiary) to be an Unrestricted Subsidiary unless suchSubsidiary or any of its Subsidiaries owns any Equity Interests or Indebtednessof, or owns or holds any Lien on, any property of, the Company or anySubsidiary

 

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of the Company(other than any Unrestricted Subsidiary of the Subsidiary to be so designated);provided that (a) any Unrestricted Subsidiary must be an entity ofwhich shares of the Capital Stock or other equity interests (includingpartnership interests) entitled to cast at least a majority of the votes thatmay be cast by all shares or equity interests having ordinary voting power forthe election of directors or other governing body are owned, directly orindirectly, by the Company, (b) such designation complies with Section4.7 and (c) each of (I) the Subsidiary to be so designated and(II) its Subsidiaries has not at the time of designation, and does notthereafter, create, incur, issue, assume, guarantee or otherwise becomedirectly or indirectly liable with respect to any Indebtedness pursuant towhich the lender has recourse to any of the assets of the Company or any RestrictedSubsidiary (other than the Capital Stock of such Subsidiary to be sodesignated). The Board of Directors of the Company may designate anyUnrestricted Subsidiary to be a Restricted Subsidiary; provided that,immediately after giving effect to such designation, no Event of Default shallhave occurred and be continuing and any Indebtedness assumed or otherwiseincurred in connection with such designation shall have been permitted to have beenincurred by the Company pursuant to Section 4.9. Any such designation bythe Board of Directors of the Company shall be notified by the Company to theTrustee by promptly filing with such Trustee a copy of the Board Resolutiongiving effect to such designation and an Officers’ Certificate certifying thatsuch designation complied with the foregoing provisions.

 

“U.S. Dollar Equivalent” means withrespect to any monetary amount in a currency other than U.S. dollars, at anytime for determination thereof, the amount of U.S. dollars obtained byconverting such foreign currency involved in such computation into U.S. dollarsat the spot rate for the purchase of U.S. dollars with the applicable foreigncurrency as published in The Wall Street Journal in the “Exchange Rates”column under the heading “Currency Trading” on the date two (2) Business Daysprior to such determination.

 

Except as described in Section 4.9,whenever it is necessary to determine whether the Company has complied with anycovenant in this Indenture or a Default has occurred and an amount is expressedin a currency other than U.S. dollars, such amount will be treated as the U.S.Dollar Equivalent determined as of the date such amount is initially determinedin such currency.

 

“U.S. Government Securities” meanssecurities that are

 

(a)           direct obligations of the UnitedStates of America for the timely payment of which its full faith and credit ispledged or

 

(b)           obligations of a Person controlled orsupervised by and acting as an agency or instrumentality of the United Statesof America the timely payment of which is unconditionally guaranteed as a fullfaith and credit obligation by the United States of America,

 

which, in either case, are not callable or redeemableat the option of the issuers thereof, and shall also include a depositoryreceipt issued by a bank (as defined in Section 3(a)(2) of theSecurities Act), as custodian with respect to any such U.S. Government Securitiesor a specific payment of principal of or interest on any such U.S. GovernmentSecurities held by such custodian for the account of the holder of such 

 

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depository receipt; provided that (except asrequired by law) such custodian is not authorized to make any deduction fromthe amount payable to the holder of such depository receipt from any amountreceived by the custodian in respect of the U.S. Government Securities or thespecific payment of principal of or interest on the U.S. Government Securitiesevidenced by such depository receipt.

 

“Voting Stock” of any Person as of anydate means the Capital Stock of such Person that is at the time entitled tovote in the election of the Board of Directors of such Person.

 

“Weighted Average Life to Maturity”means, when applied to any Indebtedness at any date, the number of yearsobtained by dividing:

 

(1)           the sum of the products obtained bymultiplying (a) the amount of each then remaining installment, sinkingfund, serial maturity or other required payments of principal, includingpayment at final maturity, in respect of the Indebtedness, by (b) thenumber of years (calculated to the nearest one-twelfth) that will elapsebetween such date and the making of such payment; by

 

(2)           the then outstanding principal amountof such Indebtedness.

 

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

 

“Wholly Owned Subsidiary” of anyPerson means a Subsidiary of such Person, 100% of the outstanding Capital Stockor other ownership interests of which (other than directors’ qualifying sharesand shares issued to foreign nationals under applicable law) shall at the timebe owned by such Person or by one or more Wholly Owned Subsidiaries of suchPerson or by such Person and one or more Wholly Owned Subsidiaries of suchPerson.

 

SECTION 1.2         Other Definitions.

 
| **Term**                                          | ** ** | **Defined in  Section** |
|---------------------------------------------------|------------|-------------------------|
| “Acceleration Notice”                   |       | 6.2                     |
| “Act”                                   |       | 12.14(a)                |
| “Affiliate Transaction”                 |       | 4.11                    |
| “Agent Members”                         |       | 2.6(a)                  |
| “AHYDO Redemption Date”                 |       | 3.08                    |
| “Cash Interest”                         |       | Exhibit A               |
| “Change of Control Payment”             |       | 4.14                    |
| “Change of Control Payment Date”        |       | 4.14                    |
| “Covenant Defeasance”                   |       | 8.3                     |
| “Event of Default”                      |       | 6.1                     |
| “Excess Proceeds”                       |       | 4.10                    |
| “incur”                                 |       | 4.9                     |
| “Interest Payment Date”                 |       | Exhibit A               |
| “Legal Defeasance”                      |       | 8.2                     |
| “Limited Non-Guarantor Debt Exceptions” |       | 4.9                     |
| “Mandatory Principal Redemption”        |       | 3.8(b)                  |
| “Mandatory Principal Redemption Amount” |       | 3.8(b)                  |

 

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| “Offer Amount”                  |   | 3.9     |
|-------------------------------------------|--------|---------|
| “PIK Notes”                     |   | 2.1     |
| “PIK Payment”                   |   | 2.1     |
| “QIBs”                          |   | 2.1(b)  |
| “QIB Global Note”               |   | 2.1(b)  |
| “Refinancing Indebtedness”      |   | 4.9     |
| “Registrar”                     |   | 2.3     |
| “Regulation S”             |   | 2.1(b)  |
| “Regulation S Global Note” |   | 2.1(b)  |
| “Rule 144A”                |   | 2.1(b)  |
| “Successor Company”             |   | 5.1     |
| “Successor Guarantor”           |   | 11.5(a) |
| “Suspended Covenants”           |   | 4.20    |
| “Suspension Condition”          |   | 4.20    |

 

SECTION 1.3         Incorporationby Reference of Trust Indenture Act. Whenever this Indenture refers to aprovision of the TIA, the provision is incorporated by reference in, and made apart of, this Indenture.

 

The following TIA terms have the followingmeanings:

 

“indenturesecurities” means the Notes and any Guarantee;

 

“indenture security holder” meansa Holder;

 

“indentureto be qualified” means this Indenture;

 

“indenture trustee” or “institutional trustee” means theTrustee; and

 

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

 

All other terms used in this Indenture thatare defined by the TIA, defined by TIA reference to another statute or definedby the Commission rule under the TIA have the meanings so assigned to themtherein.

 

SECTION 1.4         Rulesof Construction. Unless the context otherwise requires:

 

(1)           a term has the meaning assigned to itherein;

 

(2)           an accounting term not otherwisedefined herein has the meaning assigned to it in accordance with GAAP;

 

(3)           “or” is not exclusive;

 

(4)           words in the singular include theplural, and in the plural include the singular;

 

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(5)           “will” shall be interpreted toexpress a command;

 

(6)           unless otherwise specified, anyreference to Section or Article refers to such Section or Article of thisIndenture;

 

(7)           provisions apply to successive eventsand transactions; and

 

(8)           references to sections of or rulesunder the Securities Act or the Exchange Act shall be deemed to includesubstitute, replacement or successor sections or rules adopted by theCommission from time to time.

 

# ARTICLE II

#  

# THE NOTES

#  

SECTION 2.1         Form and Dating.

 

The Notes and the Trustee’s certificate ofauthentication shall be substantially in the form of Exhibit A attachedhereto. The Notes may have notations, legends or endorsements required by law,stock exchange rule or usage; provided, that the text of any such notations,legends or endorsements shall be delivered to the Trustee in writing by theCompany. Each Note shall be dated the date of its authentication. The Notesinitially shall be issued only in minimum denominations of $2,000 and integralmultiples of $1,000 in excess thereof, subject to the issuance of certificatedPIK Notes.The terms and provisions contained in the Notes shall constitute, andare hereby expressly made, a part of this Indenture and the Company, theTrustee and the Paying Agent and Registrar, by their execution and delivery ofthis Indenture, expressly agree to such terms and provisions and to be boundthereby. However, to the extent any provision of any Note conflicts with theexpress provisions of this Indenture, the provisions of this Indenture shallgovern and be controlling.

 

In addition, in connection with the payment of PIKInterest or Partial PIK Interest in respect of the Notes, the Issuer isentitled to, without the consent of the Holders and without regard to Section4.9, increase the outstanding principal amount of the Notes or issue additionalNotes (the “PIK Notes”) under this Indenture on the same terms andconditions as the Notes offered hereby (in each case, the “PIK Payment”).

 

### (a)           TheNotes shall be issued initially in the form of one or more Global Notes substantiallyin the form attached as Exhibit A hereto, which shall be depositedon behalf of the purchasers of the Notes represented thereby with the Trusteeas custodian for the Depositary, and registered in the name of the Depositaryor a nominee of the Depositary, duly executed by the Company and authenticatedby the Trustee as hereinafter provided.

###  

Each Global Note shall represent such of theoutstanding Notes as shall be specified therein and each shall provide that itshall represent the aggregate principal amount of outstanding Notes from timeto time endorsed thereon and that the principal aggregate amount of outstandingNotes represented thereby may from time to time be reduced or increased, asappropriate, to reflect exchanges, redemptions and transfers of interests. Anyendorsement of a Global Note to reflect the amount of any increase or decreasein the aggregate principal amount 

 

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of outstandingNotes represented thereby shall be made by the Registrar or the Note Custodian,at the direction of the Trustee, in accordance with instructions given by theHolder thereof as required by Section 2.6 hereof. The aggregateamount outstanding of any Global Note shall be reflected on the books andrecords of the Trustee.

 

Except as set forth in Section 2.6hereof, the Global Notes may be transferred, in whole and not in part, only toanother nominee of the Depositary or to a successor of the Depositary or itsnominee.

 

### (b)           TheInitial Notes are being issued by the Company only (i) to “qualifiedinstitutional buyers” (as defined in Rule 144A under the Securities Act (“Rule 144A”))(“QIBs”) and (ii) in reliance on Regulation S under theSecurities Act (“Regulation S”). After such initial offers, InitialNotes that are Transfer Restricted Notes may be transferred to QIBs, inreliance on Rule 144A or outside the United States pursuant toRegulation S or to the Company, in accordance with certain transferrestrictions. Initial Notes that are offered in reliance on Rule 144Ashall be issued in the form of one or more permanent Global Notes substantiallyin the form set forth in Exhibit A (the “QIB Global Note”)deposited with the Trustee, as Note Custodian, duly executed by the Company andauthenticated by the Trustee as hereinafter provided.

###  

Initial Notes that are offered in offshoretransactions in reliance on Regulation S shall be issued in the form ofone or more permanent Global Notes substantially in the form set forth in Exhibit A(the “Regulation S Global Note”) deposited with the Trustee, asNote Custodian, duly executed by the Company and authenticated by the Trusteeas hereinafter provided. The QIB Global Note and the Regulation S GlobalNote shall each be issued with separate CUSIP numbers. The aggregate principalamount of each Global Note may from time to time be increased or decreased byadjustments made on the records of the Trustee, as Note Custodian. Transfers ofNotes between QIBs and to or by purchasers pursuant to Regulation S shallbe represented by appropriate increases and decreases to the respective amountsof the appropriate Global Notes, as more fully provided in Section 2.16.

 

### (c)           Section 2.1(b)shall apply only to Global Notes deposited with or on behalf of the Depositary.

###  

The Company shall execute and the Trusteeshall, in accordance with Section 2.1(b) and this Section 2.1(c),authenticate and deliver the Global Notes that (i) shall be registered inthe name of the Depositary or the nominee of the Depositary and (ii) shallbe delivered by the Trustee to the Depositary or pursuant to the Depositary’sinstructions or held by the Trustee as Note Custodian for the Depositary.

 

Participants shall have no rights eitherunder this Indenture with respect to any Global Note held on their behalf bythe Depositary or by the Note Custodian as custodian for the Depositary orunder such Global Note, and the Depositary will be treated by the Company, theTrustee and any agent of the Company or the Trustee as the absolute owner ofsuch Global Note for all purposes whatsoever. Notwithstanding the foregoing,nothing herein shall prevent the Company, the Trustee or any Agent or otheragent of the Company or the Trustee from giving effect to any writtencertification, proxy or other authorization furnished by the Depositary or 

 

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impair, as betweenthe Depositary and its Participants, the operation of customary practices ofsuch Depositary governing the exercise of the rights of an owner of abeneficial interest in any Global Note.

 

The Trustee shall have no responsibility orobligation to any Beneficial Owner that is a member of (or a participant in)DTC or any other Person with respect to the accuracy of the records of DTC (orits nominee) or of any participant or member thereof, with respect to any ownershipinterest in the Notes or with respect to the delivery of any notice (includingany notice of redemption) or the payment of any amount or delivery of any Notes(or other security or property) under or with respect to the Notes. The Trusteemay rely (and shall be fully protected in relying) upon information furnishedby DTC with respect to its members, participants and any beneficial owners inthe Notes.

 

### (d)           Notesissued in certificated form shall be substantially in the form of Exhibit Aattached hereto.

###  

SECTION 2.2         Execution and Authentication.

 

An Officer shall sign the Notes for theCompany by manual or facsimile signature.

 

If an Officer whose signature is on a Note nolonger holds that office at the time a Note is authenticated, the Note shallnevertheless be valid.

 

A Note shall not be valid until authenticatedby the manual signature of a Responsible Officer of the Trustee. The signatureshall be conclusive evidence that the Note has been authenticated under thisIndenture.

 

The Trustee shall, upon a written order ofthe Company signed by one Officer directing the Trustee to authenticate theNotes and certifying that all conditions precedent to the issuance of the Notescontained herein have been complied with and receipt of an Opinion of Counsel,authenticate (i) Notes for original issue up to the aggregate principalamount stated in paragraph 4 of the Notes, (ii) any PIK Notes issued in payment of PIKInterest or Partial PIK Interest and (iii) Exchange Notes or private exchangenotes for issue only in an Exchange Offer or a private exchange, respectively,pursuant to a Registration Rights Agreement, for a like principal amount ofInitial Notes. The aggregate principal amount of Notes outstanding atany time may not exceed the aggregate principal amount in paragraph 4 ofthe Notes except as provided in Section 2.8 hereof.

 

On any Interest Payment Date on which the Issuerpays PIK Interest and Partial PIK Interest with respect to a Global Note, theTrustee shall increase the principal amount of such Global Note by an amountequal to the interest payable, rounded up to the nearest $1,000, for therelevant interest period on the principal amount of such Global Note as of therelevant Record Date for such Interest Payment Date, to the credit of theHolders on such Record Date, pro rata in accordance with their interests, andan adjustment shall be made on the books and records of the Trustee (if it isthen the Note Custodian for such Global Note) with respect to such Global Note,by the Trustee or the Note Custodian, to reflect such increase. On any InterestPayment Date on which the Issuer pays PIK Interest or Partial PIK Interest byissuing definitive PIK Notes, the principal amount of any such PIK Notes issuedto any Holder, for the relevant interest period as 

 

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of therelevant Record Date for such Interest Payment Date, shall be rounded up to thenearest $1.00.

 

The Company may appoint an authenticatingagent reasonably acceptable to the Trustee to authenticate Notes. Unlesslimited by the terms of such appointment, an authenticating agent mayauthenticate Notes whenever the Trustee may do so. Each reference in thisIndenture to authentication by the Trustee includes authentication by suchagent. An authenticating agent has the same rights as an Agent to deal withHolders or the Company or an Affiliate of the Company.

 

SECTION 2.3         Registrar; Paying Agent.

 

The Company shall maintain (i) an officeor agency within the City and State of New York where Notes may be presentedfor registration of transfer or for exchange (“Registrar”) and(ii) an office or agency where Notes may be presented for payment to aPaying Agent. The Registrar shall keep a register of the Notes and of theirtransfer and exchange. The Company may appoint one or more co-registrars andone or more additional paying agents. The term “Registrar” includes anyco-registrar and the term “Paying Agent” includes any additional paying agent. TheCompany may change any Paying Agent or Registrar without notice to any Holder.

 

The Company shall promptly notify the Trusteein writing, and the Trustee shall notify the Holders, of the name and addressof any Agent not a party to this Indenture. The Company shall enter into anappropriate agency agreement with any Agent not a party to this Indenture,which shall incorporate the provisions of the TIA. The agreement shallimplement the provisions of this Indenture that relate to such Agent. If theCompany fails to appoint or maintain a Registrar or Paying Agent, or fails togive the foregoing notice, the Trustee shall act as such, and shall be entitledto appropriate compensation in accordance with Section 7.7 hereof. TheCompany or any of its Restricted Subsidiaries may act as Paying Agent orRegistrar.

 

The Company initially appoints Deutsche BankTrust Company Americas to act as the Note Custodian, Registrar and PayingAgent.

 

The Company initially appoints DTC to act asthe Depositary with respect to the Global Notes.

 

SECTION 2.4         Paying Agent to Hold Money in Trust.

 

The Company shall require each Paying Agent not a party to thisIndenture to agree in writing that the Paying Agent shall hold in trust for thebenefit of the Holders or the Trustee all money held by the Paying Agent forthe payment of principal, premium or Additional Interest, if any, or intereston the Notes, and shall notify the Trustee of any default by the Company inmaking any such payment. While any such default continues, the Trustee mayrequire a Paying Agent not a party to this Indenture to pay all money held byit to the Trustee. The Company at any time may require a Paying Agent not aparty to this Indenture to pay all money held by it to the Trustee. Uponpayment over to the Trustee, the Paying Agent (if other than the Company or aRestricted Subsidiary) shall have no further liability for the money. If theCompany or a Restricted Subsidiary acts as Paying Agent, it shall segregate andhold in a separate trust fund for

 

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the benefit ofthe Holders all money held by it as Paying Agent.  Upon the occurrence of events specified in Section 6.1(7)hereof, the Trustee shall serve as Paying Agent for the Notes.

 

SECTION 2.5       Holder Lists.

 

The Registrar shall preserve in as current aform as is reasonably practicable the most recent list available to it of thenames and addresses of all Holders and shall otherwise comply with TIA§ 312(a).  If the Trustee is not theRegistrar, the Company shall furnish to the Trustee at least seven(7) Business Days before each interest payment date and at such othertimes as the Trustee may request in writing, a list in such form and as of suchdate as the Trustee may reasonably require of the names and addresses of theHolders, including the aggregate principal amount of the Notes held by eachHolder thereof, and the Company shall otherwise comply with TIA § 312(a).

 

SECTION 2.6         Book-Entry Provisions for GlobalSecurities.

 

### (a)           EachGlobal Note shall (i) be registered in the name of the Depositary for suchGlobal Notes or the nominee of such Depositary, (ii) be delivered to theTrustee as custodian for such Depositary and (iii) bear legends asrequired by Section 2.6(e).

###  

Members of, or participants in, theDepositary (“Agent Members”) shall have no rights under this Indenturewith respect to any Global Note held on their behalf by the Depositary, or theTrustee as Note Custodian, or under the Global Note, and the Depositary will betreated by the Company, the Trustee Note Custodian and any agent of the Companyor the Trustee as the absolute owner of such Global Note for all purposeswhatsoever.  Notwithstanding theforegoing, nothing herein shall prevent the Company, the Trustee Note Custodianor any agent of the Company or the Trustee, from giving effect to any writtencertification, proxy or other authorization furnished by the Depositary orimpair, as between the Depositary and its Agent Members, the operation ofcustomary practices governing the exercise of the rights of a Holder of anyNote.

 

### (b)           Transfersof a Global Note shall be limited to transfers of such Global Note in whole,but not in part, to the Depositary, its successors or the irrespectivenominees.  Interests of beneficial ownersin a Global Note may be transferred in accordance with Section 2.16and the rules and procedures of the Depositary. In addition, Certificated Notes shall be transferred to all beneficialowners (or the requesting beneficial owners, in the case of clause (ii))in exchange for their beneficial interests only if (i) the Depositarynotifies the Company that it is unwilling or unable to continue as Depositaryfor the Global Notes or the Depositary ceases to be a “clearing agency”registered under the Exchange Act and a successor depositary is not appointedby the Company within 90 days of such notice or (ii) an Event ofDefault of which a Responsible Officer of the Trustee has received actualwritten notice at the Corporate Trust Office of the Trustee has occurred and iscontinuing and the Registrar has received a request from any beneficial ownerof an interest in the Global Note (subject to the fourth paragraph of Section 2.1(c)hereof) to issue such Certificated Notes.

###  

### (c)           Inconnection with the transfer of the entire Global Note to beneficial owners pursuantto clause (b) of this Section 2.6, such Global Note shall be deemedto be surrendered to

###  

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### 

###  

### the Trustee for cancellation, and the Companyshall execute, and the Trustee shall authenticate and deliver, to eachbeneficial owner identified by the Depositary in exchange for its beneficialinterest in such Global Note an equal aggregate principal amount ofCertificated Notes of authorized denominations.

###  

### (d)           Theregistered holder of a Global Note may grant proxies and otherwise authorizeany person, including Agent Members and persons that may hold interest throughAgent Members, to take any action which a Holder is entitled to take under thisIndenture or the Notes.

###  

### (e)           EachGlobal Note shall bear the Global Note Legend on the face thereof.

###  

### (f)            Atsuch time as all beneficial interests in Global Notes have been exchanged forCertificated Notes, redeemed, repurchased or cancelled, all Global Notes shallbe returned to or retained and cancelled by the Trustee in accordance with Section 2.11hereof.  At any time prior to such cancellation,if any beneficial interest in a Global Note is exchanged for CertificatedNotes, redeemed, repurchased or cancelled, the principal amount of Notesrepresented by such Global Note shall be reduced accordingly and an endorsementshall be made on such Global Note, by the Trustee or the Note Custodian, at thedirection of the Trustee, to reflect such reduction.

###  

### (g)           GeneralProvisions Relating to Transfers and Exchanges.

###  

#### (1)           Topermit registrations of transfers and exchanges, the Company shall execute andthe Trustee shall authenticate Global Notes and Certificated Notes upon receiptof a written order by the Company signed by one Officers of the Company in accordancewith Section 2.2.

####  

#### (2)           Noservice charge shall be made to a Holder for any registration of transfer orexchange, but the Company may require payment of a sum sufficient to cover anystamp or transfer tax or similar governmental charge payable in connectiontherewith (other than any such stamp or transfer taxes or similar governmentalcharge payable upon exchange or transfer pursuant to Sections 2.2, 2.10,3.7, 4.10, 4.14 and 9.5 hereto).

####  

#### (3)           AllGlobal Notes and Certificated Notes issued upon any registration of transfer orexchange of Global Notes or Certificated Notes shall be the valid obligationsof the Company, evidencing the same debt, and entitled to the same benefitsunder this Indenture, as the Global Notes or Certificated Notes surrenderedupon such registration of transfer or exchange.

####  

#### (4)           TheRegistrar shall not be required (A) to issue, to register the transfer ofor to exchange Notes during a period beginning at the opening of 15 daysbefore the day of any selection of Notes for redemption under Section 3.2hereof and ending at the close of business on the day of selection, (B) toregister the transfer of or to exchange any Note so selected for redemption inwhole or in part, except the unredeemed portion of any Note being redeemed inpart, or (C) to register the transfer of or to exchange a Note between arecord date and the next succeeding interest payment date.

####  

#### (5)           Priorto due presentment for the registration of a transfer of any Note, the Trustee,any Agent and the Company may deem and treat the Person in whose name any Noteis registered as the absolute owner of such Note for the purpose of receivingpayment of principal 

####  

#### 46

#### 

####  

#### of, premium, if any, and interest andAdditional Interest, if any, on such Notes and for all other purposes, andneither the Trustee, any Agent nor the Company shall be affected by notice tothe contrary.

####  

#### (6)           TheTrustee shall authenticate Global Notes and Certificated Notes in accordancewith the provisions of Section 2.2 hereof.  Except as provided in Section 2.6(b),neither the Trustee nor the Registrar shall authenticate or deliver anyCertificated Note in exchange for a Global Note.

####  

#### (7)           EachHolder agrees to provide reasonable indemnity to the Company and the Trusteeagainst any liability that may result from the transfer, exchange or assignmentof such Holder’s Note in violation of any provision of this Indenture and/orapplicable United States federal or state securities law.

####  

#### (8)           TheTrustee shall have no obligation or duty to monitor, determine or inquire as tocompliance with any restrictions on transfer imposed under this Indenture orunder applicable law with respect to any transfer of any interest in any Note(including any transfers between or among Agent Members or beneficial owners ofinterests in any Global Note) other than to require delivery of suchcertificates 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 theexpress requirements hereof.

####  

### (h)           ExchangeOffer.  Upon the occurrence of theExchange Offer in accordance with the Registration Rights Agreement, theCompany shall issue an Officers’ Certificate stating that such RegistrationStatement has been declared effective and deliver an Authentication Order tothe Trustee, and, upon receipt of an Authentication Order in accordance with Section 2.2,the Trustee shall authenticate (i) one or more Unrestricted Global Notesin an aggregate principal amount equal to the principal amount of thebeneficial interests in the Restricted Global Notes tendered for acceptance byPersons that certify in the applicable Letters of Transmittal that(x) they are not affiliates (as defined in Rule 144) of the Company,(y) they are not engaged in, and do not intend to engage in, and have noarrangement or understanding with any Person to participate in, a distributionof the Exchange Notes to be issued in the Exchange Offer and (z) they areacquiring the Exchange Notes in their ordinary course of business and(ii) Unrestricted Definitive Notes in an aggregate principal amount equalto the principal amount of the Restricted Definitive Notes accepted forexchange in the Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall causethe aggregate principal amount of the Restricted Global Notes to be reducedaccordingly, and the Trustee shall deliver to the Persons designated by theHolders of Restricted Global Notes or Restricted Definitive Notes so acceptedthe Unrestricted Global Notes or Unrestricted Definitive Notes issued andauthenticated in accordance with the preceding sentence in the appropriateprincipal amount.

###  

SECTION 2.7         Replacement Notes.

 

If any mutilated Note is surrendered to theTrustee, or the Company and the Trustee receive evidence to their satisfactionof the destruction, loss or theft of any Note, the Company shall issue and theTrustee, upon the written order of the Company signed by one Officer of the 

 

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Company, shallauthenticate a replacement Note if the Trustee’s requirements are met.  In connection with the replacement of a Note,the Company and the Trustee will require an indemnity bond from the Holder thatis sufficient in the judgment of the Trustee and the Company to protect the Company,the Trustee, any Agent and any authenticating agent from any loss that any ofthem may suffer if a Note is replaced. The Company and the Trustee may charge for their expenses in replacing aNote.

 

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

 

SECTION 2.8         Outstanding Notes.

 

The Notes outstanding at any time are all theNotes authenticated by the Trustee except for those cancelled by it, thosedelivered to it for cancellation, those reductions in the interest in a GlobalNote effected by the Trustee in accordance with the provisions hereof, andthose described in this Section 2.8 as not outstanding.  Except as set forth in Section 2.9hereof, a Note does not cease to be outstanding because the Company or anAffiliate of the Company holds the Note.

 

If a Note is replaced pursuant to Section 2.7hereof, it ceases to be outstanding unless the Trustee receives proofsatisfactory to it that the replaced Note is held by a bona fide purchaser.

 

If the principal amount of any Note isconsidered paid under Section 4.1 hereof, it ceases to beoutstanding and interest on it ceases to accrue.

 

If the Paying Agent (other than the Company,a Restricted Subsidiary or an Affiliate of any thereof) holds, on a redemptiondate or maturity date, money sufficient to pay Notes payable on that date, thenon and after that date such Notes shall be deemed to be no longer outstandingand shall cease to accrue interest.

 

SECTION 2.9         Treasury Notes.

 

In determining whether the Holders of therequired aggregate principal amount of Notes have concurred in any direction,waiver or consent, Notes owned by the Company or by any Affiliate of theCompany shall be considered as though not outstanding, except that for the purposesof determining whether the Trustee shall be protected in relying on any suchdirection, waiver or consent, only Notes shown on the register or identified bythe Company in an Officers’ Certificate as being owned shall be sodisregarded.  Notwithstanding theforegoing, Notes that are to be acquired by the Company or an Affiliate of theCompany pursuant to an exchange offer, tender offer or other agreement shallnot be deemed to be owned by such entity until legal title to such Notes passesto such entity.

 

SECTION 2.10       Temporary Notes.

 

Until Certificated Notes are ready fordelivery, the Company may prepare and the Trustee shall authenticate temporaryNotes upon a written order of the Company signed by one Officer of the Companyin accordance with Section 2.2. Temporary Notes shall be substantially in the 

 

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form ofCertificated Notes but may have variations that the Company considersappropriate for temporary Notes.  Withoutunreasonable delay, the Company shall prepare and the Trustee shall uponreceipt of a written order of the Company signed by one Officer authenticateCertificated Notes in exchange for temporary Notes.

 

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

 

SECTION 2.11       Cancellation.

 

The Company at any time may deliver to theTrustee for cancellation any Notes previously authenticated and deliveredhereunder or which the Company may have acquired in any manner whatsoever, andall Notes so delivered shall be promptly cancelled by the Trustee.  All Notes surrendered for registration oftransfer, exchange or payment, if surrendered to any Person other than theTrustee, shall be delivered to the Trustee. The Trustee and no one else shall cancel all Notes surrendered for registrationof transfer, exchange, payment, replacement or cancellation.  Subject to Section 2.7 hereof,the Company may not issue new Notes to replace Notes that it has redeemed orpaid or that have been delivered to the Trustee for cancellation.  All cancelled Notes held by the Trustee shallbe disposed of in accordance with its customary practice, and certification oftheir disposal delivered to the Company.

 

SECTION 2.12       Defaulted Interest.

 

If the Company defaults in a payment ofinterest on the Notes, it shall pay the defaulted interest in any lawful mannerplus, to the extent lawful, interest payable on the defaulted interest, to thePersons who are Holders on a subsequent special record date, which date shallbe at the earliest practicable date but in all events at least five (5) BusinessDays prior to the payment date, in each case at the rate provided in the Notesand in Section 4.1 hereof. The Company shall fix or cause to be fixed each such special record dateand payment date and shall promptly thereafter notify the Trustee of any suchdate.  At least 15 days before thespecial record date, the Company (or the Trustee, in the name and at theexpense of the Company) shall mail or cause to be mailed to Holders a noticethat states the special record date, the related payment date and the amount ofsuch interest to be paid.

 

SECTION 2.13       Record Date.

 

Unless otherwise set forth in this Indenture,the record date for purposes of determining the identity of Holders entitled tovote or consent to any action by vote or consent authorized or permitted underthis Indenture shall be determined as provided for in TIA § 316(c).

 

SECTION 2.14       Computation of Interest.

 

Interest and Additional Interest, if any, onthe Notes shall be computed on the basis of a 360-day year comprised of twelve30-day months.

 

SECTION 2.15       CUSIP Number.

