**Exhibit 4.7(a)**

 

 

VARIETAL DISTRIBUTION MERGER SUB, INC.

 

 

VWR FUNDING, INC. (formerly known as CDRVINVESTORS, INC.)

 

 

as Issuer

 

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US$353,335,000.00

 

10.75% SENIOR SUBORDINATED NOTESDUE 2017

 

€125,000,000.00

 

10.75% SENIOR SUBORDINATED NOTESDUE 2017

 

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INDENTURE

 

DATED AS OF JUNE 29, 2007

 

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LAW DEBENTURE TRUST COMPANY OF NEW YORK

 

Trustee

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

 

Registrar and Paying-Agent

 

DEUTSCHE BANK AG, LONDON BRANCH

 

Common Depositary and Paying-Agent

 

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CROSS-REFERENCE TABLE*

 
| **Trust Indenture** | ** **          | ** **            |
|---------------------|---------------------|-----------------------|
| **Act Section**     | ** **          | **Indenture Section** |
| 310                 | (a)(1)              |                  | 7.10 |
|                | (a)(2)              |                  | 7.10 |
|                | (a)(3)              |                  | N.A. |
|                | (a)(4)              |                  | N.A. |
|                | (a)(5)              |                  | 7.10 |
|                | (b)                 |                  | 7.3; 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 |
|                | (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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*  ThisCross-Reference Table is not part of the Indenture.

 

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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                                  | 45       |
| SECTION 1.3                                | Incorporation by Reference of Trust  Indenture Act | 46       |
| SECTION 1.4                                | Rules of Construction                              | 46       |
| SECTION 1.5                                | Certain Calculations                               | 47       |
|                                       |                                               |     |
| ARTICLE II                                 |                                               |
|                                       |                                               |     |
| THE NOTES                                  |                                               |
|                                       |                                               |     |
| SECTION 2.1                                | Form and Dating                                    | 47       |
| SECTION 2.2                                | Execution and Authentication                       | 50       |
| SECTION 2.3                                | Registrar; Paying Agent                            | 51       |
| SECTION 2.4                                | Paying Agent to Hold Money in Trust                | 52       |
| SECTION 2.5                                | Holder Lists                                       | 52       |
| SECTION 2.6                                | Transfer and Exchange                              | 52       |
| SECTION 2.7                                | Replacement Notes                                  | 65       |
| SECTION 2.8                                | Outstanding Notes                                  | 65       |
| SECTION 2.9                                | Treasury Notes                                     | 66       |
| SECTION 2.10                               | Temporary Notes                                    | 66       |
| SECTION 2.11                               | Cancellation                                       | 66       |
| SECTION 2.12                               | Defaulted Interest                                 | 66       |
| SECTION 2.13                               | Record Date                                        | 67       |
| SECTION 2.14                               | Computation of Interest                            | 67       |
| SECTION 2.15                               | CUSIP Numbers, ISIN Numbers and Common  Codes      | 67       |
|                                       |                                               |     |
| ARTICLE III                                |                                               |
|                                       |                                               |     |
| REDEMPTION AND PREPAYMENT                  |                                               |
|                                       |                                               |     |
| SECTION 3.1                                | Notices to Trustee                                 | 67       |
| SECTION 3.2                                | Selection of Notes to Be Redeemed                  | 68       |
| SECTION 3.3                                | Notice of Redemption                               | 69       |
| SECTION 3.4                                | Effect of Notice of Redemption                     | 70       |
| SECTION 3.5                                | Deposit of Redemption of Purchase Price            | 70       |
| SECTION 3.6                                | Notes Redeemed in Part                             | 71       |
| SECTION 3.7                                | Optional Redemption                                | 71       |

 

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| SECTION 3.8           | Mandatory Redemption                                                           | 72     |
|-----------------------|--------------------------------------------------------------------------------|--------|
| SECTION 3.9           | Offers to Repurchase by Application of  Excess Proceeds                        | 73     |
|                  |                                                                           |   |
| ARTICLE IV            |                                                                           |
|                  |                                                                           |   |
| COVENANTS             |                                                                           |
|                  |                                                                           |   |
| SECTION 4.1           | Payment of Notes                                                               | 75     |
| SECTION 4.2           | Maintenance of Office or Agency                                                | 76     |
| SECTION 4.3           | Reports                                                                        | 76     |
| SECTION 4.4           | Compliance Certificate                                                         | 78     |
| SECTION 4.5           | Taxes                                                                          | 78     |
| SECTION 4.6           | Stay, Extension and Usury Laws                                                 | 78     |
| SECTION 4.7           | Limitation on Restricted Payments                                              | 79     |
| SECTION 4.8           | Limitation on Dividends and Other Payment  Restrictions Affecting Subsidiaries | 87     |
| SECTION 4.9           | Limitation on Incurrence of Indebtedness  and Issuance of Preferred Stock      | 90     |
| SECTION 4.10          | Limitation on Asset Sales                                                      | 96     |
| SECTION 4.11          | Limitation on Transactions with Affiliates                                     | 98     |
| SECTION 4.12          | Limitation on  Liens                                                           | 100    |
| SECTION 4.13          | Payments for Consent                                                           | 101    |
| SECTION 4.14          | Offer to Purchase upon Change of Control                                       | 101    |
| SECTION 4.15          | Corporate Existence                                                            | 104    |
| SECTION 4.16          | Business Activities                                                            | 104    |
| SECTION 4.17          | Additional Guarantees                                                          | 104    |
| SECTION 4.18          | Limitation on Layering                                                         | 105    |
| SECTION 4.19          | [Reserved]                                                                     | 105    |
| SECTION 4.20          | Further Instruments and Acts                                                   | 105    |
| SECTION 4.21          | Changes in Covenants Upon Change in Ratings                                    | 105    |
|                  |                                                                           |   |
| ARTICLE V             |                                                                           |
|                  |                                                                           |   |
| SUCCESSORS            |                                                                           |
|                  |                                                                           |   |
| SECTION 5.1           | Merger, Consolidation or Sale of Assets                                        | 106    |
| SECTION 5.2           | Successor Corporation Substituted                                              | 108    |
|                  |                                                                           |   |
| ARTICLE VI            |                                                                           |
|                  |                                                                           |   |
| DEFAULTS AND REMEDIES |                                                                           |
|                  |                                                                           |   |
| SECTION 6.1           | Events of Default                                                              | 108    |
| SECTION 6.2           | Acceleration                                                                   | 110    |
| SECTION 6.3           | Other Remedies                                                                 | 112    |

 

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| SECTION 6.4                            | Waiver of Past Defaults                                                                        | 113    |
|----------------------------------------|------------------------------------------------------------------------------------------------|--------|
| SECTION 6.5                            | Control by Majority                                                                            | 113    |
| SECTION 6.6                            | Limitation on  Suits                                                                           | 113    |
| SECTION 6.7                            | Rights of Holders of Notes to Receive  Payment                                                 | 114    |
| SECTION 6.8                            | Collection Suit by Trustee                                                                     | 114    |
| SECTION 6.9                            | Trustee May File Proofs of Claim                                                               | 114    |
| SECTION 6.10                           | Priorities                                                                                     | 115    |
| SECTION 6.11                           | Undertaking for Costs                                                                          | 115    |
|                                   |                                                                                           |   |
| ARTICLE VII                            |                                                                                           |
|                                   |                                                                                           |   |
| TRUSTEE                                |                                                                                           |
|                                   |                                                                                           |   |
| SECTION 7.1                            | Duties of Trustee                                                                              | 116    |
| SECTION 7.2                            | Rights of Trustee                                                                              | 117    |
| SECTION 7.3                            | Individual Rights of Trustee                                                                   | 118    |
| SECTION 7.4                            | Trustee’s Disclaimer                                                                      | 119    |
| SECTION 7.5                            | Notice of Defaults                                                                             | 119    |
| SECTION 7.6                            | Reports by Trustee to Holders of the Notes                                                     | 119    |
| SECTION 7.7                            | Compensation and Indemnity                                                                     | 119    |
| SECTION 7.8                            | Replacement of Trustee                                                                         | 120    |
| SECTION 7.9                            | Successor Trustee by Merger, Etc                                                               | 121    |
| SECTION 7.10                           | Eligibility; Disqualification                                                                  | 122    |
| SECTION 7.11                           | Preferential Collection of Claims Against  the Company                                         | 122    |
| SECTION 7.12                           | Trustee’s Application for Instructions from  the Company                                  | 122    |
|                                   |                                                                                           |   |
| ARTICLE VIII                           |                                                                                           |
|                                   |                                                                                           |   |
| DEFEASANCE; DISCHARGE OF THE INDENTURE |                                                                                           |
|                                   |                                                                                           |   |
| SECTION 8.1                            | Option to Effect Legal Defeasance or  Covenant Defeasance                                      | 122    |
| SECTION 8.2                            | Legal Defeasance                                                                               | 123    |
| SECTION 8.3                            | Covenant Defeasance                                                                            | 123    |
| SECTION 8.4                            | Conditions to Legal or Covenant Defeasance                                                     | 124    |
| SECTION 8.5                            | Deposited Money and Government Securities  to Be Held in Trust; Other Miscellaneous Provisions | 125    |
| SECTION 8.6                            | Repayment to Company                                                                           | 126    |
| SECTION 8.7                            | Reinstatement                                                                                  | 126    |
| SECTION 8.8                            | Discharge                                                                                      | 127    |
|                                   |                                                                                           |   |
| ARTICLE IX                             |                                                                                           |
|                                   |                                                                                           |   |
| AMENDMENT, SUPPLEMENT AND WAIVER       |                                                                                           |
|                                   |                                                                                           |   |
| SECTION 9.1                            | Without Consent of Holders of the Notes                                                        | 128    |

 

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| SECTION 9.2     | With Consent of Holders of Notes                                                       | 129    |
|-----------------|----------------------------------------------------------------------------------------|--------|
| SECTION 9.3     | Compliance with Trust Indenture Act                                                    | 130    |
| SECTION 9.4     | Revocation and Effect of Consents                                                      | 130    |
| SECTION 9.5     | Notation on or Exchange of Notes                                                       | 131    |
| SECTION 9.6     | Trustee to Sign Amendments, Etc                                                        | 131    |
|            |                                                                                   |   |
| ARTICLE X       |                                                                                   |
|            |                                                                                   |
| SUBORDINATION   |                                                                                   |
|            |                                                                                   |   |
| SECTION 10.1    | Agreement To Subordinate                                                               | 131    |
| SECTION 10.2    | Liquidation,  Dissolution, Bankruptcy                                                  | 132    |
| SECTION 10.3    | Default on Designated Senior Indebtedness  of the Company                              | 132    |
| SECTION 10.4    | Acceleration of Payment of Securities                                                  | 134    |
| SECTION 10.5    | When Distribution Must Be Paid Over                                                    | 134    |
| SECTION 10.6    | Subrogation                                                                            | 134    |
| SECTION 10.7    | Relative Rights                                                                        | 134    |
| SECTION 10.8    | Subordination May Not Be Impaired by  Company                                          | 134    |
| SECTION 10.9    | Rights of Trustee and Paying Agent                                                     | 135    |
| SECTION 10.10   | Distribution or Notice to Representative                                               | 135    |
| SECTION 10.11   | Article X Not To Prevent Events of Default  or Limit Right To Accelerate               | 135    |
| SECTION 10.12   | Trust Moneys Not Subordinated                                                          | 135    |
| SECTION 10.13   | Trustee Entitled To Rely                                                               | 136    |
| SECTION 10.14   | Trustee To Effectuate Subordination                                                    | 136    |
| SECTION 10.15   | Trustee Not Fiduciary for Holders of Senior  Indebtedness of the Company               | 136    |
| SECTION 10.16   | Reliance by Holders of Senior Indebtedness  of the Company on Subordination Provisions | 136    |
|            |                                                                                   |   |
| ARTICLE XI      |                                                                                   |
|            |                                                                                   |   |
| NOTE GUARANTEES |                                                                                   |
|            |                                                                                   |   |
| SECTION 11.1    | Guarantees                                                                             | 137    |
| SECTION 11.2    | Execution and Delivery of Guarantee                                                    | 138    |
| SECTION 11.3    | Severability                                                                           | 139    |
| SECTION 11.4    | Limitation of Guarantors’ Liability                                               | 139    |
| SECTION 11.5    | Guarantors May Consolidate, Etc., on  Certain Terms                                    | 139    |
| SECTION 11.6    | Releases Following Sale of Assets                                                      | 140    |
| SECTION 11.7    | Release of a Guarantor                                                                 | 141    |
| SECTION 11.8    | Benefits Acknowledged                                                                  | 141    |
| SECTION 11.9    | Future Guarantors                                                                      | 141    |

 

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| ARTICLE XII      |                                                                        |
|------------------|-----------------------------------------------------------------------------|
|             |                                                                        |   |
| MISCELLANEOUS    |                                                                        |
|             |                                                                        |   |
| SECTION 12.1     | Trust Indenture Act Controls                                                | 142 |
| SECTION 12.2     | Notices                                                                     | 142 |
| SECTION 12.3     | Communication by Holders of Notes with  Other Holders of Notes              | 144 |
| SECTION 12.4     | Certificate and Opinion as to Conditions  Precedent                         | 144 |
| SECTION 12.5     | Statements Required in Certificate or  Opinion                              | 144 |
| SECTION 12.6     | Rules by Trustee and Agents                                                 | 145 |
| SECTION 12.7     | No Personal Liability of Directors,  Officers, Employees and Stockholders   | 145 |
| SECTION 12.8     | Governing Law                                                               | 145 |
| SECTION 12.9     | No Adverse Interpretation of Other  Agreements                              | 145 |
| SECTION 12.10    | Successors                                                                  | 145 |
| SECTION 12.11    | Severability                                                                | 145 |
| SECTION 12.12    | Counterpart Originals                                                       | 146 |
| SECTION 12.13    | Table of Contents, Headings, Etc                                            | 146 |
| SECTION 12.14    | Acts of Holders                                                             | 146 |
| SECTION 12.15    | Currency of Account; Conversion of Currency;  Foreign Exchange Restrictions | 147 |
|             |                                                                        |   |
| EXHIBITS         |                                                                        |   |
|             |                                                                        |   |
| Exhibit A-1 | FORM OF  US$ DENOMINATED NOTE                                     |   |
| Exhibit A-2 | FORM OF  EUR DENOMINATED NOTE                                          |   |
| Exhibit B   | FORM OF  NOTATIONAL GUARANTEE                                          |   |
| Exhibit C   | FORM OF  CERTIFICATE OF TRANSFER                                       |   |
| Exhibit D   | FORM OF  CERTIFICATE OF EXCHANGE                                       |   |
| Exhibit E   | FORM OF  SUPPLEMENTAL  INDENTURE TO BE DELIVERED BY FUTURE GUARANTORS  |   |

 

v

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This Indenture, dated as of June 29, 2007 is by and among VarietalDistribution Merger Sub, Inc., a Delaware corporation that shall be merged withand into CDRV Investors, Inc., a Delaware corporation as the survivingcorporation and being renamed VWR Funding, Inc. (the “*Company*”),Law Debenture Trust Company of New York, as trustee (the “*Trustee*”),Deutsche Bank Trust Company Americas as registrar and paying-agent and DeutscheBank AG, London Branch, as paying-agent and depositary.

 

The Company,Varietal Distribution Merger Sub, Inc., each Guarantor and the Trustee agree asfollows for the benefit of each other and for the equal and ratable benefit ofthe holders of the Company’s 10.75% Senior Subordinated Notes due 2017 issuedon the date hereof (the “*Notes*”) in twotranches:  EUR Denominated Notes and US$Denominated Notes (each as defined below). On or after the date hereof,Varietal Distribution Merger Sub, Inc. shall be merged with and into CDRVInvestors, Inc., with CDRV Investors, Inc. continuing as the survivingcorporation, assuming all of the obligations of Varietal Distribution MergerSub, Inc. under this Indenture, and changing its name into VWR Funding, Inc.:

 

ARTICLE IDEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.1         Definitions.