 

The Company in issuing the Notes may use a “CUSIP”number, and if it does so, the Trustee shall use the CUSIP number in notices ofredemption or exchange as a convenience to

 

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Holders;**provided that any such notice may state that norepresentation is made as to the correctness or accuracy of the CUSIP numberprinted in the notice or on the Notes and that reliance may be placed only onthe other identification numbers printed on the Notes.  The Company shall promptly notify the Trusteeof any change in the CUSIP number.

 

SECTION 2.16       Special Transfer Provisions.

 

Each Initial Note and each Additional Noteissued pursuant to an exemption from registration under the Securities Act willconstitute a Transfer Restricted Note and be required to bear the RestrictedNotes Legend until the expiration of the Resale Restriction Termination Datetherefor, unless and until such Transfer Restricted Note is transferred orexchanged pursuant to an effective registration statement under the SecuritiesAct.  The following provisions shallapply to the transfer of a Transfer Restricted Note:

 

(a)           Transfers to QIBs.  The following provisions shall apply withrespect to the registration of any proposed transfer of a Transfer RestrictedNote (other than pursuant to Regulation S):

 

##### (i)      The Registrar shallregister the transfer of a Transfer Restricted Note by a Holder to a QIB ifsuch transfer is being made by a proposed transferor who has provided theRegistrar with (a) an appropriately completed certificate of transfer inthe form attached to the Note and (b) a letter substantially in the formset forth in Exhibit C hereto.

#####  

##### (ii)     If the proposedtransferee is an Agent Member and the Transfer Restricted Note to betransferred consists of an interest in the Regulation S Global Note, uponreceipt by the Registrar of (x) the items required by paragraph (i)above and (y) instructions given in accordance with the Depositary’s andthe Registrar’s procedures therefor, the Registrar shall reflect on its booksand records the date and an increase in the principal amount of the QIB GlobalNote in an amount equal to the principal amount of the beneficial interest inthe Regulation S Global Note to be so transferred, and the Registrar shallreflect on its books and records the date and an appropriate decrease in theprincipal amount of such Regulation S Global Note.

#####  

(b)           TransfersPursuant to Regulation S.  Thefollowing provisions shall apply with respect to registration of any proposedtransfer of a Transfer Restricted Note pursuant to Regulation S:

 

##### (i)      The Registrar shallregister any proposed transfer of a Transfer Restricted Note pursuant toRegulation S by a Holder upon receipt of (a) an appropriately completedcertificate of transfer in the form attached to the Note and (b) a lettersubstantially in the form set forth in Exhibit D hereto from theproposed transferor.

#####  

##### (ii)     If the proposedtransferee is an Agent Member holding a beneficial interest in a QIB GlobalNote and the Transfer Restricted Note to be transferred consists of an interestin a QIB Global Note, upon receipt by the Registrar of 

#####  

##### 50

##### 

#####  

##### (x) theletter, if any, required by paragraph (i) above and (y) instructionsin accordance with the Depositary’s and the Registrar’s procedures therefor,the Registrar shall reflect on its books and records the date and an increasein the principal amount of the Regulation S Global Note in an amount equalto the principal amount of the beneficial interest in the QIB Global Note to betransferred, and the Registrar shall reflect on its books and records the dateand an appropriate decrease in the principal amount of the QIB Global Note.

#####  

(c)           Restricted NotesLegend.  Upon the transfer, exchangeor replacement of Notes not bearing the Restricted Notes Legend, the Registrarshall deliver Notes that do not bear the Restricted Notes Legend.  Upon the transfer, exchange or replacement ofNotes bearing the Restricted Notes Legend, the Registrar shall deliver onlyNotes that bear the Restricted Notes Legend unless there is delivered to theRegistrar an Opinion of Counsel reasonably satisfactory to the Company and theTrustee to the effect that neither such legend nor the related restrictions ontransfer are required in order to maintain compliance with the provisions ofthe Securities Act.

 

(d)           General.  By its acceptance of any Note bearing theRestricted Notes Legend, each Holder of such a Note acknowledges therestrictions on transfer of such Note set forth in this Indenture and in theRestricted Notes Legend and agrees that it shall transfer such Note only asprovided in this Indenture.  A transferof a beneficial interest in a Global Note that does not involve an exchange ofsuch interest for a Certificated Note or a beneficial interest in anotherGlobal Note shall be subject to compliance with applicable law and theapplicable procedures of the Depositary, but is not subject any procedurerequired by this Indenture.

 

The Registrar shall retain copies of allletters, notices and other written communications received pursuant to this Section 2.16.

 

SECTION 2.17       Issuance of Additional Notes.

 

The Company shall be entitled to issueAdditional Notes, including Exchange Notes, under this Indenture that shallhave identical terms as the Initial Notes, other than with respect to the dateof issuance, issue price and amount of interest payable on the first interestpayment date applicable thereto (and, if such Additional Notes shall be issuedin the form of Transfer Restricted Notes, other than with respect to transferrestrictions, any registration rights agreement and additional interest withrespect thereto);**provided that suchissuance is not prohibited by the terms of this Indenture, including Section 4.9and Section 4.12.

 

The Initial Notes, any Additional Notessubsequently issued under this Indenture and any PIK Notes will be treated as asingle class for all purposes under this Indenture, including waivers,amendments, redemptions and offers to purchase. Unless the context requires otherwise, references to “Notes” for allpurposes of this Indenture include any Additional Notes, PIK Notes that areactually issued and any increase in the principal amount of the outstandingNotes as a result of a PIK Payment and references to “principal amount” of theNotes include any increase in the principal amount of the outstanding Notes asa result of a PIK Payment.  Any Additional Notes shall be issued with thebenefit of an indenture supplemental to this Indenture.

 

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With respect to any Additional Notes, theCompany shall set forth in a Board Resolution and in an Officers’ Certificate,a copy of each of which shall be delivered to the Trustee, the followinginformation:

 

(1)           theaggregate principal amount of such Additional Notes to be authenticated anddelivered pursuant to this Indenture;

 

(2)           theissue price, the issue date, the CUSIP number of such Additional Notes, thefirst interest payment date and the amount of interest payable on such first interestpayment date applicable thereto and the date from which interest shall accrue;and

 

(3)           whethersuch Additional Notes shall be Transfer Restricted Notes.

 

# ARTICLE III

#  

# REDEMPTION ANDPREPAYMENT

#  

SECTION 3.1         Notices to Trustee.

 

If the Company elects to redeem Notespursuant to the optional redemption provisions of Section 3.7hereof, it shall furnish to the Trustee, at least 30 days or such shorterperiod as is acceptable to the Trustee before a redemption date, an Officers’Certificate setting forth (i) the Section of this Indenture pursuant towhich the redemption shall occur, (ii) the redemption date, (iii) theprincipal amount of Notes to be redeemed and (iv) the Redemption Price.

 

If the Company is required to make an offerto purchase Notes pursuant to Section 4.10 or 4.14 hereof,it shall furnish to the Trustee, at least 30 days or such shorter periodas is acceptable to the Trustee before the scheduled purchase date, an Officers’Certificate setting forth (i) the Section of this Indenture pursuant towhich the offer to purchase shall occur, (ii) the terms of the offer,(iii) the principal amount of Notes to be purchased, (iv) thepurchase price and (v) the purchase date and further setting forth astatement to the effect that (a) the Company or one of its Subsidiarieshas effected an Asset Sale and there are Excess Proceeds aggregating more than$20.0 million or (b) a Change of Control has occurred, as applicable.

 

The Company will also provide the Trusteewith any additional information that the Trustee reasonably requests inconnection with any redemption or offer.

 

SECTION 3.2         Selection of Notes to Be Redeemed.

 

If less than all of the Notes are to beredeemed at any time, the Registrar will select Notes for redemption asfollows:

 

(1)           if the Notes are listed on anynational securities exchange, in compliance with the requirements of theprincipal national securities exchange on which such Notes are listed; or

 

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(2)           if the Notes are not listed on anynational securities exchange, on a pro ratabasis to the extent practicable or in accordance with customary procedures ofDTC.

 

No Notes of $2,000 or less shall be redeemedin part.  Except as otherwise providedherein, notices of redemption shall be mailed by first class mail at least 30but not more than 60 days before the redemption date to each Holder of Notes tobe redeemed at its registered address, except that redemption notices may bemailed more than 60 days prior to a redemption date if the notice is issued inconnection with Sections 8.2, 8.3 or 8.8 hereof.  Except for a redemption to be effectedpursuant to Section 3.7 notices of redemption may not be conditional.

 

If any Note is to be redeemed in part only,the notice of redemption that relates to such Note will state the portion ofthe principal amount thereof that is to be redeemed.  A new Note in principal amount equal to theunredeemed portion of the original Note will be issued in the name of theHolder thereof upon cancellation of the original Note (or appropriateadjustments to the amount and beneficial interests in a Global Note will bemade, as appropriate).  Notes called forredemption become due on the date fixed for redemption.

 

On and after the redemption date, interestwill cease to accrue on Notes or portions of them called for redemption.  The Registrar shall make the selection fromthe Notes outstanding and not previously called for redemption as long as theCompany has deposited with the Paying Agent funds in satisfaction of theapplicable Redemption Price pursuant to this Indenture and shall promptlynotify the Company in writing of the Notes selected for redemption.  The Registrar may select for redemptionportions (equal to $2,000 or any integral multiples of $1,000 thereof) of theprincipal of the Notes that have denominations larger than $2,000.

 

SECTION 3.3         Notice of Redemption.

 

Subject to the provisions of Section 3.9,at least 30 days but not more than 60 days before a redemption date,the Company shall mail or cause to be mailed by first class mail, a notice of redemptionto the Trustee, the Registrar and each Holder whose Notes are to be redeemed.

 

The notice shall identify the Notes to beredeemed and shall state:

 

(1)           theredemption date;

 

(2)           theRedemption Price;

 

(3)           ifany Note is being redeemed in part, the portion of the principal amount of suchNotes to be redeemed and that, after the redemption date, upon surrender ofsuch Note, a new Note or Notes in principal amount equal to the unredeemedportion shall be issued upon cancellation of the original Note;

 

(4)           thename, telephone number and address of the Paying Agent;

 

(5)           thatNotes called for redemption must be surrendered to the Paying Agent to collectthe Redemption Price;

 

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(6)           that,on the redemption date and, if applicable, upon the satisfaction of anyconditions to such redemption set forth in such notice of redemption, theredemption price will become due and payable upon each such Note or portionthereof, and that, unless the Company defaults in making such redemptionpayment, interest, if any, on Notes called for redemption ceases to accrue onand after the redemption date;

 

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

 

(8)           thatno representation is made as to the correctness or accuracy of the CUSIPnumber, if any, listed in such notice or printed on the Notes.

 

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

 

At the Company’s request, the Trustee shallgive the notice of redemption in the Company’s name and at the Company’sexpense;**provided,**however,that the Company shall have delivered to the Trustee, at least 45 daysprior to the redemption date (or such shorter period as is acceptable to theTrustee), an Officers’ Certificate requesting that the Trustee give such noticeand setting forth the information to be stated in the notice as provided in thepreceding paragraph.  The notice mailedin the manner herein provided shall be conclusively presumed to have been dulygiven whether or not the Holder receives such notice.  In any case, failure to give such notice bymail or any defect in the notice to the Holder of any Note shall not affect thevalidity of the proceeding for the redemption of any other Note.

 

SECTION 3.4         Effect of Notice of Redemption.

 

Except with respect to notices of redemptiongiven in accordance with Section 3.7(d) hereof, once notice ofredemption is mailed in accordance with Section 3.3 hereof, Notescalled for redemption become irrevocably due and payable on the redemption dateat the Redemption Price plus accrued and unpaid interest and AdditionalInterest, if any, to such date, subject to the satisfaction of any conditionsprecedent provided in such notice.

 

SECTION 3.5         Deposit of Redemption of PurchasePrice.

 

On or before 10:00 a.m. (New York Citytime) on each redemption date or the date on which Notes must be accepted forpurchase pursuant to Section 4.10 or 4.14, the Company shalldeposit with the Paying Agent (other than the Company or an Affiliate of the Company)money sufficient to pay the Redemption Price of and accrued and unpaid interestand Additional Interest, if any, on all Notes to be redeemed or purchased onthat date.  The Trustee or the PayingAgent shall promptly return to the Company any money deposited with the Trusteeor the Paying Agent by the Company in excess of the amounts necessary to paythe Redemption Price of (including any applicable premium), and accruedinterest and Additional Interest, if any, on, all Notes to be redeemed orpurchased.

 

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If Notes called for redemption or tendered inan Asset Sale Offer or Change of Control Offer are paid or if the Company hasdeposited with the Paying Agent money sufficient to pay the redemption orpurchase price of, and unpaid and accrued interest, if any, on, all Notes to beredeemed or purchased, on and after the redemption or purchase date, interest,if any, shall cease to accrue on the Notes or the portions of Notes called forredemption or tendered and not withdrawn in an Asset Sale Offer or Change ofControl Offer (regardless of whether certificates for such securities areactually surrendered).  If a Note isredeemed or purchased on or after an interest record date but on or prior tothe related interest payment date, then any accrued and unpaid interest andAdditional Interest, if any, shall be paid to the Person in whose name suchNote was registered at the close of business on such record date.  If any Note called for redemption shall notbe so paid upon surrender for redemption because of the failure of the Companyto comply with the preceding paragraph, interest shall be paid on the unpaidprincipal from the redemption or purchase date until such principal is paid,and to the extent lawful on any interest not paid on such unpaid principal, ineach case, at the rate provided in the Notes and in Section 4.1 hereof.  If any Note called for redemption or tenderedin an Asset Sale Offer or Change of Control Offer shall not be so paid uponsurrender for redemption because of the failure of the Company to comply withthe preceding paragraph, interest and Additional Interest, if any, shall bepaid on the unpaid principal, from the redemption date until such principal ispaid, and to the extent lawful on any interest not paid on such unpaidprincipal.

 

Any and all interest payable upon anyredemption shall be payable in cash.

 

SECTION 3.6         Notes Redeemed in Part.

 

Upon surrender and cancellation of a Notethat is redeemed in part, the Company shall issue and, upon the written requestof an Officer of the Company, the Trustee shall authenticate for the Holder atthe expense of the Company a new Note equal in principal amount to the unredeemedportion of the Note surrendered and cancelled; provided that each suchnew Note will be in a principal amount of $2,000 or integral multiples of$1,000 in excess thereof.

 

SECTION 3.7         Optional Redemption.

 

### (a)           TheNotes may be redeemed, in whole or in part, at any time prior to July 15,2011, at the option of the Company upon not less than 30 nor more than 60 days’prior notice mailed by first-class mail to each Holder’s registered address, ata redemption price equal to 100% of the principal amount of the Notes redeemedplus the Applicable Premium as of, and accrued and unpaid interest andAdditional Interest, if any, to, the applicable redemption date (subject to theright of Holders on the relevant record date to receive interest due on therelevant interest payment date).

###  

### (b)           TheNotes are subject to redemption, at the option of the Company, in whole or inpart, at any time on or after July 15, 2011, upon not less than 30 normore than 60 days’ notice, at the following Redemption Prices (expressed as apercentage of the principal amount to be redeemed) set forth below, plusaccrued and unpaid interest and Additional Interest, if any, to, but notincluding, the redemption date (subject to the right of Holders of record onthe relevant regular record date to receive interest due on an interest paymentdate that is on or prior to the 

###  

### 55

### 

###  

### redemption date) if redeemed during thetwelve-month period beginning on July 15 of the years indicated below:

###  

| **Year**            | ** ** | **Percentage** | ** ** |
|---------------------|------------|----------------|------------|
| 2011                |       | 105.1250       | %          |
| 2012                |       | 102.5625       | %          |
| 2013 and thereafter |       | 100.0000       | %          |

 

### (c)           Inaddition to the optional redemption of the Notes in accordance with the provisionsof the preceding paragraph, prior to July 15, 2011, the Company may on one ormore occasions, with the net cash proceeds of one or more Equity Offerings,redeem up to 35% of the aggregate principal amount of the outstanding Notes ata Redemption Price of 110.25% of the principal amount thereof, plus accrued andunpaid interest and Additional Interest, if any, thereon to the date ofredemption;**provided that at least 65% ofthe aggregate principal amount of Notes originally issued on the Issue Dateremains outstanding immediately after the occurrence of any such redemption(excluding Notes held by Parent and its Affiliates) and that any suchredemption occurs within 90 days following the closing of any such EquityOffering.

###  

### (d)           Noticeof any redemption upon an Equity Offering may be given prior to the completionof the related Equity Offering, and any such redemption or notice may, at theCompany’s discretion, be subject to one or more conditions precedent,including, but not limited to completion of the related Equity Offering.

###  

SECTION 3.8         Mandatory Redemption.

 

### (a)           Exceptas set forth under Sections 3.9, 4.10 and 4.14hereof, the Company shall not be required to make mandatory redemption orsinking fund payments with respect to the Notes.

###  

### (b)           Ifthe Notes would otherwise constitute “applicable high yield discountobligations” within the meaning of Section 163(i)(1) of the Code, at theend of the first accrual period ending after the fifth anniversary of the Notes’issuance (the “AHYDO redemption date”), the Issuer will be required toredeem for cash a portion of each Note then outstanding equal to the “MandatoryPrincipal Redemption Amount” (such redemption, a “Mandatory PrincipalRedemption”).  The redemption pricefor the portion of each Note redeemed pursuant to a Mandatory PrincipalRedemption will be 100% of the principal amount of such portion plus anyaccrued interest thereon on the date of redemption.  The “Mandatory Principal Redemption Amount”means the portion of a Note required to be redeemed to prevent such Note frombeing treated as an “applicable high yield discount obligation” within themeaning of Section 163(i)(1) of the Code. No partial redemption or repurchase of the Notes prior to the AHYDOredemption date pursuant to any other provision of this Indenture will alterthe Issuer’s obligation to make the Mandatory Principal Redemption with respectto any Notes that remain outstanding on the AHYDO redemption date.

###  

### 56

### 

###  

SECTION 3.9         Offer to Purchase.

 

In the event that the Company shall berequired to commence an Offer to Purchase pursuant to an Asset Sale Offer or aChange of Control Offer, the Company shall follow the procedures specifiedbelow.

 

On the Purchase Date, the Company shallpurchase the aggregate principal amount of Notes required to be purchasedpursuant to Section 4.10 hereof or Section 4.14 hereof(the “Offer Amount”), or if less than the Offer Amount has beentendered, all Notes tendered in response to the Offer to Purchase.  Payment for any Notes so purchased shall bemade in the same manner as interest payments are made.  If the Purchase Date is on or after theinterest record date and on or before the related interest payment date, anyaccrued and unpaid interest and Additional Interest, if any, shall be paid tothe Person in whose name a Note is registered at the close of business on suchrecord date, and no additional interest, if any, shall be payable to theHolders who tender Notes pursuant to the Offer to Purchase.  The Company shall notify the Trustee at least15 days (or such shorter period as is acceptable to the Trustee) prior tothe mailing of the Offer of the Company’s obligation to make an Offer toPurchase, and the Offer shall be mailed by the Company or, at the Company’srequest, by the Trustee in the name and at the expense of the Company.  The Offer shall contain all instructions andmaterials necessary to enable such Holders to tender Notes pursuant to theOffer to Purchase.

 

On or before 10:00 a.m. (New York Citytime) on each Purchase Date, the Company shall irrevocably deposit with thePaying Agent (other than the Company or an Affiliate of the Company) inimmediately available funds the aggregate purchase price equal to the OfferAmount, together with accrued and unpaid interest, if any, thereon, to be heldfor payment in accordance with the terms of this Section 3.9.  On the Purchase Date, the Company shall, tothe extent lawful, (i) accept for payment, on a**prorata basis to the extent necessary, the Offer Amount of Notes or portionsthereof tendered pursuant to the Offer to Purchase, or if less than the OfferAmount has been tendered, all Notes tendered, (ii) deliver or cause thePaying Agent or Depositary, as the case may be, to deliver to the Trustee Notesso accepted and (iii) deliver to the Trustee an Officers’ Certificatestating that such Notes or portions thereof were accepted for payment by theCompany in accordance with the terms of this Section 3.9.  The Company, the Depositary or the PayingAgent, as the case may be, shall promptly mail or deliver to each tenderingHolder an amount equal to the purchase price of the Notes tendered by suchHolder and accepted by the Company for purchase, plus any accrued and unpaidinterest and Additional Interest, if any, thereon, and the Company shallpromptly issue a new Note, and the Trustee, at the written request of theCompany, shall authenticate and mail or deliver (or cause to be transferred bybook entry) at the expense of the Company such new Note to such Holder, equalin principal amount to any unpurchased portion of such Holder’s Notessurrendered, if any; provided that each new Note will be in a minimumprincipal amount of $2,000 or integral multiples of $1,000 in excessthereof.  Any Note not so accepted shallbe promptly mailed or delivered by the Company to the Holder thereof.  The Company shall publicly announce in anewspaper of general circulation or in a press release provided to a nationallyrecognized financial wire service the results of the Offer to Purchase on the PurchaseDate.

 

Other than as specifically provided in this Section 3.9,any purchase pursuant to this Section 3.9 shall be made pursuant tothe provisions of Sections 3.1 through 3.6 hereof.

 

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# ARTICLE IV

#  

# COVENANTS

#  

SECTION 4.1         Payment of Notes.

 

### (a)           TheCompany shall pay or cause to be paid the principal of, premium, if any, andinterest on the Notes on the dates and in the manner provided in theNotes.  Principal, premium, if any, andinterest and Additional Interest, if any, shall be considered paid for allpurposes hereunder on the date the Paying Agent, if other than the Company or aSubsidiary thereof, holds, as of 10:00 a.m. (New York City time), moneydeposited by the Company in immediately available funds and designated for andsufficient to pay all such principal, premium, if any, and interest and AdditionalInterest, if any, then due.  The Companyshall pay all Additional Interest, if any, in the same manner on the dates andamounts set forth in the Registration Rights Agreement; provided, however,the Company shall deliver an Officers’ Certificate to the Trustee stating thatAdditional Interest is due and stating the amount of such Additional Intereston $1,000 aggregate principal amount of Notes to the Trustee no later than theRecord Date of such payment.  Unless anduntil the Trustee receives an Officers’ Certificate stating that AdditionalInterest is due and payable, the Trustee is entitle to assume no AdditionalInterest is due.

###  

### (b)           TheCompany shall pay interest (including post-petition interest in any proceedingunder any Bankruptcy Law) on overdue principal at the rate equal to 1% per**annum in excess of the then applicable interest rateon the Notes to the extent lawful; it shall pay interest (includingpost-petition interest in any proceeding under any Bankruptcy Law) on overdueinstallments of interest and Additional Interest, if any (without regard to anyapplicable grace period), at the same rate to the extent lawful.

###  

SECTION 4.2         Maintenance of Office or Agency.

 

The Company shall maintain in the Borough ofManhattan, the City of New York an office or agency (which may be an office ofthe Trustee or an Affiliate of the Trustee or Registrar) where Notes may besurrendered for registration of transfer or for exchange and where notices anddemands to or upon the Company in respect of the Notes and this Indenture maybe served.  The Company shall give promptwritten notice to the Trustee of the location, and any change in the location,of such office or agency.  If at any timethe Company shall fail to maintain any such required office or agency or shallfail to furnish the Trustee with the address thereof, such presentations,surrenders, notices and demands may be made or served at the Corporate TrustOffice of the Trustee.

 

The Company may also from time to timedesignate one or more other offices or agencies where the Notes may bepresented or surrendered for any or all such purposes and may from time to timerescind such designations; provided, however, that no suchdesignation or rescission shall in any manner relieve the company of itsobligation to maintain an office or agency in the Borough of Manhattan, theCity of New York for such purposes.  TheCompany shall give prompt written notice to the Trustee of any such designationor rescission and of any change in the location of any such other office oragency.

 

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The Company hereby designates the CorporateTrust Office of the Trustee as one such office or agency of the Company inaccordance with Section 2.3 hereof.

 

SECTION 4.3         Reports.

 

Whether or not required by the Commission, solong as any Notes are outstanding, if not filed electronically with theCommission through the Commission’s Electronic Data Gathering, Analysis, andRetrieval System (or any successor system), the Company will furnish to the Holdersof Notes, within the time periods specified in the Commission’s rules andregulations for a filer that is a “non-accelerated filer”:

 

(1)           substantially the same quarterly andannual financial information that would be required to be contained in a filingwith the Commission on Forms 10-Q and 10-K, if the Company were required tofile such forms, including a “Management’s Discussion and Analysis of FinancialCondition and Results of Operations” and, with respect to the annualinformation only, a report on the annual financial statements by the Company’scertified independent accountants; and

 

(2)           substantially the same currentreports that would be required to be filed with the Commission on Form 8-K ifthe Company were required to file such reports.

 

In addition, whether or not required by theCommission, after the consummation of the Exchange Offer or the effectivenessof the Shelf Registration Statement, the Company will file a copy of all of theinformation and reports referred to in clauses (1) and (2) above with the Commissionfor public availability within the time periods specified in the Commission’srules and regulations (unless the Commission will not accept such a filing) fora filer that is not an “accelerated filer” (as defined in such rules andregulations) and make such information available to securities analysts and prospectiveinvestors upon request.  To the extentany such information is not so filed or furnished, as applicable, within thetime periods specified above and such information is subsequently filed orfurnished, as applicable, the Company will be deemed to have satisfied itsobligations with respect thereto at such time and any Default or Event ofDefault with respect thereto shall be deemed to have been cured; provided,**that such cure shall not otherwise affect the rights of theHolders pursuant to pursuant to Article V if holders of at least 25% inprincipal amount of the then total outstanding Notes have declared theprincipal, premium, if any, interest and any other monetary obligations on allthe then outstanding Notes to be due and payable immediately and suchdeclaration shall not have been rescinded or cancelled prior to such cure.  In addition, the Company has agreed that, forso long as any Notes remain outstanding, it will furnish to the Holders of theNotes and to securities analysts and prospective investors, upon their request,the information required to be delivered pursuant to Rule 144A(d) (4) under theSecurities Act.

 

In addition, if at any time any direct orindirect parent company becomes a Guarantor (there being no obligation of anysuch parent company to do so), and complies with the requirements of Rule 3-10of Regulation S-X promulgated by the Commission (or any successor provision),the reports, information and other documents required to be filed and furnishedto Holders of the Notes pursuant to this Section 4.3 may, at the optionof the Company, be filed by and be those of such parent company rather than theCompany; provided**that the sameis accompanied by consolidating information as required by Rule 3-10 ofRegulation S-X that explains in reasonable detail the 

 

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differencesbetween the information relating to Parent and such other parent, on the onehand, and the information relating to the Company and its RestrictedSubsidiaries on a standalone basis, on the other hand.

 

Notwithstanding the foregoing, therequirement to provide the information and reports referred to in clause (1)above shall be deemed satisfied prior to the commencement of the Exchange Offeror the effectiveness of a Shelf Registration Statement relating to the registrationof the Notes under the Securities Act by the filing with the Commission of aregistration statement, and any amendments thereto, with such financialinformation that satisfies Regulation S-X of the Securities Act within thetimeframes required by the Registration Rights Agreement.

 

The Company shall provide the Trustee with asufficient number of copies of all reports and other documents and informationand, if requested by the Company, at its expense, the Trustee will deliver suchreports to the Holders under this Section 4.3.

 

SECTION 4.4         Compliance Certificate.

 

The Company shall deliver to the Trustee,within 90 days after the end of each fiscal year beginning with the fiscalyear ended December 28, 2007, an Officers’ Certificate stating that a review ofthe activities of the Company and its Subsidiaries during the preceding fiscalyear has been made under the supervision of the signing Officers with a view todetermining whether each has kept, observed, performed and fulfilled itsobligations under this Indenture, and further stating, as to each such Officersigning such certificate, that, to the best of his or her knowledge, eachentity has kept, observed, performed and fulfilled each and every covenantcontained in this Indenture and is not in default in the performance orobservance of any of the terms, provisions and conditions of this Indenture(or, if a Default or Event of Default shall have occurred, describing all suchDefaults or Events of Default of which he or she may have knowledge and what actionthe Company is taking or proposes to take with respect thereto) and that, tothe best of his or her knowledge, no event has occurred and remains inexistence by reason of which payments on account of the principal of, premium,if any, or interest or Additional Interest, if any, on the Notes is prohibitedor if such event has occurred, a description of the event and what action theCompany is taking or proposes to take with respect thereto.

 

The Company shall, so long as any of theNotes are outstanding, deliver to the Trustee, forthwith upon any Officerbecoming aware of any Default or Event of Default, an Officers’ Certificatespecifying such Default or Event of Default (unless such Default or Event ofDefault has been cured prior to such time) and what action the Company istaking or proposes to take with respect thereto.

 

SECTION 4.5         Taxes.

 

The Company shall pay, and shall cause eachof its Subsidiaries to pay, prior to delinquency, all material taxes, charges,assessments and governmental levies, except such as are contested in good faithand by appropriate proceedings and with respect to which appropriate reserveshave been taken in accordance with GAAP or where the failure to effect suchpayment is not adverse in any material respect to the Holders of the Notes.

 

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SECTION 4.6         Stay, Extension and Usury Laws.

 

The Company and each of the Guarantorscovenant (to the extent that it may lawfully do so) that it shall not at anytime insist upon, plead, or in any manner whatsoever claim or take the benefitor advantage of, any stay, extension or usury law wherever enacted, now or atany time hereafter in force, that may affect the covenants or the performanceof this Indenture; and the Company and each of the Guarantors (to the extentthat it may lawfully do so) hereby expressly waives all benefit or advantage ofany such law, and covenants that it shall not, by resort to any such law,hinder, delay or impede the execution of any power herein granted to theTrustee, but shall suffer and permit the execution of every such power asthough no such law has been enacted.

 

SECTION 4.7         Limitation on Restricted Payments.

 

The Company will not, and will not permit anyof its Restricted Subsidiaries to, directly or indirectly:

 

(a)           declare or pay anydividend or make any other distribution on account of the Company’s or any ofits Restricted Subsidiaries’ Equity Interests, including any dividend ordistribution payable in connection with any merger or consolidation (other than(i) dividends or distributions by the Company payable in Equity Interests(other than Disqualified Stock) of the Company or in options, warrants or otherrights to purchase such Equity Interests (other than Disqualified Stock), (ii)dividends or distributions by a Restricted Subsidiary payable to the Company orany other Restricted Subsidiary or (iii), in the case of any dividend ordistribution payable on or in respect of any class or series of EquityInterests issued by a Restricted Subsidiary other than a Wholly Owned Subsidiary,pro rata dividends or distributions tominority stockholders of such Restricted Subsidiary (or owners of an equivalentinterest in the case of a Subsidiary that is an entity other than acorporation), provided that the Company or one of its RestrictedSubsidiaries receives at least its pro ratashare of such dividend or distribution in accordance with its Equity Interestsin such class or series of securities);

 

(b)           purchase, redeem orotherwise acquire or retire for value any Equity Interests of the Company orany direct or indirect parent entity of the Company held by any Person (otherthan by a Restricted Subsidiary), including in connection with any merger orconsolidation;

 

(c)           make any principalpayment on, or redeem, repurchase, defease or otherwise acquire or retire forvalue, in each case prior to any scheduled repayment, sinking fund payment ormaturity, any Subordinated Indebtedness (other than (x) Indebtedness permittedunder clause (8) of the definition of “Permitted Debt” or (y) the purchase, repurchaseor other acquisition or retirement of Subordinated Indebtedness purchased inanticipation of satisfying a sinking fund obligation, principal installment orfinal maturity, in each case due within one year of the date of purchase,repurchase, acquisition or retirement); or

 

(d)           make any RestrictedInvestment;

 

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(all suchpayments and other actions set forth in these clauses (a) through (d) beingcollectively referred to as “Restricted Payments”), unless, at the timeof and after giving effect to such Restricted Payment:

 

(1)           no Default or Event of Default hasoccurred and is continuing or would occur as a consequence of such RestrictedPayment;

 

(2)           the Company would, at the time ofsuch Restricted Payment and after giving pro forma effect thereto as if suchRestricted Payment had been made at the beginning of the applicablefour-quarter period, have been permitted to incur at least $1.00 of additionalIndebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in thefirst paragraph of Section 4.9; and

 

(3)           such Restricted Payment, togetherwith the aggregate amount of all other Restricted Payments made by the Companyand its Restricted Subsidiaries after the Issue Date (excluding RestrictedPayments permitted by clauses (2), (3), (4), (5), (6), (7), (9), (10), (11),(13), (14), (15), (16), (17) and (18) of the next succeeding paragraph; providedthat the calculation of Restricted Payments shall also exclude the amounts paidor distributed pursuant to clause (1) of the next paragraph to the extent thatthe declaration of such dividend or other distribution shall have previouslybeen included as a Restricted Payment), is less than the sum, without duplication,of

 

(a)           50%of the Consolidated Net Income of the Company for the period (taken as oneaccounting period) from July 1, 2007 to the end of the Company’s most recentlyended fiscal quarter for which internal financial statements are available atthe time of such Restricted Payment (or, in the case such Consolidated NetIncome for such period is a deficit, minus 100% of such deficit), plus

 

(b)           100%of the aggregate net cash proceeds and the fair market value, as determined ingood faith by the Board of Directors of the Company, of property and marketablesecurities received by the Company after the Issue Date from the issue or saleof (x) Equity Interests of the Company (including Retired Capital Stock (asdefined below) but excluding (i) cash proceeds received from the sale of EquityInterests of the Company and, to the extent actually contributed to theCompany, Equity Interests of any direct or indirect parent company of the Companyto members of management, directors or consultants of the Company, any director indirect parent company of the Company and the Subsidiaries of the Companyafter the Issue Date, in each case to the extent such amounts have been appliedto Restricted Payments made in accordance with clause (4) of the nextsucceeding paragraph, (ii) cash proceeds received from the sale of RefundingCapital Stock (as defined below) to the extent such amounts have been appliedto Restricted Payments made in accordance with clause (2) of the nextsucceeding paragraph, (iii) Designated Preferred Stock, (iv) the CashContribution Amount and (v) Disqualified Stock) or (y) debt securities orDisqualified Stock of the Company that have been converted into or exchangedfor Equity Interests of the Company (other than Refunding Capital Stock orEquity Interests or convertible 

 

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debt securities of Parent or any other direct orindirect parent company sold to a Restricted Subsidiary or Parent and otherthan Disqualified Stock or Designated Preferred Stock or debt securities thathave been converted into Disqualified Stock or Designated Preferred Stock), plus

 

(c)           100%of the aggregate amount of cash and the fair market value, as determined ingood faith by the Board of Directors of the Company, of property and marketablesecurities contributed to the capital of the Company after the Issue Date(other than (i) by a Restricted Subsidiary, (ii) any Excluded Contributions,(iii) any Disqualified Stock, (iv) any Refunding Capital Stock, (v) anyDesignated Preferred Stock, (vi) the Cash Contribution Amount and (vii) cashproceeds applied to Restricted Payments made in accordance with clause (4) ofthe next succeeding paragraph), plus

 

(d)           tothe extent not already included in Consolidated Net Income, 100% of the aggregateamount received in cash and the fair market value, as determined in good faithby the Board of Directors of the Company, of property and marketable securitiesreceived after the Issue Date by means of (A) the sale or other disposition(other than to the Company or a Restricted Subsidiary) of, or interest, return,profits, distribution, income or similar amounts in respect of, RestrictedInvestments made by the Company or its Restricted Subsidiaries and repurchasesand redemptions of such Restricted Investments from the Company or itsRestricted Subsidiaries and repayments of loans or advances which constituteRestricted Investments of the Company or its Restricted Subsidiaries or (B) thesale (other than to the Company or a Restricted Subsidiary) of the CapitalStock of an Unrestricted Subsidiary or a distribution from an UnrestrictedSubsidiary (other than, in each case, to the extent the Investment in suchUnrestricted Subsidiary was made by a Restricted Subsidiary pursuant to clause(10) of the next succeeding paragraph or to the extent such Investmentconstituted a Permitted Investment) or a dividend or other distribution from anUnrestricted Subsidiary, plus

 

(e)           inthe case of the redesignation of an Unrestricted Subsidiary as a RestrictedSubsidiary or the merger or consolidation of an Unrestricted Subsidiary intothe Company or a Restricted Subsidiary or the transfer of assets of an UnrestrictedSubsidiary to the Company or a Restricted Subsidiary, the fair market value ofthe Investment in such Unrestricted Subsidiary, as determined by the Board ofDirectors of the Company in good faith at the time of the redesignation of suchUnrestricted Subsidiary as a Restricted Subsidiary or at the time of suchmerger, consolidation or transfer of assets (other than an UnrestrictedSubsidiary to the extent the Investment in such Unrestricted Subsidiary wasmade by a Restricted Subsidiary pursuant to clause (10) of the next succeedingparagraph or to the extent such Investment constituted a Permitted Investment).

 

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The preceding provisions will not prohibit:

 

(1)           the payment of any dividend or otherdistribution within 60 days after the date of declaration thereof, if at thedate of declaration such payment would have complied with the provisions ofthis Indenture;

 

(2)           (A) the redemption, repurchase,retirement or other acquisition of any Equity Interests of the Company or anydirect or indirect parent of the Company (“Retired Capital Stock”) orSubordinated Indebtedness in exchange for or out of the net cash proceeds ofthe substantially concurrent sale (other than to a Restricted Subsidiary or theCompany) of Equity Interests of the Company or contributions to the equitycapital of the Company (in each case, other than Disqualified Stock and theCash Contribution Amount) (“Refunding Capital Stock”) and (B) thedeclaration and payment of dividends on the Retired Capital Stock out of thenet cash proceeds of the substantially concurrent sale (other than to a Subsidiaryof the Company or to an employee stock ownership plan or any trust establishedby the Company or any of its Subsidiaries) of Refunding Capital Stock;

 

(3)           the redemption, repurchase or otheracquisition or retirement of Subordinated Indebtedness made by exchange for, orout of the proceeds of the substantially concurrent sale of, new Indebtednessof the borrower thereof which is incurred in compliance with Section 4.9so long as (A) such new Indebtedness is subordinated to the Notes and anyGuarantees thereof at least to the same extent as such Subordinated Indebtednessso redeemed, repurchased, acquired or retired, (B) such new Indebtedness has afinal scheduled maturity date equal to or later than the final scheduledmaturity date of the Subordinated Indebtedness being so redeemed, repurchased,acquired or retired and (C) such new Indebtedness has a Weighted Average Lifeto Maturity equal to or greater than the remaining Weighted Average Life toMaturity of the Subordinated Indebtedness being so redeemed, repurchased,acquired or retired;

 

(4)           a Restricted Payment to pay for therepurchase, retirement, redemption or other acquisition or retirement for valueof Equity Interests of the Company or any of its direct or indirect parentcompanies held by any future, present or former employee, director orconsultant of the Company, any Subsidiary or any of its direct or indirectparent companies (or their permitted transferees, assigns, estates or heirs)pursuant to any management unit purchase agreement, management equity plan orstock option plan or any other management or employee benefit agreement,agreement or arrangement (including, for the avoidance of doubt, any principaland interest payable on any notes issued by the Company or any direct or indirectparent company in connection with any such repurchase, retirement or otheracquisition or retirement), provided, however, that the aggregateamount of Restricted Payments made under this clause (4) does not exceed in anycalendar year (x) on or prior to December 31, 2008, $15.0 million and (y)thereafter, $25.0 million, with any unused amounts in any calendar year beingcarried over to the two immediately succeeding calendar years subject to amaximum of $50.0 million in any calendar year; and provided, further,that such amount in any calendar year may be increased by an amount not toexceed (A) the cash proceeds from the sale of Equity Interests (other thanDisqualified Stock) of the Company and, to the extent 

 

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contributed tothe Company, Equity Interests of any of its direct or indirect parentcompanies, in each case to members of management, directors or consultants ofthe Company, any of its Subsidiaries or any of its direct or indirect parentcompanies that occurs after the Issue Date plus (B) the cash proceeds of “keyman” life insurance policies received by the Company or its RestrictedSubsidiaries after the Issue Date (provided that the Company may electto apply all or any portion of the aggregate increase contemplated by clauses(A) and (B) above in any calendar year) (it being understood that theforgiveness of any debt by such Person shall not be a Restricted Paymenthereunder) less (C) the amount of any Restricted Payments previously made pursuantto clauses (A) and (B) of this clause (4);

 

(5)           the declaration and payment ofdividends to holders of any class or series of Disqualified Stock of theCompany or any Restricted Subsidiary issued or incurred in accordance with Section4.9 to the extent such dividends are included in the definition of “FixedCharges” for such entity;

 

(6)           the declaration and payment ofdividends or distributions to holders of any class or series of DesignatedPreferred Stock (other than Disqualified Stock) issued after the Issue Date andthe declaration and payment of dividends to any direct or indirect parentcompany of the Company the proceeds of which will be used to fund the paymentof dividends to holders of any class or series of Designated Preferred Stock(other than Disqualified Stock) of any direct or indirect parent company of theCompany issued after the Issue Date; provided, however, that (A)for the most recently ended four full fiscal quarters for which internalfinancial statements are available immediately preceding the date of issuanceof such Designated Preferred Stock, after giving effect to such issuance (andthe payment of dividends or distributions thereon) on a pro forma basis, theCompany would have had a Fixed Charge Coverage Ratio of at least 2.0 to 1.0 and(B) the aggregate amount of dividends declared and paid pursuant to this clause(6) does not exceed the net cash proceeds actually received by the Company fromany such sale of Designated Preferred Stock (other than Disqualified Stock)issued after the Issue Date;

 

(7)           repurchases of Equity Interestsdeemed to occur upon exercise of stock options or warrants if such EquityInterests represent a portion of the exercise price of such options orwarrants;

 

(8)           the payment of dividends on the Company’scommon stock (or the payment of dividends to any direct or indirect parentcompany of the Company, as the case may be, to fund the payment by any suchparent company of the Company of dividends on such entity’s common stock)following the first public offering of the Company’s common stock or the commonstock of any of its direct or indirect parent companies after the Issue Date,of up to 6% per annum of the net cash proceeds received by or contributed tothe Company after the Issue Date in any such public offering, other than publicofferings of common stock of the Company (or any direct or indirect parentcompany of the Company) registered on Form S-4 or Form S-8 and other than anypublic sale constituting an Excluded Contribution;

 

(9)           Investments that are made withExcluded Contributions;

 

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(10)         other Restricted Payments after theIssue Date in an aggregate amount not to exceed $25.0 million;

 

(11)         distributions or payments ofReceivables Fees and purchase of any assets in connection with a ReceivablesFacility;

 

(12)         the repurchase, redemption or otheracquisition or retirement for value of any Subordinated Indebtedness orDisqualified Stock pursuant to provisions similar to those described in Sections3.9, 4.10 and 4.14; provided that a Change of ControlOffer or Asset Sale Offer, as applicable, has been made and all Notes tenderedby Holders of the Notes in connection with a Change of Control Offer or AssetSale Offer, as applicable, have been repurchased, redeemed or acquired forvalue;

 

(13)         the declaration and payment ofdividends or the payment of other distributions by the Company to, or themaking of loans or advances to, any of their respective direct or indirectparents or the equity interest holders thereof in amounts required for anydirect or indirect parent companies or the equity interest holders thereof topay, in each case without duplication,

 

##### (i)            franchise taxes andother fees, taxes and expenses required to maintain their corporate existence;

#####  

##### (ii)           federal, foreign,state and local income or franchise taxes (or any alternative tax in lieuthereof); provided, that, in each fiscal year, the amount of suchpayments shall be equal to the amount that the Company and its RestrictedSubsidiaries would be required to pay in respect of federal, foreign, state andlocal income or franchise taxes if such entities were corporations paying taxesseparately from any parent entity at the highest combined applicable federal,foreign, state, local or franchise tax rate for such fiscal year;

#####  

##### (iii)          customary salary,bonus, severance, indemnification obligations and other benefits payable toofficers and employees of any direct or indirect parent company of the Companyand any payroll, social security or similar taxes thereof to the extent suchsalaries, bonuses, severance, indemnification obligations and other benefitsare reasonably attributable to the ownership or operation of the Company andits Restricted Subsidiaries;

#####  

##### (iv)          general corporateoperating and overhead costs and expenses of any direct or indirect parentcompany of the Company to the extent such costs and expenses are reasonablyattributable to the ownership or operation of the Company and its RestrictedSubsidiaries;

#####  

##### (v)           amounts payable tothe Sponsor pursuant to the Management Agreement as in effect on the IssueDate;

#####  

##### (vi)          fees and expensesother than to Affiliates of the Company related to (1) any equity or debtoffering of such parent entity (whether or not successful), 

#####  

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##### 

#####  

##### (2) anyInvestment otherwise permitted under this section (whether or not successful)and (3) any transaction of the type described in under Section 5.1;

#####  

##### (vii)         cash payments inlieu of issuing fractional shares in connection with the exercise of warrants,options or other securities convertible into or ex-changeable for EquityInterests of the Company or any direct or indirect parent;

#####  

##### (viii)        amounts to financeInvestments otherwise permitted to be made pursuant to this Indenture; provided,that (1) such Restricted Payment shall be made substantially concurrently withthe closing of such Investment and (2) such direct or indirect parent companyshall, immediately following the closing thereof, cause (x) all property acquired(whether assets or Equity Interests) to be contributed to the capital of theCompany or one of its Restricted Subsidiaries or (y) the merger of the Personformed or acquired into the Company or one of its Restricted Subsidiaries (tothe extent not prohibited Section 5.1 in order to consummate suchInvestment; (3) such direct or indirect parent company and its Affiliates(other than the Company or a Restricted Subsidiary) receives no considerationor other payment in connection with such transaction, (4) any property receivedby the Company shall not increase amounts available for Restricted Paymentspursuant to clause (3) of the first paragraph of this Section 4.7 and(5) such Investment shall be deemed to be made by the Company or suchRestricted Subsidiary by another paragraph of this paragraph (other thanpursuant to clause (9) hereof) or pursuant to the definition of “PermittedInvestments” (other than clause (11) thereof);

#####  

##### (ix)           [reserved];

#####  

##### (x)            reasonable andcustomary fees payable to any directors of any direct or indirect parent of theCompany and reimbursement of reasonable out-of-pocket costs of the directors ofany direct or indirect parent of the Company in the ordinary course ofbusiness, to the extent reasonably attributable to the ownership or operationof the Company and its Restricted Subsidiaries; and

#####  

##### (xi)           reasonable andcustomary indemnities to directors, officers and employee of any direct orindirect parent of the Company in the ordinary course of business, to theextent reasonably attributable to the ownership or operation of the Company andits Restricted Subsidiaries;

#####  

(14)         cash payments in lieu of the issuanceof fractional shares in connection with the exercise of warrants, options orother securities convertible into or exchangeable for Equity Interests of theCompany; provided, however, that any such cash payment shall notbe for the purpose of evading the limitation of this Section 4.7 (asdetermined in good faith by the Board of Directors of the Company);

 

(15)         distributions, by dividends orotherwise, of Capital Stock of, or Indebtedness owed to the Company or aRestricted Subsidiary by, Unrestricted Subsidiaries;

 

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(16)         cash dividends or other distributionson the Company’s or any Restricted Subsidiary’s Capital Stock used to, or themaking of loans the proceeds of which will be used to, fund the payment of feesand expenses, including any severance and indemnification obligations ordeferred compensation, incurred in connection with the Transactions or thisoffering, in each case to the extent permitted (to the extent applicable) by Section4.11;

 

(17)         payments or distributions in connectionwith an AHYDO “catch-up” payment with respect to the Senior Subordinated Notes;

 

(18)         any Restricted Payment used to fund theTransactions and the fees and expenses related thereto (including anyrepurchase of the Existing Notes on the Issue Date or thereafter);

 

(19)         Investments in UnrestrictedSubsidiaries having an aggregate fair market value, taken together with allother Investments made pursuant to this clause (19) that are at the timeoutstanding, without giving effect to any distribution pursuant to clause (15)of this paragraph or the sale of an Unrestricted Subsidiary to the extent theproceeds of such sale do not consist of cash or marketable securities, not toexceed 1.5% of Total Net Tangible Assets at the time of such Investment (withthe fair market value of each Investment being measured at the time made andwithout giving effect to subsequent changes in value);

 

(20)         payments and distributions todissenting stockholders pursuant to applicable law, pursuant to or inconnection with a consolidation, merger or transfer of all or substantially allof the assets of the Company and its Restricted Subsidiaries taken as a wholethat complies with the terms of this Indenture, including Section 5.1;and

 

(21)         the Foreign Subsidiary Reorganizationand payments or distributions in connection therewith;

 

provided,however, that at the time of, and after giving effect to, any RestrictedPayment permitted under clauses (5), (6), (8), (10), (12), (13)(v) and (vi) and(19) above, no default which, with the passage of time would be an Event ofDefault, or an Event of Default shall have occurred and be continuing or wouldoccur as a consequence thereof.

 

The amount of all Restricted Payments (otherthan cash) will be the fair market value on the date of the Restricted Paymentof the asset(s) or securities proposed to be transferred or issued by theCompany or such Subsidiary, as the case may be, pursuant to the Restricted Payment.  The fair market value of any assets orsecurities that are required to be valued by this Section 4.7 will bedetermined in good faith by the Board of Directors of the Company.

 

As of the Issue Date, all of the Company’sSubsidiaries will be Restricted Subsidiaries. The Company will not permit any Unrestricted Subsidiary to become aRestricted Subsidiary except pursuant to the second to last sentence of thedefinition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an UnrestrictedSubsidiary, all outstanding investments by the Company and the RestrictedSubsidiaries (except to the extent repaid) in the Subsidiary so designated willbe deemed to be Restricted Payments in an amount determined as 

 

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set forth inthe second paragraph of the definition of “Investments.”  Such designation will be permitted only if aRestricted Payment in such amount would be permitted at such time under this Section4.7 or the definition of “Permitted Investments” and if such Subsidiaryotherwise meets the definition of an Unrestricted Subsidiary.  Unrestricted Subsidiaries will not be subjectto any of the restrictive covenants of this Indenture.

 

For the avoidance of doubt, any dividend ordistribution otherwise permitted pursuant to this Section 4.7 may be inthe form of a loan.

 

Notwithstanding anything to the contraryherein, the Company will not, and will not permit any Restricted Subsidiary to,directly or indirectly, make any (i) Restricted Payment covered in clauses (a)through (c) of the definition of Restricted Payments (including, withoutlimitation, any payment, dividend or distribution) to the holders of EquityInterests of the Company or any of its direct or indirect parent companies(which shall include the Sponsor and its Affiliates) (other than (x) to theCompany and its Restricted Subsidiaries, future, present or former employees,directors, managers or consultants of the Company, any of its Subsidiaries orany of it direct or indirect parent companies with respect to Equity Interestsheld by them in such capacities pursuant to clause (4) and (y) a RestrictedPayment made pursuant to clause (13)(i)-(iv), (x) or (xi) of the secondparagraph of this Section 4.7) or (ii) Investment in the Sponsor, anyPermitted Holders who are members of a group (within the meaning of Section13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision)with the Sponsor and it Affiliates (other than to the Company and itsRestricted Subsidiaries and members of management of the Company (or its directparent)), in each case during any period beginning on the date on which theCompany makes an election to pay PIK Interest with respect to any interestperiod and ending on the first date after such interest period on which theCompany makes a payment of Cash Interest with respect to a subsequent interestperiod.

 

SECTION 4.8         Limitation on Dividends and OtherPayment Restrictions Affecting Subsidiaries.

 

The Company will not, and will not permit anyof its Restricted Subsidiaries to, directly or indirectly, create or permit toexist or become effective any consensual encumbrance or restriction on theability of any such Restricted Subsidiary to:

 

(1)           pay dividends or make any otherdistributions on its Capital Stock to the Company or any of its RestrictedSubsidiaries, or with respect to any other interest or participation in, or measuredby, its profits, or pay any Indebtedness owed to the Company or any of itsRestricted Subsidiaries;

 

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

 

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

 

However, the preceding restrictions will notapply to encumbrances or restrictions existing under or by reason of:

 

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(1)                                  contractualencumbrances or restrictions in effect (x) pursuant to a Credit Facility orrelated documents as in effect on the Issue Date or (y) on the Issue Date, including,without limitation, pursuant to Indebtedness in existence on the Issue Date;

 

(2)                                  thisIndenture, the Notes and Guarantees (including any Exchange Notes with respectto the Notes and related Guarantees);

 

(3)                                  theSenior Subordinated Notes and related guarantees thereof;

 

(4)                                  purchasemoney obligations or other obligations described in clause (5) of the secondparagraph of Section 4.9 that, in each case, impose restrictions of the naturediscussed in clause (3) above in the first paragraph of this Section on theproperty so acquired;

 

(5)                                  applicablelaw or any applicable rule, regulation or order;

 

(6)                                  anyagreement or other instrument of a Person acquired by the Company or anyRestricted Subsidiary in existence at the time of such acquisition or at thetime a Restricted Subsidiary is first designated as a Restricted Subsidiary(but not created in connection therewith or in contemplation thereof or toprovide all or a portion of the funds or credit support utilized to consummatesuch acquisition), which encumbrance or restriction is not applicable to anyPerson, or the properties or assets of any Person, other than the Person, orthe property or assets of the Person, so acquired;

 

(7)                                  contractsfor the sale of assets, including without limitation, customary restrictionswith respect to a Subsidiary pursuant to an agreement that has been enteredinto for the sale or disposition of all or substantially all of the CapitalStock or assets of such Subsidiary;

 

(8)                                  SecuredIndebtedness otherwise permitted to be incurred pursuant to Sections 4.9and 4.12 that limits the right of the debtor to dispose of the assetssecuring such Indebtedness;

 

(9)                                  restrictionson cash or other deposits or net worth imposed by customers under contractsentered into in the ordinary course of business;

 

(10)                            otherIndebtedness or Preferred Stock of any Restricted Subsidiary (i) that is aGuarantor that is incurred subsequent to the Issue Date pursuant to Section4.9 or (ii) that is incurred by a Foreign Subsidiary of the Company subsequentto the Issue Date pursuant to Section 4.9;

 

(11)                            customaryprovisions in joint venture agreements and other similar agreements enteredinto in the ordinary course of business;

 

(12)                            customaryprovisions contained in leases, subleases, licenses or asset sale agreementsand other agreements;

 

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(13)                            restrictionsand conditions by the terms of the documentation governing any ReceivablesFacility that in the good faith determination of the Company are necessary oradvisable to effect such Receivables Facility;

 

(14)                            negativepledges and restrictions on Liens in favor of any holder of Indebtednesspermitted under this Indenture; and

 

(15)                            anyencumbrances or restrictions of the type referred to in clauses (1), (2) and(3) of the first paragraph of this Section 4.8 imposed by any amendments,modifications, restatements, renewals, increases, supplements, refundings,replacements or refinancings of the contracts, instruments or obligationsreferred to in clauses (1) through (14) above; provided**that the encumbrances or restrictions imposed by suchamendments, modifications, restatements, renewals, increases, supplements,refundings, replacements or refinancings are, in the good faith judgment of theBoard of Directors of the Company, not materially less favorable to the Holdersof the Notes than encumbrances and restrictions contained in such predecessoragreements and do not affect the Company’s and Guarantors’ ability, taken as awhole, to make payments of interest and scheduled payments of principal inrespect of the Notes, in each case as and when due; provided**further*,*however,**that with respect to agreements existing on the Issue Date,any refinancings or amendments thereof contain such encumbrances orrestrictions that are not materially less favorable to the Holders of the Notesthan the encumbrances or restrictions contained in such agreements as in effecton the Issue Date.

 

SECTION 4.9                          Limitationon Incurrence of Indebtedness and Issuance of Preferred Stock.

 

The Company will not, and will not permit anyof its Restricted Subsidiaries to, directly or indirectly, create, incur,issue, assume, guarantee or otherwise become directly or indirectly liable,contingently or otherwise, with respect to (collectively “incur”) anyIndebtedness (including Acquired Debt) and will not permit any of itsRestricted Subsidiaries to issue any shares of Preferred Stock; provided,however, that the Company and any Restricted Subsidiary may incurIndebtedness (including Acquired Debt) and any Restricted Subsidiary may issuePreferred Stock if the Fixed Charge Coverage Ratio of the Company and itsRestricted Subsidiaries (on a consolidated basis) for the Company’s mostrecently ended four full fiscal quarters for which internal financialstatements are available immediately preceding the date on which such additionalIndebtedness is incurred or such Preferred Stock is issued would have been atleast 2.0 to 1.0 determined on a pro forma basis (including a pro formaapplication of the net proceeds therefrom), as if the additional Indebtednesshad been incurred or the Preferred Stock had been issued, as the case may be,and the application of proceeds therefrom had occurred at the beginning of suchfour-quarter period; providedfurther, that any incurrence ofIndebtedness or issuance of Preferred Stock by a Restricted Subsidiary that isnot a Guarantor pursuant to this paragraph is subject to the limitations of setforth in the sixth paragraph of this Section 4.9.

 

The first paragraph of this Section 4.9will not prohibit the incurrence of any of the following items of Indebtedness(collectively, “Permitted Debt”):

 

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(1)                                  the incurrence by theCompany or a Restricted Subsidiary of Indebtedness under Credit Facilitiestogether with the incurrence by the Company or any Restricted Subsidiary of theguarantees thereunder and the issuance and creation of letters of credit andbankers’ 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, equal to (A) $1,815 million minus(B) the aggregate principal amount of Indebtedness incurred by a ReceivablesSubsidiary and then outstanding pursuant to clause (18) of this paragraph or bya Foreign Subsidiary and then outstanding pursuant to clause (27)(C) of thisparagraph that was used to permanently reduce commitments under a CreditFacility, minus the amount of all mandatory principal payments actuallymade by the borrower thereunder in respect of Indebtedness thereunder with NetProceeds from Asset Sales;

 

(2)                                  the incurrence by theCompany and the Guarantors of Indebtedness represented by the Notes (includingany Guarantee thereof and any PIK Notes issued from time to time pursuant tothis Indenture) on the Issue Date and any Exchange Notes and related exchangeguarantees to be issued in exchange for the Notes (including any Guaranteethereof) pursuant to the Registration Rights Agreement;

 

(3)                                  the incurrence by theCompany and the Guarantors of Indebtedness represented by the SeniorSubordinated Notes (including any guarantee thereof) on the Issue Date; and anySenior Subordinated Notes and related exchange guarantees to be issued inexchange for the Senior Subordinated Notes (including any guarantees thereof)pursuant to the registration rights agreement in connection therewith;

 

(4)                                  any Indebtedness ofthe Company and its Restricted Subsidiaries in existence on the Issue Date(other than Indebtedness described in clauses (1), (2) or (3) above or (23)below);

 

(5)                                  Indebtedness(including Capitalized Lease Obligations) incurred by the Company or anyRestricted Subsidiary to finance the purchase, construction, lease orimprovement of property (real or personal) or equipment that is used or usefulin a Permitted Business (whether through the direct purchase of assets or theCapital Stock of any Person owning such assets) in an aggregate principalamount that, when aggregated with the principal amount of all other Indebtednessthen outstanding and incurred pursuant to this clause (5) does not exceed $50.0million;

 

(6)                                  Indebtedness incurredby the Company or any Restricted Subsidiary constituting reimbursementobligations with respect to letters of credit issued in the ordinary course ofbusiness, including without limitation letters of credit in respect of workers’compensation claims, health, disability or other employee benefits or property,casualty or liability insurance or self-insurance or other Indebtedness withrespect to reimbursement-type obligations regarding workers’ compensationclaims; provided, however, that upon the drawing of such lettersof credit or the incurrence of such Indebtedness, such obligations arereimbursed within 45 days following such drawing or incurrence;

 

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(7)                                  Indebtedness arisingfrom agreements of the Company or a Restricted Subsidiary providing forindemnification, adjustment of purchase price, earn-outs or similarobligations, in each case, incurred or assumed in connection with thedisposition or acquisition of any business, assets or a Subsidiary, other thanguarantees of Indebtedness incurred by any Person acquiring all or any portionof such business, assets or a Subsidiary for the purpose of financing such acquisition;provided, however, that such Indebtedness is not reflected on thebalance sheet (other than by application of FIN 45 as a result of an amendmentto an obligation in existence on the Issue Date) of the Company or anyRestricted Subsidiary (contingent obligations referred to in a footnote tofinancial statements and not otherwise reflected on the balance sheet will notbe deemed to be reflected on such balance sheet for purposes of this clause(7));

 

(8)                                  Indebtedness of theCompany owed to and held by any Restricted Subsidiary or Indebtedness of aRestricted Subsidiary owed to and held by the Company or any other RestrictedSubsidiary; provided, however, that (A) any subsequent issuanceor transfer of any Capital Stock or any other event that results in any such RestrictedSubsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer ofany such Indebtedness (except to the Company or a Restricted Subsidiary or anypledge of such Indebtedness constituting a Permitted Lien) shall be deemed, ineach case, to constitute the incurrence of such Indebtedness not permitted bythis clause (8) and (B) if the Company or a Guarantor is the obligor on suchIndebtedness, such Indebtedness is expressly subordinated in right of paymentto all obligations of the Company or such Guarantor with respect to the Notes;

 

(9)                                  shares of PreferredStock of a Restricted Subsidiary issued to the Company or a RestrictedSubsidiary; provided that any subsequent issuance or transfer of anyCapital Stock or any other event which results in any such RestrictedSubsidiary ceasing to be a Restricted Subsidiary or any other subsequenttransfer of any such shares of Preferred Stock (except to the Company or aRestricted Subsidiary) shall be deemed in each case to be an issuance of suchshares of Preferred Stock not permitted by this clause (9);

 

(10)                            Hedging Obligations of theCompany or any Restricted Subsidiary (excluding Hedging Obligations enteredinto for speculative purposes);

 

(11)                            obligations in respect ofcustoms, stay, bid, appeal, performance and surety bonds, appeal bonds andother similar types of bonds and performance and completion guarantees andother obligations of a like nature provided by the Company or any RestrictedSubsidiary or obligations in respect of letters of credit related thereto, ineach case in the ordinary course of business or consistent with past practice;

 

(12)                            Indebtedness of the Companyor any Restricted Subsidiary or Preferred Stock of any Restricted Subsidiarynot otherwise permitted hereunder in an aggregate principal amount orliquidation preference which, when aggregated with the principal amount andliquidation preference of all other Indebtedness and Preferred Stock thenoutstanding and incurred pursuant to this clause (12) does not at any one time outstandingexceed $100.0 million; provided, that any Indebtedness or PreferredStock incurred 

 

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pursuant to this clause (12) shall cease to be deemed incurred oroutstanding for purposes of this clause (12) but shall be deemed incurred forthe purposes of the first paragraph of this Section from and after the firstdate on which the Company or such Restricted Subsidiary could have incurredsuch Indebtedness or issued such Disqualified Stock or Preferred Stock underthe first paragraph of this Section without reliance on this clause (12);

 