 

“*Acquired Debt*” means, with respect to any 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 that certain agreement and planof merger, dated as of May 2, 2007, between Varietal Distribution Merger Sub,Inc., Parent, and CDRV Investors, Inc., as amended by the First Amendment toAgreement and Plan of Merger dated May 7, 2007 and the Second Amendment toAgreement and Plan of Merger dated May 30, 2007and as further amended, modifiedand/or supplemented from time to time in accordance with the terms thereof,pursuant to which Varietal Distribution merger Sub, Inc. has agreed to mergewith and into the Company, with the Company surviving such merger and changingits name to VWR Funding, Inc.

 

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

 

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

 

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

 

“*Applicable Currency Equivalent*” means,with respect to any monetary amount in a currency other than U.S. dollars, inthe case of the US$ Denominated Notes, or euros, in the case of the EURDenominated Notes, at any time for the determination thereof, the amount ofU.S. dollars or euros, as applicable, obtained by converting such foreigncurrency involved in such computation into U.S. dollars or euros, asapplicable, at the spot rate for the purchase of U.S. dollars or euros, asapplicable, with the applicable foreign currency as published in*The Wall Street Journal* in the “Exchange Rates” columnunder the heading “Currency Trading” on the date not more than two BusinessDays prior to such determination.

 

“*Applicable Premium*” means, with respect to any Note on anyapplicable redemption date, the greater of:

 

(c)           1.0% of the Current Accretion Amountof such Note; and

 

(d)           the excess, if any, of (x) thepresent value at such redemption date of (i) the redemption price at June30, 2012 (such redemption price being set forth in Section 3.7)plus (ii) all required interest payments due on the Notes through June 30,2012 (excluding accrued but unpaid interest to the date of redemption) computedusing a discount rate equal to the Benchmark Rate as of such redemption dateplus 50 basis points; over (y) the then outstanding Current Accretion Amount ofthe Notes.

 

“*Applicable Procedures*” means, with respectto any transfer or exchange of or for beneficial interests in any Global Note,the rules and procedures of the US$ Depositary, Euroclear and/or Clearstreamthat apply to such transfer or exchange.

 

“*Asset Sale*” means (i) the sale, conveyance, transfer,lease (as lessor) or other voluntary disposition (whether in a singletransaction 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 RestrictedSubsidiary (whether in a single transaction or a series of related transactions),in each case, 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

 

2

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or inventory (or other assets) held for sale in theordinary course of business and dispositions of property no longer used oruseful in the conduct of the business of the Company and its RestrictedSubsidiaries or the disposition of inventory in the ordinary course ofbusiness;

 

(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 ofControl;

 

(c)           the making of any Restricted Paymentor Permitted Investment that is permitted to be made, and is made, pursuant to Section 4.7or 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;

 

(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 that is aWholly Owned Restricted Subsidiary or a Guarantor;

 

(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 transfers byreason 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 pursuantto Section 4.9;

 

(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;

 

3

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(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) property acquired notmore than 180 days prior to such Sale and Lease Back Transaction for cash in anamount at least equal to the cost of such property and (iii) other property forcash consideration if the sale is treated as an Asset Sale.

 

“*Appropriate Trust Funds*” means, inconnection with a defeasance or discharge of the Notes: (a) with respect to theUS$ Denominated Notes, cash in U.S. dollars, non-callable U.S. GovernmentSecurities, or a combination of cash in U.S. dollars and non-callable U.S.Government Securities and (b) with respect to the EUR Denominated Notes, cashin EUR, non-callable Euro Obligations, or a combination of cash in EUR andnon-callable Euro Obligations.

 

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

 

“*Benchmark Rate*” means (x) the TreasuryRate with respect to US$ Denominated Notes and (y) the Bund Rate with respectto EUR Denominated Notes.

 

“*Beneficial Owner*” has the meaning assigned to such term inRule 13d-3 and Rule 13d-5 under the Exchange Act, except that incalculating the beneficial ownership of any particular “person” (as that termis used in Section 13(d)(3) of the Exchange Act), such “person” will bedeemed to have beneficial ownership of all securities that such “person” hasthe 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;

 

4

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(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 resolution certified bythe Secretary or an Assistant Secretary of the Company or any RestrictedSubsidiary to have been duly adopted by the Board of Directors, unless thecontext specifically requires that such resolution be adopted by a majority ofthe Disinterested Directors, in which case by a majority of such directors, andto be in full force and effect on the date of such certification and deliveredto the Trustee.

 

“*Broker-Dealer*” has the meaning set forthin the Registration Rights Agreement.

 

“*Bund Rate*” means, as of the applicableredemption date, the yield to maturity as of such redemption date of direct obligationsof the Federal Republic of Germany (Bunds or Bundesanleihen) with a constantmaturity (as compiled and published in the most recent financial statistics)that has become publicly available at least two Business Days prior to theredemption date (or, if such financial statistics are no longer published, anypublicly available source of similar market data)) most nearly equal to theperiod from the redemption date to June 30, 2012; *provided*, *however*,that if the period from such redemption date to June 30, 2012 is less thanone year, the weekly average yield on actually traded direct obligations of theFederal Republic of Germany adjusted to a constant maturity of one year will beused.

 

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

 

“*Calculation Date*” has the meaning set forth in thedefinition 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 participation thatconfers on a Person the right to receive a share of the profits and losses of,or distributions of assets, of the issuing Person.

 

“*Capitalized Lease Obligation*” means, at the time anydetermination thereof is to be made, the amount of the liability in respect ofa capital lease that would at such time be required to be capitalized andreflected as a liability on a balance sheet (excluding the footnotes thereto)

 

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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 Equivalents*” means:

 

(a)           U.S. dollars;

 

(b)           (i)            Sterling, Singapore Dollars, SwedishKroner, Canadian Dollars, euro, or any national currency of any participatingmember state of the economic and monetary union contemplated by the Treaty onEuropean Union; or

 

(ii)           in the case of the Company or aRestricted Subsidiary, such local currencies held by it from time to time inthe 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 under theCredit Agreement or an Affiliate thereof or (ii) any commercial bank havingcapital and surplus of not less than $250 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) above enteredinto with any financial institution meeting the qualifications specified inclause (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 eitherMoody’s or S&P, respectively (or, if at any time neither Moody’s norS&P shall be rating such obligations, an equivalent rating from anotherRating Agency) and in each case maturing within 24 months after the date ofcreation thereof;

 

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

 

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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 equivalent thereof)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 (1) through (l) or other high quality short termin-vestments, 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) aspromptly as practicable and in any event within ten Business Days following thereceipt of such amounts.

 

“*Cash Pooling Arrangements*” means a deposit accountarrangement among a single depository institution, the Company and one or moreForeign Subsidiaries involving the pooling of cash deposits in and overdraftsin respect of one or more deposit accounts (each located outside of the UnitedStates and any States and territories thereof) with such institution by theCompany and such Foreign Subsidiaries for cash management purposes.

 

“*Certificated EUR Denominated Note*” means a certificated EURDenominated Note registered in the name of the Holder thereof and issued inaccordance with Section 2.6(c) hereof, substantially in the form ofExhibit A-2 hereto, except that such EUR Denominated Note shall notbear the Global Note Legend and shall not have the “Schedule of Exchanges of10.75% Senior Subordinated Notes” attached thereto.

 

“*Certificated Notes*” means Notes that are in the form of Exhibit A-1(in the case of the US$ Denominated Notes) attached hereto or Exhibit A-2(in the case of EUR Denominated Notes) attached hereto, in each case, otherthan Global Notes.

 

“*Certificated US$ Denominated Note*” means a certificated US$Denominated Note registered in the name of the Holder thereof and issued inaccordance with Section 2.6(c) hereof, substantially in the form ofExhibit A-1 hereto, except that such US$ Denominated Note shall

 

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notbear the Global Note Legend and shall not have the “Schedule of Exchanges of10.75% Senior Subordinated Notes” attached thereto.

 

“*Change of Control*” means the occurrence of any of thefollowing:

 

(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)           any transaction or event, the resultof which is that (i) prior to a Qualified Public Offering, Permitted Holdersown, beneficially and of record, directly or indirectly, capital stockrepresenting 50% or less of the total voting power of the Voting Stock ofParent or (ii) on or after Qualified Public Offering, (x) a Person or a group(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the ExchangeAct, or any successor provision), including any group acting for the purpose ofacquiring, holding or disposing of securities (within the meaning of Rule13d-5(b)(1) under the Exchange Act), other than the Permitted Holders, in asingle transaction or in a related series of transactions, by way of merger,consolidation or other business combination or purchase of Beneficial Ownership,directly or indirectly, owns 35% or more of the total voting power of theVoting Stock of the Company or any of its direct or indirect parent entities,including, without limitation, Parent and (y) the Permitted Holders do not ownbeneficially and of record, directly or indirectly, Capital Stock representing,a greater percentage of the voting power of Parent than the Person or groupreferred to in clause (x) above ; 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 an offer to purchase requiredto be made by the Company pursuant to Section 4.14 to all Holders.

 

“*Clearstream*” means Clearstream BankingS.A. and any successor thereto.

 

“*Code*” means the United States Internal Revenue Code of 1986,as amended from time to time, and the regulations promulgated and rulingsissued thereunder. Section references to the Code are to the Code as in effecton the Issue Date and any subsequent provisions of the Code amendatory thereof,supplemental thereto or substituted therefor.

 

“*Commission*” means the U.S. Securities and ExchangeCommission.

 

“*Common Depositary*” means a depositarycommon to Euroclear and Clearstream, being initially the Person specified inSection 2.3 as Common Depositary, until a successor Common Depositary, if any,shall have become such pursuant to Section 2.3, and thereafter CommonDepositary shall mean or include each Person who is then a Common Depositary hereunder.

 

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“*Common Stock*” of any Person means Capital Stock in suchPerson that do not rank prior, as to the payment of dividends or as to thedistribution of assets upon any voluntary or involuntary liquidation,dissolution or winding up of such Person, to Capital Stock of any other classin such Person.

 

“*Company*” means initially, Varietal Distribution Merger Sub,Inc. and, upon consummation of the merger contemplated by the AcquisitionAgreement, CDRV Investors, Inc. (to be renamed VWR Funding, Inc.), and anysuccessor thereto.

 

“*Consolidated Depreciation and Amortization Expense*” means,with respect to any Person for any period, the total amount of depreciation andamortization expense, including the amortization of deferred financing fees,and other non-cash charges (excluding any non-cash item that represents anaccrual or reserve for a cash expenditure for a future period) of such Personand its Restricted Subsidiaries for such period on a consolidated basis andotherwise determined in accordance with GAAP.

 

“*Consolidated Indebtedness*” shall mean, asof any date of determination, the sum, without duplication, of (a) the totalamount of Indebtedness under clauses (a)(i), (a)(ii), (a)(iii)(but, in the case of clause (iii), only to the extent of anyunreimbursed drawings thereunder) and (a)(iv) of the definition thereofof the Company and its Restricted Subsidiaries, plus (b) the greater of theaggregate liquidation value and maximum fixed repurchase price without regardto any change of control or redemption premiums of all Disqualified Stock ofthe Company and the Guarantors and all Preferred Stock of its RestrictedSubsidiaries that are not Guarantors, in each case, as determined on aconsolidated basis in accordance with GAAP.

 

“*Consolidated Interest Expense*” means, with respect to anyPerson 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, discounts andother 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) net payments, ifany, 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 (x) amortization of deferred financing fees, debt issuance costs,commissions, fees and expenses, (y) any expensing of bridge, commitment andother financing fees and (z) commissions, discounts, yield and other fees andcharges (including any interest expense) related to any Receivables Facility); *plus*

 

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(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 purposesof this definition, interest on a Capitalized Lease Obligation shall be deemedto accrue at an interest rate reasonably determined by the Company to be therate of interest implicit in such Capitalized Lease Obligation in accordancewith GAAP.

 

“*Consolidated Net In**come*” 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)           anypro forma after-tax effect (using a reasonable estimate based on applicable taxrates) of extraordinary, non-recurring or unusual gains or losses (less allfees and expenses 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)           theNet Income for such period shall not include the cumulative effect of a changein accounting principles during such period,

 

(c)           anypro forma after-tax effect (using a reasonable estimate based on applicable taxrates) of income (loss) from disposed or discontinued operations and any netafter-tax gains or losses on disposal of disposed, abandoned or discontinuedoperations shall be excluded,

 

(d)           anypro forma after-tax effect (using a reasonable estimate based on applicable taxrates) of gains or losses (less all accrued fees and expenses relating thereto)attributable to asset dispositions other than in the ordinary course ofbusiness, as determined in good faith by the Company, shall be excluded,

 

(e)           theNet Income for such 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 beincreased by the amount of dividends or distributions or other payments thatare actually paid in cash (or to the extent converted into cash) to such Personor a Subsidiary thereof that is the Company or a Restricted Subsidiary inrespect of such period,

 

(f)            solelyfor the purpose of determining the amount available for Restricted Paymentsunder Section 4.7(d)(3) the Net Income for such period of any Restricted Subsidiary(other than any Guarantor) shall be excluded if the declaration or payment ofdividends or similar distributions by that Restricted Subsidiary of its NetIncome is not at the date of determination wholly permitted without any priorgovernmental approval

 

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(which has not been obtained) or, directlyor indirectly, by the operation of the terms of its charter or any agreement,instrument, judgment, decree, order, statute, rule, or governmental regulationapplicable to that Restricted Subsidiary or its stockholders, unless such restrictionwith respect to the payment of dividends or similar distributions has beenlegally waived, provided, that Consolidated Net Income of the Company will beincreased by the amount of dividends or other distributions or other paymentsactually paid in cash (or to the extent converted into cash) to the Company ora Restricted Subsidiary thereof in respect of such period, to the extent notalready included therein,

 

(g)           effectsof purchase accounting adjustments (including the effects of such adjustmentspushed down to such Person and such Subsidiaries) in component amounts requiredor permitted 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)           anypro forma after-tax effect (using a reasonable estimate based on applicable taxrates) of income (loss) from the early extinguishment of Indebtedness orHedging Obligations or other derivative instruments shall be excluded,

 

(i)            anypro forma after-tax effect (using a reasonable estimate based on applicable taxrates) impairment charge or asset write-off, write-up or write-down, in each case, pursuant to GAAP and the amortizationof intangibles arising  (includinggoodwill and organizational costs) pursuant to GAAP shall be excluded,

 

(j)            anypro forma after-tax effect (using a reasonable estimate based on applicable taxrates) non-cash compensation expense recorded from grants of stock appreciationor similar rights, stock options, restricted stock or other rights shall beexcluded,

 

(k)           anyfees and expenses incurred during such period, or any amortization thereof forsuch period, in connection with the Transactions and any acquisition,Investment, Disposition, dividend or similar Restricted Payments, issuance orrepayment of Indebtedness, issuance of Equity Interests, refinancing orrecapitalization transaction or amendment or modification of any debtinstrument (in each case, including any such transaction consummated prior tothe Issue Date and any such transaction undertaken but not completed) and anycharges or non-recurring merger costs incurred during such period as a resultof any such transaction shall be excluded, and

 

(l)            accrualsand reserves that are established within twelve months after the Issue Datethat are so required to be established as a result of the Transactions inaccordance with GAAP shall be excluded.

 

Notwithstandingthe foregoing, for the purpose of Section 4.7 only, there shall beexcluded from Consolidated Net Income any income arising from any sale or otherdisposition of Restricted Investments made by the Company and its RestrictedSubsidiaries, any repurchases

 

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and redemptions of Restricted Investments made by the Company and itsRestricted Subsidiaries, any repayments of loans and advances which constituteRestricted Investments made by the Company and any Restricted Subsidiary, anysale of the stock of an Unrestricted Subsidiary or any distribution or dividendfrom an Unrestricted Subsidiary, in each case only to the extent such amountsincrease the amount of Restricted Payments permitted under clause (3)(d)of the first paragraph of Section 4.7.

 

“*Contingent Obligations*” means, with respect to any Person,any obligation of such Person guaranteeing or having the economic effect ofguaranteeing any leases, dividends or other obligations that do not constituteIndebtedness (“*primary obligations*”) of anyother Person (the “*primary obligor*”)in any manner, whether directly or indirectly, including, without limitation,any obligation of such Person, whether or not contingent, (i) to purchaseany such primary obligation or any property constituting direct or indirectsecurity therefor, (ii) to advance or supply funds (A) for thepurchase or payment of any such primary obligation or (B) to maintain workingcapital or equity capital of the primary obligor or otherwise to maintain thenet worth or solvency of the primary obligor, (iii) to purchase property,securities or services primarily for the purpose of assuring the owner of anysuch primary obligation of the ability of the primary obligor to make paymentof such primary obligation against loss in respect thereof, or (iv) as anaccount party with respect of any letter of credit, letter of guaranty orbankers’ acceptance.

 

“*Continuing Directors*” means, as of any date of determination,individuals who (i) were members of such Board of Directors on the Issue Dateor (ii) were either (x) nominated for election or elected to such Board ofDirectors with the approval of a majority of the Continuing Directors who weremembers of such Board of Directors at the time of nomination or election, (y)appointed, approved or recommended by a majority of the then ContinuingDirectors or (z) designated or appointed by a Permitted Holder.

 

“*Conversion Rate*” equals €1.33333333333 perUS$ 1.00.

 

“*Corporate Trust Office of the Trustee*” shall be at theaddress of the Trustee specified in Section 12.2 hereof or suchother address as to which the Trustee shall specify for receipt of noticesunder this Indenture.

 

“*Credit Agreement*” means that certain credit agreement, to bedated as of the Issue Date, among the Company, Bank of America, N.A, asAdministrative Agent, Goldman Sachs Credit Partners L.P., Banc of AmericaSecurities, LLC and J.P. Morgan Securities Inc. as Joint Lead Arrangers, thelenders party thereto and certain other parties specified therein, providingfor $1,415.0 million of dollar and euro term loans and $250.0 million ofrevolving 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

 

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issued thereunder or altering the maturity thereof (*provided* that such increase in borrowings is permitted underSection 4.9).

 

“*Credit Facilities*” means, with respect to the Company, oneor more debt facilities (including, without limitation, the Credit Agreement)or commercial paper facilities or Debt Issuances, in each case, with banks,investment banks, insurance companies, mutual funds and/or other institutionallenders or investors providing for revolving credit loans, term loans,receivables or inventory financing (including through the sale of receivablesor inventory to such lenders or to special purpose entities formed to borrowfrom (or sell receivables to) such lenders against such receivables orinventory) or letters of credit or Debt Issuances, in each case, as amended,restated, modified, renewed, refunded, replaced, supplemented or refinanced,including refinancing with Debt Issuances, in whole or in part and withoutlimitation as to amounts, terms, conditions, covenants and other provisions,from time to time. Indebtedness under Credit Facilities outstanding on the dateon which the Notes are first issued and authenticated under this Indenture(after giving effect to the use of proceeds thereof) shall be deemed to havebeen incurred on such date in reliance on the exception provided by clause (1)of the second paragraph of Section 4.9.

 

“*Debt Issuances*” means, with respect to the Company or anyRestricted Subsidiary, one or more issuances after the Issue Date ofIndebtedness evidenced by notes, debentures, bonds or other similar securitiesor instruments.

 

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

 

“*Default Interest Rate*” means a rate equalto 2% per annum.

 

“*Depositary*” means, with respect to the Notes issuable orissued in whole or in part in global form, the Persons specified in Section 2.3hereof as the Depositaries, as applicable, with respect to the Notes, until asuccessor shall have been appointed and become such pursuant to Section 2.6hereof, and, thereafter, “Depositary” shall mean or include such successor.

 

“*Designated Non-cash Consideration*” means the fair marketvalue of non-cash consideration received by the Company or any of itsRestricted Subsidiaries in connection with an Asset Sale that is so designatedas Designated Non-cash Consideration pursuant to an Officers’ Certificatesetting forth the basis of such valuation, less the amount of cash or CashEquivalents received in connection with a subsequent sale of such DesignatedNon-cash Consideration.

 

“*Designated Preferred Stock*” means Preferred Stock of theCompany or any direct or indirect parent company of the Company (other thanDisqualified Stock of the Company) that is issued for cash (other than toParent or any of its Subsidiaries or an employee stock ownership plan or trustestablished by the Company or any of its Subsidiaries) and is so designated asDesignated Preferred Stock, pursuant to an Officers’ Certificate, on theissuance date thereof, the

 

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cash proceeds of which are excluded from the calculation set forth inclause (3) of the first paragraph of Section 4.7.

 

“*Designated Senior Indebtedness*” means:

 

(a)           any Indebtedness outstanding underthe Credit Agreement and Hedging Obligations;

 

(b)           any Indebtedness outstanding underthe Senior Indenture; and

 

(c)           any other Senior Indebtednesspermitted under this Indenture that, at the date of determination, has anaggregate principal amount outstanding of at least $25.0 million and isspecifically designated by the issuer thereof in the instrument evidencing orgoverning such Senior Indebtedness as “Designated Senior Indebtedness” forpurposes of this Indenture.

 

“*Disqualified Stock*” means, with respect to any Person, anyCapital Stock of such Person which, by its terms (or by the terms of anysecurity into which it is convertible or for which it is putable orexchangeable), or upon the happening of any event, matures or is mandatorilyredeemable (other than as a result of a change of control or asset sale),pursuant to a sinking fund obligation or otherwise, or is redeemable at theoption of the holder thereof (other than as a result of a change of control orasset 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 the benefit of employeesof the Company or any of its Subsidiaries or by any such plan to suchemployees, such Capital Stock shall not constitute Disqualified Stock solelybecause it may be required to be repurchased by the Company or any of itsSubsidiaries in order to satisfy applicable statutory or regulatoryobligations.

 

“*Disposition Date*” means the first day onwhich the GSMP Group no longer constitutes Holders of a majority in aggregate principalamount of the outstanding Notes.

 

“*Domestic Subsidiaries*” means, with respect to any Person,any subsidiary of such Person other than a Foreign Subsidairy.

 

“*DTC*” means The Depository Trust Company and any successor.

 

“*EBITDA*” means, with respect to any Person for any period,the Consolidated Net Income of such Person and its Restricted Subsidiaries forsuch period

 

(a)           increased (without duplication) by:

 

(i)            provision for taxes based on incomeor profits or capital (or any alternative tax in lieu thereof), including,without limitation, foreign, state, franchise and similar taxes and foreignwithholding taxes of such Person and such subsidiaries paid or accrued duringsuch period deducted (and not added back) in computing Consolidated Net Income,including payments made pursuant to any

 

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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 of such Person and suchsubsidiaries for such period to the extent the same was deducted (and not addedback) in calculating such Consolidated Net Income; *plus*

 

(iii)          Consolidated Depreciation andAmortization Expense of such Person and such subsidiaries for such period tothe extent the same were deducted (and not added back) in computing ConsolidatedNet Income; *plus*

 

(iv)          any fees, costs, commissions, expensesor other charges (other than Depreciation or Amortization Expense) related toany Equity Offering, Permitted Investment, acquisition, disposition, recapitalizationor the incurrence or repayment of Indebtedness permitted to be incurred underthis 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 tothe offering of the Senior Notes, the Senior Subordinated Notes and the CreditFacilities, (y) any such fees, costs (including call premium), commissions,expenses or other charges related to any amendment or other modification of theExisting Notes, the Senior Notes, the Subordinated Notes and the Credit Facilitiesand (z) commissions, discounts, yield and other fees and charges(including any interest expense) related to any Receivables Facility, and, ineach case, deducted (and not added back) in computing Consolidated Net Income; *plus*

 

(v)           the amount of any businessoptimization expense and restructuring charge or reserve deducted (and notadded back) in such period in computing Consolidated Net Income, including anyrestructuring costs incurred in connection with acquisitions after the IssueDate, 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*that the 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-cash charges, expensesor losses including any write offs or write-downs and any non-cash expenserelating to the vesting of warrants,

 

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reducing Consolidated NetIncome for such period (*provided* thatif any such non-cash charges represent an accrual or reserve for potential cashitems in any future period, the cash payment in respect thereof in such futureperiod shall be subtracted from EBITDA in such future period to the extentpaid, and excluding amortization of a prepaid cash item that was paid in aprior period); *plus*

 

(vii)         the amount of any minority interestexpense consisting of subsidiary income attributable to minority equityinterests of third parties in any non-Wholly-Owned Subsidiary deducted (and notadded back) in such period in calculating Consolidated Net Income; *plus*

 

(viii)        the amount of management, monitoring,consulting, transaction and advisory fees and related expenses paid in such periodto the Sponsor pursuant to the Management Agreement (as in effect on the IssueDate) deducted (and not added back) in computing Consolidated Net Income; *plus*

 

(ix)           the amount of loss on sale ofreceivables and related assets to the Receivables Subsidiary in connection witha Receivables Facility deducted (and not added back) in computing ConsolidatedNet Income; *plus*

 

(x)            costs or expense deducted (and notadded back) in computing Consolidated Net Income by such Person or any suchsubsidiary pursuant to any management equity plan or stock option plan or anyother management or employee benefit plan or agreement or any stock subscriptionor shareholder agreement, to the extent that such cost or expenses are fundedwith cash proceeds contributed to the capital of the Company or net cashproceeds of an issuance of Equity Interest of the Company (other thanDisqualified Stock) solely to the extent that such net cash proceeds are excludedfrom the calculation of the amount available for Restricted Payments underSection 4.7(d)(3); *plus*

 

(xi)           for the year ended December 31, 2006,$11,500,000 relating to prior cost-reduction actions, acquisitions and signedagreements, recorded on a quarterly basis; *plus*

 

(xii)          the amount of net cost savings andacquisition synergies projected by the Company in good faith to be realizedduring such period (calculated on a pro forma basis as though such cost savingshad been realized on the first day of such period) as a result of specifiedactions taken or initiated in connection with the Transactions or anyacquisition or disposition by the Company or any Restricted Subsidiary, net ofthe amount of actual benefits realized during such period that are otherwiseincluded in the calculation of EBITDA from such actions; *provided*that (A) such cost savings are reasonably identifiable and factuallysupportable as evidenced in an Officers Certificate, (B) such actions are takenwithin 18 months after the Issue Date or the date of such acquisition ordisposition and (C) the aggregate amount of cost savings added pursuant to this

 

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clause (xii) shall not exceedan amount equal to the greater of (x) $35 million and (y) 10% of EBITDA of theCompany for the period of four consecutive fiscal quarters most recently endedprior to the determination date (without giving effect to any adjustmentspursuant to clause (v) above or this clause (xii)); *plus*

 

(xiii)         any net after-tax non-recurring,extraordinary or unusual gains or losses (less all fees and expenses relatingthereto) or expenses; *plus*

 

(xiv)        to the extent covered by insurance andactually reimbursed or otherwise paid, or, so long as the Company has made adetermination that there exists reasonable evidence that such amount will infact be reimbursed or otherwise paid by the insurer and only to the extent thatsuch amount is (A) not denied by the applicable carrier in writing within 180days and (B) in fact reimbursed or otherwise paid within 365 days of the dateof such evidence (with a deduction for any amount so added back to the extentnot so reimbursed or otherwise paid within such 365 days), expenses withrespect to liability or casualty events and expenses or losses relating tobusiness interruption; *plus*

 

(xv)         expenses to the extent covered bycontractual indemnification or refunding provisions in favor of the Company ora Restricted Subsidiary and actually paid or refunded, or, so long as theCompany has made a determination that there exists reasonable evidence thatsuch amount will in fact be paid or refunded by the indemnifying party or otherobligor and only to the extent that such amount is (A) not denied by theapplicable indemnifying party or obligor in writing within 90 days and (B) infact reimbursed within 180 days of the date of such evidence (with a deductionfor any amount so added back to the extent not so reimbursed within such 180days); *plus*

 

(xvi)        any non-cash increase in expenses (A)resulting from the revaluation of inventory (including any impact of changes toinventory valuation policy methods including changes in capitalization ofvariances) or (B) due to purchase accounting associated with 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 or loss resulting insuch period from Hedging Obligations and the application of Statement ofFinancial Accounting Standards No. 133

 

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and International AccountingStandards No. 39 and their respective related pronouncements andinterpretations; plus or minus, as applicable,

 

(ii)           any net gain or loss included incalculating Consolidated Net Income resulting in such period from currencytranslation gains or losses related to currency remeasurements of indebtedness(including any net loss or gain resulting from hedge agreements for currencyexchange risk).

 

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

 

“*Equity Offering*” means any public or private sale of CommonStock or Preferred Stock of the Company or any of its direct or indirect parentcompanies (excluding Disqualified Stock of such entity), other than(i) public offerings with respect to Common Stock of the Company or of anyof its direct or indirect parent companies registered on Form S-4 orForm S-8, (ii) any such public or private sale that constitutes anExcluded Contribution or (iii) an issuance to any Subsidiary of theCompany.

 

“*EUR Denominated Notes*” means Notesdenominated in EUR.

 

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

 

“*Euro Obligations*” means non-callable government obligationsof any member nation of the European Union whose official currency is the EUR,rated AAA or better by S&P and Aaa or better by Moody’s.

 

“*Exchange Act*” means the Securities Exchange Act of 1934, asamended, and the rules and regulations of the Commission promulgatedthereunder.

 

“*Exchange Notes*” means the series of Notes of either trancheto be issued under this Indenture in exchange for the Transfer Restricted Notesof the same tranche pursuant to the Registration Rights Agreement.

 

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

 

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

 

“*Excluded Contribution*” means net cash proceeds, marketablesecurities or Qualified Proceeds, in each case received by the Company and itsRestricted Subsidiaries from:

 

(a)           contributions to its common equitycapital; and

 

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(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 case designated as Excluded Contributions pursuant to an Officers’Certificate on the date such capital contributions are made or the date suchEquity Interests are sold, as the case may be, which are excluded from thecalculation set forth in clause (3) of the first paragraph of Section 4.7.

 

“*Existing Notes*” means VWR International, Inc.’s 67⁄8%Senior Notes due 2012, VWR International, Inc.’s 8% Senior Subordinated Notesdue 2014, CDRV Investment Holdings Corporation’s 95⁄8% Senior DiscountNotes due 2015 and the Company’s Senior Floating Rate Notes due 2011.

 

“*Fixed Charge Coverage Ratio*” means, with respect to anyPerson for any period consisting of such Person and its RestrictedSubsidiaries’ most recently ended four fiscal quarters for which internalfinancial statements are available, the ratio of EBITDA of such Person for suchperiod to the Fixed Charges of such Person for such period. In the event thatthe Company or any Restricted Subsidiary incurs, assumes, guarantees or repaysany Indebtedness or issues or redeems Disqualified Stock or Preferred Stock, ineach case subsequent to the commencement of the period for which the FixedCharge Coverage Ratio is being calculated but prior to the event for which thecalculation of the Fixed Charge Coverage Ratio is made (the “*Calculation Date*”), then the Fixed Charge Coverage Ratioshall be calculated giving*pro forma*effect to such incurrence, assumption, guarantee or repayment of Indebtedness,or such issuance or redemption of Disqualified Stock or Preferred Stock, as ifthe same had occurred at the beginning of the applicable four-quarter periodand as if the Company or Restricted Subsidiary had not earned the interestincome actually earned during such period in respect of such cash used torepay, repurchase, defease or otherwise discharge such Indebtedness.

 

IfInvestments, acquisitions, dispositions, mergers or consolidations have beenmade by the Company or any Restricted Subsidiary during the four-quarterreference period or subsequent to such reference period and on or prior to orsimultaneously with the Calculation Date, then the Fixed Charge Coverage Ratioshall be calculated on a*pro forma*basis assuming that all such Investments, acquisitions, dispositions, mergersor consolidations (and the change in any associated Fixed Charge obligationsand the change in EBITDA resulting therefrom) had occurred on the first day ofthe four-quarter reference period.

 

If since thebeginning of such period any Person (that subsequently became a RestrictedSubsidiary or was merged with or into the Company or any Restricted Subsidiarysince the beginning of such period) shall have made any Investment,acquisition, disposition, merger or consolidation that would have requiredadjustment pursuant to this definition, then the Fixed Charge Coverage Ratioshall be calculated giving*pro forma*effect thereto for such period as if such Investment, acquisition, disposition,merger or consolidation had occurred at the beginning of the applicablefour-quarter period.