(13)                            (x) any guarantee by theCompany or a Restricted Subsidiary of Indebtedness or other obligations of anyRestricted Subsidiary so long as the incurrence of such Indebtedness incurredby such Restricted Subsidiary is permitted under the terms of this Indenture; providedthat if such Indebtedness is by its express terms subordinated in right ofpayment to the Notes or the Guarantee of such Restricted Subsidiary or the Company,as applicable, any such guarantee of such Guarantor with respect to suchIndebtedness shall be subordinated in right of payment to such Guarantor’sGuarantee with respect to the Notes substantially to the same extent as suchIndebtedness is subordinated to the Notes or the Guarantee of such RestrictedSubsidiary, as applicable, and (y) any guarantee by a Restricted Subsidiary ofIndebtedness of the Company incurred in accordance with the terms of thisIndenture;

 

(14)                            the incurrence by theCompany or any Restricted Subsidiary of Indebtedness or Preferred Stock thatserves to refund, replace or refinance any Indebtedness incurred as permittedunder the first paragraph of this Section and clauses (2), (3) and (4) above,this clause (14) and clauses (15) and (20) below or any Indebtedness issued toso refund, replace or refinance such Indebtedness including additionalIndebtedness incurred to pay premiums and fees in connection therewith (the “RefinancingIndebtedness”) prior to its respective maturity; provided, however,that such Refinancing Indebtedness (A) has a Weighted Average Life to Maturityat the time such Refinancing Indebtedness is incurred which is not less thanthe Weighted Average Life to Maturity of the Indebtedness being refunded orrefinanced, (B) to the extent such Refinancing Indebtedness refinancesSubordinated Indebtedness or Indebtedness paripassu to the Notes or the Guarantees, such Refinancing Indebtedness issubordinated or pari passu to the Notes orthe Guarantees at least to the same extent as the Indebtedness being refinancedor refunded, (C) shall not include (x) Indebtedness or Preferred Stock of aSubsidiary that is not a Guarantor that refinances Indebtedness or PreferredStock of the Company or a Guarantor or (y) Indebtedness or Preferred Stock ofthe Company or a Restricted Subsidiary that refinances Indebtedness orPreferred Stock of an Unrestricted Subsidiary, and (D) shall not be in aprincipal amount in excess of the principal amount of, premium, if any, deemedinterest on, and related fees and expenses of, the Indebtedness being refunded,replaced or refinanced;

 

(15)                            (i) Indebtedness orPreferred Stock of a Person incurred and outstanding on or prior to the date onwhich such Person was acquired by, the Company or any Restricted Subsidiary ormerged into the Company or a Restricted Subsidiary in accordance with the termsof this Indenture or (ii) Indebtedness of the Company or any RestrictedSubsidiary incurred in connection with or in contemplation of, or to provideall or any portion of the funds or credit support utilized to consummate, theacquisition by the Company or such Restricted Subsidiary of property used oruseful in a Permitted 

 

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Business (whether through the direct purchase of assets or the purchaseof Capital Stock of, or merger or consolidation with, any Person owning such assets);provided, that after giving effect to such incurrence of Indebtednesseither (A) the Company would be permitted to incur at least $1.00 of additionalIndebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in thefirst paragraph of this Section or (B) the Fixed Charge Coverage Ratio would beat least equal to or greater than such Fixed Charge Coverage Ratio immediatelyprior to such acquisition;

 

(16)                            Indebtedness arising fromthe honoring by a bank or financial institution of a check, draft or similarinstrument drawn against insufficient funds in the ordinary course of business;provided that such Indebtedness is extinguished within five BusinessDays of its incurrence;

 

(17)                            Indebtedness of the Companyor any of its Restricted Subsidiaries supported by a letter of credit issuedpursuant to a Credit Facility in a principal amount not in excess of the statedamount of such letter of credit;

 

(18)                            Indebtedness incurred by aReceivables Subsidiary in connection with a Receivables Facility;

 

(19)                            Indebtedness consisting ofpromissory notes issued by the Company or any Guarantor to current or formerofficers, directors, consultants and employees, their respective estates,spouses, former spouses, heirs or family members to finance the purchase orredemption of Equity Interests of Company or any of its direct or indirectparent companies permitted by Section 4.7;

 

(20)                            Contribution Indebtedness(it being understood that any Contribution Indebtedness issued pursuant to thisclause (20) shall cease to be deemed incurred or outstanding for purposes ofthis clause (20) but shall be deemed incurred for the purposes of the first paragraphof this Section 4.9 from and after the first date on which the Companyor such Restricted Subsidiary could have incurred such ContributionIndebtedness under the first paragraph of this Section 4.9 withoutreliance on this clause (20));

 

(21)                            Indebtedness of the Companyor any Restricted Subsidiary to the extent the proceeds of such Indebtednessare deposited and used to defease the Notes as described in Article VIIIhereof;

 

(22)                            Indebtedness of the Companyor any Restricted Subsidiary consisting of the financing of insurance premiumsin the ordinary course of business;

 

(23)                            Indebtedness evidenced bythe Existing Notes not tendered in the tender offer described in the OfferingMemorandum;

 

(24)                            cash management obligationsand Indebtedness in respect of netting ser-vices, overdraft facilities,employee credit card programs, Cash Pooling Arrangements or similar arrangementsin connection with cash management and deposit accounts; pro-vided that,with respect to any Cash Pooling Arrangements, the total amount of all 

 

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deposits subject to any such Cash Pooling Arrangement at all timesequals or exceeds the total amount of overdrafts that may be subject to suchCash Pooling Arrangements;

 

(25)                            Indebtedness of the Companyor any of its Restricted Subsidiaries in respect of Sale and Lease-BackTransactions;

 

(26)                            Indebtedness representingdeferred compensation to employees of the Company or any Restricted Subsidiaryincurred in the ordinary course of business; and

 

(27)                            Indebtedness or PreferredStock of any Foreign Subsidiary:  (A)incurred under local credit facilities for general corporate purposes notexceeding, as to all such Foreign Subsidiaries, $50.0 million in the aggregateat any one time outstanding, (B) incurred to finance or assumed in connectionwith the Foreign Subsidiary Reorganization or (C) which serves to refund orrefinance any Indebtedness incurred under clause (1), (2) or (3) of thisparagraph or the payment of any dividend to the Company or any RestrictedSubsidiary in a principal amount not to exceed $200.0 million in the aggregateat any one time outstanding; provided that any incurrence ofIndebtedness or issuance of Preferred Stock by a Restricted Subsidiary that isnot a Guarantor pursuant to this clause (27)(B) is subject to the sixthparagraph of this Section 4.9.

 

For purposes of determining compliance withthis Section 4.9 in the event that an item of proposed Indebtednessmeets the criteria of more than one of the categories of Permitted Debtdescribed in clauses (1) through (27) above, or is entitled to be incurredpursuant to the first paragraph of this Section 4.9, the Company will bepermitted to classify and later reclassify such item of Indebtedness in anymanner that complies with this Section 4.9, and such item of Indebtednesswill be treated as having been incurred pursuant to only one of such categories.Accrual of interest or dividends, the accretion of accreted value and thepayment of interest or dividends in the form of additional Indebtedness orPreferred Stock will not be deemed to be an incurrence of Indebtedness orPreferred Stock for purposes of this Section 4.9. Notwithstanding theforegoing, Indebtedness under the Credit Agreement outstanding on the Issue Datewill be deemed to have been incurred on such date in reliance on the exceptionprovided by clause (1) of the definition of “Permitted Debt” and any suchIndebtedness that was outstanding under the Credit Agreement as of the IssueDate may not later be reclassified. Additionally, all or any portion of anyother item of Indebtedness may later be reclassified as having been incurredpursuant to the first paragraph of this Section 4.9 or under any categoryof Permitted Debt described in clauses (1) through (27) above so long as suchIndebtedness is permitted to be incurred pursuant to such provision at the timeof reclassification.

 

For purposes of determining compliance withany U.S. dollar restriction on the incurrence of Indebtedness where theIndebtedness incurred is denominated in a different currency, the amount ofsuch Indebtedness will be the U.S. Dollar Equivalent determined on the date ofthe incurrence of such Indebtedness; provided, however, that ifany such Indebtedness denominated in a different currency is subject to acurrency agreement with respect to U.S. dollars covering all principal,premium, if any, and interest payable on such Indebtedness, the amount of suchIndebtedness expressed in U.S. dollars will be as provided in such currencyagreement. The principal amount of any refinancing Indebtedness incurred in thesame currency as the Indebtedness being refinanced will be the U.S. DollarEquivalent of the Indebtedness 

 

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beingrefinanced, except to the extent that (1) such U.S. Dollar Equivalent wasdetermined based on a currency agreement, in which case the refinancingIndebtedness will be determined in accordance with the preceding sentence, and(2) the principal amount of the refinancing Indebtedness exceeds the principalamount of the Indebtedness being refinanced, in which case the U.S. DollarEquivalent of such excess will be determined on the date such refinancingIndebtedness is incurred. The maximum amount of Indebtedness that the Companyand its Restricted Subsidiaries may incur pursuant to this Section 4.9shall not be deemed to be exceeded, with respect to any outstanding Indebtedness,solely as a result of fluctuations in the exchange rate of currencies.

 

The Company shall not, and shall not permitany Restricted Subsidiary that is a Guarantor to, directly or indirectly, incurany Indebtedness that is or purports to be by its terms (or by the terms of anyagreement governing such Indebtedness) contractually subordinated or junior in rightof payment to any Indebtedness (including Acquired Debt) of the Company or suchRestricted Subsidiary, as the case may be, unless such Indebtedness is also byits terms (or by the terms of any agreement governing such Indebtedness) madeexpressly subordinate to the Notes to the extent and in the same manner as suchIndebtedness is subordinated to other Indebtedness of the Company or suchGuarantor’s Guarantee of the Notes (as applicable). Indebtedness shall not beconsidered subordinate or junior in right of payment by virtue of being securedto a greater or lesser extent or with different priority.

 

Notwithstanding anything to the contrarycontained in the first paragraph of this Section 4.9 or in thedefinition of Permitted Debt, no Restricted Subsidiary of the Company that isnot a Guarantor shall incur any Indebtedness or issue any Preferred Stock inreliance on the first paragraph of this Section 4.9 or clause (15) or(27)(B) of the definition of Permitted Debt (the “Limited Non-Guarantor DebtExceptions”) if the amount of such Indebtedness or Preferred Stock, whenaggregated with the amount of all other Indebtedness or Preferred Stockoutstanding under such Limited Non-Guarantor Debt Exceptions, together with anyRefinancing Indebtedness in respect thereof, would exceed $100.0 million; provided,that in no event shall any Indebtedness or Preferred Stock of any RestrictedSubsidiary that is not a Guarantor (x) existing at the time it became aRestricted Subsidiary or (y) assumed in connection with any acquisition, mergeror acquisition of minority interests of a non-Wholly Owned Subsidiary (and inthe case of clauses (x) and (y), not created in contemplation of such Personbecoming a Restricted Subsidiary or such acquisition, merger or acquisition of minorityinterests) be deemed to be Indebtedness outstanding under the LimitedNon-Guarantor Debt Exceptions for purposes of this paragraph.

 

SECTION 4.10                    Limitationon Asset Sales.

 

The Company will not, and will not permit anyof its Restricted Subsidiaries to, consummate an Asset Sale unless:

 

(1)                                  theCompany (or such Restricted Subsidiary, as the case may be) receivesconsideration at the time of the Asset Sale at least equal to the fair marketvalue of the assets or Equity Interests issued or sold or otherwise disposedof; and

 

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(2)                                  atleast 75% of the consideration received in the Asset Sale by the Company orsuch Restricted Subsidiary is in the form of cash or Cash Equivalents.

 

For purposes of clause (2) above, the amountof (i) any liabilities other than contingent liabilities (as shown on theCompany’s or the applicable Restricted Subsidiary’s most recent balance sheetor in the notes thereto) of the Company or any Restricted Subsidiary (otherthan liabilities that are by their terms subordinated to the Notes or theGuarantees) that are assumed by the transferee of any such assets and fromwhich the Company and all Restricted Subsidiaries have been validly released bythe applicable creditor(s) in writing, (ii) any securities received by theCompany or such Restricted Subsidiary from such transferee that are convertedby the Company or Restricted Subsidiary into cash (to the extent of the cashreceived) within 180 days following the closing of such Asset Sale, (iii) anyassets described in clauses (2) or (3) below, and (iv) any Designated Non-cashConsideration received by the Company or any of its Restricted Subsidiaries insuch Asset Sale having an aggregate fair market value (as determined in good faithby the Board of Directors of the Company), taken together with all otherDesignated Non-cash Consideration received pursuant to this clause (iv) that isat that time outstanding, not to exceed the greater of (x) $75.0 million and(y) an amount equal to 2% of Total Assets of the Company on the date on whichsuch Designated Non-cash Consideration is received (with the fair market valueof each item of Designated Non-cash Consideration being measured at the timereceived without giving effect to subsequent changes in value), shall be deemedto be cash for purposes of this paragraph and for no other purpose.

 

Within 540 days after the receipt of any NetProceeds from an Asset Sale, the Company or such Restricted Subsidiary, as thecase may be, may apply those Net Proceeds at its option:

 

(1)                                  (i)to reduce Obligations under Secured Indebtedness of the Company or anyRestricted Subsidiary, (ii) to reduce Obligations under Indebtedness of aRestricted Subsidiary that is not a Guarantor (other than Indebtedness owed tothe Company or another Restricted Subsidiary), (iii) to reduce Obligationsunder any Indebtedness outstanding under the Credit Facilities (other thanSubordinated Indebtedness) or (iv) to reduce Indebtedness of the Company thatranks pari passu with the Notes or Indebtednessof a Guarantor that ranks pari passu withsuch Guarantor’s Guarantee of the Notes (provided that if the Company shall soreduce Obligations under Indebtedness that rankspari passu with the Notes (other than Indebtedness specified in clauses (i)through (iii) above), it will equally and ratably reduce Obligations under theNotes through open-market purchases (to the extent such purchases are at orabove 100% of the principal amount thereof) or by causing the Company to makean offer (in accordance with the procedures set forth below in this Section4.10) to all Holders of Notes to purchase at a purchase price equal to 100%of the principal amount thereof, plus accrued and unpaid interest andAdditional Interest, if any, on the pro rataprincipal amount of Notes), in each case other than Indebtedness owed to Parentor any Restricted Subsidiary;

 

(2)                                  toan investment in (A) any one or more businesses; provided that suchinvestment in any business is in the form of the acquisition of Capital Stockand results in the Company or a Restricted Subsidiary owning an amount of theCapital Stock of such business such that such business constitutes a RestrictedSubsidiary, (B) capital 

 

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expendituresor (C) other non-current assets, in each of (A), (B) and (C), used or useful ina Permitted Business; and/or

 

(3)                                  toan investment in (A) any one or more businesses; provided that such investmentin any business is in the form of the acquisition of Capital Stock and resultsin the Company or a Restricted Subsidiary owning an amount of the Capital Stockof such business such that such business constitutes a Restricted Subsidiary,(B) properties or (C) assets that, in each of (A), (B) and (C), replace thebusinesses, properties and assets that are the subject of such Asset Sale.

 

Any Net Proceeds from an Asset Sale notapplied or invested in accordance with the preceding paragraph within 365 daysfrom the date of the receipt of such Net Proceeds shall constitute “ExcessProceeds”; provided that if during such 365-day period the Companyor a Restricted Subsidiary enters into a definitive binding agreementcommitting it to apply such Net Proceeds in accordance with the requirements ofclause (2) or (3) of the immediately preceding paragraph after such 365th day,such 365-day period will be extended with respect to the amount of Net Proceedsso committed for a period not to exceed 180 days until such Net Proceeds arerequired to be applied in accordance with such agreement (or, if earlier, untiltermination of such agreement).

 

When the aggregate amount of Excess Proceedsexceeds $25.0 million, the Company or the applicable Restricted Subsidiary willmake an offer (an “Asset Sale Offer”) to all Holders of Notes andIndebtedness that ranks pari passu with theNotes and contains provisions similar to those set forth in this Indenture withrespect to offers to purchase with the proceeds of sales of assets to purchase,on a pro rata basis, the maximum principalamount of Notes and such other Indebtedness that ranks pari passu with the Notes that may be purchased out of the ExcessProceeds. The offer price in any Asset Sale Offer will be equal to 100% of theprincipal amount thereof, plus accrued and unpaid interest and AdditionalInterest, if any, to the date of purchase, and will be payable in cash.

 

Pending the final application of any NetProceeds, the Company or the applicable Restricted Subsidiary may temporarilyreduce revolving credit borrowings or otherwise invest the Net Proceeds in anymanner that is not prohibited by this Indenture.

 

If any Excess Proceeds remain afterconsummation of an Asset Sale Offer, the Company or the applicable RestrictedSubsidiary may use those Excess Proceeds for any purpose not otherwiseprohibited by this Indenture. If the aggregate principal amount of Notestendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, theRegistrar will select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amountof Excess Proceeds will be reset at zero.

 

The Company or the applicable RestrictedSubsidiary will comply with the requirements of Rule 14e-1 under the ExchangeAct and any other securities laws and regulations thereunder to the extentthose laws and regulations are applicable in connection with each repurchase ofNotes pursuant to an Asset Sale Offer. To the extent that the provisions of anysecurities laws or regulations conflict with the Asset Sale provisions of thisIndenture, the Company or the applicable Restricted Subsidiary will comply withthe applicable securities laws and regulations 

 

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and will notbe deemed to have breached its obligations under the Asset Sale provisions ofthis Indenture by virtue of such conflict.

 

SECTION 4.11                    Limitationon Transactions with Affiliates.

 

The Company will not, and will not permit anyof its Restricted Subsidiaries to, make any payment to, or sell, lease, assign,transfer or otherwise dispose of any of its properties or assets to, orpurchase any property or assets from, or enter into or make or amend anytransaction, contract, agreement, understanding, loan, advance or guaranteewith, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”)involving aggregate consideration in excess of $10.0 million, unless:

 

(1)                                  theAffiliate Transaction is on terms that are not materially less favorable to theCompany or the relevant Restricted Subsidiary than those that would have beenobtained in a comparable transaction by the Company or Restricted Subsidiarywith an unrelated Person; and

 

(2)                                  withrespect to any Affiliate Transaction or series of related AffiliateTransactions involving aggregate consideration in excess of $25.0 million, amajority of the Board of Directors of the Company (and, if any, a majority ofthe disinterested members of the Board of Directors of the Company with respectto such Affiliate Transaction) have determined in good faith that the criteriaset forth in the immediately preceding clause (1) are satisfied and haveapproved the relevant Affiliate Transaction as evidenced by a Board Resolution.

 

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

 

(1)                                  any transaction withthe Company, a Restricted Subsidiary or joint venture or similar entity whichwould constitute an Affiliate Transaction solely because the Company or aRestricted Subsidiary owns an equity interest in or otherwise controls suchRestricted Subsidiary, joint venture or similar entity;

 

(2)                                  Restricted Paymentsand Permitted Investments permitted by this Indenture;

 

(3)                                  the payment to theSponsor and any of its officers or Affiliates by the Company or any of itsRestricted Subsidiaries, of management, consulting, monitoring and advisoryfees, termination or indemnification payments and related expenses pursuant tothe Management Agreement as in effect on the Issue Date or any amendmentthereto (so long as any such amendment (x) does not increase the amount of feespayable to the Sponsor and (y) is not less advantageous to the Holders of theNotes in any material respect than the Management Agreement) (including,without limitation, the $35.0 million payment to the Sponsor as contemplatedunder Section 4.11 in connection with the Transactions);

 

(4)                                  payments in respectof employment, severance and any other compensation arrangements with, and feesand expenses paid to, and indemnities 

 

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provided on behalf of (and entering into related agreements with)officers, directors, employees or consultants of the Company, any of its director indirect parent companies, or any Restricted Subsidiary, in the ordinary courseof business;

 

(5)                                  payments made by theCompany or any Restricted Subsidiary to the Sponsor for any financial advisory,financing, underwriting or placement services or in respect of other investmentbanking activities, including, without limitation, in connection withacquisitions or divestitures, which payments are approved by majority of theBoard of Directors of the Company (and, if any, a majority of the disinterestedmembers of the Board of Directors of the Company with respect to such AffiliateTransaction) in good faith;

 

(6)                                  transactions in whichthe Company or any Restricted Subsidiary delivers to the Trustee a letter froman Independent Financial Advisor stating that such transaction is fair to theCompany or such Restricted Subsidiary from a financial point of view or meetsthe requirements of this first paragraph of this Section 4.11;

 

(7)                                  payments or loans (orcancellations of loans) to employees or consultants of the Company or any ofits direct or indirect parent companies or any Restricted Subsidiary which areapproved by the Board of Directors of the Company in good faith and which areotherwise permitted under this Indenture;

 

(8)                                  payments made orperformance under any agreement as in effect on the Issue Date (other than theManagement Agreement (which are permitted under clause (3) of the secondparagraph of this Section 4.11), but including, without limitation, eachof the other agreements entered into in connection with the Transactions) thatare disclosed in the Offering Memorandum, including with additional partiesthat may be added subsequent to the Issue Date and any amendment thereto to theextent such an amendment is not adverse to the interests of the Holders of theNotes in any material respect;

 

(9)                                  transactions withcustomers, clients, suppliers, or purchasers or sellers of goods or services(including Parent and its Subsidiaries), in each case in the ordinary course ofbusiness and otherwise in compliance with the terms of this Indenture that arefair to the Company or its Restricted Subsidiaries, in the reasonabledetermination of the members of the Board of Directors of the Company or thesenior management thereof, or are on terms at least as favorable as wouldreasonably have been entered into at such time with an unaffiliated party;

 

(10)                            if otherwise permittedhereunder, the issuance of Equity Interests (other than Disqualified Stock) ofthe Company to any Permitted Holder, any director, officer, employee orconsultant of the Company or its Subsidiaries or any other Affiliates of theCompany (other than a Subsidiary);

 

(11)                            any transaction permittedby Section 5.1;

 

(12)                            any transaction with aReceivables Subsidiary effected as part of a Receivables Facility;

 

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(13)                            the Transactions and thepayment of the Transaction Expenses;

 

(14)                            payments by the Company andits Restricted Subsidiaries to each other pursuant to tax sharing agreements orarrangements among Parent and its subsidiaries on customary terms (including,without limitation, transfer pricing initiatives); and

 

(15)                            transactions among ForeignSubsidiaries for tax planning and tax efficiency purposes.

 

SECTION 4.12                    Limitationon Liens.

 

The Company will not, and will not permit anyof its Restricted Subsidiaries that are Guarantors to, directly or indirectly,create, incur, assume or suffer to exist any Lien that secures obligationsunder any Indebtedness ranking *pari passu* withor subordinated to the Notes or, if applicable, any related Guarantee on anyasset or property of the Company or any Restricted Subsidiary, or any income orprofits therefrom, or assign or convey any right to receive income therefrom,unless:

 

(1)                                  inthe case of Liens securing Subordinated Indebtedness, the Notes and any relatedGuarantees are secured by a Lien on such property, assets or proceeds that issenior in priority to such Liens; or

 

(2)                                  inall other cases, the Notes and any related Guarantees are equally and ratably secured,except that the foregoing shall not apply to:

 

(i)                                     Liensexisting on the Issue Date to the extent and in the manner such Liens are ineffect on the Issue Date;

 

(ii)                                  (A)Liens securing the Notes and the related Guarantees and any Notes issued inexchange therefor pursuant to the Registration Rights Agreement (includingNotes issued in exchange for Additional Notes) and secured by a Lien (in eachcase in accordance with the terms of the Senior Indenture) and the relatedGuarantees, (B) Liens securing Indebtedness permitted to be incurred pursuantto clauses (1) and (5) of the definition of “Permitted Debt” and (C) Lienssecuring Indebtedness permitted to be incurred pursuant to Section 4.9; providedthat with respect to clause (C), at the time of incurrence such securedIndebtedness does not exceed the maximum principal amount of Indebtedness that,as of such date, and after giving effect to the incurrence of such Indebtednessand the application of the proceeds therefrom on such date, would not cause theSecured Indebtedness Leverage Ratio of the Company to exceed 5.0 to 1.0; or

 

(iii)                               PermittedLiens.

 

Any Lien created for the benefit of theHolders of the Notes pursuant to this Section 4.12 shall be deemedautomatically and unconditionally released and discharged upon the release anddischarge of each of the Liens described in clauses (1) and (2) above.

 

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SECTION 4.13                    Paymentsfor Consent.

 

The Company will not, and will not permit anyof its Subsidiaries to, directly or indirectly, pay or cause to be paid anyconsideration to or for the benefit of any Holder of Notes for or as aninducement to any consent, waiver or amendment of any of the terms orprovisions of this Indenture or the Notes unless such consideration is offeredto be paid and is paid to all Holders of the Notes that so consent, waive oragree to amend in the time frame set forth in the solicitation documentsrelating to such consent, waiver or agreement.

 

SECTION 4.14                    Offerto Purchase upon Change of Control.

 

If a Change of Control occurs, unless the Companyat such time has given notice of redemption under Section 3.7 withrespect to all outstanding Notes, each holder of Notes will have the right torequire the Company to repurchase all or any part (equal to $2,000 or integralmultiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to aChange of Control Offer on the terms set forth in this Indenture. In the Changeof Control Offer, the Company will offer a payment (a “Change of ControlPayment”) in cash equal to 101% of the aggregate principal amount of Notesrepurchased plus accrued and unpaid interest and Additional Interest, if any,on the Notes repurchased, to the date of purchase. Within 30 days following anyChange of Control, unless the Company at such time has given notice of redemptionunder Section 3.7 with respect to all outstanding Notes, or, at the Company’soption, in advance of a Change of Control, the Company will mail a notice toeach Holder, with a copy to the Trustee and each Agent, describing thetransaction or transactions that constitute the Change of Control and offeringto repurchase Notes on the date of such Change of Control Payment specified inthe notice, which date shall be no earlier than 30 days and no later than 60days from the date such notice is mailed (the “Change of Control PaymentDate”), pursuant to the procedures required by this Indenture and describedin such notice. The Company will comply with the requirements of Rule 14e-1under the Exchange Act and any other securities laws and regulations thereunderto the extent those laws and regulations are applicable in connection with therepurchase of the Notes as a result of a Change of Control. To the extent thatthe provisions of any securities laws or regulations conflict with the Changeof Control provisions of this Indenture, the Company will comply with theapplicable securities laws and regulations and will not be deemed to havebreached its obligations under the Change of Control provisions of thisIndenture by virtue of such conflict.

 

On the Change of Control Payment Date, theCompany will, to the extent lawful:

 

(1)                                  acceptfor payment all Notes or portions of Notes properly tendered pursuant to theChange of Control Offer;

 

(2)                                  depositwith the paying agent an amount equal to the Change of Control Payment inrespect of all Notes or portions of Notes properly tendered; and

 

(3)                                  deliveror cause to be delivered to the Trustee the Notes properly accepted togetherwith an Officers’ Certificate stating the aggregate principal amount of Notesor portions of Notes being purchased by the Company.

 

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The Paying Agent will promptly mail to eachholder of Notes properly tendered the Change of Control Payment for such Notes,and the Trustee will promptly authenticate and mail (or cause to be transferredby book entry) to each holder a new Note equal in principal amount to anyunpurchased portion of the Notes surrendered, if any; provided that eachnew Note will be in a minimum principal amount of $2,000 or integral multiplesof $1,000 in excess thereof.

 

The Company will not be required to make aChange of Control Offer upon a Change of Control if (i) a third party makes theChange of Control Offer in the manner, at the times and otherwise in compliancewith the requirements set forth in this Indenture applicable to a Change ofControl Offer made by the Company and purchases all Notes properly tendered andnot withdrawn under the Change of Control Offer or (ii) a notice of redemptionhas been given pursuant to Section 3.9 of this Indenture unless anduntil there is a default in the payment of the applicable redemption price. AChange of Control Offer may be made in advance of a Change of Control and maybe conditional upon the occurrence of a Change of Control if a definitiveagreement is in place for the Change of Control at the time the Change ofControl Offer is made.

 

The provisions described above that requirethe Company to make a Change of Control Offer following a Change of Controlwill be applicable whether or not any other provisions of this Indenture areapplicable.

 

SECTION 4.15                    CorporateExistence.

 

Subject to Section 4.14 andArticle V hereof, as the case may be, the Company shall do or cause to bedone all things necessary to preserve and keep in full force and effect itscorporate existence and the corporate, partnership, limited liability companyor other existence of each of its Subsidiaries in accordance with therespective organizational documents (as the same may be amended from time totime) of the Company or any such Subsidiary and the rights (charter andstatutory), licenses and franchises of the Company and its Subsidiaries;**provided that the Company shall not be required topreserve any such right, license or franchise, or the corporate, partnership orother existence of any of its Subsidiaries, if the Board of Directors of theCompany shall determine that the preservation thereof is no longer desirable inthe conduct of the business of the Company and its Subsidiaries, taken as awhole, and that the loss thereof is not adverse in any material respect to theHolders.

 

SECTION 4.16                    BusinessActivities.

 

The Company will not, and will not permit anyRestricted Subsidiary to, engage in any business other than a PermittedBusiness, except to such extent as would not be material to the Company and itsSubsidiaries taken as a whole.

 

SECTION 4.17                    AdditionalGuarantees.

 

After the Issue Date, the Company will cause(i) each of its Domestic Subsidiaries (other than any Unrestricted Subsidiary)that incurs any Indebtedness in excess of $25.0 million (other thanIndebtedness permitted to be incurred pursuant to clauses (6), (7), (8), (9),(10), (11) and (16) of the second paragraph of Section 4.9) and (ii)each Restricted Subsidiary that guarantees any Indebtedness of the Company orany of the Guarantors, in each case, within ten (10) Business Days of suchincurrence of any such Indebtedness or guarantee of such Indebtedness, to 

 

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execute anddeliver to the Trustee a Guarantee, together with an Opinion of Counsel,pursuant to which such Restricted Subsidiary will unconditionally Guarantee, ona joint and several basis, the full and prompt payment of the principal of,premium, if any, and interest on the Notes and all other obligations under thisIndenture on the same terms and conditions as those set forth in thisIndenture.

 

Each Guarantee will be limited to an amountnot to exceed the maximum amount that can be guaranteed by that RestrictedSubsidiary without rendering the Guarantee, as it relates to such RestrictedSubsidiary, voidable under applicable law relating to fraudulent conveyance orfraudulent transfer or similar laws affecting the rights of creditorsgenerally.

 

Each Guarantee shall automatically bereleased in accordance with the provisions of this Indenture described under Section11.1.

 

SECTION 4.18                    [Reserved]

 

SECTION 4.19                    FurtherInstruments and Acts.

 

Upon request by the Trustee, the Companyshall execute and deliver such further instruments and do such further acts asmay be reasonably necessary or proper to carry out more effectively thepurposes of this Indenture.

 

SECTION 4.20                    CovenantSuspension.

 

If the Notes, on any date following the date of this Indenture arerated an Investment Grade Rating by both Rating Agencies; and no Default orEvent of Default shall have occurred and be continuing (the foregoingconditions being referred to collectively as the “Suspension Condition”),then, beginning on that day and subject to the provisions of the followingparagraph, the Company and the Restricted Subsidiaries shall not be subject toSection 4.7, 4.8, 4.9, 4.10, 4.11 and 5.1(a)(4) (collectively, the “SuspendedCovenants”).

 

During any period that the foregoing covenants have been suspended, theCompany’s Board of Directors may not designate any of its Subsidiaries asUnrestricted Subsidiaries pursuant to the second sentence of the definition of “UnrestrictedSubsidiary.”