 

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For purposesof this definition, whenever*pro forma*effect is to be given to an Investment, acquisition, disposition, merger orconsolidation (including, without limitation, the Transactions) and the amountof income or earnings relating thereto, the*pro forma*calculations shall be determined in good faith by a responsible financial oraccounting Officer of the Company and shall comply with the requirements ofRule 11-02 of Regulation S-X promulgated by the Commission, exceptthat such*pro forma* calculations may includeoperating expense reductions for such period in the amount not to exceed thegreater of (x) $50 million and (y) 10% of EBITDA of the Company for the periodof four consecutive fiscal quarters most recently ended prior to theCalculation Date (without giving effect to any adjustments pursuant to thisparagraph) resulting from the transaction which is being given*pro forma* effect that (A) have been realized or(B) for which the steps necessary for realization have been taken (or aretaken concurrently with such transaction) or (C) for which the stepsnecessary for realization are reasonably expected to be taken within theeighteen 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 are set forth in an Officers’ Certificate signedby the Company’s chief financial officer and another Officer which states(i) the amount of such adjustment or adjustments, (ii) in the case ofitems (B) or (C) above, that such adjustment or adjustments are based onthe reasonable good faith beliefs of the Officers executing such Officers’Certificate at the time of such execution and (iii) that any relatedincurrence of Indebtedness is permitted pursuant to this Indenture. If any Indebtednessbears a floating rate of interest and is being given*pro forma*effect, the interest on such Indebtedness shall be calculated as if the rate ineffect on the Calculation Date had been the applicable rate for the entireperiod (taking into account any Hedging Obligations applicable to suchIndebtedness if the related hedge has a remaining term in excess of twelvemonths).

 

Interest on aCapitalized Lease Obligation shall be deemed to accrue at the interest ratereasonably determined by a responsible financial or accounting officer of theCompany to be the rate of interest implicit in such Capitalized LeaseObligation in accordance with GAAP. For purposes of making the computationreferred to above, interest on any Indebtedness under a revolving credit facilitycomputed on a*pro forma* basis shall becomputed based upon the average daily balance of such Indebtedness during theapplicable period. Interest on Indebtedness that may optionally be determinedat an interest rate based upon a factor of a prime or similar rate, aeurocurrency interbank offered rate, or other rate, shall be deemed to havebeen based upon the rate actually chosen, or, if none, then based upon suchoptional rate chosen as the Company may designate.

 

“*Fixed Charges*” means, with respect to any Person for anyperiod, the sum of, without duplication, (a) Consolidated Interest Expense(excluding all non-cash interest expense and amortization/accretion of originalissue discount (including any original issue discount created by fair valueadjustments to Indebtedness in existence as of the Issue Date as a result ofpurchase accounting)) of such Person for such period, (b) all dividendspaid during such period (excluding items eliminated in consolidation) on anyseries of Preferred Stock of such Person and its

 

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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, with respect to any Person, (a)any subsidiary of such Person that is organized and existing under the laws ofany jurisdiction outside the United States of America or (b) any subsidiary ofsuch Person that has no material assets other than the Capital Stock of one ormore subsidiaries described in clause (a) and other assets relating to anownership interest in any such Capital Stock or subsidiaries.

 

“*Foreign Subsidiary Reorganization*” means the reorganizationof the Company’s Foreign Subsidiaries (including the creation of a new holdingcompany subsidiary to hold substantially all of the capital stock of theCompany’s Foreign Subsidiaries).

 

“*GAAP*” means generally accepted accounting principles in theUnited States in effect on the date hereof, except for any reports required tobe delivered pursuant to Section 4.3, which shall be prepared inaccordance with GAAP in effect on the date thereof. For purposes of thisIndenture, the term “*consolidated*”with respect to any Person means such Person consolidated with its RestrictedSubsidiaries and does not include any Unrestricted Subsidiary.

 

“*Global Note Legend*” means the legend identified as such in Exhibit A-1(in the case of the US$ Denominated Notes) attached hereto or Exhibit A-2(in the case of EUR Denominated Notes) attached hereto.

 

“*Global Notes*” means the Notes that are in the form of Exhibit A-1(in the case of the US$ Denominated Notes) attached hereto or Exhibit A-2(in the case of EUR Denominated Notes) attached hereto, in each case, issued inglobal form and registered in the name of the Depositary or its nominee.Notwithstanding anything to the contrary contained herein, notices, deliveryand payment with respect to the Global Notes will be through the facilities ofthe relevant Depositary.

 

“*GSMP Group*” means, collectively, (i) GSMP 2006 Onshore US, Ltd., GSMP2006 Offshore US, Ltd. and GSMP 2006 Institutional US, Ltd., (ii) any otherAffiliate of GS Mezzanine Partners 2006 Onshore Fund L.P. or The Goldman SachsGroup, Inc., and (iii) any Subsidiaries of the foregoing.

 

“*guarantee*” means a guarantee other than by endorsement ofnegotiable instruments for collection in the ordinary course of business,direct or indirect, in any manner including, without limitation, through lettersof credit or reimbursement agreements in respect thereof, of all or any part ofany Indebtedness or other obligations. When used as a verb, “*guarantee*” shall have a corresponding meaning.

 

“*Guarantee*” means any guarantee of the obligations of theCompany under this Indenture and the Notes by a Guarantor in accordance withthe provisions of this Indenture. When used as a verb, “*Guarantee*”shall have a corresponding meaning.

 

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“*Guarantor*” means any Person that incurs a Guarantee of theNotes;*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 or under the Senior Notes.

 

“*Hedging Obligations*” means, with respect to any Person, theobligations 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 name a Note is registered inthe security register.

 

“*Indebtedness*” means, with respect to any Person,

 

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

 

(i)            in respect of borrowed money,

 

(ii)           evidenced by bonds, notes, debenturesor similar instruments;

 

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

 

(iv)          Capitalized Lease Obligations;

 

(v)           representing the deferred and unpaidbalance of the purchase price of any property (other than Capitalized LeaseObligations), except (A) any such balance that constitutes a trade payable orsimilar obligation to a trade creditor in each case accrued in the ordinarycourse of business (B) liabilities accrued in the ordinary course of businessand (C) earn-outs and other contingent payments in respect of acquisitionsexcept to the extent that the liability on account of any such earn-outs orcontingent payment becomes fixed, or

 

(vi)          representing any interest rate HedgingObligations,

 

if and to the extent that any of the foregoing Indebtedness (other thanletters of credit and Hedging Obligations) would appear as a liability upon abalance sheet (excluding the footnotes thereto) of such Person prepared in accordancewith GAAP,

 

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(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(whether or not such Indebtedness is assumed by such Person);

 

*provided*,*however*, that notwithstanding theforegoing, Indebtedness shall be deemed not to include (A)  Contingent Obligations incurred in theordinary course of business  (B) itemsthat would appear as a liability on a balance sheet prepared in accordance withGAAP as a result of the application of EITF 97-10, “The Effect of LesseeInvolvement in Asset Construction,” and (C) obligations with respect to ReceivablesFacilities. The amount of Indebtedness of any person under clause (d) aboveshall be deemed to equal the lesser of (x) the aggregate unpaid amount of suchIndebtedness secured by such Lien and (y) the fair market value of the propertyencumbered thereby as determined by such person in good faith.

 

“*Indenture*” means this Indenture, as amended or supplementedfrom time to time.

 

“*Independent Financial Advisor*” means an accounting,appraisal or investment banking firm or consultant of nationally recognizedstanding that is, in the good faith judgment of the Board of Directors of theCompany, qualified to perform the task for which it has been engaged.

 

“*Indirect Participant*” means a Person whoholds a beneficial interest in a Global Note through a Participant.

 

“*Initial Purchaser*” means Goldman, Sachs& Co. as initial purchaser of the Notes under the Note Purchase Agreement.

 

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

 

“*Investment Grade Securities*” means:

 

(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) whichfund may also hold immaterial amounts of cash pending investment or distribution;and

 

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

 

“*Investments*” means, with respect to any Person, all director indirect investments by such Person in other Persons (including Affiliates)in the forms of loans (including guarantees or other obligations), advances orcapital contributions (including by means of any transfer of cash or otherproperty to others or any payment for property or services for the account oruse of others, but excluding accounts receivable, trade credit, advances tocustomers, commission, travel, entertainment, relocation, payroll and similaradvances to officers and employees, in each case made in the ordinary course ofbusiness), purchases or other acquisitions for consideration of Indebtedness,Equity Interests or other securities issued by any other Person and investmentsthat are required by GAAP to be classified on the balance sheet (excluding thefootnotes) of such Person in the same manner as the other investments includedin this definition to the extent such transactions involve the transfer of cashor other property. If the Company or any Subsidiary of the Company sells orotherwise disposes of any Equity Interests of any direct or indirect RestrictedSubsidiary of the Company such that, after giving effect to any such sale ordisposition, such Person is no longer a Subsidiary of the Company, the Companywill be deemed to have made an Investment on the date of any such sale ordisposition equal to the fair market value of the Equity Interests of suchSubsidiary not sold or disposed of in an amount determined as provided in thethird paragraph of Section 4.7.

 

For purposesof the definition of “Unrestricted Subsidiary” and Section 4.7,(i) ”Investments” shall include the portion (proportionate to theCompany’s equity interest in such Subsidiary) of the fair market value ofthe net assets of a Subsidiary of the Company at the time that suchSubsidiary is designated an Unrestricted Subsidiary;*provided*,*however*, that upon a redesignation of such Subsidiaryas a Restricted Subsidiary, the Company shall be deemed to continue to have apermanent “Investment” in an Unrestricted Subsidiary in an amount (if positive)equal to (x) the Company’s “Investment” in such Subsidiary at the time ofsuch redesignation less (y) the portion (proportionate to the Company’sequity interest in such Subsidiary) of the fair market value of the net assetsof such Subsidiary at the time of such redesignation; (ii) any propertytransferred to or from an Unrestricted Subsidiary shall be valued at its fairmarket value at the time of such transfer, in each case as determined in goodfaith by the Board of Directors of the Company, and (iii) any transfer ofCapital Stock that results in an entity which became a Restricted Subsidiaryafter the Issue Date ceasing to be a Restricted Subsidiary shall be deemed tobe an Investment in an amount equal to the fair market value (as determined bythe Board of Directors of the Company in good faith as of the date of initialacquisition) of the Capital Stock of such entity owned by the Company and itsRestricted Subsidiaries immediately after such transfer.

 

“*Issue Date*” means June 29, 2007.

 

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“*Legal Holiday*” means a Saturday, a Sunday or a day on whichbanking institutions in the City of New York, the city in which the principalCorporate Trust Office of the Trustee is located or at a place of payment areauthorized by law, regulation or executive order to remain closed. If a paymentdate is a Legal Holiday, payment shall be made at that place on the nextsucceeding day that is not a Legal Holiday, and no interest shall accrue forthe intervening period.

 

“*Letter ofTransmittal*” means the letter of transmittal to be prepared by theCompany and sent to all Holders of the Notes for use by such Holders inconnection with the Exchange Offer.

 

“*Lien*” means, with respect to any asset, any mortgage, lien,pledge, charge, security interest or encumbrance of any kind in respect of suchasset, whether or not filed, recorded or otherwise perfected under applicablelaw, including any conditional sale or other title retention agreement, anylease in the nature thereof, and any agreement to give a security interest insuch asset;*provided* that in no event shall anoperating lease be deemed to constitute a Lien.

 

“*Limited Non-Guarantor Debt Exceptions*” has the meaningassigned to such term in Section 4.9.

 

“*Management Agreement*” means, collectively, (a) theManagement Services Agreement dated as of the Issue Date, by and among certainmanagement companies associated with the Sponsor and the Company and any director indirect parent company and (b) the MDP Unit Purchase Agreement, in eachcase, as in effect on the Issue Date or otherwise amended, modified orsupplemented.

 

“*MDP Unit Purchase Agreement*” means the MDP Unit PurchaseAgreement dated as of the Issue Date among Varietal Distribution Holdings, LLC,Madison Dearborn Capital Partners Y-A, L.P., Madison Dearborn Capital PartnersY-C, L.P. & Madison Dearborn Partners V Executive-A, L.P.

 

“*Moody’s*” means Moody’s Investors Service, Inc. and anysuccessor to its rating business.

 

“*Net Income*” means, with respect to any Person, the netincome (loss) of such Person, determined in accordance with GAAP and before anyreduction in respect of Preferred Stock dividends or accretion of any PreferredStock.

 

“*Net Proceeds*” means with respect to any Asset Sale, theproceeds thereof in the form of cash and Cash Equivalents (including any suchproceeds subsequently received (as and when received) in respect of deferredpayments or noncash consideration initially received, net of any costs relatingto the disposition thereof), net of (i) out-of-pocket expenses incurred(including reasonable and customary broker’s fees or commissions, investmentbanking, consultant, legal, accounting or similar fees, survey costs, titleinsurance premiums, and related search and recording charges, transfer, deed,recording and similar taxes incurred by the Company and its Restricted Subsidiariesin connection therewith), and the Company’s good faith estimate of taxes paidor payable (including payments under any tax sharing agreement or arrangement),in

 

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connection with such Asset Sale (including,in the case of any such Asset Sale in respect of property of any ForeignSubsidiary, 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 liabilities associatedwith the asset disposed of and retained by the Company or any of its RestrictedSubsidiaries after such disposition, including pension and otherpost-employment benefit liabilities and liabilities related to environmental matters(*provided* that to the extent and at thetime any such amounts are released from such reserve, such amounts shallconstitute Net Proceeds), (iii) the principal amount, premium or penalty,if any, interest and other amounts on any Indebtedness or other obligationwhich is secured by a Lien on the asset sold and (iv) in the case of anysuch Asset Sale by a non-Wholly-Owned Restricted Subsidiary, the pro rataportion of the Net Proceeds thereof (calculated without regard to this clause(iv)) attributable to minority interests and not available for distribution toor for the account of the Company or a Wholly Owned Restricted Subsidiary as aresult thereof.

 

“*Note Custodian*” means (a) in the case of the US$ DenominatedNotes, the Trustee when serving as custodian for the Depositary with respect tothe Global Notes, or any successor entity thereto and (b) in the case of theEUR Denominated Notes, the Common Depositary or any successor entity thereto.

 

“*Note Purchase Agreement*” means the note purchaseagreement, dated June, 27, 2007, by and among the Company, GSMP 2006 Onshore USLtd., GSMP 2006 Offshore US Ltd., GSMP 2006 Institutional US Ltd., GS MezzaninePartners 2006 Institutional L.P., and Goldman, Sachs & Co.

 

“*Notes*” means the 10.75% Senior Subordinated Notes due2017 of the Company issued on the date hereof consisting of two tranches: theEUR Denominated Notes and the US$ Denominated Notes, and including any ExchangeNotes. The Notes shall be treated as a single class for all purposes under thisIndenture.

 

“*Obligations*” means any principal, interest, premium,penalties, fees, indemnifications, reimbursements (including, withoutlimitation, reimbursement obligations with respect to letters of credit),costs, expenses, damages and other liabilities, and guarantees of payment ofsuch principal, interest, premium, penalties, fees, indemnifications,reimbursements, costs, expenses, damages and other liabilities, payable underthe documentation governing any Indebtedness.

 

“*Offering Memorandum*” means the final offering memorandumrelated to the issuance of the Notes on the Issue Date, dated June 29, 2007.

 

“*Officer*” means the Chief Executive Officer, the President,the Chief Financial Officer, the Chief Operating Officer, principal accountingofficer, controller, any Executive Vice President, Senior Vice President orVice President, the Treasurer or Assistant Treasurer or the Secretary or anyAssistant Secretary of the Company.

 

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“*Officers’ Certificate*” means a certificate signed on behalfof the Company, by two Officers of the Company, one of whom is the principalexecutive officer, the principal financial officer, the treasurer or theprincipal accounting officer of the Company, that meets the requirements setforth in this Indenture.

 

“*Opinion of Counsel*” means an opinion from legal counsel whois reasonably acceptable to the Trustee. The counsel may be an employee of orcounsel to the Company or any Subsidiary of the Company.

 

“*Parent*” means Varietal Distribution Holdings, LLC and anysuccessor.

 

“*Participant*” means, with respect to the DTC, Euroclear orClearstream, a Person who has an account with DTC, Euroclear or Clearstream,and, with respect to any other Depositary, a Person who has an account withsuch other Depositary.

 

“*Paying Agent*” means any Person authorized by the Company topay the principal of, premium, if any, or interest on any Notes on behalf ofthe Company.

 

“*Permitted Asset Swap*” means, to the extent allowable underSection 1031 of the Code, the concurrent purchase and sale or exchange ofRelated Business Assets or a combination of Related Business Assets (excludingany boot thereon) between the Company or any of its Restricted Subsidiaries andanother Person.

 

“*Permitted Business*” means the business and any services,activities or businesses incidental, or directly related or similar to, orcomplementary to any line of business engaged in by the Company and itsSubsidiaries as of the Issue Date or any business activity that is a reasonableextension, development or expansion thereof or ancillary thereto.

 

“*Permitted Debt*” has the meaning assigned to such term in Section 4.9.

 

“*Permitted Holders*” means (i) the Sponsor, (ii) anyPerson making an Investment in Parent concurrently with Sponsor on or followingthe Issue Date, (iii) any Person who is an Officer or otherwise a memberof management of the Company or any of its Subsidiaries on the Issue Date, *provided* that if such Officers and membersof management 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 be beneficiallyowned by Permitted Holders, (iv) any Related Party of any of the foregoingPersons and (v) any “group” (within the meaning of Section 13(d)(3)or Section 14(d)(2) of the Exchange Act or any successor provision) ofwhich any of the foregoing are members, *provided*that in the case of such “group” and without giving effect to the existence ofsuch “group” or any other “group,” such Persons specified in clauses (i), (ii),(iii), or (iv) above (subject, in the case of Officers, to the foregoing limitation),collectively, have beneficial ownership, directly or indirectly, of more than50% of the total voting power of the Voting Stock of the Company or any of itsdirect or indirect parent entities held by such “group” and *provided further*, that, in no event shallthe

 

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Sponsor own a lesser percentage of the Voting Stock than any otherperson or group referred to in clauses (ii), (iii) or (iv).

 

“*Permitted Investments*” means

 

(1)           any Investment by the Company in anyWholly Owned Restricted Subsidiary or a Restricted Subsidiary that is aGuarantor, or by a Restricted Subsidiary in the Company or another RestrictedSubsidiary that is a Wholly Owned Restricted Subsidiary or a Guarantor;

 

(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)  (x)such Person becomes a Wholly Owned Restricted Subsidiary or a RestrictedSubsidiary that is a Guarantor or (y) such Person, in one transaction or aseries of related transactions, is merged, consolidated or amalgamated with orinto, or transfers or conveys substantially all of its assets to, or isliquidated into, the Company or a Wholly Owned Restricted Subsidiary or aRestricted Subsidiary that is a Guarantor,

 

(B)   noEvent of Default shall have occurred or be continuing or will result therefrom,and

 

(C) after giving pro forma effect to suchInvestment, either (x) the Company can incur $1.00 of additional Indebtednesspursuant to the Fixed Charge Coverage Ratio test set forth in the firstparagraph of Section 4.9 or (y) the Total Net Leverage Ratioimmediately after giving effect to such Investment is less than the Total NetLeverage Ratio immediately prior to such Investment, and,

 

in each case, any Investment held by such Person; *provided*that such Investment was not acquired by such Person in contemplation of suchacquisition, 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 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* thatthe amount of any such Investment may be increased (x) as required by the

 

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terms of such Investment as in existence onthe Issue Date or (y) as otherwise permitted under 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 receivableor (B) as a result of a foreclosure by the Company or RestrictedSubsidiary with respect to any secured Investment or other transfer of titlewith respect to 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 ofbusiness;

 

(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 market valueof each Investment being measured at the time made and without giving effect tosubsequent changes in value);*provided* thatif such Investment is in Capital Stock of a Person that subsequently becomes aRestricted Subsidiary, such Investment shall thereafter be deemed permittedunder clause (1) above and shall not be included as having been madepursuant 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 such Equity Interests will not increase the amount available forRestricted Payments under clause (3)(b) of the first paragraph of Section4.7;

 

(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;

 

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(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 clauses (2), (6), (8), (10), (12) or (13);

 

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

 

(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 suchSubsidiary may obtain title to such assets at any time by optionally cancelingsuch bonds or obligations, paying a nominal fee and terminating such financingtransaction;

 

(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 offshore financecompanies, including, without limitation, non-Wholly-Owned Subsidiaries and(ii) new Foreign Subsidiaries that would engage in transactions with otherForeign Subsidiaries to maximize tax efficiency and dividend capacity; and

 

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

 

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“*Permitted Junior Securities*” means:

 

(1)           Equity Interests in the Company orany direct or indirect parent of the Company; or

 

(2)           unsecured debt securities that aresubordinated to all Senior Indebtedness (and any debt securities issued inexchange for Senior Indebtedness) to substantially the same extent as, or to agreater extent than the Notes and the related Guarantees are subordinated toSenior Indebtedness under this Indenture and which do not mature or becomesubject to a mandatory redemption obligation prior to the final maturity or theNotes;

 

*provided* that the term“Permitted Junior Securities” shall not include any securities distributedpursuant to a plan of reorganization if the Indebtedness under the SeniorCredit Facilities or under the Senior Notes is treated as part of the sameclass as the Notes for purposes of such plan of reorganization; *provided further* that to the extent thatany Senior Indebtedness of the Company or the Guarantors outstanding on thedate of consummation of any such plan of reorganization is not paid in full incash on such date, the holders of any such Senior Indebtedness not so paid infull in cash have consented to the terms of such plan of reorganization.

 

“*Permitted Liens*” means the followingtypes of Liens:

 

(1)           depositsof cash or government bonds made in the ordinary course of business to securesurety or appeal bonds to which such Person is a party;

 

(2)           Liensin favor of issuers of stay, customs, performance, surety, bid, indemnity,warranty, release, appeal or similar bonds or with respect to other regulatoryrequirements or letters of credit or bankers’ acceptance issued, and completionguarantees provided for, in each case pursuant to the request of and for theaccount of such Person in the ordinary course of its business or consistentwith past practice;

 

(3)           Lienson property or shares of stock of a Person at the time such Person becomes aSubsidiary; provided, however, that such Liens are not created or incurred inconnection 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; provided, further, however, that such Liens may notextend to any other property owned by the Company or any Restricted Subsidiary;

 

(4)           Lienson property at the time the Company or a Restricted Subsidiary acquired theproperty, including any acquisition by means of a merger or consolidation withor into the Company or any of its Restricted Subsidiaries; provided, however,that such Liens are not created or incurred in connection with, or incontemplation of, or to provide all or any portion of the funds or creditsupport utilized for, such acquisition;

 

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provided, further, however, that such Liens may not extend to any otherproperty owned by the Company or any Restricted Subsidiary;

 

(5)           Lienssecuring Hedging Obligations so long as the related Indebtedness is permittedto be incurred under this Indenture and is secured by a Lien on the sameproperty securing such Hedging Obligation;

 

(6)           Lienson specific items of inventory or other goods and proceeds of any Personsecuring such Person’s obligations in respect of bankers’ acceptances orletters of credit issued or created for the account of such Person tofacilitate the purchase, shipment or storage of such inventory or other goodsand pledges or deposits in the ordinary course of business securing inventorypurchases from vendors;

 

(7)           Liensin favor of the Company or any Restricted Subsidiary;

 

(8)           Liensto secure any Indebtedness that is incurred to refinance any Indebtedness thathas been secured by a Lien existing on the Issue Date or referred to inclauses (3), (4) and (19)(B) of this definition; provided, however, thatsuch Liens (x) are no less favorable to the Holders of the Notes, taken asa whole, and (y) do not extend to or cover any property or assets of theCompany or any of its Restricted Subsidiaries not securing the Indebtedness sorefinanced;

 

(9)           Lienson accounts receivable and related assets incurred in connection with aReceivable Facility incurred pursuant to clause (18) of the definition of“Permitted Debt”;

 

(10)         Liensfor taxes, assessments or other governmental charges or levies not overdue bymore than forty-five (45) days or the nonpayment of which in the aggregatewould not reasonably be expected to result in a material adverse effect, orwhich are being contested in good faith by appropriate proceedings promptlyinstituted and diligently conducted or for property taxes on property that theCompany or one of its Subsidiaries has determined to abandon if the solerecourse for such tax, assessment, charge, levy or claim is to such property;

 

(11)         judgmentliens in respect of judgments that do not constitute an Event of Default;

 

(12)         pledges,deposits or security under workmen’s compensation, unemployment insurance andother social security laws or regulations, or deposits to secure theperformance of tenders, contracts (other than for the payment of Indebtedness)or leases, or deposits to secure public or statutory obligations, or depositsas security for contested taxes or import or customs duties or for the paymentof rent, or deposits or other security securing liabilities to insurancecarriers under insurance or self-insurance arrangements or earnest moneydeposits required in connection with a purchase

 

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agreement or other acquisition, in each case incurred in the ordinarycourse of business or consistent with past practice;

 

(13)         carriers’,warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liensimposed by applicable law, (i) arising in the ordinary course of businessand securing obligations that are not overdue by more than 60 days,(ii) (A) that are being contested in good faith by appropriateproceedings and (B) the Company or a Restricted Subsidiary has set asideon its books adequate reserves with respect thereto in accordance with GAAP or(iii) the existence of which would not reasonably be expected to result ina material adverse effect;

 

(14)         minorsurvey 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 other similar purposes, or zoning, buildingcodes or other restrictions (including, without limitation, minor defects orirregularities in title and similar encumbrances) as to the use of realproperties or Liens incidental to the conduct of business or to the ownershipof properties that do not in the aggregate materially adversely affect thevalue of said properties or materially impair their use in the operation of thebusiness;

 

(15)         leases,licenses, subleases or sublicenses (including, without limitation, licenses andsublicenses of intellectual property) granted to others in the ordinary courseof business that do not interfere in any material respect with the business ofthe Company or any of its material Restricted Subsidiaries or which do not bytheir own terms secure any Indebtedness;

 

(16)         therights reserved or vested in any Person by the terms of any lease, license,franchise, grant or permit held by the Company or any of its RestrictedSubsidiaries or by a statutory provision, to terminate any such lease, license,franchise, grant or permit, or to require annual or periodic payments as acondition to the continuance thereof;

 

(17)         banker’sLiens, rights of set-off or similar rights and remedies as to deposit accountsor other funds maintained with a depositary institution;

 

(18)         Liensarising from Uniform Commercial Code financing statement filings regardingoperating leases or consignments entered into by the Company and its RestrictedSubsidiaries in the ordinary course of business;

 

(19)         (A) otherLiens securing Indebtedness for borrowed money or other obligations with aprincipal amount not exceeding $35.0 million at any time and (B) Lienssecuring Indebtedness incurred to finance the construction, purchase or leaseof, or repairs, improvements or additions to, property of such Person;provided, however, that (x) the Lien may not extend to any other property(except for accessions to such property) owned by such Person or any of itsRestricted Subsidiaries at the time the Lien

 

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is incurred, (y) such Liens attach concurrently with or within270 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 bank arising under Section 4-210 of theUniform Commercial Code on items in the course of collection,(ii) attaching to commodity trading accounts or other commoditiesbrokerage accounts incurred in the ordinary course of business; and(iii) in favor of a banking institution arising as a matter of lawencumbering deposits (including the right of set-off) and which are within thegeneral parameters customary in the banking industry;

 

(21)         Liensencumbering reasonable customary initial deposits and margin deposits and similarLiens attaching to commodity trading accounts or other brokerage accountsincurred in the ordinary course of business and not for speculative purposes;

 

(22)         Liensthat are contractual rights of set-off (i) relating to the establishmentof depository relations with banks not given in connection with the issuance ofIndebtedness, (ii) relating to pooled deposit or sweep accounts of theCompany or any Restricted Subsidiary to permit satisfaction of overdraft orsimilar obligations incurred in the ordinary course of business of the Companyand its Restricted Subsidiaries or (iii) relating to purchase orders andother agreements entered into by the Company or any Restricted Subsidiary inthe ordinary course of business;

 

(23)         Lienssolely on any cash earnest money deposits made by the Company or any of itsRestricted Subsidiaries in connection with any letter of intent or purchaseagreement permitted under this Indenture;

 

(24)         Lienswith respect to the assets of a Restricted Subsidiary that is not a Guarantorsecuring Indebtedness of such Restricted Subsidiary incurred in accordance withSection 4.9;

 

(25)         Liensto secure Indebtedness incurred pursuant to clauses (20) and (26) of thedefinition of “Permitted Debt”;

 

(26)         Liensarising by operation of law under Article 2 of the Uniform CommercialCode in favor of a reclaiming seller of goods or buyer of goods;

 

(27)         securitygiven to a public or private utility or any governmental authority as requiredin the ordinary course of business;

 

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(28)         landlords’and lessors’ Liens in respect of rent not in default for more than 60 days orthe existence of which, individually or in the aggregate, would not reasonablybe expected to result in a material adverse effect;

 

(29)         Liensin favor of customs and revenues authorities imposed by applicable law arisingin the ordinary course of business in connection with the importation of goodsand securing obligations (i) with respect to customs duties in theordinary course of business, (ii) that are not overdue by more than60 days, (iii) (A) that are being contested in good faith byappropriate proceedings and (B) the Company or Restricted Subsidiary hasset aside on its books adequate reserves with respect thereto in accordancewith GAAP or (iv) the existence of which would not reasonably be expectedto result in a material adverse effect;

 

(30)         Lienson securities which are the subject of repurchase agreements incurred in theordinary course of business;

 

(31)         Lienson the Capital Stock of Unrestricted Subsidiaries.

 

(32)         Lienson inventory or equipment of the Company or any of its Restricted Subsidiariesgranted in the ordinary course of business to the Company’s or such RestrictedSubsidiary’s clients or customers at which such inventory or equipment islocated;

 

(33)         pledgesor deposits made in the ordinary course of business to secure liability to insurancecarriers and Liens on insurance policies and the proceeds thereof (whetheraccrued or not), rights or claims against an insurer or other similar assetsecuring insurance premium financings permitted under clause (21) of thedefinition of “Permitted Debt”;

 

(34)         Lienson cash deposits of the Company and Foreign Subsidiaries subject to a Cash PoolingArrangement or otherwise over bank accounts of the Company and ForeignSubsidiaries maintained as part of the Cash Pooling Arrangement, in each casesecuring liabilities for overdrafts of the Company and Foreign Subsidiariesparticipating in such Cash Pooling Arrangements;

 

(35)         anyencumbrance or retention (including put and call agreements and rights of firstrefusal) with respect to the Equity Interests of any joint venture or similararrangement pursuant to the joint venture or similar agreement with respect tosuch joint venture or similar arrangement;

 

(36)         Lienson property subject to Sale and Lease-Back Transactions permitted hereunder andgeneral intangibles related thereto; and

 

(37)         Liensconsisting of customary contractual restrictions on cash and Cash Equivalents.

 

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

 

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

 

“*Purchase Money Note*” means a promissory note of aSecuritization Subsidiary evidencing a line of credit, which may be irrevocable,issued by the Company or any Subsidiary of the Company to such SecuritizationSubsidiary in connection with a Qualified Securitization Financing, which noteis intended to finance that portion of the purchase price that is not paid incash or a contribution of equity and which (a) shall be repaid from cashavailable to the Securitization Subsidiary, other than (i) amountsrequired to be established as reserves, (ii) amounts paid to investors inrespect of interest, (iii) principal and other amounts owing to suchinvestors and (iv) amounts paid in connection with the purchase of newlygenerated receivables, and (b) may be subordinated to the paymentsdescribed in clause (a).