 

If and while the Company meets the Suspension Condition, the Notes willbe entitled to substantially less covenant protection. If the Company and itsRestricted Subsidiaries are not subject to the Suspended Covenants with respectto the Notes for any period of time as a result of the foregoing and,subsequently, one or both Rating Agencies withdraw their Investment GradeRating or downgrade the Investment Grade Rating assigned to the Senior Notessuch that the Notes are no longer rated Investment Grade Rating by both RatingAgencies, then the Company and each of its Restricted Subsidiaries willthereafter again be subject to the Suspended Covenants. Compliance with the SuspendedCovenants with respect to Restricted Payments made after the time of suchwithdrawal or downgrade will be calculated in accordance with Section 4.7as if such Section 4.7 had been in effect during the entire period oftime from the Issue Date; provided, further, that no Default, Event of Defaultor breach of any kind will be deemed to exist under this Indenture for theNotes or the related Guarantees with respect to the Suspended Covenants basedon, and none of the Company or any of its Subsidiaries will bear 

 

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any liability for, any actions taken orevents occurring after the Notes attain the required ratings and before anyreinstatement of the Suspended Covenants as provided above, or any actionstaken at any time pursuant to any contractual obligations arising prior to thereinstatement of the Suspended Covenants, regardless of whether those actionsor events would have been permitted if the applicable covenant had remained ineffect during such period.

 

# ARTICLE V

#  

# SUCCESSORS

#  

SECTION 5.1                          Merger,Consolidation or Sale of Assets.

 

(a)                                  The Company may not,directly or indirectly:  (1) consolidateor merge with or into another Person (whether or not the Company is thesurviving corporation); or (2) sell, assign, transfer, convey, lease orotherwise dispose of all or substantially all of the properties or assets ofthe Company and its Restricted Subsidiaries, taken as a whole, in one or morerelated transactions, to another Person; unless:

 

(1)                                  (a) the Company isthe surviving corporation; or (b) the Person formed by or surviving any suchconsolidation or merger (if other than the Company) or to which such sale, assignment,transfer, conveyance, lease or other disposition has been made is a corporationor limited liability company organized or existing under the laws of the UnitedStates, any state of the United States, the District of Columbia or anyterritory thereof (the Company or such Person, including the Person to whichsuch sale, assignment, transfer, conveyance, lease or other disposition hasbeen made, as the case may be, being herein called the “Successor Company”);

 

(2)                                  the Successor Company(if other than the Company) assumes all the obligations of the Company underthe Notes, this Indenture and the Registration Rights Agreement pursuant toagreements reasonably satisfactory to the Trustee;

 

(3)                                  immediately aftersuch transaction, no Event of Default exists;

 

(4)                                  immediately aftergiving pro forma effect to such transaction and any related financingtransactions, as if the same had occurred at the beginning of the applicablefour-quarter period, either (a) the Successor Company would be permitted toincur at least $1.00 of additional Indebtedness pursuant to the Fixed ChargeCoverage Ratio test set forth in the first paragraph of Section 4.9 or(b) the Fixed Charge Coverage Ratio for the Successor Company and itsRestricted Subsidiaries would be greater than such ratio for the Company andits Restricted Subsidiaries immediately prior to such transaction; and

 

(5)                                  each Guarantor(except if it is the other party to the transactions described above in whichcase clause (2) above shall apply) shall have by supplemental indentureconfirmed that its Guarantee shall apply to such Person’s obligations under theNotes, this Indenture and the Registration Rights Agreement.

 

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(b)                                 Notwithstanding theforegoing, clauses (3) , (4) and (5) above will not be applicable to (a) anyRestricted Subsidiary consolidating with, merging into or selling, assigning,transferring, conveying, leasing or otherwise disposing of all or part of itsproperties and assets to the Company or to another Guarantor; (b) the Companymerging with an Affiliate solely for the purpose of reincorporating theCompany, as the case may be, in another jurisdiction; (c) any ForeignSubsidiary may consolidate with or merge into or transfer all or part of its propertiesand assets to any other Foreign Subsidiary; provided that if the ForeignSubsidiary so consolidating, merging or transferring all or part of itsproperties and assets is a Foreign Subsidiary that is a Guarantor, such ForeignSubsidiary shall, substantially simultaneously with such merger, transfer ordisposition, terminate its Guarantee and otherwise be in compliance with theterms of this Indenture; (d) the Foreign Subsidiary Reorganization; (e) CDRVHoldings, Inc. may consolidate or merge with or into or wind up into CDRVInvestment Holdings Corporation; and (f) CDRV Investment Holdings Corporationmay consolidate or merge with or into or wind up into the Company.

 

(c)                                  For purposes of this Section5.1, the sale, lease, conveyance, assignment, transfer or other dispositionof all or substantially all of the properties and assets of one or moreRestricted Subsidiaries of the Company, which properties and assets, if held bythe Company instead of such Restricted Subsidiaries, would constitute all or substantiallyall of the properties and assets of the Company on a consolidated basis, shallbe deemed to be the sale, lease, conveyance, assignment, transfer or otherdisposition of all or substantially all of the properties and assets of theCompany.

 

(d)                                 The predecessorcompany will be released from its obligations under this Indenture and theNotes and the Successor Company will succeed to, and be substituted for, andmay exercise every right and power of, the Company under this Indenture and theNotes, but, in the case of a lease of all or substantially all its assets, thepredecessor company will not be released from the obligation to pay theprincipal of and interest on the Notes.

 

(e)                                  In connection withany consolidation or merger or any sale, assignment, transfer, lease,conveyance or other disposition of all or substantially all of the assetsof the Company contemplated by this Section 5.1, the Companyshall expressly assume the obligations under the Indenture and Notes bysupplemental indenture and shall execute and deliver to the Trustee a supplementalindenture, in form and substance reasonably satisfactory to theTrustee, evidencing such succession together with an Officers’ Certificateand an Opinion of Counsel, each stating that such consolidation or merger orany sale, assignment, transfer, lease, conveyance or other disposition ofall or substantially all of the assets of the Company contemplated by this Section5.1 and such supplemental indenture in respect thereto complies withthis Section 5.1 and that all conditions precedent herein provided forrelating to such transaction or transactions have been complied with and thatsuch supplemental indenture constitutes the legal, valid and binding obligationof the successor entity, subject to the customary exceptions.

 

SECTION 5.2                          SuccessorCorporation Substituted.

 

Upon any consolidation or merger, or anysale, assignment, transfer, lease, conveyance or other disposition of all orsubstantially all of the assets of the Company in accordance with Section 5.1hereof, the successor corporation formed by such consolidation or into or withwhich 

 

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the Company ismerged or to which such sale, assignment, transfer, lease, conveyance or otherdisposition is made shall succeed to, and be substituted for (so that from andafter the date of such consolidation, merger, sale, lease, conveyance or otherdisposition, the provisions of this Indenture referring to the “Company” shallrefer instead to the successor corporation and not to the Company), and shallexercise every right and power of, the Company under this Indenture with thesame effect as if such successor Person had been named as the Company herein.

 

# ARTICLE VI

#  

# DEFAULTS ANDREMEDIES

#  

SECTION 6.1                          Eventsof Default.

 

Each of the following constitutes an “Eventof Default”:

 

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

 

(2)                                  theCompany defaults in the payment when due of interest or Additional Interest, ifany, on or with respect to the Notes and such default continues for a period of30 days;

 

(3)                                  theCompany defaults in the performance of, or breaches any covenant, warranty orother agreement contained in, this Indenture (other than a default in theperformance or breach of a covenant, warranty or agreement which isspecifically dealt with in clauses (1) or (2) above) and such default or breachcontinues for a period of 60 days after the notice specified below or 90 daysif such default or breach is with respect to the covenant described under Section4.3;

 

(4)                                  adefault under any mortgage, indenture or instrument under which there is issuedor by which there is secured or evidenced any Indebtedness for money borrowedby the Company or any Restricted Subsidiary or the payment of which isguaranteed by the Company or any Restricted Subsidiary (other than Indebtednessowed to the Company or a Restricted Subsidiary), whether such Indebtedness orguarantee now exists or is created after the Issue Date, if (A) such defaulteither (1) results from the failure to pay any such Indebtedness at its statedfinal maturity (after giving effect to any applicable grace periods) or (2)relates to an obligation other than the obligation to pay principal of any suchIndebtedness at its stated final maturity and results in the holder or holdersof such Indebtedness causing such Indebtedness to become due prior to itsstated maturity and (B) the principal amount of such Indebtedness, togetherwith the principal amount of any other such Indebtedness in default for failureto pay principal at stated final maturity (after giving effect to anyapplicable grace periods), or the maturity of which has been so accelerated,aggregate $50.0 million (or its foreign currency equivalent) or more at any onetime outstanding;

 

(5)                                  thefailure by the Company or any Significant Subsidiary to pay final judgmentsaggregating in excess of $50.0 million (other than any judgments covered by indemnitiesor insurance policies as to which liability coverage has not been denied by the

 

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insurancecompany or indemnifying party), which final judgments remain unpaid, undischargedand unstayed for a period of more than 60 days after the applicable judgment becomesfinal and non-appealable;

 

(6)                                  theGuarantee of a Significant Subsidiary that is a Guarantor or any group ofSubsidiaries that are Guarantors and that, taken together as of the date of themost recent audited financial statements of the Company, would constitute aSignificant Subsidiary ceases to be in full force and effect (except ascontemplated by the terms hereof) or any Guarantor denies or disaffirms itsobligations under the Indenture or any Guarantee, other than by reason of therelease of the Guarantee in accordance with the terms of this Indenture; or

 

(7)                                  (i)  the Company, any Restricted Subsidiary thatis a Significant Subsidiary or any group of Restricted Subsidiaries that, takenas a whole, would constitute a Significant Subsidiary, pursuant to or withinthe meaning of any Bankruptcy Law:

 

(a)                                  commencesa voluntary case,

 

(b)                                 consentsto the entry of an order for relief against it in an involuntary case,

 

(c)                                  consentsto the appointment of a custodian of it or for all or substantially all of itsproperty,

 

(d)                                 makesa general assignment for the benefit of its creditors, or

 

(e)                                  generallyis not paying its debts as they become due;

 

(ii)                                  acourt of competent jurisdiction enters an order or decree under any BankruptcyLaw that:

 

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

 

(b)                                 appointsa custodian of the Company or any Restricted Subsidiary that is a SignificantSubsidiary or any group of Restricted Subsidiaries that, taken together, wouldconstitute a Significant Subsidiary or for all or substantially all of theproperty of the Company or any of its Restricted Subsidiaries; or

 

(c)                                  ordersthe liquidation of the Company or any Restricted Subsidiary that is aSignificant Subsidiary or any group of Restricted Subsidiaries that, takentogether, would constitute a Significant Subsidiary and the order or decree remainsunstayed and in effect for 60 consecutive days.

 

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SECTION 6.2                          Acceleration.

 

If an Event of Default (other than an Eventof Default specified in clause (7) above with respect to the Company)shall occur and be continuing, the Trustee acting at the written direction ofthe Holders or the Holders of at least 25% in aggregate principal amount of theoutstanding Notes may declare the principal of the Notes and any accruedinterest on the Notes to be due and payable by notice in writing to the Companyand the Trustee specifying the respective Event of Default and that it is a “noticeof acceleration” (the “Acceleration Notice”), and the same shall becomeimmediately due and payable.

 

Upon such declaration of acceleration, theaggregate principal amount of, and accrued and unpaid interest and AdditionalInterest, if any, on all of the outstanding Notes shall ipso facto become and be immediately due and payable without anydeclaration or other act on the part of the Trustee or any Holder of the Notes.After such acceleration, but before a judgment or decree based on acceleration,the Holders of a majority in aggregate principal amount of such outstandingNotes may, under certain circumstances, rescind and annul such acceleration ifall Events of Default, other than the nonpayment of accelerated principal of orinterest on such Notes, have been cured or waived as provided in thisIndenture.

 

The Holders of a majority in aggregateprincipal amount of the Notes then outstanding by written notice to the Trusteemay on behalf of the Holders of all of the Notes waive any existing Default orEvent of Default and its consequences under this Indenture and its consequences:

 

(1)                                  if the rescissionwould not conflict with any judgment or decree;

 

(2)                                  if all existingEvents of Default have been cured or waived except nonpayment of principal orinterest that has become due solely because of the acceleration;

 

(3)                                  to the extent thepayment of such interest is lawful, interest on overdue installments ofinterest and overdue principal, which has become due otherwise than by suchdeclaration of acceleration, has been paid;

 

(4)                                  if the Company haspaid the Trustee its reasonable compensation and reimbursed the Trustee for itsexpenses, disbursements and advances; and

 

(5)                                  in the event of thecure or waiver of an Event of Default of the type described in clause (5)of Section 6.1, the Trustee shall have received an Officers’ Certificateand an Opinion of Counsel that such Event of Default has been cured or waived.

 

No such rescission shall affect anysubsequent Default or impair any right consequent thereto.

 

In the event of any Event of Defaultspecified in clause (4) of Section 6.1, such Event of Defaultand all consequences thereof (excluding, however, any resulting paymentdefault) will be annulled, waived and rescinded, automatically and without anyaction by the Trustee or the Holders of the Notes, if within 30 days aftersuch Event of Default arose the Company delivers 

 

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an Officers’Certificate to the Trustee stating that (x) the Indebtedness or guaranteethat is the basis for such Event of Default has been discharged, (y) theholders thereof have rescinded or waived the acceleration, notice or action (asthe case may be) giving rise to such Event of Default or (z) the defaultthat is the basis for such Event of Default has been cured, it being understoodthat in no event shall an acceleration of the principal amount of the Notes asdescribed above be annulled, waived or rescinded upon the happening of any suchevents.

 

If an Event of Default specified inclause (7) above with respect to the Company occurs and is continuing,then all unpaid principal of, and premium, if any, and accrued and unpaid interestand Additional Interest, if any, on all of the outstanding Notes shall*ipso facto* become and be immediately due and payablewithout any declaration or other act on the part of the Trustee or any holderof the Notes.

 

No Holder of any Note will have any right toinstitute any proceeding with respect to this Indenture or for any remedythereunder, unless such Holder shall have previously given to the Trusteewritten notice of a continuing Event of Default and unless also the Holders ofat least 25% in aggregate principal amount of the then outstanding Notes shallhave made written request, and offered reasonable indemnity, to the Trustee toinstitute such proceeding as Trustee, and the Trustee shall not have receivedfrom the Holders of a majority in aggregate principal amount of the outstandingNotes a direction inconsistent with such request and shall have failed toinstitute such proceeding within 60 days. Such limitations do not apply,however, to a suit instituted by a Holder of a Note for enforcement of paymentof the principal of (and premium, if any) or interest on such Note on or afterthe respective due dates expressed in such Note.

 

In the case of any Event of Default occurringby reason of any willful action (or inaction) taken (or not taken) by or onbehalf of the Company with the intention of avoiding payment of the premiumthat the Company would have had to pay if the Company then had elected to redeemthe Notes pursuant to Section 3.7, an equivalent premium shall alsobecome and be immediately due and payable to the extent permitted by law uponthe acceleration of the Notes.

 

SECTION 6.3                          OtherRemedies.

 

If an Event of Default occurs and iscontinuing, the Trustee may pursue any available remedy to collect the paymentof principal, premium, if any, interest and Additional Interest, if any, on theNotes or to enforce the performance of any provision of the Notes or thisIndenture.

 

The Trustee may maintain a proceeding even ifit does not possess any of the Notes or does not produce any of them in theproceeding. A delay or omission by the Trustee or any Holder in exercising anyright or remedy accruing upon an Event of Default shall not impair the right orremedy or constitute a waiver of or acquiescence in the Event of Default. Allremedies are cumulative to the extent permitted by law.

 

SECTION 6.4                          Waiverof Past Defaults.

 

The Holders of a majority in principal amountof the Notes issued and then outstanding under this Indenture by notice to theTrustee may on behalf of the Holders of all of the Notes waive any existingDefault or Event of Default under this Indenture, and its consequences, excepta default in the payment of the principal of or interest on Notes (other than asa result of 

 

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anacceleration), which shall require the consent of all of the Holders of theNotes then outstanding.

 

SECTION 6.5                          Controlby Majority.

 

The Holders of a majority in aggregateprincipal amount of the then outstanding Notes may direct the time, method andplace of conducting any proceeding for any remedy available to the Trustee orexercising any trust or power conferred on the Trustee. However, (i) theTrustee may refuse to follow any direction that conflicts with law or thisIndenture, that the Trustee determines may be unduly prejudicial to the rightsof other Holders or that may involve the Trustee in personal liability, and(ii) the Trustee may take any other action deemed proper by the Trusteewhich is not inconsistent with such direction. In case an Event of Defaultshall occur (which shall not be cured), the Trustee will be required, in theexercise of its power, to use the degree of care of a prudent man in theconduct of his own affairs. Notwithstanding any provision to the contrary inthis Indenture, the Trustee is under no obligation to exercise any of itsrights or powers under this Indenture at the request, order or direction of anyHolder, unless such Holder shall offer to the Trustee security and indemnitysatisfactory to it against any loss, liability or expense.

 

SECTION 6.6                          Limitationon Suits.

 

A Holder may pursue a remedy with respect tothis Indenture or the Notes only if:

 

(a)                                  theHolder gives to the Trustee written notice of a continuing Event of Default orthe Trustee receives such notice from the Company;

 

(b)                                 theHolders of at least 25% in aggregate principal amount of the then outstandingNotes make a written request to the Trustee to pursue the remedy;

 

(c)                                  suchHolder or Holders offer and, if requested, provide to the Trustee indemnity orsecurity reasonably satisfactory to the Trustee against any loss, liability orexpense;

 

(d)                                 theTrustee does not comply with the request within 60 days after receipt ofthe request and the offer and, if requested, the provision of such indemnity orsecurity; and

 

(e)                                  duringsuch 60-day period the Holders of a majority in aggregate principal amount ofthe then outstanding Notes do not give the Trustee a direction inconsistentwith the request.

 

A Holder may not use this Indenture toprejudice the rights of another Holder or to obtain a preference or priorityover another Holder.

 

SECTION 6.7                          Rightsof Holders of Notes to Receive Payment.

 

Notwithstanding any other provision of thisIndenture, the right of any Holder to receive payment of principal, premium, ifany, and interest on or after the respective due dates expressed 

 

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in the Note(including in connection with an offer to purchase), or to bring suit for theenforcement of any such payment on or after such respective dates, shall not beimpaired or affected without the consent of such Holder.

 

SECTION 6.8                          CollectionSuit by Trustee.

 

If an Event of Default specified in Section 6.1(1)or (2) hereof occurs and is continuing, the Trustee is authorized torecover judgment in its own name and as trustee of an express trust against theCompany for the whole amount of principal of, premium and interest remaining unpaidon the Notes and interest on overdue principal and, to the extent lawful,interest and such further amount as shall be sufficient to cover the costs andexpenses of collection, including the reasonable compensation, expenses,disbursements and advances of the Trustee, its agents and counsel.

 

SECTION 6.9                          TrusteeMay File Proofs of Claim.

 

The Trustee is authorized to file such proofsof claim and other papers or documents as may be necessary or advisable inorder to have the claims of the Trustee (including any claim for the reasonablecompensation, expenses, disbursements and advances of the Trustee, its agentsand counsel) and the Holders allowed in any judicial proceedings relative tothe Company (or any other obligor upon the Notes), its creditors or itsproperty and shall be entitled and empowered to collect, receive and distributeany money or other securities or property payable or deliverable upon theconversion or exchange of the Notes or on any such claims and any custodian inany such judicial proceeding is hereby authorized by each Holder to make suchpayments to the Trustee, and in the event that the Trustee shall consent to themaking of such payments directly to the Holders, to pay to the Trustee anyamount due to it for the reasonable compensation, expenses, disbursements andadvances of the Trustee, its agents and counsel, and any other amounts due theTrustee under Section 7.7 hereof. To the extent that the payment ofany such compensation, expenses, disbursements and advances of the Trustee, itsagents and counsel, and any other amounts due the Trustee under Section 7.7hereof out of the estate in any such proceeding, shall be denied for anyreason, payment of the same shall be secured by a Lien on, and shall be paidout of, any and all distributions, dividends, money, securities and otherproperties that the Holders may be entitled to receive in such proceedingwhether in liquidation or under any plan of reorganization or arrangement orotherwise. Nothing herein contained shall be deemed to authorize the Trustee toauthorize or consent to or accept or adopt on behalf of any Holder any plan ofreorganization, arrangement, adjustment or composition affecting the Notes orthe rights of any Holder, or to authorize the Trustee to vote in respect of theclaim of any Holder in any such proceeding.

 

SECTION 6.10                    Priorities.

 

If the Trustee collects any money or propertypursuant to this Article VI, it shall pay out the money and property inthe following order:

 

First:  to the Trustee, its agents and attorneys foramounts due under Section 7.7 hereof, including payment of allreasonable compensation, expense and liabilities incurred, and all advancesmade, by the Trustee and the costs and expenses of collection;

 

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

 

Third:  without duplication, to the Holders for anyother Obligations owing to the Holders under this Indenture and the Notes; and

 

Fourth:  to the Company or to such party as a court ofcompetent jurisdiction shall direct.

 

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

 

SECTION 6.11                    Undertakingfor Costs.

 

In any suit for the enforcement of any rightor remedy under this Indenture or in any suit against the Trustee for anyaction taken or omitted by it as a Trustee, a court in its discretion mayrequire the filing by any party litigant in the suit of an undertaking to paythe costs of the suit, and the court in its discretion may assess reasonablecosts, including reasonable attorneys’ fees and expenses, against any partylitigant in the suit, having due regard to the merits and good faith of theclaims or defenses made by the party litigant. This Section 6.11does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7hereof, or a suit by Holders of more than 10% in principal amount of the thenoutstanding Notes.

 

# ARTICLE VII

#  

# TRUSTEE

#  

SECTION 7.1                          Dutiesof Trustee.

 

### (a)                                  If an Event ofDefault has occurred and is continuing, the Trustee shall exercise such of therights and powers vested in it by this Indenture and use the same degree ofcare and skill in its exercise, as a prudent person would exercise or use underthe circumstances in the conduct of such person’s affairs.

###  

### (b)                                 Except during thecontinuance of an Event of Default:

###  

(i)                                     theduties of the Trustee shall be determined solely by the express provisions ofthis Indenture or the TIA once this Indenture is qualified under the TIA andthe Trustee need perform only those duties that are specifically set forth inthis Indenture or the TIA once this Indenture is qualified under the TIA and noothers, and no implied covenants or obligations shall be read into thisIndenture against the Trustee; and

 

(ii)                                  inthe absence of bad faith on its part, the Trustee may conclusively rely, as tothe truth of the statements and the correctness of the opinions expressedtherein, upon certificates or opinions furnished to the Trustee and conformingto the requirements 

 

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of thisIndenture (but need not confirm or investigate the accuracy of mathematicalcalculations or other facts stated therein).

 

However, the Trustee shall examine the certificatesand opinions furnished to it to determine whether or not they conform to therequirements of this Indenture.

 

### (c)                                  The Trustee may notbe relieved from liabilities for its own negligent action, its own negligentfailure to act, or its own willful misconduct, except that:

###  

(i)                                     thisparagraph does not limit the effect of paragraph (b) of this Section 7.1;

 

(ii)                                  theTrustee shall not be liable for any error of judgment made in good faith by aResponsible Officer, unless it is proved that the Trustee was negligent inascertaining the pertinent facts; and

 

(iii)                               theTrustee shall not be liable with respect to any action it takes or omits totake in good faith in accordance with a direction received by it pursuant to Section 6.5hereof.

 

### (d)                                 Whether or not thereinexpressly so provided, every provision of this Indenture that in any way relatesto the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1.

###  

### (e)                                  No provision of thisIndenture shall require the Trustee to expend or risk its own funds or incurany liability. The Trustee shall be under no obligation to exercise any of itsrights and powers under this Indenture at the request of any Holders, unlesssuch Holder shall have offered to the Trustee security and indemnitysatisfactory to it against any loss, liability or expense.

###  

### (f)                                    The Trustee shallnot be liable for interest on any money received by it except as the Trusteemay agree in writing with the Company. Money held in trust by the Trustee neednot be segregated from other funds except to the extent required by law.

###  

SECTION 7.2                          Rightsof Trustee.

 

### (a)                                  The Trustee mayconclusively rely and shall be fully protected in acting or refraining fromacting on any document (whether in original or facsimile form) believed by itto be genuine and to have been signed or presented by the proper Person. TheTrustee need not investigate any fact or matter stated in the document.

###  

### (b)                                 Before the Trusteeacts or refrains from acting, it may require an Officers’ Certificate or an Opinionof Counsel or both. The Trustee shall not be liable for any action it takes oromits to take in good faith in reliance on such Officers’ Certificate orOpinion of Counsel. Prior to taking, suffering or admitting any action, theTrustee may consult with counsel of the Trustee’s own choosing and the Trusteeshall be fully protected from liability in respect of any action taken,suffered or omitted by it hereunder in good faith and in conclusive reliance onthe advice or opinion of such counsel.

 

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### (c)                                  The Trustee may actthrough its attorneys and agents and shall not be responsible for the misconductor negligence of any attorney or agent appointed with due care.

###  

### (d)                                 The Trustee shall notbe liable for any action it takes or omits to take in good faith that itbelieves to be authorized or within the rights or powers conferred upon it bythis Indenture. Any request or direction of the Company mentioned herein shallbe sufficiently evidenced by an Officers’ Certificate and any resolution of theBoard of Directors may be sufficiently evidenced by a Board Resolution.Whenever in the administration of this Indenture the Trustee shall deem itdesirable that a matter be proved or established prior to taking, suffering oromitting any action hereunder, the Trustee (unless other evidence be hereinspecifically prescribed) may, in the absence of bad faith on its part,conclusively rely upon an Officers’ Certificate.

###  

### (e)                                  Unless otherwisespecifically provided in this Indenture, any demand, request, direction ornotice from the Company shall be sufficient if signed by an Officer of theCompany.

###  

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

###  

### (g)                                 The Trustee shall notbe bound to make any investigation into the facts or matters stated in anyresolution, certificate, statement, instrument, opinion, report, notice,request, direction, consent, order, bond, debenture, note, other evidence ofindebtedness or other paper or documents, but the Trustee, in its discretion, maymake such further inquiry or investigation into such facts or matters as it maysee fit, and, if the Trustee shall determine to make such further inquiry orinvestigation, it shall be entitled to examine during normal business hours thebooks, records and premises of the Company, personally or by agent or attorneyat the sole cost of the Company, and shall incur no liability or additionalliability of any kind by reason of such inquiry or investigation.

###  

### (h)                                 The rights,privileges, protections and benefits given to the Trustee, including, withoutlimitation, its rights to compensation and to be indemnified, are extended to,and shall be enforceable by, the Trustee in each of its capacities hereunder,the Paying Agent and the Registrar, and to each other agent, custodian andother Persons employed to act hereunder.

###  

### (i)                                     The Trustee mayrequest that the Company deliver an Officers’ Certificate setting forth thenames of individuals and/or titles of officers authorized at such time to takespecified actions pursuant to this Indenture, which Officers’ Certificate maybe signed by any person authorized to sign an Officers’ Certificate, includingany person specified as so authorized in any such certificate previouslydelivered and not superseded.

###  

### (j)                                     The Trustee shallnot be deemed to have notice or be charged with knowledge of any Default orEvent of Default unless the Trustee shall have received from the Company or anyother obligor upon the Notes or from any Holder written notice thereof at itsaddress set forth in Section 12.2 hereof, and such noticereferences the Notes and this Indenture. In the absence of 

###  

### 96

### 

###  

### any such notice, the Trustee may conclusivelyassume that no such Default or Event of Default exists.

###  

SECTION 7.3                          IndividualRights of Trustee.

 

The Trustee in its individual or any othercapacity may become the owner or pledgee of Notes and may otherwise deal withthe Company or any Affiliate of the Company with the same rights it would haveif it were not Trustee. However, in the event that the Trustee acquires any conflictinginterest it must eliminate such conflict within 90 days, apply to theCommission for permission to continue as Trustee or resign. Any Agent may dothe same with like rights and duties. The Trustee is also subject to Sections 7.10and 7.11 hereof.

 

SECTION 7.4                          Trustee’sDisclaimer.

 

The Trustee shall not beresponsible for and makes no representation as tothe validity or adequacy of this Indenture or the Notes or the Offering Memorandum,it shall not be accountable for the Company’s use of the proceeds from theNotes or any money paid to the Company or upon the Company’s direction underany provision of this Indenture, it shall not be responsible for the use orapplication of any money received by any Paying Agent other than the Trustee,and it shall not be responsible for any statement or recital herein or anystatement in the Notes or the Offering Memorandum, any statement or recital onany Officers’ Certificate delivered to the Trustee under Article IV or Section 8.4hereof, or any other document in connection with the sale of the Notes orpursuant to this Indenture other than its certificate of authentication.

 

SECTION 7.5                          Noticeof Defaults.

 

If a Default or Event of Default occurs andis continuing and if it is actually known to a Responsible Officer, the Trusteeshall mail to Holders a notice of the Default or Event of Default within90 days after it occurs. Except in the case of a Default or Event ofDefault in payment of principal of, premium, if any, or interest or AdditionalInterest on any Note, the Trustee may withhold the notice if and so long as theboard of directors, the executive committee or a trust committee of directorsor Responsible Officers of the Trustee in good faith determines that withholdingthe notice is in the interests of the Holders.

 

SECTION 7.6                          Reportsby Trustee to Holders of the Notes.

 

Once this Indenture is qualified under theTIA, if required by the TIA, 60 days after each May 15 beginning with May15, 2007, and for so long as Notes remain outstanding, the Trustee shall mailto the Holders a brief report dated as of such reporting date that complieswith TIA § 313(a) (but if no event described in TIA § 313(a) hasoccurred within the twelve months preceding the reporting date, no report needbe transmitted). The Trustee also shall comply with TIA § 313(b). TheTrustee shall also transmit by mail all reports as required byTIA § 313(c).

 

A copy of each report at the time of itsmailing to the Holders shall be mailed to the Company and filed with theCommission and each stock exchange on which the Notes are listed in accordancewith TIA § 313(d). The Company shall promptly notify the Trustee when theNotes are listed on any stock exchange or delisted therefrom.

 

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SECTION 7.7                          Compensationand Indemnity.

 

The Company shall pay to the Trustee fromtime to time compensation for its acceptance of this Indenture and serviceshereunder as agreed upon in writing. The Trustee’s compensation shall not belimited by any law on compensation of a trustee of an express trust. TheCompany shall reimburse the Trustee promptly upon request for all reasonabledisbursements, advances and expenses incurred or made by it in addition to thecompensation for its services. Such expenses shall include the reasonablecompensation, disbursements and expenses of the Trustee’s agents and counsel.

 

The Company and the Guarantors, jointly andseverally, shall indemnify the Trustee (which for purposes of this Section 7.7shall include its officers, directors, employees and agents) against any andall claims, damage, losses, liabilities or expenses incurred by it arising outof or in connection with the acceptance or administration of its duties underthis Indenture, including the costs and expenses of enforcing this Indentureagainst the Company (including this Section 7.7) and defendingitself against any claim (whether asserted by the Company or any Holder or anyother Person) or liability in connection with the exercise or performance ofany of its powers or duties hereunder except to the extent any such loss,claim, damage, liability or expense may be attributable to its negligence orbad faith. The Trustee shall notify the Company promptly of any claim for whichit may seek indemnity. Failure by the Trustee to so notify the Company shallnot relieve the Company of its obligations hereunder. The Company shall defendthe claim and the Trustee shall cooperate in the defense. The Trustee may haveseparate counsel and the Company shall pay the reasonable fees and expenses ofone such counsel. The Company need not pay for any settlement made without itsconsent, which consent shall not be unreasonably withheld. Under nocircumstances shall the Trustee be liable for any consequential or punitive damagesof any kind.