 

“*Qualified Public Offering*” means the initialunderwritten public offering of common Equity Interests of the Company or anydirect or indirect parent of the Company pursuant to an effective registrationstatement filed with the SEC in accordance with the Securities Act (other thana registration statement on Form S-8 or any successor form).

 

“*Qualified Proceeds*” means assets that are used or useful in,or Capital Stock of any Person engaged in, a Permitted Business;*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 them arenot making ratings publicly available, a nationally recognized statisticalrating organization within the meaning of Rule 15c3-1(c)(2) under the ExchangeAct, as the case may be, selected by the Company, which will be substituted forS&P or Moody’s or both, as the case may be.

 

“*Receivables Facility*” means any of one or more receivablesfinancing facilities as amended, supplemented, modified, extended, renewed,restated or refunded from time to time, the obligations of which arenon-recourse (except for customary representations, warranties, covenants andindemnities made in connection with such facilities) to the Company or any ofits Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant towhich the Company or any of its Restricted Subsidiaries sells their accountsreceivable to either (A) a Person that is not a Restricted Subsidiary or(B) a Receivables Subsidiary that in turn sells its accounts receivable toa Person that is not a Restricted Subsidiary.

 

“*Receivables Fees*” means distributions or payments madedirectly or by means of discounts with respect to any accounts receivable orparticipation interest therein issued or sold in connection with, and otherfees paid to a Person that is not a Restricted Subsidiary in connection with,any Receivables Facility.

 

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“*Receivables Subsidiary*” means any subsidiary formed for thepurpose of, and that solely engages only in one or more Receivables Facilitiesand other activities reasonably related thereto.

 

“*Record Date*” for theinterest or Additional Interest, if any, payable on any applicable InterestPayment Date means December 15, March 15, June 15 or September 15 (whether ornot on a Business Day) next preceding such Interest Payment Date.

 

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

 

“*Refinancing Indebtedness*” has the meaningassigned to such term in Section 4.9.

 

“*Refunding Capital Stock*” has the meaningset forth in clause (2) of the second paragraph of Section 4.7.

 

“*Registration Rights Agreement*” means the Registration RightsAgreement dated as of the Issue Date among Varietal Distribution Merger Sub,Inc., CDRV Investors, Inc., the Guarantors and Goldman, Sachs & Co. and theGSMP Group.

 

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

 

“*Regulation S Temporary Global Note Legend*”means the legend identified as such in Exhibit A-1 (in the case ofthe US$ Denominated Notes) attached hereto or Exhibit A-2 (in the caseof EUR Denominated Notes) attached hereto.

 

“*Related Business Assets*” means assets (other than cash orCash Equivalents) used or useful in a Permitted Business, *provided*that 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) with respectto Madison Dearborn Partners, LLC, (i) any investment fund controlled byor 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 linealdescendant (including by adoption and stepchildren) of the officer and(ii) any trust, corporation or partnership or other entity, in each caseto the extent not an operating company, of which an 80% or more controllinginterest is held by the beneficiaries, stockholders, partners or owners who arethe officer, any of the persons described in clause (b)(i) above or anycombination of these identified relationships.

 

“*Representative*” means any trustee, agentor representative (if any) for an issue of Senior Indebtedness of the Companyor any Guarantor.

 

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“*Responsible Officer*” means, when used with respect to theTrustee, any officer assigned to the Corporate Trust Office of the Trusteehaving direct responsibility for the administration of this Indenture.

 

“*Restricted Cash*” shallmean cash and Cash Equivalents held by the Company and its RestrictedSubsidiaries that are contractually restricted from being distributed to theCompany, except for such restrictions that are contained in agreementsgoverning Indebtedness permitted under Section 4.9 and that is securedby such cash or Cash Equivalents, or that are classified as “restricted cash”on the consolidated balance sheet of the Company prepared in accordance withGAAP.

 

“*Restricted Certificated EUR Denominated Notes*”means Restricted Certificated Notes that are EUR Denominated Notes.

 

“*Restricted Certificated Notes*” meansCertificated Notes that are Transfer Restricted Notes.

 

“*Restricted Certificated US$ Denominated Notes*”means Restricted Certificated Notes that are US$ Denominated Notes.

 

“*Restricted Global EUR Denominated Notes*”means Restricted Global Notes that are EUR Denominated Notes.

 

“*Restricted Global Notes*” means GlobalNotes that are Transfer Restricted Notes.

 

“*Restricted Global US$ Denominated Notes*”means Restricted Global Notes that are US$ Denominated Notes.

 

“*Restricted Investment*” means an Investment other than aPermitted Investment.

 

“*Restricted Notes Legend*” means the legend identified as suchin Exhibit A-1 (in the case of the US$ Denominated Notes) attachedhereto or Exhibit A-2 (in the case of EUR Denominated Notes) attachedhereto.

 

“*Restricted Payment*” has the meaning set forth in Section 4.7.

 

“*Restricted Period*” means the 40-day distribution compliance periodas defined in Regulation S. The Restricted Period shall be terminated upon thereceipt by the Trustee of an Officer’s Certificate from the Company confirmingthe expiration of the Restricted Period.

 

“*Restricted Subsidiary*” means, at any time, any direct orindirect Subsidiary of the Company (including any Foreign Subsidiary) that isnot 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.

 

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“*Retired Capital Stock*” has the meaning setforth in clause (2) of the second paragraph of Section 4.7.

 

“*S&P*” means Standard and Poor’s Ratings Services, adivision of The McGraw-Hill Companies, Inc., and any successor to its ratingbusiness.

 

“*Sale and Lease-Back Transaction*” means anyarrangement with any Person providing for the leasing by the Company or anyRestricted Subsidiary of any real or tangible personal property, which propertyhas been or is to be sold or transferred by the Company or such RestrictedSubsidiary to such Person in contemplation of such leasing.

 

“*Secured Indebtedness*” means any Indebtedness secured by aLien permitted to be incurred by this Indenture.

 

“*Securities Act*” means the Securities Act of 1933, asamended, and the rules and regulations of the Commission promulgatedthereunder.

 

“*Senior Indebtedness*” means:

 

(1)  all Indebtedness of theCompany or any Guarantor outstanding under the Credit Agreement or the SeniorNotes and related guarantees, whether outstanding on the Issue Date orthereafter incurred;

 

(2)  all Hedging Obligations (andguarantees thereof) owing to a lender or any affiliate of a lender under theCredit Agreement (or a Person who was such a lender or an affiliate at the timesuch Hedging Obligations were entered into);

 

(3)  any other Indebtedness ofthe Company or any Guarantor permitted to be incurred under the terms of thisIndenture; and

 

(4)  all other Obligations ofsuch Person (including interest accruing on or after the filing of any petitionin bankruptcy or for reorganization relation to such Person whether or notpost-filing interest is allowed in such proceeding) in respect of Indebtednessdescribed in clauses (1) through (3) above,

 

unless the instrument creating or evidencing the same or pursuant towhich the same is outstanding expressly provides that such Indebtedness orother Obligations are subordinate in right of payment to or *pari passu* in right of payment with theNotes or the Guarantee of such Person, as the case may be; *provided* that Senior Indebtedness shallnot include:

 

(a) any obligation of such Person to the Company or any Subsidiary;

 

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

 

(c) any accounts payable or other liability to trade creditors in theordinary course of business (including guarantees thereof as instrumentsevidencing such liabilities); or

 

(d) that portion of any Indebtedness that at the time of Incurrence isIncurred in violation of this Indenture.

 

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“*Senior Indenture*” means the indenturedated as of the Issue Date between and among the Company, the Guarantors,Deutsche Bank Trust Company Americas as registrar and transfer agent andLaw Debenture Trust Company of New York, as trustee, pursuant to which theSenior Notes were issued, as amended or supplemented from time to time.

 

“*Senior Notes*” means the $675.0 millionaggregate principal amount of Senior PIK Toggle Notes due 2015 of the Company.

 

*“Senior Subordinated Indebtedness”*means, with respect to a Person, the Notes (in the case of the Company), aGuarantee (in the case of a Guarantor) and any other Indebtedness of suchPerson that specifically provides that such Indebtedness is to rank *pari passu*with the Notes or suchGuarantee, as the case may be, in right of payment and is not subordinated byits terms in right of payment to any Indebtedness or other obligation of suchPerson that is not Senior Indebtedness of such Person.

 

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

 

“*Significant Subsidiary*” means any Restricted Subsidiary thatwould be a “significant subsidiary” as defined in Article 1,Rule 1-02 of Regulation S-X, promulgated pursuant to the SecuritiesAct, as such Regulation is in effect on the date hereof.

 

“*Sponsor*” means Madison Dearborn Partners, LLC and itsAffiliates (other than any portfolio company thereof).

 

“*Stated Maturity*” means, with respect to any installment ofinterest or principal on any series of Indebtedness, the date on which thepayment of interest or principal was scheduled to be paid in the originaldocumentation governing such Indebtedness, and will not include any contingentobligations to repay, redeem or repurchase any such interest or principal priorto the date originally scheduled for the payment thereof.

 

“*Subordinated Indebtedness*” means (a) with respect tothe Company, any Indebtedness of the Company that is by its terms subordinatedin right of payment to the Notes and (b) with respect to any Guarantor ofthe Notes, any Indebtedness of such Guarantor that is by its terms subordinatedin right of payment to its Guarantee of the Notes.

 

“*Subsidiary*” means, with respect to any 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

 

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voting interests or general or limited partnershipinterests, as applicable, are owned or controlled, directly or indirectly, bysuch Person or one or more of the other Subsidiaries of that Person or acombination thereof whether in the form of membership, general, special or limitedpartnership or otherwise and (y) such Person or any Wholly OwnedRestricted Subsidiary of such Person is a controlling general partner orotherwise controls such entity.

 

“*Suspension Condition*”has the meaning assigned to such term in Section 4.22.

 

“*TIA*” means the Trust Indenture Act of 1939 (15 U.S. Code§§ 77aaa-77bbbb), as amended, as in effect on the date hereof.

 

“*Total Assets*” means total assets of the Company and itsRestricted Subsidiaries on a consolidated basis prepared in accordance with GAAP,shown on the most recent balance sheet of the Company and its RestrictedSubsidiaries as may be expressly stated.

 

“*Total Net Leverage Ratio*”shall mean the ratio of (i) (A) Consolidated Indebtedness of the Company andits Restricted Subsidiaries on such date minus (B) the amount of cashand Cash Equivalents in excess of any Restricted Cash that would be stated onthe balance sheet of the Company and its Restricted Subsidiaries (other thanForeign Subsidiaries) and held by the Company and its Restricted Subsidiaries(other than Foreign Subsidiaries) as of such date of determination, asdetermined in accordance with GAAP, minus (C) cash of ForeignSubsidiaries of the Company in an amount equal to the greater of (x) theaggregate amount of Consolidated Indebtedness of Foreign Subsidiaries and (y)60% of the cash and Cash Equivalents reflected on the consolidated balancesheet of the Company delivered to the Trustee as of the last day of therelevant determination period to (ii) EBITDA of the Company and its RestrictedSubsidiaries for the most recently ended four fiscal quarters for whichinternal financial statements are available. The Total NetLeverage Ratio shall be calculated on a pro forma basis as described in thesecond, third and fourth paragraphs of the definition of the Fixed ChargeCoverage Ratio.

 

“*Total Net Tangible Assets*” means totalassets of the Company and its Restricted Subsidiaries, Less all goodwill, tradenames, 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.

 

“*Transactions*” means (i) thetransactions contemplated by the Acquisition Agreement, (ii) the entry intothe Credit Agreement and incurrence of Indebtedness thereunder on the IssueDate by the Company and the guarantors thereunder, (iii) the issuance ofthe Senior Notes and the provision of guarantees by the guarantors,(iv) the issuance of the Notes and the provision of Guarantees by theGuarantors thereof, (v) the refinancing of certain existing indebtednessof CDRV Investors Inc., as contemplated in the Offering Memorandum,(vi) the payment of fees and expenses related to each of the foregoing and(vii) all other transactions relating to any of the foregoing in eachcase, as contemplated as of the Issue Date pursuant to the terms of theAcquisition Agreement.

 

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“*Transaction Expenses*” means any fees orexpenses 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.

 

“*Transfer Restricted Notes*” means Notes that bear or arerequired to bear the Restricted Notes Legend.

 

“*Treasury Rate*” means, as of the applicable redemption date,the yield to maturity as of such redemption date of United States Treasurysecurities with a constant maturity (as compiled and published in the mostrecent Federal Reserve Statistical Release H.15 (519) that has becomepublicly available at least two (2) Business Days prior to such redemption date(or, if such Statistical Release is no longer published, any publicly availablesource of similar market data)) most nearly equal to the period from suchredemption date to June 30, 2012;*provided*,*however*, that if the period from such redemption date toJune 30, 2012, is less than one year, the weekly average yield on actuallytraded United States Treasury securities adjusted to a constant maturity of oneyear will be used.

 

“*Trustee*” has the meaning set forth in the preamble to thisIndenture.

 

“*Unrestricted Certificated EUR Denominated Notes*”means Unrestricted Certificated Notes that are EUR Denominated Notes.

 

“*Unrestricted Certificated Notes*” meansCertificated Notes that are Unrestricted Notes.

 

“*Unrestricted Certificated US$ Denominated Notes*”means Unrestricted Certificated Notes that are US$ Denominated Notes.

 

“*Unrestricted Global EUR Denominated Notes*”means Unrestricted Global Notes that EUR Denominated Notes.

 

“*Unrestricted Global Notes*” means Global Notesthat are Unrestricted Notes.

 

“*Unrestricted Global US$ Denominated Notes*”means Unrestricted Global Notes that US$ Denominated Notes.

 

“*Unrestricted Notes*” means Notes other thanTransfer Restricted Notes.

 

“*Unrestricted Subsidiary*” means (i) any Subsidiary ofthe Company that at the time of determination is an Unrestricted Subsidiary (asdesignated by the Board of Directors of the Company, as provided below) and(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directorsof the Company may designate any Subsidiary of the Company (including anyexisting Subsidiary and any newly acquired or newly formed Subsidiary) to be anUnrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries ownsany Equity Interests or

 

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Indebtedness of, or owns or holds any Lien on any property of, theCompany or any Subsidiary of the Company (other than any UnrestrictedSubsidiary of the Subsidiary to be so designated);*provided*that (a) any Unrestricted Subsidiary must be an entity of which shares ofthe Capital Stock or other equity interests (including partnership interests)entitled to cast at least a majority of the votes that may be cast by allshares or equity interests having ordinary voting power for the election ofdirectors or other governing body are owned, directly or indirectly, by theCompany, (b) such designation complies with Section 4.7 and(c) each of (I) the Subsidiary to be so designated and (II) itsSubsidiaries have not at the time of designation, and do not thereafter,create, incur, issue, assume, guarantee or otherwise become directly orindirectly liable with respect to any Indebtedness pursuant to which the lenderhas recourse to any of the assets of the Company or any Restricted Subsidiary(other than the Capital Stock of such Subsidiary to be so designated). TheBoard of Directors of the Company may designate any Unrestricted Subsidiary tobe 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 havebeen incurred by the Company pursuant to Section 4.9. Any suchdesignation by the Board of Directors of the Company shall be notified by theCompany to the Trustee by promptly filing with such Trustee a copy of the BoardResolution giving effect to such designation and an Officers’ Certificatecertifying that such designation complied with the foregoing provisions.

 

“*U.S. Dollar Equivalent*” means with respect to any monetaryamount in a currency other than U.S. dollars, at any time for determinationthereof, the amount of U.S. dollars obtained by converting such foreign currencyinvolved in such computation into U.S. dollars at the spot rate for thepurchase of U.S. dollars with the applicable foreign currency as published in*The Wall Street Journal* in the “Exchange Rates” columnunder the heading “Currency Trading” on the date two (2) Business Days prior tosuch determination.

 

Except asdescribed in Section 4.9, whenever it is necessary to determinewhether the Company has complied with any covenant in this Indenture or aDefault has occurred and an amount is expressed in a currency other than U.S.dollars, such amount will be treated as the U.S. Dollar Equivalent determinedas of the date such amount is initially determined in such currency.

 

“*U.S. Government Securities*” means securities 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, ineither case, are not callable or redeemable at the option of the issuersthereof, and shall also include a depository receipt issued by a bank (asdefined in Section 3(a)(2) of the Securities Act), as custodian withrespect to any such U.S. Government Securities or a specific payment of

 

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principal ofor interest on any such U.S. Government Securities held by such custodian forthe account of the holder of such depository receipt;*provided*that (except as required by law) such custodian is not authorized to make anydeduction from the amount payable to the holder of such depository receipt fromany amount received by the custodian in respect of the U.S. GovernmentSecurities or the specific payment of principal of or interest on the U.S.Government Securities evidenced by such depository receipt.

 

“*US$ Denominated Global Notes*” means GlobalNotes denominated in US$.

 

“*US$ Denominated Notes*” means Notesdenominated in US$.

 

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

 

“*Voting Stock*” of any Person as of any date means the CapitalStock of such Person that is at the time entitled to vote in the election ofthe Board of Directors of such Person.

 

“*Weighted Average Life to Maturity*” means, when applied toany Indebtedness at any date, the number of years obtained 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*” means any Wholly OwnedSubsidiary that is a Restricted Subsidiary.

 

“*Wholly Owned Subsidiary*” of any Person means a Subsidiary ofsuch Person, 100% of the outstanding Capital Stock or other ownership interestsof which (other than directors’ qualifying shares and shares issued to foreignnationals under applicable law) shall at the time be owned by such Person or byone or more Wholly Owned Subsidiaries of such Person or by such Person and oneor more Wholly Owned Subsidiaries of such Person. For purposes of determiningwhether a Foreign Subsidiary constitutes a Wholly Owned Subsidiary, minorityinterests in Foreign Subsidiaries (that are Restricted Subsidiaries) not ownedby the Company or any of its Wholly Owned Restricted Subsidiaries shall bedisregarded so long as the aggregate fair market value of all such minorityinterests in all Foreign Subsidiaries (that are Restricted Subsidiaries) doesnot exceed (x) 2% of Consolidated Total Assets, if the Total Net Leverage Ratiois less than 6.75 to 1.00 and (y) otherwise, 1% of Consolidated Total Assets(with fair market value of such minority interests in such Foreign Subsidiariesbeing measured at the time such Foreign Subsidiaries were acquired or suchminority interests were issued and without giving effect to subsequent changesin value).

 

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SECTION 1.2         Other Definitions. 

 
| **Term**                                            | ** ** | **Defined in  Section** |
|-----------------------------------------------------|------------|-------------------------|
| “Acceleration Notice”                     |       | 6.2                     |
| “Act”                                     |       | 12.14(a)                |
| “Affiliate Transaction”                   |       | 4.11                    |
| “AHYDO redemption date”                   |       | 3.8                     |
| “Asset Sale Offer”                        |       | 4.10                    |
| “Base Currency”                           |       | 12.15                   |
| “Blockage Notice”                         |       | 10.3                    |
| “Change of Control Payment”               |       | 4.14                    |
| “Change of Control Payment Date”          |       | 4.14                    |
| “Covenant Defeasance”                     |       | 8.3                     |
| “Current Accretion Amount”                |       | 3.7(a)                  |
| “Event of Default”                        |       | 6.1                     |
| “Excess Proceeds”                         |       | 4.10                    |
| “Judgment Currency”                       |       | 12.15                   |
| “Legal Defeasance”                        |       | 8.2                     |
| “Make-Whole Premium”                      |       | 3.7(c)                  |
| “Mandatory Principal Redemption”          |       | 3.8                     |
| “Mandatory Principal Redemption Amount”   |       | 3.8                     |
| “Non-Payment Default”                     |       | 10.3                    |
| “Offer Amount”                            |       | 3.9 (b)                 |
| “Offer Period”                            |       | 3.9(b)                  |
| “Pari Passu Indebtedness”                 |       | 3.9(b)                  |
| “Payment Blockage Period”                 |       | 10.3                    |
| “Payment Default”                         |       | 10.3                    |
| “Purchase Date”                           |       | 3.9(b)                  |
| “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)                  |
| “Regulation S Permanent Global Note” |       | 2.1(b)                  |
| “Regulation S Temporary Global Note” |       | 2.1(b)                  |
| “Rule 144A”                          |       | 2.1(b)                  |
| “Successor Company”                       |       | 5.1                     |
| “Successor Guarantor”                     |       | 11.5(a)                 |
| “Suspension Condition”                    |       | 4.22                    |
| “Suspended Covenants”                     |       | 4.22                    |
| “tranche”                                 |       | 2.1                     |
| “US$Depositary”                           |       | 2.3                     |

 

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SECTION 1.3         Incorporation by Reference of TrustIndenture Act.

 

Whenever thisIndenture refers to a provision of the TIA, the provision is incorporated byreference in, and made a part of, this Indenture.

 

The followingTIA terms have the following meanings:

 

“*indenture securities*” means the Notes and any Guarantee;

 

“*indenture security holder*” means a Holder;

 

“*indenture to be qualified*” means this Indenture;

 

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

 

“*obligor*” on the Notes means the Company and any successorobligor upon the Notes or any Guarantor.

 

All otherterms used in this Indenture that are defined by the TIA, defined by TIAreference to another statute or defined by the Commission rule under the TIAhave the meanings so assigned to them therein.

 

SECTION 1.4         Rules of Construction.

 

Unless thecontext otherwise requires:

 

(1)           aterm has the meaning assigned to it herein;

 

(2)           anaccounting term not otherwise defined herein has the meaning assigned to it inaccordance with GAAP;

 

(3)           “or”is not exclusive;

 

(4)           wordsin the singular include the plural, and in the plural include the singular;

 

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

 

(6)           unlessotherwise specified, any reference to Section or Article refers to such Sectionor Article of this Indenture;

 

(7)           unlessexpressly stated otherwise, all references herein to “principal amount” shallmean, (i) when used with respect to any particular Note, at any time, the thenoutstanding principal amount of such Note, including interest that has beencapitalized pursuant to Paragraph 1 of the reverse of the Note and addedthereto at or prior to such time, and (ii) when used with

 

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respect to any other Indebtedness, the then outstanding principalamount or accreted value of such Indebtedness;

 

(8)           unlessexpressly stated otherwise, all references herein to “$”, “Dollars”, “dollars”,“US$”, “U.S. $”, “USD”, “United States Dollars”, “United States dollars”, “U.S.Dollars” or “U.S. dollars” shall mean the lawful currency of the United Statesof America; “€”, “Euro”, “euro”, “EUR”, or “Eur” shall mean the lawful currencyof the Member States in the Economic and Monetary Union contemplated by theTreaty of Rome, as amended, establishing the European Economic Community.

 

(9)           provisionsapply to successive events and transactions; and

 

(10)         referencesto sections of or rules under the Securities Act or the Exchange Act shall bedeemed to include substitute, replacement or successor sections or rulesadopted by the Commission from time to time.

 

SECTION 1.5         Certain Calculations.

 

For purposes of determining the percentage of principal amount of Notesrequired to take any action under this Indenture, the principal amount of EURDenominated Notes shall be deemed to be converted into US$ using the ConversionRate. For purposes of Section 3.7(c), the specified percentage of Notes toremain outstanding after a redemption of Notes under such Section 3.7(c), shallbe applied separately to US$ Denominated Notes and EUR Denominated Notes.Except as set forth in the preceding sentence, if less than the entire amountof the Notes is to be redeemed, the Trustee shall select the Notes forredemption assuming that the principal amount of EUR Denominated Notes representsthe U.S. Dollar Equivalent thereof (it being understood the Company shall makeany adjustments that may be necessary to reflect the fact that the EURDenominated Notes are issued in minimum denominations of €50,000 and the US$Denominated Notes are issued in minimum denominations of US$2,000).

 

ARTICLE IITHE NOTES

 

SECTION 2.1         Form and Dating.

 

The Notes andthe Trustee’s certificate of authentication shall be substantially in the formof Exhibit A-1 (in the case of the US$ Denominated Notes) attachedhereto or Exhibit A-2 (in the case of EUR Denominated Notes) attachedhereto. The Notes may have notations, legends or endorsements required by law,stock exchange rule or usage; *provided*, thatthe text of any such notations, legends or endorsements shall be delivered tothe Trustee in writing by the Company. Each Note shall be dated the date of itsauthentication. The US$ Denominated Notes initially shall be issued only inminimum denominations of $2,000 and integral multiples of $1,000

 

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thereof and the EUR Denominated Notes in minimum denominations of€50,000 and integral multiples of €1,000 thereof.

 

The US$Denominated Notes and the EUR Denominated Notes are each sometimes referred toherein as a “tranche” of Notes; *provided*,*however*, that all Notes issuedunder this Indenture shall vote and consent together on all matters (as towhich any of such Notes may vote or consent) as one tranche and no tranche ofNotes will have the right to vote or consent as a separate tranche on anymatter.

 

The terms andprovisions contained in the Notes shall constitute, and are hereby expresslymade, a part of this Indenture and the Company and the Trustee, by theirexecution and delivery of this Indenture, expressly agree to such terms andprovisions and to be bound thereby. However, to the extent any provision of anyNote conflicts with the express provisions of this Indenture, the provisions ofthis Indenture shall govern and be controlling.

 

(a)           The US$ Denominated Notes shall beissued initially in the form of one or more Global Notes substantially in theform attached as Exhibit A-1, which shall be deposited on behalf ofthe purchasers of the US$ Denominated Notes represented thereby with theTrustee as custodian for the Depositary, and registered in the name of theDepositary or a nominee of the Depositary, duly executed by the Company andauthenticated by the Trustee as hereinafter provided. The EUR Denominated Notesshall be issued initially in the form of one or more Global Notes substantiallyin the form attached as Exhibit A-2, which shall be deposited onbehalf of the purchasers of the EUR Denominated Notes represented thereby with the Common Depositary, and registered inthe name of the Common Depositary or the nominee of the Common Depositary forthe accounts of Euroclear or Clearstream, duly executed by the Companyand authenticated by the Trustee as hereinafter provided.

 

Each GlobalNote shall represent such of the outstanding Notes as shall be specifiedtherein and each shall provide that it shall represent the aggregate principalamount of outstanding Notes from time to time endorsed thereon and that theprincipal aggregate amount of outstanding Notes represented thereby may fromtime to time be reduced or increased, as appropriate, to reflect exchanges,redemptions and transfers of interests. Any endorsement of a Global Note toreflect the amount of any increase or decrease in the aggregate principalamount of outstanding Notes represented thereby shall be made by the Registraror the Note Custodian, at the direction of the Trustee, in accordance withinstructions given by the Holder thereof as required by Section 2.6hereof. The aggregate amount outstanding of any Global Note shall be reflectedon the books and records of the Trustee.

 

Except as setforth in Section 2.6 hereof, the Global Notes may be transferred,in whole and not in part, only to another nominee of the Depositary or to asuccessor of the Depositary or its nominee.

 

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(b)           The Notes are being issued by theCompany only (i) to “qualified institutional buyers” (as defined inRule 144A under the Securities Act (“*Rule 144A*”))(“*QIBs*”) and (ii) in reliance onRegulation S under the Securities Act (“*Regulation S*”).After such initial offers, Notes that are Transfer Restricted Notes may betransferred to QIBs, in reliance on Rule 144A or outside the United Statespursuant to Regulation S or to the Company, in accordance with certaintransfer restrictions. 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-1 (in the case of the US$Denominated Notes) attached hereto or Exhibit A-2 (in the case of EURDenominated Notes) attached hereto (the “*QIB Global Note*”)deposited with the Note Custodian, duly executed by the Company andauthenticated by the Trustee as hereinafter provided.

 

Notes that areoffered in offshore transactions in reliance on Regulation S shall beissued in the form of one or more permanent Global Notes substantially in theform set forth in Exhibit A-1 (in the case of the US$ DenominatedNotes) attached hereto or Exhibit A-2 (in the case of EUR DenominatedNotes) attached hereto (the “*Regulation S GlobalNote*”) deposited with the Note Custodian, duly executed by theCompany and authenticated by the Trustee as hereinafter provided. Regulation SGlobal Note shall be initially issued in a temporary form bearing a RegulationS Temporary Global Note Legend in a denomination equal to theoutstanding principal amount of the Notes of the applicable tranche initiallysold in reliance on Rule 903 (the “*RegulationS Temporary Global Note*”). Following the termination of theRestricted Period, beneficial interests in each Regulation S TemporaryGlobal Note shall be exchanged for beneficial interests in a Regulation SGlobal Note in a permanent form issued in a denomination equal to theoutstanding principal amount of the Regulation S Temporary Global Note of theapplicable tranche upon expiration of the Restricted Period(the “*RegulationS Temporary Global Note*”). The QIB Global Note that is a US$Denominated Note, the QIB Global Note that is a EUR Denominated Note, theRegulation S Global Note that is a US$ Denominated Note and theRegulation S Global Note s that is a EUR Denominated Note shall each beissued with separate CUSIP numbers, ISIN numbers or Common Codes, asapplicable. The aggregate principal amount of each Global Note may from time totime be increased or decreased by adjustments made on the records of the NoteCustodian. Transfers of Notes between QIBs and to or by purchasers pursuant toRegulation S shall be represented by appropriate increases and decreasesto the respective amounts of the appropriate Global Notes, as more fullyprovided in Section 2.16.

 

(c)           Section 2.1(b) shallapply only to Global Notes deposited with or on behalf of the Depositary orCommon Depositary, as the case may be.

 

The Companyshall execute and the Trustee shall, in accordance with Section 2.1(b)and this Section 2.1(c), authenticate and deliver the Global Notesthat (i) in the case of the US$ Denominated Notes, shall be registered inthe name of the Depositary or the nominee of the Depositary and, in the case ofthe EUR Denominated Notes, shall be registered in the name of a nominee theCommon Depositary and (ii) shall be

 

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delivered by the Trustee to the Depositary or Common Depositary, as thecase may be, or pursuant to the Depositary’s or Common Depositary’s, as thecase may be, instructions or held by the Trustee as Note Custodian for theDepositary.

 

Participantsshall have no rights either under this Indenture with respect to any GlobalNote held on their behalf by the Depositary, Common Depositary, or by the NoteCustodian as custodian for the Depositary or Common Depositary, as the case maybe, or under such Global Note, and each of the Depositary and the CommonDepositary will be treated by the Company, the Trustee and any agent of theCompany or the Trustee as the absolute owner of such Global Note for allpurposes whatsoever. Notwithstanding the foregoing, nothing herein shallprevent the Company, the Trustee or any Agent or other agent of the Company orthe Trustee from giving effect to any written certification, proxy or otherauthorization furnished by the Depositary or Common Depositary, as the case maybe, or impair, as between the Depositary or Common Depositary, as the case maybe,  and its respective Participants, theoperation of customary practices of such Depositary or Common Depositary, asthe case may be, governing the exercise of the rights of an owner of abeneficial interest in any Global Note.

 

The Trusteeshall have no responsibility or obligation to any Beneficial Owner that is amember of (or a participant in) DTC, Clearstream or Euroclear, as applicable,or any other Person with respect to the accuracy of the records of DTC,Clearstream or Euroclear (or their respective nominees), as applicable or ofany participant or member thereof, with respect to any ownership interest inthe Notes or with respect to the delivery of any notice (including any noticeof redemption) or the payment of any amount or delivery of any Notes (or othersecurity or property) under or with respect to the Notes. The Trustee may rely(and shall be fully protected in relying) upon information furnished by DTC,Clearstream or Euroclear, as applicable, with respect to its members,participants and any beneficial owners in the Notes.

 

(d)           Notes issued in certificated formshall be substantially in the form of Exhibit A-1 (in the case ofthe US$ Denominated Notes) attached hereto or Exhibit A-2 (in the caseof EUR Denominated Notes) attached hereto.

 

SECTION 2.2         Execution and Authentication.

 

An Officershall sign the Notes for the Company by manual or facsimile signature.

 

If an Officerwhose signature is on a Note no longer holds that office at the time a Note isauthenticated, the Note shall nevertheless be valid.

 

A Note shallnot be valid until authenticated by the manual signature of a ResponsibleOfficer of the Trustee. The signature shall be conclusive evidence that theNote has been authenticated under this Indenture.