 

The obligations of the Company and theGuarantors under this Section 7.7 shall survive the satisfactionand discharge of this Indenture or the resignation or removal of the Trustee, includingany termination under any Bankruptcy Law.

 

To secure the Company’s payment obligationsin this Section 7.7, the Trustee shall have a Lien prior to theNotes on all money or property held or collected by the Trustee, except thatheld in trust to pay principal or interest, if any, on particular Notes. SuchLien shall survive the satisfaction and discharge of this Indenture and theresignation or removal of the Trustee, including any termination under anyBankruptcy Law.

 

When the Trustee incurs expenses or rendersservices after an Event of Default specified in Section 6.1(7)hereof occurs, the expenses and the compensation for the services (includingthe fees and expenses of its agents and counsel) are intended to constituteexpenses of administration under any Bankruptcy Law.

 

The Trustee shall comply with the provisionsof TIA § 313(b)(2) to the extent applicable.

 

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SECTION 7.8                          Replacementof Trustee.

 

A resignation or removal of the Trustee andappointment of a successor Trustee shall become effective only upon thesuccessor Trustee’s acceptance of appointment as provided in this Section 7.8.

 

The Trustee may resign in writing at any timeand be discharged from the trust hereby created by so notifying the Company.The Holders of a majority in principal amount of the then outstanding Notes mayremove the Trustee by so notifying the Trustee and the Company in writing. TheCompany may remove the Trustee if:

 

(a)                                  theTrustee fails to comply with Section 7.10 hereof;

 

(b)                                 theTrustee is adjudged a bankrupt or an insolvent or an order for relief isentered with respect to the Trustee under any Bankruptcy Law;

 

(c)                                  acustodian or public officer takes charge of the Trustee or its property; or

 

(d)                                 theTrustee becomes incapable of acting.

 

If the Trustee resigns or is removed or if avacancy exists in the office of Trustee for any reason, the Company shallpromptly appoint a successor Trustee. Within one year after the successorTrustee takes office, the Holders of a majority in principal amount of the thenoutstanding Notes may appoint a successor Trustee to replace the successorTrustee appointed by the Company.

 

If a successor Trustee does not take officewithin 60 days after the retiring Trustee resigns or is removed, theretiring Trustee, the Company or the Holders of at least 10% in principalamount of the then outstanding Notes may, at the expense of the Company,petition any court of competent jurisdiction for the appointment of a successorTrustee.

 

If the Trustee, after written request by anyHolder who has been a Holder for at least six months, fails to comply with Section 7.10hereof, such Holder may, at the expense of the Company, petition any court ofcompetent jurisdiction for the removal of the Trustee and the appointment of asuccessor Trustee.

 

A successor Trustee shall deliver a writtenacceptance of its appointment to the retiring Trustee and to the Company.Thereupon, the resignation or removal of the retiring Trustee shall becomeeffective, and the successor Trustee shall have all the rights, powers and theduties of the Trustee under this Indenture. The successor Trustee shall mail anotice of its succession to the Holders. The retiring Trustee shall promptlytransfer all property held by it as Trustee to the successor Trustee,**provided that all sums owing to the Trusteehereunder have been paid and subject to the Lien provided for in Section 7.7hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,the Company’s and the Guarantors’ obligations under Section 7.7hereof shall continue for the benefit of the retiring Trustee.

 

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SECTION 7.9                          SuccessorTrustee by Merger, Etc.

 

If the Trustee consolidates, merges or convertsinto, or transfers all or substantially all of its corporate trust business(including the administration of this Indenture) to, another corporation, thesuccessor corporation without any further act shall be the successor Trustee.

 

SECTION 7.10                    Eligibility;Disqualification.

 

There shall at all times be a Trusteehereunder that is a corporation organized and doing business under the laws ofthe United States of America or of any state thereof that is authorized undersuch laws to exercise corporate trustee power and that is subject tosupervision or examination by federal or state authorities. The Trusteetogether with its affiliates shall at all times have a combined capital surplusof at least $50.0 million as set forth in its most recent published annualreport of condition.

 

This Indenture shall always have a Trusteewho satisfies the requirements of TIA §§ 310(a)(l), (2) and (5). TheTrustee is subject to TIA § 310(b) including the provision in§ 310(b)(1);**provided that there shallbe excluded from the operation of TIA § 310(b)(1) any indenture or indenturesunder which other securities, or conflicts of interest or participation inother securities, of the Company or the Guarantors are outstanding if therequirements for exclusion set forth in TIA § 310(b)(1) are met.

 

SECTION 7.11                    PreferentialCollection of Claims Against the Company.

 

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

 

SECTION 7.12                    Trustee’sApplication for Instructions from the Company.

 

Any application by the Trustee for writteninstructions from the Company may, at the option of the Trustee, set forth inwriting any action proposed to be taken or omitted by the Trustee under thisIndenture and the date on and/or after which such action shall be taken or suchomission shall be effective. The Trustee shall not be liable for any actiontaken by, or omission of, the Trustee in accordance with a proposal included insuch application on or after the date specified in such application (which dateshall not be less than 20 Business Days after the date any officer of theCompany actually receives such application, unless any such officer shall haveconsented in writing to any earlier date) unless prior to taking any suchaction (or the effective date in the case of an omission), the Trustee shallhave received written instructions in response to such application specifyingthe action to be taken or omitted.

 

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# ARTICLE VIII

#  

# DEFEASANCE;DISCHARGE OF THE INDENTURE

#  

SECTION 8.1                          Optionto Effect Legal Defeasance or Covenant Defeasance.

 

The Company may, at the option of its Boardof Directors and evidenced by a Board Resolution set forth in an Officers’Certificate, at any time, elect to have either Section 8.2 or 8.3hereof applied to all outstanding Notes upon compliance with the conditions setforth below in this Article VIII.

 

SECTION 8.2                          LegalDefeasance.

 

Upon the Company’s exercise under Section 8.1hereof of the option applicable to this Section 8.2, The Companyshall, subject to the satisfaction of the conditions set forth in Section 8.4hereof, be deemed to have been discharged from its obligations with respect toall outstanding Notes on the date the conditions set forth below are satisfied(hereinafter, “Legal Defeasance”) except for (i) the rights of Holdersof outstanding Notes to receive payments in respect of the principal of, premium,if any, and interest and Additional Interest, if any, on such Notes when suchpayments are due from the trust referred to below, (ii) the Company’sobligations with respect to the Notes concerning issuing temporary Notes,registration of Notes, mutilated, destroyed, lost or stolen Notes and themaintenance of an office or agency for payment and money for security paymentsheld in trust, (iii) the rights, powers, trusts, duties and immunities of theTrustee, and the Company’s obligations in connection therewith and (iv) theLegal Defeasance provisions of this Indenture. For this purpose, LegalDefeasance means that the Company shall be deemed to have paid and dischargedthe entire Indebtedness represented by the outstanding Notes, which shallthereafter be deemed to be “outstanding” only for the purposes of Section 8.5hereof and the other Sections of this Indenture referred to in (a) and (b)below, and to have satisfied all of its other obligations under such Notes andthis Indenture (and the Trustee, on demand of and at the expense of theCompany, shall execute proper instruments acknowledging the same), except forthe following provisions which shall survive until otherwise terminated ordischarged hereunder:  (a) therights of Holders of outstanding Notes to receive payments in respect of theprincipal of, premium and Additional Interest, if any, and interest, if any, onsuch Notes when such payments are due from the trust referred to in Section 8.4(1);(b) the Company’s obligations with respect to such Notes under Sections 2.2,2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2hereof; (c) the rights, powers, trusts, duties and immunities of theTrustee, including without limitation thereunder, under Sections 7.7,8.5 and 8.7 hereof and the Company’s obligations in connectiontherewith; (d) the Company’s rights pursuant to Section 3.7;and (e) the provisions of this Article VIII. Subject to compliancewith this Article VIII, the Company may exercise its option under this Section 8.2notwithstanding the prior exercise of its option under Section 8.3hereof.

 

SECTION 8.3                          CovenantDefeasance.

 

Upon the Company’s exercise under Section 8.1hereof of the option applicable to this Section 8.3, the Companyshall, subject to the satisfaction of the conditions set forth in Section 8.4hereof, be released from its obligations under the covenants contained in Sections

 

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4.3, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12,4.13, 4.14, 4.15, 4.16, 4.17, 4.18,and 5.1 hereof and the operation of Sections 6.1(3), 6.1(4)and 6.1(5) with respect to the outstanding Notes on and after the datethe conditions set forth below are satisfied (hereinafter, “CovenantDefeasance”), and the Notes shall thereafter be deemed not “outstanding”for the purposes of any direction, waiver, consent or declaration or act ofHolders (and the consequences of any thereof) in connection with suchcovenants, but shall continue to be deemed “outstanding” for all other purposeshereunder (it being understood that such Notes shall not be deemed outstandingfor accounting purposes). For this purpose, Covenant Defeasance means that,with respect to the outstanding Notes, the Company or any of its Subsidiariesmay omit to comply with and shall have no liability in respect of any term,condition or limitation set forth in any such covenant, whether directly orindirectly, by reason of any reference elsewhere herein to any such covenant orby reason of any reference in any such covenant to any other provision hereinor in any other document and such omission to comply shall not constitute aDefault or an Event of Default under Section 6.1 hereof, but,except as specified above, the remainder of this Indenture and such Notes shallbe unaffected thereby. In addition, upon the Company’s exercise under Section 8.1hereof of the option applicable to this Section 8.3, subject to thesatisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(4),(5), (6) and (7) hereof shall not constitute Events ofDefault.

 

Notwithstanding any discharge or release ofany obligations pursuant to Section 8.2 or 8.3, theCompany’s obligations in Sections 2.5, 2.6, 2.7, 2.8,7.7, 8.6 and 8.7 shall survive until the Notes are nolonger outstanding pursuant to the last paragraph of Section 2.8.After the Notes are no longer outstanding, the Company’s obligations in Sections 7.7,8.6 and 8.7 shall survive.

 

SECTION 8.4                          Conditionsto Legal or Covenant Defeasance.

 

The following shall be the conditions to theapplication of either Section 8.2 or 8.3 hereof to the outstanding Notes:

 

(1)                                  the Company mustirrevocably deposit with the Trustee, in trust, for the benefit of the Holdersof the Notes issued hereunder, cash in U.S. dollars, non-callable U.S.Government Securities, or a combination of cash in U.S. dollars andnon-callable U.S. Government Securities, in amounts as will be sufficient, inthe opinion of a nationally recognized investment bank, appraisal firm or firmof independent public accountants, to pay the principal of, or interest and premiumand Additional Interest, if any, on the outstanding Notes issued hereunder onthe Stated Maturity or on the applicable redemption date, as the case may be,and the Company must specify whether the Notes are being defeased to maturityor to a particular redemption date;

 

(2)                                  in the case of LegalDefeasance, the Company shall have delivered to the Trustee an Opinion ofCounsel in the United States reasonably acceptable to the Trustee confirmingthat (a) the Company has received from, or there has been published by,the Internal Revenue Service a ruling or (b) since the date of thisIndenture, there has been a change in the applicable federal income tax law, ineither case to the effect that, and based thereon such Opinion of Counsel inthe United States will confirm that, the holders of the outstanding Notes willnot recognize income, gain or loss for federal income tax purposes as a resultof such Legal Defeasance and will be subject to federal income tax 

 

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on the same amounts, in the same manner and at the same times as wouldhave been the case if such Legal Defeasance had not occurred;

 

(3)                                  in the case ofCovenant Defeasance, the Company shall have delivered to the Trustee an Opinionof Counsel in the United States reasonably acceptable to the Trustee confirmingthat the holders of the outstanding Notes will not recognize income, gain orloss for federal income tax purposes as a result of such Covenant Defeasanceand will be subject to federal income tax on the same amounts, in the samemanner and at the same times as would have been the case if such CovenantDefeasance had not occurred;

 

(4)                                  no Default or Eventof Default shall have occurred and be continuing on the date of such deposit(other than a Default or Event of Default resulting from the borrowing of fundsto be applied to such deposit and the grant of any Lien securing suchborrowings);

 

(5)                                  such Legal Defeasanceor Covenant Defeasance will not result in a breach or violation of, orconstitute a default under any material agreement or instrument (other thanthis Indenture) to which the Company or any of its Restricted Subsidiaries area party or by which the Company or any of its Restricted Subsidiaries is bound;

 

(6)                                  the Company shalldeliver to the Trustee an Officers’ Certificate stating that the deposit wasnot made by the Company with the intent of preferring the Holders of Notes overthe other creditors of the Company or any Guarantor or with the intent ofdefeating, hindering, delaying or defrauding creditors of the Company or anyGuarantor or others; and

 

(7)                                  the Company shalldeliver to the Trustee an Officers’ Certificate and an Opinion of Counsel inthe United States, each stating that all conditions precedent provided for orrelating to the Legal Defeasance or the Covenant Defeasance have been compliedwith.

 

Notwithstanding the foregoing, therequirements of clause (2) above with respect to a Legal Defeasance neednot be complied with if all Notes not theretofore delivered to the Trustee forcancellation (x) have become due and payable or (y) will become dueand payable on the maturity date within one year under arrangementssatisfactory to the Trustee for the giving of notice of redemption by theTrustee in the name, and at the expense, of the Company.

 

SECTION 8.5                          DepositedMoney and Government Securities to Be Held in Trust; Other MiscellaneousProvisions.

 

Subject to Section 8.6 hereof,all money and non-callable U.S. Government Securities (including the proceedsthereof) deposited with the Trustee (or other qualifying trustee, collectivelyfor purposes of this Section 8.5, the “Trustee”) pursuant toSection 8.4 hereof in respect of the outstanding Notes shall beheld in trust, shall not be invested, and applied by the Trustee, in accordancewith the provisions of such Notes and this Indenture, to the payment, eitherdirectly or through any Paying Agent (including the Company or any Subsidiaryacting as Paying Agent) as the Trustee may determine, to the Holders of suchNotes of all sums due and to become due thereon in respect of principal,premium, if any, and interest and Additional Interest, 

 

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if any, butsuch money need not be segregated from other funds except to the extent requiredby law.

 

The Company shall pay and indemnify theTrustee against any tax, fee or other charge imposed on or assessed against thecash or non-callable U.S. Government Securities deposited pursuant to Section 8.4hereof or the principal and interest received in respect thereof other than anysuch tax, fee or other charge which by law is for the account of the Holders ofthe outstanding Notes.

 

Anything in this Article VIII to thecontrary notwithstanding, the Trustee shall deliver or pay to the Company fromtime to time upon the written request of the Company and be relieved of allliability with respect to any money or non-callable U.S. Government Securitiesheld by it as provided in Section 8.4 hereof which, in the opinionof a nationally recognized firm of independent public accountants expressed ina written certification thereof delivered to the Trustee (which may be theopinion delivered under Section 8.4(a) hereof), are in excess ofthe amount thereof that would then be required to be deposited to effect anequivalent Legal Defeasance or Covenant Defeasance.

 

SECTION 8.6                          Repaymentto Company.

 

Any money deposited with the Trustee or anyPaying Agent, or then held by the Company, in trust for the payment of theprincipal of, premium, if any, or interest or Additional Interest, if any, onany Note and remaining unclaimed for one year after such principal and premium,if any, or interest or Additional Interest, if any, has become due and payableshall be paid to the Company on its written request or (if then held by theCompany) shall be discharged from such trust; and the Holder of such Note shallthereafter, as an unsecured general creditor, look only to the Company forpayment thereof, and all liability of the Trustee or such Paying Agent with respectto such trust money, and all liability of the Company as trustee thereof, shallthereupon cease; provided,**however, thatthe Trustee or such Paying Agent, before being required to make any suchrepayment, may at the expense of the Company cause to be published once, in the**New York Times and**TheWall Street Journal (national edition), notice that such money remains unclaimedand that, after a date specified therein, which shall not be less than30 days from the date of such notification or publication, any unclaimedbalance of such money then remaining shall be repaid to the Company.

 

SECTION 8.7                          Reinstatement.

 

If the Trustee or Paying Agent is unable toapply any United States dollars or non-callable U.S. Government Securities inaccordance with Section 8.2, 8.3 or 8.8 hereof, asthe case may be, by reason of any order or judgment of any court orgovernmental authority enjoining, restraining or otherwise prohibiting suchapplication, then the obligations of the Company under this Indenture and theNotes shall be revived and reinstated as though no deposit had occurredpursuant to Section 8.2, 8.3 or 8.8 hereof until suchtime as the Trustee or Paying Agent is permitted to apply all such money inaccordance with Section 8.2, 8.3 or 8.8 hereof, asthe case may be;*provided*,*however*,that, if the Company makes any payment of principal of, premium, if any, orinterest or Additional Interest, if any, on any Note following the 

 

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reinstatementof its obligations, the Company shall be subrogated to the rights of theHolders of such Notes to receive such payment from the money held by theTrustee or Paying Agent.

 

SECTION 8.8                          Discharge.

 

The Company and the Guarantors may terminatethe obligations under this Indenture and the Notes when:

 

(1)                                  either:

 

(a)                                  allNotes that have been authenticated, except lost, stolen or destroyed Notes thathave been replaced or paid and Notes for whose payment money has been depositedin trust and thereafter repaid to the Company, have been delivered to theTrustee for cancellation; or

 

(b)                                 allNotes that have not been delivered to the Trustee for cancellation have becomedue and payable by reason of the mailing of a notice of redemption or otherwiseor will become due and payable by reason of the mailing of a notice ofredemption or otherwise within one year and the Company has irrevocablydeposited or caused to be deposited with the Trustee as trust funds in trustsolely for the benefit of the Holders of the Notes, cash in U.S. dollars,non-callable U.S. Government Securities, or a combination thereof, in amountsas will be sufficient without consideration of any reinvestment of interest, topay and discharge the entire Indebtedness on the Notes not delivered to theTrustee for cancellation for principal, premium and Additional Interest, ifany, and accrued interest to the date of maturity or redemption;

 

(2)                                  no Default or Eventof Default shall have occurred and be continuing on the date of the deposit orwill occur as a result of the deposit (other than a Default resulting fromborrowing of funds to be applied to such deposit and any similar and simultaneousdeposit relating to other Indebtedness, and in each case the grant of any Liensecuring such borrowing) and the deposit will not result in a breach orviolation of, or constitute a default under, any other material instrument towhich the Company is a party or by which the Company is bound;

 

(3)                                  the Company shallhave paid or caused to be paid all sums payable by it under this Indenture;

 

(4)                                  the Company shallhave delivered irrevocable instructions to the Trustee under this Indenture toapply the deposited money toward the payment of the Notes issued thereunder atmaturity or the redemption date, as the case may be; and

 

(5)                                  the Company shallhave delivered an Officers’ Certificate and an Opinion of Counsel in the UnitedStates (which may be subject to certain qualifications) to the Trustee statingthat all conditions precedent to satisfaction and discharge have beensatisfied.

 

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In the case of clause (1)(b) of this Section 8.8,and subject to the next sentence and notwithstanding the foregoing paragraph,the Company’s obligations in Sections 2.5, 2.6, 2.7, 2.8,4.1, 4.2, 4.15 (as to legal existence of the Companyonly), 7.7, 8.6 and 8.7 shall survive until the Notes areno longer outstanding pursuant to the last paragraph of Section 2.8.After the Notes are no longer outstanding, the Company’s obligations in Sections 7.7,8.6 and 8.7 shall survive any discharge pursuant to Section 8.8.

 

After such delivery or irrevocable deposit,the Trustee upon request shall acknowledge in writing the discharge of theCompany’s obligations under the Notes and this Indenture except for thosesurviving obligations specified above.

 

In connection with a discharge, in the eventthe Company becomes insolvent within the applicable preference period after thedate of deposit, monies held for the payment of the Notes may be part of thebankruptcy estate of the Company, disbursement of such monies may be subject tothe automatic stay of the Bankruptcy Law and monies disbursed to Holders may besubject to disgorgement in favor of the Company’s estate.

 

# ARTICLE IX

#  

# AMENDMENT,SUPPLEMENT AND WAIVER

#  

SECTION 9.1                          WithoutConsent of Holders of the Notes.

 

Notwithstanding Section 9.2,without the consent of any Holders, the Company, the Guarantors, if any, andthe Trustee, at any time and from time to time, may amend or supplement thisIndenture, the Notes or the Guarantees for any of the following purposes:

 

(1)                                  to cure anyambiguity, mistake, defect or inconsistency;

 

(2)                                  to provide foruncertificated Notes in addition to or in place of certificated Notes;

 

(3)                                  to provide for theassumption by a Successor Company or a successor company of a Guarantor, asapplicable, of the Company’s or such Guarantor’s obligations under thisIndenture, the Notes or any Guarantee;

 

(4)                                  to make any changethat would provide any additional rights or benefits to the Holders of Notes orthat does not adversely affect the legal rights under this Indenture of anysuch Holder;

 

(5)                                  to secure the Notes;

 

(6)                                  to comply withrequirements of the Commission in order to effect or maintain the qualificationof this Indenture under the TIA, as amended;

 

(7)                                  to add a Guarantee ofthe Notes;

 

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(8)                                  to release aGuarantor upon its sale or designation as an Unrestricted Subsidiary or otherpermitted release from its Guarantee;*provided* thatsuch sale, designation or release is in accordance with the applicableprovisions of this Indenture;

 

(9)                                  to conform the textof this Indenture, Notes or Guarantees to any provision of the “Description ofNotes” in the Offering Memorandum; or

 

(10)                            in the event that PIK Notesare issued in certificated form, to make appropriate amendments to thisIndenture to reflect an appropriate minimum denomination of certificated  PIK Notes and establish minimum redemptionamounts for certificated PIK Notes.

 

SECTION 9.2                          WithConsent of Holders of Notes.

 

With the consent of the Holders of not lessthan a majority in aggregate principal amount of the outstanding Notes, theCompany, the Guarantors, if any, and the Trustee may amend or supplement thisIndenture and the Notes for the purpose of adding any provisions to or changingin any manner or eliminating any of the provisions of this Indenture or theNotes or of modifying in any manner the rights of the Holders under thisIndenture or the Notes, including the definitions herein;**provided,**however, that no such amendment or supplement shall,without the consent of the Holder of each outstanding Note affected thereby:

 

(1)                                  reduce the principalamount of Notes issued thereunder whose Holders must consent to an amendment,supplement or waiver;

 

(2)                                  reduce the principalof or change the fixed maturity of any Note or alter the provisions with respectto the redemption of such Notes issued thereunder (other than provisionsrelating to Sections 3.9, 4.10 and 4.14 except as setforth in item (10) below);

 

(3)                                  reduce the rate of orchange the time for payment of interest on any Note issued thereunder;

 

(4)                                  waive a Default orEvent of Default in the payment of principal of, or interest or premium, orAdditional Interest, if any, on the Notes issued thereunder (except arescission of acceleration of such Notes issued thereunder by the holders of atleast a majority in aggregate principal amount of such Notes issued thereunderwith respect to a nonpayment default and a waiver of the payment default thatresulted from such acceleration);

 

(5)                                  make any Note payablein money other than that stated in the Notes;

 

(6)                                  make any change inthe provisions of this Indenture relating to waivers of past Defaults or therights of Holders of Notes to receive payments of principal of, or interest orpremium or Additional Interest, if any, on such Notes issued thereunder or impairthe right of any holder of Notes to institute suit for the enforcement of anypayment on or with respect to such Holder’s Notes;

 

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(7)                                  waive a redemptionpayment with respect to any Note issued thereunder (other than a paymentrequired by Sections 3.9, 4.10 and 4.14 except as setforth in item (10) below);

 

(8)                                  make any change inthe ranking, priority or subordination provisions of any Note that would adverselyaffect the Holders of such Notes;

 

(9)                                  modify the Guaranteesin any manner adverse to the Holders of the Notes;

 

(10)                            amend, change or modify inany material respect the obligation of the Company to make and consummate aChange of Control Offer in respect of a Change of Control that has occurred ormake and consummate an Asset Sale Offer in respect of an Asset Sale that hasbeen consummated after a requirement to make an Asset Sale Offer has arisen; or

 

(11)                            make any change in thepreceding amendment and waiver provisions.

 

The Holders of not less than a majority inprincipal amount of the outstanding Notes may on behalf of the Holders of allthe Notes waive any past Default under this Indenture and its consequences,except a Default:

 

(1)                                  inany payment in respect of the principal of (or premium, if any) or interest onany Notes (including any Note which is required to have been purchased pursuantto an Offer to Purchase which has been made by the Company), or

 

(2)                                  inrespect of a covenant or provision hereof which under this Indenture cannot bemodified or amended without the consent of the Holder of each outstanding Noteaffected.

 

It shall not be necessary for the consent ofthe Holders of Notes under this Section 9.2 to approve the particularform of any proposed amendment or waiver, but it shall be sufficient if suchconsent approves the substance thereof.

 

After an amendment, supplement or waiverunder this Section 9.2 becomes effective, the Company shall mail to theHolders of Notes affected thereby a notice briefly describing the amendment,supplement or waiver. Any failure of the Company to mail such notice, or any defecttherein, shall not, however, in any way impair or affect the validity of anysuch amended or supplemental Indenture or waiver.

 

SECTION 9.3                          Compliancewith Trust Indenture Act.

 

Every amendment or supplement to thisIndenture or the Notes shall be set forth in an amended or supplementalindenture that complies with the TIA as then in effect.

 

SECTION 9.4                          Revocationand Effect of Consents.

 

Until an amendment, supplement or waiverbecomes effective, a consent to it by a Holder of a Note is a continuingconsent by the Holder and every subsequent Holder of that Note or 

 

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portion of theNote that evidences the same debt as the consenting Holder’s Note, even ifnotation of the consent is not made on the Note. However, any such Holder orsubsequent Holder may revoke the consent as to its Note if the Trustee receiveswritten notice of revocation before the date the waiver, supplement oramendment becomes effective. When an amendment, supplement or waiver becomeseffective in accordance with its terms, it thereafter binds every Holder.

 

The Company may, but shall not be obligatedto, fix a record date for determining which Holders consent to such amendment,supplement or waiver. If the Company fixes a record date, the record date shallbe fixed at (i) the later of 30 days prior to the first solicitationof such consent or the date of the most recent list of Holders furnished forthe Trustee prior to such solicitation pursuant to Section 2.5hereof or (ii) such other date as the Company shall designate.

 

SECTION 9.5                          Notationon or Exchange of Notes.

 

The Trustee may place an appropriate notationabout an amendment, supplement or waiver, the text of which shall be providedby the Company, on any Note thereafter authenticated. The Company, in exchangefor all Notes, may issue and the Trustee shall authenticate new Notes thatreflect the amendment, supplement or waiver.

 

Failure to make the appropriate notation orissue a new Note shall not affect the validity and effect of such amendment,supplement or waiver.

 

SECTION 9.6                          Trusteeto Sign Amendments, Etc. 

 

The Trustee, the Paying Agent and theRegistrar shall sign any amended or supplemental indenture authorized pursuantto this Article IX if the amendment or supplement does not adverselyaffect the rights, duties, liabilities or immunities of the Trustee, the PayingAgent and the Registrar. The Company and the Guarantors may not sign anamendment or supplemental indenture until their respective Boards of Directorsapprove it. In signing or refusing to sign any amendment or supplementalindenture the Trustee, the Paying Agent and the Registrar shall be entitled toreceive and (subject to Section 7.1 hereof) shall be fully protected inrelying upon an Officers’ Certificate and an Opinion of Counsel stating thatthe execution of such amendment or supplemental indenture is authorized orpermitted by this Indenture, that all conditions precedent thereto have beenmet or waived, that such amendment or supplemental indenture is not inconsistentherewith, and that it will be valid and binding upon the Company in accordancewith its terms.

# ARTICLE X

#  

# [RESERVED]

 

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# ARTICLE XI

#  

# NOTEGUARANTEES

#  

SECTION 11.1                    Guarantees.

 

### (a)                                  Each Guarantor herebyjointly and severally, fully, unconditionally and irrevocably guarantees theNotes and obligations of the Company hereunder and thereunder, and guaranteesto each Holder of a Note authenticated and delivered by the Trustee and to theTrustee on behalf of such Holder, that: (i) the principal of and premium, if any, and interest andAdditional Interest, if any, on the Notes shall be paid in full when due,whether at Stated Maturity, by acceleration, call for redemption or otherwise(including, without limitation, the amount that would become due but for theoperation of the automatic stay under Section 362(a) of the BankruptcyLaw), together with interest on the overdue principal, if any, and interest onany overdue interest and Additional Interest, if any, to the extent lawful, andall other obligations of the Company to the Holders or the Trustee hereunder orthereunder shall be paid in full or performed, all in accordance with the termshereof and thereof; and (ii) in case of any extension of time of paymentor renewal of any Notes or of any such other obligations, the same shall bepaid in full when due or performed in accordance with the terms of theextension or renewal, whether at Stated Maturity, by acceleration or otherwise.Each of the Guarantees shall be a guarantee of payment and not of collection.

###  

### (b)                                 Each Guarantor herebyagrees that its obligations hereunder shall be unconditional, irrespective ofthe validity, regularity or enforceability of the Notes or this Indenture, theabsence of any action to enforce the same, any waiver or consent by any Holderwith respect to any provisions hereof or thereof, the recovery of any judgmentagainst the Company, any action to enforce the same or any other circumstancewhich might otherwise constitute a legal or equitable discharge or defense of aGuarantor.

###  

### (c)                                  Each Guarantor herebywaives the benefits of diligence, presentment, demand for payment, filing ofclaims with a court in the event of insolvency or bankruptcy of the Company,any right to require a proceeding first against the Company or any other Person,protest, notice and all demands whatsoever and covenants that the Guarantee ofsuch Guarantor shall not be discharged as to any Note except by completeperformance of the obligations contained in such Note and such Guarantee or asprovided for in this Indenture. Each of the Guarantors hereby agrees that, inthe event of a default in payment of principal or premium, if any or intereston such Note, whether at its Stated Maturity, by acceleration, call forredemption, purchase or otherwise, legal proceedings may be instituted by theTrustee on behalf of, or by, the Holder of such Note, subject to the terms andconditions set forth in this Indenture, directly against each of the Guarantorsto enforce such Guarantor’s Guarantee without first proceeding against the Companyor any other Guarantor. Each Guarantor agrees that if, after the occurrence andduring the continuance of an Event of Default, the Trustee or any of theHolders are prevented by applicable law from exercising their respective rightsto accelerate the maturity of the Notes, to collect interest on the Notes, orto enforce or exercise any other right or remedy with respect to the Notes,such Guarantor shall pay to the Trustee for the account of the Holders, upondemand therefor, the amount that would otherwise have been due and payable hadsuch rights and remedies been permitted to be exercised by the Trustee or anyof the Holders.

 

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### (d)                                 If any Holder or theTrustee is required by any court or otherwise to return to the Company or anyGuarantor, or any custodian, trustee, liquidator or other similar officialacting in relation to the Company or any Guarantor, any amount paid by any ofthem to the Trustee or such Holder, the Guarantee of each of the Guarantors, tothe extent theretofore discharged, shall be reinstated in full force andeffect. This paragraph (d) shall remain effective notwithstanding anycontrary action which may be taken by the Trustee or any Holder in relianceupon such amount required to be returned. This paragraph (d) shall survivethe termination of this Indenture.

###  

### (e)                                  Each Guarantorfurther agrees that, as between each Guarantor, on the one hand, and theHolders and the Trustee, on the other hand, (x) the maturity of the obligationsguaranteed hereby may be accelerated as provided in Article VI hereof forthe purposes of the Guarantee of such Guarantor, notwithstanding any stay,injunction or other prohibition preventing such acceleration in respect of theobligations guaranteed hereby, and (y) in the event of any acceleration ofsuch obligations as provided in Article VI hereof, such obligations(whether or not due and payable) shall forthwith become due and payable by eachGuarantor for the purpose of the Guarantee of such Guarantor.

###  

SECTION 11.2                    Executionand Delivery of Guarantee.

 

To evidence its Guarantee set forth in Section 11.1,each Guarantor agrees that a notation of such Guarantee substantially in theform attached hereto as Exhibit B shall be endorsed on each Noteauthenticated and delivered by the Trustee. Such notation of Guarantee shall besigned on behalf of such Guarantor by an officer of such Guarantor (or, if anofficer is not available, by a board member or director) on behalf of suchGuarantor by manual or facsimile signature. In case the officer, board memberor director of such Guarantor who shall have signed such notation of Guaranteeshall cease to be such officer, board member or director before the Note onwhich such Guarantee is endorsed shall have been authenticated and delivered bythe Trustee, such Note nevertheless may be authenticated and delivered asthough the Person who signed such notation of Guarantee had not ceased to besuch officer, board member or director.

 

Each Guarantor agrees that its Guarantee setforth in Section 11.1 shall remain in full force and effect andapply to all the Notes notwithstanding any failure to endorse on each Note anotation of such Guarantee. The delivery of any Note by the Trustee, after theauthentication thereof hereunder, shall constitute due delivery of anyGuarantee set forth in this Indenture on behalf of the Guarantors.

 

SECTION 11.3                    Severability.

 

In case any provision of any Guarantee shallbe invalid, illegal or unenforceable, the validity, legality, andenforceability of the remaining provisions shall not in any way be affected orimpaired thereby.

 

SECTION 11.4                    Limitationof Guarantors’ Liability.

 

Each Guarantor and by its acceptance hereofeach Holder confirms that it is the intention of all such parties that theGuarantee of such Guarantor not constitute a fraudulent transfer or conveyancefor purposes of the Federal Bankruptcy Law, the Uniform FraudulentConveyance 

 

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Act, theUniform Fraudulent Transfer Act or any similar federal or state law or theprovisions of its local law relating to fraudulent transfer or conveyance. Toeffectuate the foregoing intention, the Trustee, the Holders and Guarantorshereby irrevocably agree that the obligations of such Guarantor under itsGuarantee shall be limited to the maximum amount that will not, after giving effectto all other contingent and fixed liabilities of such Guarantor and aftergiving effect to any collections from, rights to receive contribution from orpayments made by or on behalf of any other Guarantor in respect of theobligations of such other Guarantor under its Guarantee, result in theobligations of such Guarantor under its Guarantee constituting a fraudulenttransfer or conveyance.

 

SECTION 11.5                    GuarantorsMay Consolidate, Etc., on Certain Terms.

 

### (a)                                  Except as otherwiseprovided in this Section 11.5(a), a Guarantor may not (1)consolidate with or merge with or into (whether or not such Guarantor is thesurviving Person) another Person; or (2) sell, assign, transfer, convey, leaseor otherwise dispose of all or substantially all of its properties or assets;unless:

###  

(1)                                  (a) such Guarantor isthe surviving corporation; or (b) the Person formed by or surviving any suchconsolidation or merger (if other than such Guarantor) or to which such sale,assignment, transfer, conveyance, lease or other disposition has been made is acorporation or limited liability company organized or existing under the lawsof the United States, any state of the United States or the District ofColumbia (such Guarantor or such Person, including the Person to which suchsale, assignment, transfer, conveyance, lease or other disposition has beenmade, as the case may be, being herein called the “Successor Guarantor”);

 

(2)                                  the SuccessorGuarantor (if other than such Guarantor) assumes all the obligations of suchGuarantor under the Guarantee, the Indenture and the Registration RightsAgreement pursuant to agreements reasonably satisfactory to the Trustee;

 

(3)                                  immediately aftersuch transaction, no Event of Default exists; and

 

(4)                                  the Net Proceeds ofany such sale or other disposition of a Guarantor are applied in accordancewith the provisions of Section 4.10 hereof.

 

In case of any such consolidation, merger,sale or conveyance and upon the assumption by the successor Person, bysupplemental indenture, executed and delivered, together with an Opinion ofCounsel to the effect that such consolidation, merger, sale or conveyance wasmade in accordance with the provisions of this Indenture, to the Trustee andsatisfactory in form to the Trustee , of the Guarantee and the due and punctualperformance of all of the covenants and conditions of this Indenture and theRegistration Rights Agreement to be performed by the Guarantor, such successorPerson shall succeed to and be substituted for the Guarantor with the sameeffect as if it had been named herein as a Guarantor. All the Guarantees soissued shall in all respects have the same legal rank and benefit under thisIndenture as the Guarantees theretofore and thereafter issued in accordancewith the terms of this Indenture as though all such Guarantees had been issuedat the date of the execution hereof.

 

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Upon delivery to the Trustee of an Officers’Certificate and an Opinion of Counsel to the effect that such sale or otherdisposition was made by the Company in accordance with the provisions of thisIndenture, including without limitation Section 4.10, the Trusteeshall execute any documents reasonably required in order to evidence therelease of any Guarantor from its obligations under its Guarantee

 

Notwithstanding the foregoing, any Guarantor(A) may consolidate with, merge into or sell, assign, transfer, convey, leaseor otherwise dispose of all or part of its properties and assets to the Companyor to another Guarantor or (B) dissolve, liquidate or wind up its affairs if atthat time it does not hold any material assets.

 

SECTION 11.6                    ReleasesFollowing Sale of Assets.

 

Any Guarantor shall be released and relievedof any obligations under this Guarantee in the event that:

 

(a)                                  thesale, disposition or other transfer (including through merger or consolidation)of (x) Capital Stock of the applicable Guarantor if after such sale,disposition or other transfer such Guarantor is no longer a RestrictedSubsidiary, or (y) all or substantially all the assets of the applicableGuarantor, provided that, ineach case, such sale, disposition or other transfer is made in compliance withthe provisions of this Indenture;

 

(b)                                 theCompany designates any Restricted Subsidiary that is a Guarantor as an UnrestrictedSubsidiary in accordance with the provisions of this Indenture;

 

(c)                                  inthe case of any Restricted Subsidiary which after the Issue Date is required toguarantee the Notes pursuant to Section 4.17 the release or discharge ofthe guarantee by such Restricted Subsidiary of all of the Indebtedness (otherthan the Senior Subordinated Notes (to the extent the Senior Subordinated Notesare outstanding)) of the Company or any Restricted Subsidiary or the repaymentof all of the Indebtedness which resulted in the obligation to guarantee theNotes;

 

(d)                                 theCompany exercises its legal defeasance option or its covenant defeasance optionpursuant to Sections 8.2 or 8.3 or if its obligations under thisIndenture are discharged in accordance with the terms of this Indenture; or

 

(e)                                  suchGuarantor is also a guarantor or borrower under the Credit Agreement as ineffect on the Issue Date and, at the time of release of its Guarantee, (x) hasbeen released from its guarantee of, and all pledges and security, if any,granted in connection with the Credit Agreement (which may be conditioned onthe concurrent release hereunder), (y) is not an obligor under any Indebtedness(other than Indebtedness permitted to be incurred pursuant to clause (8), (9),(11) or (16) of the definition of “Permitted Debt” and (z) does not guaranteeany Indebtedness of the Company or any Restricted Subsidiaries (other than any guaranteethat will be released upon the release of the Guarantee hereunder).

 

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Upon delivery to the Trustee of an Officers’Certificate and an Opinion of Counsel to the effect that such sale or otherdisposition was made by the Company in accordance with the provisions of thisIndenture, including without limitation Section 4.10, the Trusteeshall execute any documents reasonably required in order to evidence therelease of any Guarantor from its obligations under its Guarantee.

 

Any Guarantor not released from itsobligations under this Guarantee shall remain liable for the full amount ofprincipal of and interest on the Notes and for the other obligations of anyGuarantor under this Indenture as provided in this Article XI.

 

SECTION 11.7                    Releaseof a Guarantor.

 

Any Guarantor that is designated by the Boardof Directors of the Company as an Unrestricted Subsidiary in accordance withthe terms of this Indenture shall, at such time, be deemed automatically andunconditionally released and discharged of its obligations under its Guaranteewithout any further action on the part of the Trustee or any Holder. TheTrustee shall deliver an appropriate instrument evidencing such release uponreceipt of the Company’s request for such release accompanied by an Officers’Certificate and an Opinion of Counsel certifying as to the compliance with thisSection 11.7. Any Guarantor not so released shall remain liable forthe full amount of principal of and interest on the Notes as provided in itsGuarantee.

 

SECTION 11.8                    BenefitsAcknowledged.

 

Each Guarantor acknowledges that it willreceive direct and indirect benefits from the financing arrangementscontemplated by this Indenture and that its guarantee and waivers pursuant toits Guarantee are knowingly made in contemplation of such benefits.

 

# ARTICLE XII

#  

# MISCELLANEOUS

#  

SECTION 12.1                    TrustIndenture Act Controls.

 

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

 

SECTION 12.2                    Notices.

 

Any notice or communication by the Company,any Guarantor or the Trustee to the others is duly given if in writing anddelivered in Person or mailed by first class mail (registered or certified,return receipt requested), telecopier or overnight air courier guaranteeingnext day delivery, to the others’ address:

 

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If to the Company:

 

CDRV Investors, Inc. (to be renamed VWRFunding, Inc.)1310 Goshen ParkwayWest Chester, PA  19380Facsimile:  (610) 431-1700Attention:  Chief Financial Officer

 

With a copy to:

 

Kirkland & Ellis LLP200 East Randolph DriveChicago, Illinois 60601Facsimile:  (312) 861-2200Attention:  Dennis Myers

 

If to the Trustee:

 

Law Debenture Trust Company of New York400 Madison Avenue, 4th FloorNew York, New York 10017Facsimile:  (212) 750-1361Attention:  Corporate Trust Services

 

If to the Paying Agent or Registrar:

 

Deutsche Bank Trust Company Americas60 Wall Street, 27th FloorMS: NY60-2710New York, New York 10005Attention:  Trust & SecuritiesServicesFax:  (732) 380-2345

 

With a copy to:

 

Deutsche Bank National Trust Companyfor Deutsche Bank Trust Company Americas25 DeForest AvenueMail Stop:  SUM01-0105Summit, New Jersey 07901Fax:  (732) 578-4635

 

The Company or the Trustee, by notice to theother, may designate additional or different addresses for subsequent noticesor communications.

 

All notices and communications (other thanthose sent to Holders) shall be deemed to have been duly given:  at the time delivered by hand, if personallydelivered; five (5) Business Days after being deposited in the mail, postageprepaid, if mailed; when receipt acknowledged, if 

 

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telecopied;and the next Business Day after timely delivery to the courier, if sent byovernight air courier guaranteeing next Business Day delivery.

 

Any notice or communication to a Holder shallbe mailed by first class mail, certified or registered, return receiptrequested, or by overnight air courier guaranteeing next Business Day deliveryto its address shown on the register kept by the Registrar. Any notice orcommunication shall also be so mailed to any Person described in TIA§ 313(c), to the extent required by the TIA. Failure to mail a notice orcommunication to a Holder or any defect in it shall not affect its sufficiencywith respect to other Holders.

 

If a notice or communication is mailed in themanner provided above within the time prescribed, it is duly given, whether ornot the addressee receives it, except in the case of notices or communicationsgiven to the Trustee, which shall be effective only upon actual receipt.

 

If the Company mails a notice orcommunication to Holders, it shall mail a copy to the Trustee and each Agent atthe same time.

 

SECTION 12.3                    Communicationby Holders of Notes with Other Holders of Notes.

 

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

 

SECTION 12.4                    Certificateand Opinion as to Conditions Precedent.

 

Upon any request or application by theCompany to the Trustee to take any action under this Indenture (other than theinitial issuance of the Notes), the Company shall furnish to the Trustee uponrequest:

 

(a)                                  anOfficers’ Certificate (which shall include the statements set forth in Section 12.5hereof) stating that, in the opinion of the signers, all conditions precedentand covenants, if any,**provided forin this Indenture relating to the proposed action have been satisfied; and

 

(b)                                 anOpinion of Counsel (which shall include the statements set forth in Section 12.5hereof) stating that, in the opinion of such counsel, all such conditions precedentand covenants have been satisfied.

 

SECTION 12.5                    StatementsRequired in Certificate or Opinion.

 

Each certificate or opinion with respect tocompliance with a condition or covenant provided for in this Indenture (otherthan a certificate provided pursuant to TIA § 314(a)(4)) shall comply withthe provisions of TIA § 314(e) and shall include:

 

(a)                                  astatement that the Person making such certificate or opinion has read suchcovenant or condition;

 

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(b)                                 abrief statement as to the nature and scope of the examination or investigationupon which the statements or opinions contained in such certificate or opinionare based;

 

(c)                                  astatement that, in the opinion of such Person, he or she has made suchexamination or investigation as is necessary to enable him to express aninformed opinion as to whether or not such covenant or condition has beensatisfied; and

 

(d)                                 astatement as to whether or not, in the opinion of such Person, such conditionor covenant has been satisfied.

 

SECTION 12.6                    Rulesby Trustee and Agents.

 

The Trustee may make reasonable rules foraction by or at a meeting of Holders. The Registrar or Paying Agent may makereasonable rules and set reasonable requirements for its functions.

 

SECTION 12.7                    NoPersonal Liability of Directors, Officers, Employees and Stockholders.

 

No director, officer, employee, incorporator,stockholder, unitholder or member of the Company, any of its Subsidiaries orany of its direct or indirect parent companies, as such, will have anyliability for any obligations of the Company or any Guarantor under the Notes,this Indenture, the Guarantees, or for any claim based on, in respect of, or byreason of, such obligations or their creation. Each holder of Notes byaccepting a Note waives and releases all such liability. The waiver and releaseare part of the consideration for issuance of the Notes. The waiver may not beeffective to waive liabilities under the federal securities laws, and it is theview of the Commission that such waiver is against public policy.

 

SECTION 12.8                    GoverningLaw.

 

THE INTERNAL LAWS OF THE STATE OF NEW YORK,WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF, SHALL GOVERN AND BEUSED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES.

 

SECTION 12.9                    NoAdverse Interpretation of Other Agreements.

 

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

 

SECTION 12.10              Successors.

 

All agreements of the Company and theGuarantors in this Indenture and the Notes and the Guarantees, as applicable,shall bind their respective successors and assigns. All agreements of theTrustee in this Indenture shall bind its successors and assigns.

 

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SECTION 12.11              Severability.

 

In case any provision in this Indenture or inthe Notes shall be invalid, illegal or unenforceable, the validity, legalityand enforceability of the remaining provisions shall not in any way be affectedor impaired thereby.

 

SECTION 12.12              CounterpartOriginals.

 

The parties may sign any number of copies ofthis Indenture. Each signed copy shall be an original, but all of them togetherrepresent the same agreement.

 

SECTION 12.13              Tableof Contents, Headings, Etc. 

 

The Table of Contents, Cross-Reference Tableand Headings of the Articles and Sections of this Indenture have been insertedfor convenience of reference only, are not to be considered a part of thisIndenture and shall in no way modify or restrict any of the terms or provisionshereof.

 

SECTION 12.14              Actsof Holders.

 

### (a)                                  Any request, demand,authorization, direction, notice, consent, waiver or other action provided bythis Indenture to be given or taken by Holders may be embodied in and evidencedby one or more instruments of substantially similar tenor signed by suchHolders in person or by agent duly appointed in writing; and, except as hereinotherwise expressly provided, such action shall become effective when suchinstrument or instruments are delivered to the Trustee and, where it is herebyexpressly required, to the Company. Such instrument or instruments (and theaction embodied therein and evidenced thereby) are herein sometimes referred toas the “Act” of Holders signing such instrument or instruments. Proof ofexecution of any such instrument or of a writing appointing any such agent shallbe sufficient for any purpose of this Indenture and conclusive in favor of theTrustee and the Company, if made in the manner provided in this Section 12.14.

###  

### (b)                                 The fact and date ofthe execution by any Person of any such instrument or writing may be proved bythe affidavit of a witness of such execution or by a certificate of a notarypublic or other officer authorized by law to take acknowledgments of deeds,certifying that the individual signing such instrument or writing acknowledgedto such officer the execution thereof. Where such execution is by a signeracting in a capacity other than such signer’s individual capacity, suchcertificate or affidavit shall also constitute sufficient proof of suchsigner’s authority. The fact and date of the execution of any such instrumentor writing, or the authority of the Person executing the same, may also beproved in any other manner which the Trustee deems sufficient.

###  

### (c)                                  The ownership ofNotes shall be proved by the Holder list maintained under Section 2.5hereunder.

###  

### (d)                                 Any request, demand,authorization, direction, notice, consent, waiver or other Act of the Holder ofany Note shall bind every future Holder of the same Note and the holder ofevery Note issued upon the registration of transfer thereof or in exchangetherefor or in lieu 

###  

### 118

### 

###  

### thereof in respect of anything done, omittedor suffered to be done by the Trustee or the Company in reliance thereon,whether or not notation of such action is made upon such Note.

###  

### (e)                                  If the Company shallsolicit from the Holders any request, demand, authorization, direction, notice,consent, waiver or other Act, the Company may, at its option, by or pursuant toa Board Resolution, fix in advance a record date for the determination ofHolders entitled to give such request, demand, authorization, direction,notice, consent, waiver or other Act, but the Company shall have no obligationto do so. If such a record date is fixed, such request, demand, authorization,direction, notice, consent, waiver or other Act may be given before or aftersuch record date, but only the Holders of record at the close of business onsuch record date shall be deemed to be Holders for the purposes of determiningwhether Holders of the requisite proportion of outstanding Notes haveauthorized or agreed or consented to such request, demand, authorization,direction, notice, consent, waiver or other Act, and for that purpose theoutstanding Notes shall be computed as of such record date;**providedthat no such authorization, agreement or consent by the Holders on such recorddate shall be deemed effective unless it shall become effective pursuant to theprovisions of this Indenture not later than six months after the record date.

###  

SECTION 12.15              Effectivenessof Merger.

 

Upon the consummation of the Merger, CDRVInvestors, Inc. and the Guarantors shall succeed to all of the rights andobligations of Varietal Distribution Merger Sub, Inc. under this Indenture,without any further action by any person.

 

[Signatures on following page]

 

119

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IN WITNESS WHEREOF, the parties hereto havecaused this Indenture to be duly executed as of the day and year first abovewritten.

 
| ** ** | VARIETAL DISTRIBUTION |
|------------|-----------------------|
| ** ** | ** **            | MERGER SUB, INC. |
| ** ** | ** **            |   |
| ** ** | ** **            |
|       | By:                   |   |   |
|       |                  | Name: |
|       |                  | Title: |
|            |                       |  |  |  |

 

S-1

----

 
| ** ** | CDRV INVESTORS, INC. |
|------------|----------------------|
| ** ** | ** **           |
| ** ** | ** **           |
|       | By:                  |   |   |
|       |                 | Name: |
|       |                 | Title: |

 

S-2

----

 
| ** ** | VWR INTERNATIONAL, INC.     |
|------------|-----------------------------|
| ** ** | ** **                  |
| ** ** | ** **                  |
|       | By:                         |   |   |
|       |                        | Name: |
|       |                        | Title: |
|       |                        |   |
| ** ** | VWR MANAGEMENT SERVICES LLC |
| ** ** | ** **                  |
| ** ** | ** **                  |
|       | By:                         |   |   |
|       |                        | Name: |
|       |                        | Title: |
|       |                        |   |
| ** ** | VWR, INC.                   |
| ** ** | ** **                  |
| ** ** | ** **                  |
|       | By:                         |   |   |
|       |                        | Name: |
|       |                        | Title: |
|       |                        |   |
| ** ** | WARD’S NATURAL SCIENCE |
|       |                        | ESTABLISHMENT, LLC |
|       |                        |   |
|       |                        |   |
|       | By:                         |   |   |
|       |                        | Name: |
|       |                        | Title: |
|       |                        |   |
| ** ** | SCIENCE KIT, LLC            |
| ** ** | ** **                  |
| ** ** | ** **                  |
|       | By:                         |   |   |
|       |                        | Name: |
|       |                        | Title: |

 

3

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| ** ** | LAW DEBENTURE TRUST COMPANY  OF NEW YORK,  as Trustee |
|------------|-------------------------------------------------------|
| ** ** | ** **                                            |
| ** ** | ** **                                            |
|       | By:                                                   |   |   |
|       |                                                  | Name: |
|       |                                                  | Title: |

 

S-2

----

 
| ** ** | DEUTSCHE BANK TRUST COMPANY  AMERICAS |
|------------|---------------------------------------|
| ** ** | ** **                            |
| ** ** | ** **                            |
|       | By:                                   |   |   |
|       | Name:                                 |
|       | Title:                                |
| ** ** | ** **                            |
| ** ** | ** **                            |
|       | By:                                   |   |   |
|       | Name:                                 |
|       | Title:                                |

 

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EXHIBIT A

 

FORM OF SENIOR PIK TOGGLE NOTE(Face of 10.25%/11.25% Senior PIK Toggle Note due 2015)

 

[Global Note Legend]

 

UNLESS THIS CERTIFICATE IS PRESENTED BY ANAUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY ORITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANYCERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHERENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUSTCOMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCHOTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORYTRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCHOTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORYTRUST COMPANY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISEBY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BELIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO.OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.

 

[Restricted Notes Legend]

 

THIS NOTE EVIDENCED HEREBY HAS NOT BEENREGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED  (THE “SECURITIES ACT”) AND MAY NOT BEOFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHOMTHE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THEMEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT ORFOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THEREQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO ANEXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN ATRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,(5) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OFTHE SECURITIES ACT (BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SOREQUESTS) OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THESECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THESTATES OF THE UNITED STATES.

 

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VARIETAL DISTRIBUTION MERGER SUB, INC.

 

10.25%/11.25% Senior PIK Toggle Notes due 2015

 
| No.        |       | $          |       |
|------------|------------|------------|------------|
| ** ** | ** ** | CUSIP  NO. | ** ** |
| ** ** | ** ** | ISIN  NO.  | ** ** |

 

Varietal Distribution Merger Sub, Inc. (the “Company”,which includes any successor entity) promises to pay to Cede & Co. or registeredassigns, the principal sum of            ($       )on July 15, 2015.  Upon consummationof the Transactions CDRV Investors, Inc. (to be renamed VWR Funding, Inc.) willassume the obligations of the Company under this Note.

 

Interest Payment Dates:  January 15 and July 15, beginning January 15,2008

Record Dates:  January 1 and July 1

 

Reference is made to further provisions ofthis Note set forth on the reverse hereof, which further provisions shall forall purposes have the same effect as set forth at this place.

 

Unless the certificate of authenticationhereon has been executed by the Trustee referred to on the reverse hereof bymanual signature, this Note shall not be entitled to any benefits under thisIndenture referred to on the reverse hereof or be valid or obligatory for anypurpose.

 

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IN WITNESS WHEREOF, the Company has causedthis Note to be signed manually or by facsimile by its duly authorizedofficers.

 

Dated:

 
| ** ** | VARIETAL DISTRIBUTION MERGER |
|------------|------------------------------|
| ** ** |                         | SUB, INC. |
| ** ** |                         |
| ** ** | ** **                   |
|       | By:                          |   |   |
|       |                         | Name: |
|       |                         | Title: |
|            |                              |  |  |  |

 

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

 

Dated:

 

LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee

 

 
| By:    |   |   |
|--------|--------|--------|
|   |   |   |

 

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(Back of 10.25%/11.25% Senior PIK Toggle Note)10.25%/11.25% Senior PIK Toggle Notes due 2015

 

Capitalized terms used herein shall have themeanings assigned to them in the Indenture referred to below unless otherwiseindicated.

 

#### (1)           Interest.  Varietal Distribution Merger Sub, Inc., aDelaware corporation (the “Company”, which includes any successor entity)promises to pay interest on the principal amount of this 10.25%/11.25% SeniorPIK Toggle Note due 2015 (a “Senior Note”) as follows:

####  

Cash Interest on the Senior Notes will accrueat the rate of 10.25% per annum and be payable in cash.  PIK Interest on the Senior Notes will accrueat the rate of 11.25% per annum and be payable (x) with respect to Senior Notesrepresented by one or more global notes registered in the name of, or held by,the Depository Trust Company (“DTC”) or its nominee on the relevantrecord date, by increasing the principal amount of the outstanding globalSenior Notes by an amount equal to the amount of PIK Interest for theapplicable interest period (rounded up to the nearest $1) and (y) with respectto Senior Notes represented by certificated notes, by issuing PIK Notes incertificated form in an aggregate principal amount equal to the amount of PIKInterest for the applicable interest period (rounded up to the nearest wholedollar) and the Trustee will, at the request of the Company, authenticate anddeliver such PIK Notes in certificated form for original issuance to theholders on the relevant record date, as shown by the records of theRegister.  Following an increase in theprincipal amount of the outstanding global Senior Notes as a result of a PIKPayment, the global Senior Notes will bear interest on such increased principalamount from and after the date of such PIK Payment.  Any PIK Notes issued in certificated formwill be dated as of the applicable interest payment date and will bear interestfrom and after such date.  All SeniorNotes issued pursuant to a PIK Payment will mature on July 15, 2015 andwill be governed by, and subject to the terms, provisions and conditions of,the Indenture and shall have the same rights and benefits as the Senior Notesissued on the Issue Date.  Anycertificated PIK Notes will be issued with the description “PIK” on the face ofsuch PIK Note.

 

The Company will pay interest in UnitedStates dollars (except as otherwise provided herein) semiannually in arrears onJanuary 15 and July 15, commencing on January 15, 2008 or if anysuch day is not a Business Day, on the next succeeding Business Day (each an “InterestPayment Date”).  Interest on theSenior Notes shall accrue from the most recent date to which interest has beenpaid or, if no interest has been paid, from June 29, 2007;**providedthat if there is no existing Default or Event of Default in the payment ofinterest, and if this Senior Note is authenticated between a record datereferred to on the face hereof and the next succeeding Interest Payment Date(but after June 29, 2007), interest shall accrue from such next succeedingInterest Payment Date, except in the case of the original issuance of SeniorNotes, in which case interest shall accrue from the date ofauthentication.  The Company shall payinterest (including post-petition interest in any proceeding under anyBankruptcy Law) on overdue principal to the extent lawful; it shall payinterest (including post-petition interest in any proceeding under anyBankruptcy Law) on overdue installments of interest and Additional Interest, ifany (without regard to any applicable grace period) to the extent lawful.  Interest shall be computed on the

 

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basis of a 360-day year comprised oftwelve 30-day months.  The interestrate on the Notes will in no event be higher than the maximum rate permitted byNew York law as the same may be modified by United States law of general application.

 

#### (2)           Methodof Payment.  For any interest paymentperiod through July 15, 2011, the Company may, at its option, elect to payinterest on the Senior Notes:

•                       entirely incash (“Cash Interest”),

 

•                       entirely byincreasing the principal amount of the outstanding Senior Notes or by issuingPIK Notes (“PIK Interest”), or

 

•                       50% as CashInterest and 50% as PIK Interest (“Partial PIK Interest”).

 

The Company must elect the form of interestpayment with respect to each interest period by delivering a notice to theTrustee at least 10 Business Days prior to the beginning of each interestperiod.  The Trustee shall promptlydeliver a corresponding notice to the Holders. In the absence of such an election, interest on the Senior Notes will bepayable entirely in cash.  Interest forthe first interest period commencing on the Issue Date shall be payableentirely in cash.  After July 15,2011, the Company will make all interest payments on the Senior Notes entirelyin cash.

 

The Company will pay Cash Interest on theSenior Notes (except defaulted interest) on the applicable Interest PaymentDate to the Persons who are registered Holders of Senior Notes at the close ofbusiness on the January 1 and July 1 preceding the Interest PaymentDate, even if such Senior Notes are cancelled after such record date and on orbefore such Interest Payment Date, except as provided in Section 2.12of the Indenture with respect to defaulted interest.  The Senior Notes shall be payable as toprincipal, premium, if any, and interest and Additional Interest, if any, atthe office or agency of the Company maintained for such purpose within the Cityand State of New York, or, at the option of the Company, payment of interestmay be made by check mailed to the Holders at their addresses set forth in theregister of Holders;**providedthat payment by wire transfer of immediately available funds shall be requiredwith respect to principal of, premium, if any, and interest on, all GlobalNotes and all other Senior Notes the Holders of which shall have provided, atleast three Business Days prior to the applicable payment date, written wiretransfer instructions to the Company and the Paying Agent.  Such payment shall be in such coin orcurrency of the United States of America as at the time of payment is legal tenderfor payment of public and private debts.

 

Any payments of principal of this Senior Noteprior to Stated Maturity shall be binding upon all future Holders of this Noteand of any Note issued upon the registration of transfer hereof or in exchangehereof or in lieu hereof, whether or not noted hereon.  The amount due and payable at the maturity ofthis Note shall be payable only upon presentation and surrender of this Note atan office of the Trustee or the Trustee’s agent appointed for such purposes.

 

#### (3)           PayingAgent and Registrar.  Initially,DEUTSCHE BANK TRUST COMPANY AMERICAS, shall act as Paying Agent and Registrar.  The Company may change any Paying

 

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

####  

#### (4)           Indenture.  The Company issued the Senior Notes under anIndenture, dated as of June 29, 2007 (the “Indenture”), by and among Varietal Distribution Merger Sub,Inc., CDRV Investors, Inc., the Guarantors, the Trustee and the Paying Agentand Registrar.  The terms of the SeniorNotes include those stated in the Indenture and those made a part of theIndenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.Code §§ 77aaa-77bbbb) (the “TIA”).  To the extent the provisions of this SeniorNote are inconsistent with the provisions of the Indenture, the Indenture shallgovern.  The Senior Notes are subject toall such terms, and Holders are referred to the Indenture and such Act for astatement of such terms.  The SeniorNotes issued on the Issue Date are senior obligations of the Company limited to$675,000,000 in aggregate principal amount, plus amounts, if any, sufficient topay premium and interest on outstanding Senior Notes as set forth inParagraph 2 hereof.  The Indenturepermits the issuance of Additional Notes subject to compliance with certainconditions.

 

The payment of principal and interest on theSenior Notes is unconditionally guaranteed on a senior basis by the Guarantors.

 

#### (5)           Optional Redemption.

####  

(a)           TheNotes may be redeemed in whole or in part, at any time prior to July 15,2011, at the option of the Company upon not less than 30 nor more than60 days’ prior notice mailed by first-class mail to each Holder’sregistered address, at a redemption price equal to 100% of the principal amountof the Notes redeemed plus the Applicable Premium as of, and accrued and unpaidinterest and Additional Interest, if any, to, the applicable redemption date(subject to the right of Holders on the relevant record date to receiveinterest due on the relevant interest payment date).

 

(b)           TheNotes are subject to redemption, at the option of the Company, in whole or inpart, at any time on or after July 15, 2011, upon not less than 30 normore than 60 days’ notice, at the following Redemption Prices (expressed as apercentage of the principal amount to be redeemed) set forth below, plusaccrued and unpaid interest and Additional Interest, if any, to, but not including,the redemption date (subject to the right of Holders of record on the relevantregular record date to receive interest due on an interest payment date that ison or prior to the redemption date) if redeemed during the twelve-month periodbeginning on July 15 of the years indicated below:

 
| **Year**            | ** ** | **Percentage** | ** ** |
|---------------------|------------|----------------|------------|
| 2011                |       | 105.1250       | %          |
| 2012                |       | 102.5625       | %          |
| 2013 and thereafter |       | 100.0000       | %          |

 

(c)           Inaddition to the optional redemption of the Notes in accordance with the provisionsof the preceding paragraph, prior to July 15, 2010, the Company may on oneor more occasions, with the net cash proceeds of one or more Equity Offerings,redeem up to 35% of the aggregate principal amount of the outstanding Notes ata Redemption Price of 110.25% of the

 

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principal amount thereof, plus accrued andunpaid interest and Additional Interest, if any, thereon to the date ofredemption;**provided that at least 65% ofthe aggregate principal amount of Notes originally issued on the Issue Dateremains outstanding immediately after the occurrence of any such redemption(excluding Notes held by Parent and its Affiliates) and that any suchredemption occurs within 90 days following the closing of any such EquityOffering.

 

(d)           Noticeof any redemption upon an Equity Offering may be given prior to the completionof the related Equity Offering, and any such redemption or notice may, at theCompany’s discretion, be subject to one or more conditions precedent,including, but not limited to completion of the related Equity Offering.

 

#### (6)           MandatoryRedemption.  Except as set forthbelow, the Company shall not be required to make mandatory redemption orsinking fund payments with respect to the Senior Notes.

####  

If the Notes would otherwise constitute “applicablehigh yield discount obligations” within the meaning of Section 163(i)(1)of the Code, at the end of the first accrual period ending after the fifthanniversary of the Notes’ issuance (the “AHYDO redemption date”), theIssuer will be required to redeem for cash a portion of each toggle note thenoutstanding equal to the “Mandatory Principal Redemption Amount” (suchredemption, a “Mandatory Principal Redemption”).  The redemption price for the portion of eachtoggle note redeemed pursuant to a Mandatory Principal Redemption will be 100%of the principal amount of such portion plus any accrued interest thereon onthe date of redemption.  The “MandatoryPrincipal Redemption Amount” means the portion of a toggle note required tobe redeemed to prevent such toggle note from being treated as an “applicablehigh yield discount obligation” within the meaning of Section 163(i)(1) ofthe Code.  No partial redemption orrepurchase of the Notes prior to the AHYDO redemption date pursuant to anyother provision of the Indenture will alter the Issuer’s obligation to make theMandatory Principal Redemption with respect to any Notes that remain outstandingon the AHYDO redemption date.

 

#### (7)           Repurchase at Option of Holder.

####  

(a)           Uponthe occurrence of a Change of Control, each Holder will have the right torequire the Company to repurchase all or any part (equal to $2,000 or integralmultiples of $1,000 in excess thereof) of such Holder’s Senior Notes pursuantto the offer described below (the “Changeof Control Offer”) at an offer price in cash equal to 101% of theaggregate principal amount thereof plus accrued and unpaid interest and AdditionalInterest, if any, thereon to the date of purchase.  Within 30 days following any Change ofControl, the Company will mail a notice to each Holder describing thetransaction or transactions that constitute the Change of Control setting forththe procedures governing the Change of Control Offer required by the Indenture.

 

(b)           Uponthe occurrence of certain Asset Sales, the Company may be required to offer topurchase Notes.

 

(c)           Holdersof the Senior Notes that are the subject of an offer to purchase will receivenotice of an Offer to Purchase pursuant to an Asset Sale or a Change of Controlfrom the

 

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Company prior to any related purchase dateand may elect to have such Senior Notes purchased by completing the form titled“Option of Holder to Elect Purchase” appearing below.

 

#### (8)           Noticeof Redemption.  Notice of redemptionshall be mailed by first-class mail at least 30 days but not more than60 days before the redemption date to each Holder whose Senior Notes areto be redeemed at its registered address. Senior Notes in denominations larger than $2,000 may be redeemed in partbut only in minimum denominations of $2,000 and integral multiples of $1,000thereof, unless all of the Senior Notes held by a Holder are to beredeemed.  On and after the redemptiondate, interest will cease to accrue on the Senior Notes or portions hereofcalled for redemption.

####  

#### (9)           SuccessorEntity.  When a successor entityassumes, in accordance with the Indenture, all of the obligations of itspredecessor under the Notes and Indenture, and immediately before and aftersuch transaction, no Event of Default Exists and certain other conditions aresatisfied, the predecessor entity will be released from those obligations.

####  

#### (10)         Denominations,Transfer, Exchange.  The Senior Notesare in registered form without coupons in initial denominations of $2,000 andintegral multiples of $1,000 thereof. The transfer of the Senior Notes may be registered and the Senior Notesmay be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things,to furnish appropriate endorsements and transfer documents and the Company mayrequire a Holder to pay any taxes and fees required by law or permitted by theIndenture.  The Company need not exchangeor register the transfer of any Senior Note or portion of a Senior Note selectedfor redemption, except for the unredeemed portion of any Senior Note beingredeemed in part.  Also, it need notexchange or register the transfer of any Senior Notes for a period of15 days before a selection of Senior Notes to be redeemed or during theperiod between a record date and the corresponding Interest Payment Date.

####  

#### (11)         PersonsDeemed Owners.  The registered holderof a Senior Note may be treated as its owner for all purposes.

####  

#### (12)         Amendment,Supplement and Waiver.  Subject tothe following paragraphs, the Indenture and the Senior Notes may be amended orsupplemented with the consent of the Holders of at least a majority inaggregate principal amount of the outstanding Senior Notes, and any existingDefault or Event of Default or compliance with any provision of the Indentureor the Senior Notes may be waived with the consent of the Holders of a majorityin aggregate principal amount of the outstanding Senior Notes.

####  

Notwithstanding Section 9.2 ofthe Indenture, without the consent of any Holders, the Company, the Guarantors,if any, and the Trustee upon receipt of an Officers’ Certificate of no materialadverse effect to the Holders and an Opinion of Counsel, at any time and fromtime to time, may amend or supplement the Indenture for any of the followingpurposes:

 

(1)           tocure any ambiguity, mistake, defect or inconsistency;

 

(2)           toprovide for uncertificated Notes in addition to or in place of certificatedNotes;

 

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(3)           toprovide for the assumption by a Successor Company or a successor company of aGuarantor, as applicable, of the Company’s or such Guarantor’s obligationsunder the Indenture, the Notes or any Guarantee;

 

(4)           tomake any change that would provide any additional rights or benefits to theHolders of Notes or that does not adversely affect the legal rights under theIndenture of any such Holder;

 

(5)           tosecure the Notes;

 

(6)           tocomply with requirements of the Commission in order to effect or maintain thequalification of the Indenture under the TIA, as amended;

 

(7)           toadd a Guarantee of the Notes;

 

(8)           torelease a Guarantor upon its sale or designation as an Unrestricted Subsidiaryor other permitted release from its Guarantee;**providedthat such sale, designation or release is in accordance with the applicableprovisions of the Indenture; or

 

(9)           toconform the text of the Indenture, Notes or Guarantees to any provision of the “Descriptionof Notes” in the Offering Memorandum.

 

With the consent of the Holders of not lessthan a majority in aggregate principal amount of the outstanding Notes, theCompany, the Guarantors, if any, and the Trustee may amend or supplement theIndenture for the purpose of adding any provisions to or changing in any manneror eliminating any of the provisions of the Indenture or the Notes or ofmodifying in any manner the rights of the Holders under the Indenture or theNotes, including the definitions herein;**provided,however, that no such amendment or supplement shall, without the consent ofthe Holder of each outstanding Note affected thereby:

 

(1)           reducethe principal amount of Notes issued thereunder whose Holders must consent toan amendment, supplement or waiver;

 

(2)           reducethe principal of or change the fixed maturity of any Note or alter the provisionswith respect to the redemption of such Notes issued thereunder (other thanprovisions relating to Sections 3.9, 4.10 and 4.14except as set forth in item (10) below);

 

(3)           reducethe rate of or change the time for payment of interest on any Note issuedthereunder;

 

(4)           waivea Default or Event of Default in the payment of principal of, or interest orpremium, or Additional Interest, if any, on the Notes issued thereunder (excepta rescission of acceleration of such Notes issued thereunder by the holders ofat least a majority in aggregate principal amount of such Notes issuedthereunder with respect to a nonpayment default and a waiver of the paymentdefault that resulted from such acceleration);

 

(5)           makeany Note payable in money other than that stated in the Notes;

 

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(6)           makeany change in the provisions of the Indenture relating to waivers of pastDefaults or the rights of Holders of Notes to receive payments of principal of,or interest or premium or Additional Interest, if any, on such Notes issuedthereunder or impair the right of any holder of Notes to institute suit for theenforcement of any payment on or with respect to such Holder’s Notes;

 

(7)           waivea redemption payment with respect to any Note issued thereunder (other than apayment required by Sections 3.9, 4.10 and 4.14except as set forth in item (10) below);

 

(8)           makeany change in the ranking, priority or subordination provisions of any Notethat would adversely affect the Holders of such Notes;

 

(9)           modifythe Guarantees in any manner adverse to the Holders of the Notes;

 

(10)         amend,change or modify in any material respect the obligation of the Company to makeand consummate a Change of Control Offer in respect of a Change of Control thathas occurred or make and consummate an Asset Sale Offer in respect of an AssetSale that has been consummated after a requirement to make an Asset Sale Offerhas arisen; or

 

(11)         makeany change in the preceding amendment and waiver provisions.

 

The Holders of not lessthan a majority in aggregate principal amount of the outstanding Notes may onbehalf of the Holders of all the Notes waive any past Default under theIndenture and its consequences, except a Default:

 

(1)           inany payment in respect of the principal of (or premium, if any) or interest onany Notes (including any Note which is required to have been purchased pursuantto an Offer to Purchase which has been made by the Company), or

 

(2)           inrespect of a covenant or provision hereof which under the Indenture cannot bemodified or amended without the consent of the Holder of each outstanding Noteaffected.

 

It shall not be necessary for the consent ofthe Holders of Notes under Section 9.2 of the Indenture to approve theparticular form of any proposed amendment or waiver, but it shall be sufficientif such consent approves the substance thereof.

 

After an amendment, supplement or waiverunder Section 9.2 of the Indenture becomes effective, the Company shallmail to the Holders of Notes affected thereby a notice briefly describing theamendment, supplement or waiver.  Anyfailure of the Company to mail such notice, or any defect therein, shall not,however, in any way impair or affect the validity of any such amended orsupplemental Indenture or waiver.

 

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#### (13)         Defaults and Remedies.  Events of Default include:

####  

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

 

(2)           theCompany defaults in the payment when due of interest or Additional Interest, ifany, on or with respect to the Notes and such default continues for a period of30 days;

 

(3)           theCompany defaults in the performance of, or breaches any covenant, warranty orother agreement contained in, the Indenture (other than a default in the performanceor breach of a covenant, warranty or agreement which is specifically dealt within clause (1) or (2) above) and such default or breach continues for aperiod of 60 days after the notice specified below or 90 days if suchdefault is with respect to the covenant described under Section 4.3;

 

(4)           adefault under any mortgage, indenture or instrument under which there is issuedor by which there is secured or evidenced any Indebtedness for money borrowedby the Company or any Restricted Subsidiary or the payment of which isguaranteed by the Company or any Restricted Subsidiary (other than Indebtednessowed to the Company or a Restricted Subsidiary), whether such Indebtedness orguarantee now exists or is created after the Issue Date, if (A) suchdefault either (1) results from the failure to pay any such Indebtednessat its stated final maturity (after giving effect to any applicable graceperiods) or (2) relates to an obligation other than the obligation to payprincipal of any such Indebtedness at its stated final maturity and results inthe holder or holders of such Indebtedness causing such Indebtedness to becomedue prior to its stated maturity and (B) the principal amount of suchIndebtedness, together with the principal amount of any other such Indebtednessin default for failure to pay principal at stated final maturity (after givingeffect to any applicable grace periods), or the maturity of which has been soaccelerated, aggregate $25.0 million (or its foreign currency equivalent)or more at any one time outstanding;

 

(5)           thefailure by the Company or any Significant Subsidiary to pay final judgmentsaggregating in excess of $25.0 million (other than any judgments coveredby indemnities or insurance policies issued by reputable and creditworthycompanies), which final judgments remain unpaid, undischarged and unstayed fora period of more than 60 days after the applicable judgment becomes finaland non-appealable;

 

(6)           theGuarantee of Parent or a Significant Subsidiary that is a Guarantor or anygroup of Subsidiaries that are Guarantors and that, taken together as of thedate of the most recent audited financial statements of the Company, would constitutea Significant Subsidiary ceases to be in full force and effect (except ascontemplated by the terms hereof) or Parent or any Guarantor denies ordisaffirms its obligations under the Indenture or any Guarantee, other than byreason of the release of the Guarantee in accordance with the terms of theIndenture; or

 

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(7)           (i)  the Company, any Restricted Subsidiary thatis a Significant Subsidiary or any group of Restricted Subsidiaries that, takenas a whole, would constitute a Significant Subsidiary, pursuant to or withinthe meaning of any Bankruptcy Law:

 

(a)           commences a voluntary case,

 

(b)           consents to the entry of an order forrelief against it in an involuntary case,

 

(c)           consents to the appointment of acustodian of it or for all or substantially all of its property,

 

(d)           makes a general assignment for thebenefit of its creditors, or

 

(e)           generally is not paying its debts asthey become due;

 

                  (ii)          a court of competent jurisdictionenters an order or decree under any Bankruptcy Law that:

 

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

 

(b)           appoints a custodian of the Companyor any Restricted Subsidiary that is a Significant Subsidiary or any group ofRestricted Subsidiaries that, taken together, would constitute a SignificantSubsidiary or for all or substantially all of the property of the Company orany of its Restricted Subsidiaries; or

 

(c)           orders the liquidation of the Companyor any Restricted Subsidiary that is a Significant Subsidiary or any group ofRestricted Subsidiaries that, taken together, would constitute a SignificantSubsidiary and the order or decree remains unstayed and in effect for 60consecutive days.

 

If an Event of Default (other than an Eventof Default specified in clause (7) above with respect to the Company)shall occur and be continuing, the Trustee or the Holders of at least 25% in aggregateprincipal amount of the outstanding Notes may declare the principal of theNotes and any accrued interest on the Notes to be due and payable by notice inwriting to the Company and the Trustee specifying the respective Event ofDefault and that it is a “notice of acceleration” (the “Acceleration Notice”)and the same shall become immediately due and payable.

 

Upon such declaration of acceleration, theaggregate principal amount of, and accrued and unpaid interest and AdditionalInterest, if any, on all of the outstanding Notes shall ipso**facto become and be immediately due and payablewithout any declaration or other act on the part of the Trustee or any Holderof Notes.  After such acceleration, butbefore a judgment or decree based on acceleration, the Holders of a majority inaggregate principal amount of such outstanding Notes may, under certaincircumstances, rescind and annul such acceleration if all

 

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Events of Default, other than the nonpaymentof accelerated principal of or interest on such Notes, have been cured orwaived as provided in the Indenture.

 

In the event of any Event of Defaultspecified in clause (4) above, such Event of Default and all consequencesthereof (excluding, however, any resulting payment default) will be annulled,waived and rescinded, automatically and without any action by the Trustee orthe Holders of the Notes, if within 30 days after such Event of Defaultarose the Company delivers an Officers’ Certificate to the Trustee stating that(x) the Indebtedness or guarantee that is the basis for such Event ofDefault has been discharged, (y) the holders thereof have rescinded orwaived the acceleration, notice or action (as the case may be) giving rise tosuch Event of Default or (z) the default that is the basis for such Eventof Default has been cured, it being understood that in no event shall anacceleration of the principal amount of the Notes as described above be annulled,waived or rescinded upon the happening of any such events.

 

If an Event of Default specified inclause (7) above with respect to the Company occurs and is continuing,then all unpaid principal of, and premium, if any, and accrued and unpaid interestand Additional Interest, if any, on all of the outstanding Notes shall*ipso facto* become and be immediately due and payablewithout any declaration or other act on the part of the Trustee or any holderof the Notes.

 

#### (14)         TrusteeDealings with the Company.  TheTrustee, in its individual or any other capacity, may make loans to, acceptdeposits from, and perform services for the Company, the Guarantors or theirrespective Affiliates, and may otherwise deal with the Company, the Guarantorsor their respective Affiliates, as if it were not the Trustee.

####  

#### (15)         NoRecourse Against Others.  Nodirector, officer, employee, stockholder, unitholder, member, general orlimited partner or incorporator, past, present or future, of the Company, anyof its Subsidiaries or any of its direct or indirect parent companies as suchor in such capacity, shall have any personal liability for any obligations ofthe Company or any Guarantor under the Notes, any Guarantee or the Indenture byreason of his, her or its status as such director, officer, employee,stockholder, unitholder, member, general or limited partner or incorporator.

####  

#### (16)         Authentication.  This Senior Note shall not be valid untilauthenticated by the manual signature of the Trustee or an authenticatingagent.

####  

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

####  

#### (18)         CUSIPNumbers.  Pursuant to arecommendation promulgated by the Committee on Uniform SecurityIdentification Procedures, the Company has caused CUSIP numbers to be printedon the Senior Notes and the Trustee may use CUSIP numbers in notices of redemptionas a convenience to the Holders.  Norepresentation is made as to the accuracy of such numbers either as printed onthe Senior Notes or as contained in any notice of redemption and reliance maybe placed only on the other identification numbers placed thereon.

 

A-14

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#### (19)         RegistrationRights.  The Company intends toregister the notes under a registration rights agreement to be executed in connectionwith this offering.

####  

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

 

CDRV Investors, Inc. (to be renamed VWRFunding, Inc.)1310 Goshen ParkwayWest Chester, PA  19380Facsimile:  (610) 431-1700Attention:  Chief Financial Officer

 

A-15

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ASSIGNMENT FORM

 

To assign this Senior Note, fill in the formbelow:  (I) or (we) assign and transferthis Senior Note to

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address andzip code)

 

and irrevocablyappoint

 

 

 

to transfer this Senior Note onthe books of the Company.  The agent maysubstitute another to act for him.

 
| Date: |   |   |
|-------|--------|--------|

 

 
|                 | Your Signature: |                                                                  |   |
|----------------------|-----------------|-----------------------------------------------------------------------|--------|
|                 |            | (Sign exactly as your name  appears on the face of this  Senior Note) |
|                 |            |
| Signature guarantee: |            |

 

A-16

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OPTION OF HOLDER TO ELECTPURCHASE

 

If you want to elect to have this Senior Notepurchased by the Company pursuant to Section 4.10 or 4.14 ofthe Indenture, check the box below:

 

[  ] Section 4.10     [  ]Section 4.14

 

If you want to elect to have only part of theSenior Note purchased by the Company pursuant to Section 4.10 or Section 4.14of the Indenture, state the amount you elect to have purchased:  $

 
| Date: |   |   |
|-------|--------|--------|

 

 
|                    | Your Signature: |                                                    |   |
|-------------------------|-----------------|---------------------------------------------------------|--------|
|                    |            | (Sign exactly as your name  appears on the Senior Note) |
|                    |            |
| Tax Identification No.: |            |
|                    |            |
| Signature guarantee:    |            |

 

A-17

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CERTIFICATE TO BE DELIVERED UPONEXCHANGE OF TRANSFER RESTRICTED NOTES

 

CDRV Investors, Inc. (to berenamed VWR Funding, Inc.)1310 Goshen Parkway West Chester, PA  19380 Facsimile:  (610) 431-1700Attention:  Chief Financial Officer

 

Deutsche Bank Trust CompanyAmericas60 Wall Street, 27th FloorMS: NY60-2710New York, New York 10005Attention:  Trust & SecuritiesServicesFax:  (732) 380-2345

 

Re:  CUSIP #

 

Reference is hereby made to that certainIndenture dated June 29, 2007 (the “Indenture”) by and among VarietalDistribution Merger Sub, Inc., a Delaware corporation, that shall be mergedwith and into CDRV Investors, Inc. (to be renamed VWR Funding, Inc.), aDelaware corporation as the surviving corporation (the “Company”), the Guarantors partythereto and LAW DEBENTURE TRUST COMPANY OF NEW YORK, as trustee (the “Trustee”).  Capitalized terms used but not defined hereinshall have the meanings set forth in the Indenture.

 

This certificate relates to $             principal amount of Notes held in (check applicable space)              book-entry or              definitive form by the undersigned.

 

The undersigned                       (transferor) (check one box below):

 

o            herebyrequests the Registrar to deliver in exchange for its beneficial interest inthe Global Note held by the Depositary a Note or Notes in definitive,registered form of authorized denominations and an aggregate principal amountequal to its beneficial interest in such Global Note (or the portion thereofindicated above), in accordance with Section 2.6 of the Indenture;

o            herebyrequests the Trustee to exchange a Note or Notes to                     (transferee).

 

In connection with any transfer of any of theNotes evidenced by this certificate occurring prior to the expiration of theperiods referred to in Rule 144(k) under the Securities Act of 1933, asamended, the undersigned confirms that such Notes are being transferred in accordancewith its terms:

 

**CHECKONE BOX BELOW:**

 

(1)           o            to the Company or any of itssubsidiaries; or

 

(2)           o            inside the United States to a “qualifiedinstitutional buyer” (as defined in Rule 144A under the Securities Act of1933, as amended) that purchases for its own account or for the account of aqualified institutional buyer to whom notice is given that such transfer is

 

A-18

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being made in reliance onRule 144A under the Securities Act of 1933, as amended, in each casepursuant to and in compliance with Rule 144A thereunder; or

(3)           o            outside the United States inan offshore transaction within the meaning of Regulation S under theSecurities Act of 1933, as amended, in compliance with Rule 904thereunder.

 

Unless one of the boxes is checked, theRegistrar will refuse to register any of the Notes evidenced by thiscertificate in the name of any person other than the registered holder thereof.

 
|   |   |      |
|--------|--------|-----------|
|   |   | Signature |

 

 
| Signature  Guarantee: |                                                                                                    |   |
|-----------------------|---------------------------------------------------------------------------------------------------------|--------|
|                  | (Signature  must be guaranteed by a participant in a recognized signature guarantee  medallion program) |

 

TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.

 

The undersigned represents and warrants thatit is purchasing this Note for its own account or an account with respect towhich it exercises sole investment discretion and that it and any such accountis a “qualified institutional buyer” within the meaning of Rule 144A underthe Securities Act of 1933, as amended (“Rule 144A”), and is aware thatthe sale to it is being made in reliance on Rule 144A and acknowledgesthat it has received such information regarding the Company as the undersignedhas requested pursuant to Rule 144A or has determined not to request suchinformation and that it is aware that the transferor is relying upon theundersigned’s foregoing representations in order to claim the exemption fromregistration provided by Rule 144A.

 

 
|   |   | [Name of Transferee] |
|--------|--------|----------------------|
|   |   |                 |
|   |   |                 |   |
| Dated: |   |                 |   | NOTICE: To  be executed by an executive |
|   |   | officer              |
|        |        |                      |  |  |  |

 

A-19

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SCHEDULE OFEXCHANGES OF Senior Notes

 

The following exchanges of a part of thisGlobal Note for other 10.25%/11.25% Senior Notes have been made: 

 
| **Date of Exchange** | ** ** | **Amount of  Decrease in  Principal  Amount of this  Global Note** | ** ** | **Amount of  Increase in  Principal  Amount of this  Global Note** | ** ** | **Principal  Amount of this  Global Note  Following such  Decrease (or  Increase)** | ** ** | **Signature of  Authorized Officer of  Trustee of  Senior Note  Custodian** | ** ** |
|----------------------|------------|-------------------------------------------------------------------------|------------|--------------------------------------------------------------------|------------|-------------------------------------------------------------------------------------|------------|-----------------------------------------------------------------------------|------------|
| ** **           | ** ** | ** **                                                              | ** ** | ** **                                                         | ** ** | ** **                                                                          | ** ** | ** **                                                                  | ** ** |
| ** **           | ** ** | ** **                                                              | ** ** | ** **                                                         | ** ** | ** **                                                                          | ** ** | ** **                                                                  | ** ** |
| ** **           | ** ** | ** **                                                              | ** ** | ** **                                                         | ** ** | ** **                                                                          | ** ** | ** **                                                                  | ** ** |

 

A-20

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EXHIBIT B

 

FORM OF NOTATIONAL GUARANTEE

 

The Guarantors listed below (hereinafterreferred to as the “Guarantors,” which term includes any successors orassigns under that certain Indenture, dated as of June 29, 2007 (asamended and supplemented from time to time, the “Indenture”), by andamong Varietal Distribution Merger Sub, Inc., a Delaware corporation, thatshall be merged with and into CDRV Investors, Inc. (to be renamed VWR Funding,Inc.), a Delaware corporation as the surviving corporation (the “Company”), the Guarantors partythereto, the Trustee and the Registrar and Paying Agent, have guaranteed theNotes and the obligations of the Company under the Indenture, which include(i) the due and punctual payment of the principal of, premium, if any, andinterest on the 10.25%/11.25% Senior Notes due 2015 (the “Notes”) of theCompany, whether at stated maturity, by acceleration or otherwise, the due andpunctual payment of interest on the overdue principal and premium, if any, and(to the extent permitted by law) interest on any interest, if any, on theNotes, and the due and punctual performance of all other obligations of theCompany to the Holders or the Trustee all in accordance with the terms setforth in Article XI of the Indenture, and (ii) in case of any extensionof time of payment or renewal of any Notes or any such other obligations, thatthe same will be promptly paid in full when due or performed in accordance withthe terms of the extension or renewal, whether at stated maturity, by accelerationor otherwise.

 

The obligations of each Guarantor to theHolders and to the Trustee pursuant to this Guarantee and the Indenture areexpressly set forth in Article XI of the Indenture and reference is herebymade to such Indenture for the precise terms of this Guarantee.

 

No stockholder, employee, officer, director,unitholder, member or incorporator, as such, past, present or future of eachGuarantor shall have any liability under this Guarantee by reason of his or itsstatus as such stockholder, employee, officer, director, unitholder, member orincorporator.

 

This is a continuing Guarantee and shallremain in full force and effect and shall be binding upon each Guarantor andits successors and assigns until full and final payment of all of the Company’sobligations under the Notes and Indenture or until released in accordance withthe Indenture and shall inure to the benefit of the successors and assigns ofthe Trustee and the Holders, and, in the event of any transfer or assignment ofrights by any Holder or the Trustee, the rights and privileges herein conferredupon that party shall automatically extend to and be vested in such transfereeor assignee, all subject to the terms and conditions hereof.  This is a Guarantee of payment and not ofcollection.

 

This Guarantee shall not be valid orobligatory for any purpose until the certificate of authentication on the Noteupon which this Guarantee is noted shall have been executed by the Trusteeunder the Indenture by the manual signature of one of its authorizedofficers.  The Obligations of eachGuarantor under its Guarantee shall be limited to the extent necessary toinsure that it does not constitute a fraudulent conveyance under applicablelaw.

 

B-1

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THE TERMS OF ARTICLE XI OF THE INDENTUREARE INCORPORATED HEREIN BY REFERENCE.

 

Capitalized terms used herein have the samemeanings given in the Indenture unless otherwise indicated.

 
| Dated as of |        |   |   |
|-------------|-------------|--------|--------|
|        |        |
|        | [Guarantor] |
|        |        |
|        | By:         |   |   |
|        |        | Name:  |
|        |        | Title: |
|        |        |
|        | (SEAL)      |

 

B-2

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EXHIBIT C

 

[FORM OF CERTIFICATE TO BE DELIVEREDIN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]

 

CDRV Investors, Inc. (to berenamed VWR Funding, Inc.)1310 Goshen Parkway West Chester, PA  19380 Facsimile:  (610) 431-1700Attention:  Chief Financial Officer

 

Law Debenture Trust Company ofNew York400 Madison Avenue, 4th FloorNew York, New York 10017Facsimile:  (212) 750-1361Attention:  Corporate Trust Services

 

Re: CDRV Investors, Inc. (to be renamed VWR Funding, Inc.) (the “Company”)10.25%/11.25%% Senior Notes due 2015 (the “Notes”)

 

Ladies and Gentlemen:

 

In connection with ourproposed sale of $             aggregate principal amount at maturity of the Notes, we hereby certify thatsuch transfer is being effected pursuant to and in accordance withRule 144A (“Rule 144A”) under the United States Securities Act of1933, as amended (the “SecuritiesAct”), and, accordingly, we hereby further certify that the Notesare being transferred to a person that we reasonably believe is purchasing theNotes for its own account, or for one or more accounts with respect to whichsuch person exercises sole investment discretion, and such person and each suchaccount is a “qualified institutional buyer” within the meaning ofRule 144A in a transaction meeting the requirements of Rule 144A andsuch Notes are being transferred in compliance with any applicable blue skysecurities laws of any state of the United States.

 

You and the Company are entitled to rely uponthis letter and are irrevocably authorized to produce this letter or a copyhereof to any interested party in any administrative or legal proceedings orofficial inquiry with respect to the matters covered hereby.

 
|                 | Very truly yours,    |
|----------------------|----------------------|
|                 |                 |
|                 |                 |   |
|                 | [Name of Transferor] |
|                 |                 |
| By:                  |                 |   |   |
| Authorized Signature |                 |
|                      |                      |  |  |  |

 

C-1

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EXHIBIT D

 

[FORM OF CERTIFICATE TO BE DELIVEREDIN CONNECTION WITH TRANSFERSPURSUANT TO REGULATION S]

 

CDRV Investors, Inc. (to berenamed VWR Funding, Inc.)1310 Goshen ParkwayWest Chester, PA  19380Facsimile:  (610) 431-1700Attention:  Chief Financial Officer

 

Law Debenture Trust Company ofNew York400 Madison Avenue, 4th FloorNew York, New York 10017Facsimile:  (212) 750-1361Attention:  Corporate Trust Services

 

 Re: CDRV Investors, Inc. (to be VWR Funding, Inc.). (the “Company”)10.25%/11.25% Senior Notes due 2015 (the “Notes”)

 

Ladies and Gentlemen:

 

In connection with our proposed sale of $                     aggregateprincipal amount of the Notes, we confirm that such sale has been effectedpursuant to and in accordance with Regulation S under the U.S. SecuritiesAct of 1933, as amended (the “SecuritiesAct”), and, accordingly, we represent that:

 

(1)           theoffer of the Notes was not made to a person in the United States;

 

(2)           either(a) at the time the buy order was originated, the transferee was outsidethe United States or we and any person acting on our behalf reasonably believedthat the transferee was outside the United States or (b) the transactionwas executed in, on or through the facilities of a designated off-shoresecurities market and neither we nor any person acting on our behalf knows thatthe transaction has been pre-arranged with a buyer in the United States;

 

(3)           nodirected selling efforts have been made in the United States in contraventionof the requirements of Rule 903(b) or Rule 904(b) ofRegulation S, as applicable; and

 

(4)           thetransaction is not part of a plan or scheme to evade the registration requirementsof the Securities Act.

 

In addition, if the sale is made during arestricted period and the provisions of Rule 903(b) or Rule 904(b) ofRegulation S are applicable thereto, we confirm that such sale has beenmade in accordance with the applicable provisions of Rule 903(b) orRule 904(b), as the case may be.

 

D-1

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The Company and you are entitled to rely uponthis letter and are irrevocably authorized to produce this letter or a copyhereof to any interested party in any administrative or legal proceedings orofficial inquiry with respect to the matters covered hereby.  Terms used in this certificate have themeanings set forth in Regulation S.

 
|   | Very truly yours,    |
|--------|----------------------|
|   |                 |
|   |                 |   |
|   | [Name of Transferor] |
|   |                 |
|   |                 |   | By: |   |   |
|   | Authorized Signature |
|        |                      |  |  |  |  |

 

D-2

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