 

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The Trusteeshall, upon a written order of the Company signed by two Officers directing theTrustee to authenticate the Notes and certifying that all conditions precedentto the issuance of the Notes contained herein have been complied with andreceipt of an Opinion of Counsel, authenticate Notes for original issue up tothe aggregate principal amount stated in paragraph 4 of the Notes. Theaggregate principal amount of Notes outstanding at any time may not exceed suchamount except as provided in Section 2.8 hereof.

 

The Companymay appoint an authenticating agent reasonably acceptable to the Trustee toauthenticate Notes. Unless limited by the terms of such appointment, anauthenticating agent may authenticate Notes whenever the Trustee may do so.Each reference in this Indenture to authentication by the Trustee includesauthentication by such agent. An authenticating agent has the same rights as anAgent to deal with Holders or the Company or an Affiliate of the Company.

 

SECTION 2.3         Registrar; Paying Agent.

 

The Companyshall maintain (i) an office or agency within the City and State of NewYork where Notes may be presented for registration of transfer or for exchange(“*Registrar*”) and (ii) an office oragency where Notes may be presented for payment to a Paying Agent. The Registrarshall keep a register of the Notes and of their transfer and exchange. TheCompany may appoint one or more co-registrars and one or more additional payingagents. The term “Registrar” includes any co-registrar and the term “PayingAgent” includes any additional paying agent. The Company may change any PayingAgent or Registrar without notice to any Holder.

 

The Companyshall promptly notify the Trustee in writing, and the Trustee shall notify theHolders, of the name and address of any Agent not a party to this Indenture.The Company shall enter into an appropriate agency agreement with any Agent nota party to this Indenture, which shall incorporate the provisions of the TIA.The agreement shall implement the provisions of this Indenture that relate tosuch Agent. If the Company fails to appoint or maintain a Registrar or PayingAgent, or fails to give the foregoing notice, the Trustee shall act as such,and shall be entitled to appropriate compensation in accordance with Section 7.7hereof. The Company or any of its Restricted Subsidiaries may act as PayingAgent or Registrar.

 

The Companyinitially appoints Deutsche Bank Trust Company Americas to act as the NoteCustodian, Registrar and Paying Agent with respect to the US$ DenominatedNotes. The Company initially appoints (i) Deutsche Bank AG, London Branch,located at the address set forth in Section 12.2, to act as the Note Custodianand Paying Agent with respect to the EUR Denominated Notes, and (ii) DeutscheBank AG, London Branch, to act as the Common Depositary for Euroclear BankS.A./N.V. and Clearstream Banking Société Anonyme with respect to the GlobalNotes that are the EUR Denominated Notes.

 

The Companyundertakes that it shall maintain a paying agent in a Member State of theEuropean Union that is not obligated to withhold or deduct tax pursuant to theEuropean Council Directive 2003/48/EC or any law implementing or complyingwith, or introduced in order to conform to, such Directive. The Company shallenter into an appropriate agency agreement with

 

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any Paying Agent or co-Registrar not a party to this Indenture. Suchagreement shall implement the provisions of this Indenture that relate to suchagent. The Company shall notify the Trustee of the name and address of any suchagent.

 

The Companyinitially appoints DTC to act as the Depositary with respect to the GlobalNotes that are US$ Denominated Notes (the “*US$Depositary*)”. The Company initially appoints Euroclear andClearstream to act as the Depositaries with respect to the Global Notes thatare EUR Denominated Notes.

 

SECTION 2.4         Paying Agent to Hold Money in Trust.

 

The Companyshall require each Paying Agent not a party to this Indenture to agree inwriting that the Paying Agent shall hold in trust for the benefit of theHolders or the Trustee all money held by the Paying Agent for the payment ofprincipal, premium or Additional Interest, if any, or interest on the Notes,and shall notify the Trustee of any default by the Company in making any suchpayment. While any such default continues, the Trustee may require a PayingAgent not a party to this Indenture to pay all money held by it to the Trustee.The Company at any time may require a Paying Agent not a party to thisIndenture to pay all money held by it to the Trustee. Upon payment over to theTrustee, the Paying Agent (if other than the Company or a RestrictedSubsidiary) shall have no further liability for the money. If the Company or aRestricted Subsidiary acts as Paying Agent, it shall segregate and hold in aseparate trust fund for the benefit of the Holders all money held by it asPaying Agent. Upon the occurrence of events specified in Section 6.1(8)hereof, (i) the Trustee shall serve as Paying Agent for the US$ Denominated Notesregardless of whether or not the Trustee was a Paying Agent for the US$Denominated Notes prior to any such event and (ii) if the Company is a PayingAgent for the EUR Denominated Notes at such time, it shall cease to be a PayingAgent and appoint a different Paying Agent for the EUR Denominated Notes.

 

SECTION 2.5         Holder Lists.

 

The Registrarshall preserve in as current a form as is reasonably practicable the mostrecent list available to it of the names and addresses of all Holders and shallotherwise comply with TIA § 312(a). If the Trustee is not the Registrar,the Company shall furnish to the Trustee at least seven (7) Business Daysbefore each interest payment date and at such other times as the Trustee mayrequest in writing, a list in such form and as of such date as the Trustee mayreasonably require of the names and addresses of the Holders, including theaggregate principal amount of the Notes held by each Holder thereof, and theCompany shall otherwise comply with TIA § 312(a).

 

SECTION 2.6         Transfer and Exchange.

 

(a) Transfer and Exchange of Global Notes.Except as otherwise set forth in this Section 2.6, a Global Notemay be transferred, in whole and not in part, only to another nominee of theapplicable Depositary or to a successor thereto or a nominee of such successor.A beneficial interest in a Global Note shall be exchangeable for a CertificatedNote of the same

 

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trancheif (A) in the case of a US$ Denominated Global Note, the US$ Depositary(x) notifies the Company that it is unwilling or unable to continue asDepositary for such Global Note or (y) has ceased to be a clearing agencyregistered under the Exchange Act, and, in either case, a successor Depositaryis not appointed by the Company within 120 days, (B) in the case of a EURDenominated Global Note, (x) Euroclear or Clearstream notifies the Companythat it is unwilling or unable to continue as clearing agency or (y) theCommon Depositary notifies the Company that it is unwilling or unable tocontinue as common depositary for such EUR Denominated Global Note, and, ineither case, a successor Depositary is not appointed by the Company within 120days or (C) in the case of any Global Note, there shall have occurred andbe continuing an Event of Default with respect to such Global Note. Upon theoccurrence of any of the preceding events in (A) or (B) above,Certificated Notes delivered in exchange for any Global Note of the sametranche or beneficial interests therein will be registered in the names, andissued in any approved denominations, requested by or on behalf of theapplicable Depositary (in accordance with its customary procedures). GlobalNotes also may be exchanged or replaced, in whole or in part, as provided in Sections2.7 and 2.10 hereof. Every Note authenticated and delivered inexchange for, or in lieu of, a Global Note of the same tranche or any portionthereof, pursuant to this Section 2.6 or Section 2.7 or2.10 hereof, shall be authenticated and delivered in the form of, andshall be, a Global Note, except for Certificated Notes issued subsequent to anyof the preceding events in (A) or (B) above and pursuant to Section 2.6(c)hereof. A Global Note may not be exchanged for another Note other than asprovided in this Section 2.6(a); provided, however,beneficial interests in a Global Note may be transferred and exchanged asprovided in Section 2.6(b), (c) or (f) hereof.

 

(b) Transfer and Exchange of Beneficial Interestsin the Global Notes. The transfer and exchange of beneficial interests inthe US$ Denominated Global Notes shall be effected through the US$ Depositary,in accordance with the provisions of this Indenture and the ApplicableProcedures. The transfer and exchange of beneficial interests in the EURDenominated Global Notes shall be effected through the Common Depository, inaccordance with the provisions of this Indenture and the applicable rules andprocedures of Euroclear and Clearstream. Beneficial interests in the RestrictedGlobal Notes shall be subject to restrictions on transfer comparable to thoseset forth herein to the extent required by the Securities Act. Beneficialinterests in US$ Denominated Global Notes shall be transferred or exchangedonly for beneficial interests in US$ Denominated Global Notes pursuant to thisclause (b). Beneficial interests in EUR Denominated Global Notes shall betransferred or exchanged only for beneficial interests in EUR DenominatedGlobal Notes pursuant to this clause (b). Transfers of beneficial interests inthe Global Notes also shall require compliance with either subparagraph(i) or (ii) below, as applicable, as well as one or more of the otherfollowing subparagraphs, as applicable:

 

(i)Transfer of Beneficial Interests in the Same Global Note. Beneficialinterests in any Restricted Global Note may be transferred to Persons who takedelivery thereof in the form of a beneficial interest in the same RestrictedGlobal Note in accordance with the transfer restrictions set forth in theRestricted Notes Legend;  *provided*, *however*,that prior to the expiration of the Restricted Period, transfers of beneficialinterests in a Regulation S Temporary Global Note may not be made to a U.S.Person or for the account or benefit of a

 

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U.S. Person (other than anInitial Purchaser). Beneficial interests in any Unrestricted Global US$Denominated Note may be transferred to Persons who take delivery thereof in theform of a beneficial interest in an Unrestricted Global US$ Denominated Note.Beneficial interests in any Unrestricted Global EUR Denominated Note may betransferred to Persons who take delivery thereof in the form of beneficialinterest in an Unrestricted Global EUR Denominated Note. No written orders orinstructions shall be required to be delivered to the Registrar to effect thetransfers described in this Section 2.6(b)(i).

 

(ii)All Other Transfers and Exchanges of Beneficial Interests in Global Notes.In connection with all transfers and exchanges of beneficial interests that arenot subject to Section 2.6(b)(i) hereof, the transferor of suchbeneficial interest must deliver to the Registrar either (A) (1) awritten order from a Participant or an Indirect Participant given to theapplicable Depositary in accordance with the Applicable Procedures directingsuch Depositary to credit or cause to be credited a beneficial interest inanother Global Note of the same tranche in an amount equal to the beneficialinterest to be transferred or exchanged and (2) instructions given in accordancewith the Applicable Procedures containing information regarding the Participantaccount to be credited with such increase or (B) (1) a written orderfrom a Participant or an Indirect Participant given to the applicableDepositary in accordance with the Applicable Procedures directing suchDepositary to cause to be issued a Certificated Note of the same tranche in anamount equal to the beneficial interest to be transferred or exchanged and(2) instructions given by the applicable Depositary to the Registrarcontaining information regarding the Person in whose name such CertificatedNote shall be registered to effect the transfer or exchange referred to in(1) above; *provided* that inno event shall Certificated Notes be issued upon the transfer or exchange ofbeneficial interests in a Regulation S Temporary Global Note prior to(A) the expiration of the Restricted Period and (B) the receipt bythe Registrar of any certificates required pursuant to Rule 903. Uponconsummation of an Exchange Offer by the Company in accordance with Section 2.6(f)hereof, the requirements of this Section 2.6(b)(ii) shall be deemedto have been satisfied upon receipt by the Registrar of the instructionscontained in the Letter of Transmittal delivered by the Holder of suchbeneficial interests in the Restricted Global Notes. Upon satisfaction of allof the requirements for transfer or exchange of beneficial interests in GlobalNotes contained in this Indenture and the Notes or otherwise applicable underthe Securities Act, the Trustee shall adjust the principal amount of therelevant Global Note(s) pursuant to Section 2.6(g) hereof.

 

(iii)Transfer of Beneficial Interests to Another Restricted Global Note. Abeneficial interest in (x) any Restricted Global US$ Denominated Note maybe transferred to a Person who takes delivery thereof in the form of abeneficial interest in another Restricted Global US$ Denominated Note and(y) a Restricted Global EUR Denominated Note may be transferred to aPerson who takes delivery thereof in the form of a beneficial interest inanother Restricted Global EUR Denominated Note if the transfer complies withthe requirements of Section 2.6(b)(ii) hereof and the Registrarreceives the following:

 

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(A)if the transferee will take delivery in the form of a beneficial interest in a144A Global Note, then the transferor must deliver a certificate in the form ofExhibit C hereto, including the certifications in item(1) thereof; or

 

(B)if the transferee will take delivery in the form of a beneficial interest in aRegulation S Global Note, then the transferor must deliver a certificate in theform of Exhibit C hereto, including the certifications in item(2) thereof.

 

(iv)Transfer and Exchange of Beneficial Interests in a Restricted Global Notefor Beneficial Interests in an Unrestricted Global Note. A beneficialinterest in (x) any Restricted Global US$ Denominated Note may beexchanged by any holder thereof for a beneficial interest in an UnrestrictedGlobal US$ Denominated Note or transferred to a Person who takes deliverythereof in the form of a beneficial interest in an Unrestricted Global US$Denominated Note or (y) Restricted Global EUR Denominated Note may beexchanged by any holder thereof for a beneficial interest in an UnrestrictedGlobal EUR Denominated Note or transferred to a Person who takes deliverythereof in the form of a beneficial interest in an Unrestricted Global EURDenominated Note, in each case if the exchange or transfer complies with therequirements of Section 2.6(b)(ii) hereof and:

 

(A)such exchange or transfer is effected pursuant to the Exchange Offer inaccordance with the Registration Rights Agreement and the holder of thebeneficial interest to be transferred, in the case of an exchange, or thetransferee, in the case of a transfer, certifies in the applicable Letter ofTransmittal that it is not (1) a Broker-Dealer, (2) a Personparticipating in the distribution of the Exchange Notes or (3) a Personwho is an affiliate (as defined in Rule 144) of the Company;

 

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

 

(C)such transfer is effected by a Broker-Dealer pursuant to the Exchange OfferRegistration Statement in accordance with the Registration Rights Agreement; or

 

(D)the Registrar receives the following:

 

(1)if the holder of such beneficial interest in a Restricted Global Note proposesto exchange such beneficial interest for a beneficial interest in anUnrestricted Global Note of the same tranche, a certificate from such Holdersubstantially in the form of Exhibit D hereto, including thecertifications in item (1)(a) thereof; or

 

(2)if the holder of such beneficial interest in a Restricted Global Note proposesto transfer such beneficial interest to a Person who shall take deliverythereof in the form of a beneficial interest in an Unrestricted Global Note ofthe

 

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same tranche, a certificatefrom such holder in the form of Exhibit C hereto, including thecertifications in item (4) thereof;

 

and, in each such case setforth in this subparagraph (D), if the Registrar so requests or if theApplicable Procedures so require, an Opinion of Counsel in form reasonablyacceptable to the Registrar to the effect that such exchange or transfer is incompliance with the Securities Act and that the restrictions ontransfers contained in the Restrictive Notes Legend are no longer required inorder to maintain compliance with the Securities Act.

 

Ifany such transfer is effected pursuant to subparagraph (B) or(D) above at a time when an Unrestricted Global Note has not yet beenissued, the Company shall issue and, upon the written request of the Company, theTrustee shall authenticate one or more Unrestricted Global Notes in anaggregate principal amount equal to the aggregate principal amount ofbeneficial interests transferred pursuant to subparagraph (B) or(D) above.

 

Beneficialinterests in an Unrestricted Global Note cannot be exchanged for, ortransferred to Persons who take delivery thereof in the form of, a beneficialinterest in a Restricted Global Note.

 

(c) Transfer or Exchange of Beneficial Interestsfor Certificated Notes. Beneficial interests in US$ Denominated GlobalNotes shall be exchanged only for Certificated US$ Denominated Notes pursuantto this clause (c). Beneficial interests in EUR Denominated Global Notes shallbe exchanged only for Certificated EUR Denominated Notes pursuant to thisclause (c).

 

(i) Beneficial Interests in Restricted GlobalNotes to Restricted Certificated Notes. If any holder of a beneficialinterest in a Restricted Global Note proposes to exchange such beneficialinterest for a Restricted Certificated Note or to transfer such beneficialinterest to a Person who takes delivery thereof in the form of a RestrictedCertificated Note, then, upon the occurrence of any of the events in paragraph(i) or (ii) of Section 2.6(a) hereof and receipt by theRegistrar of the following documentation:

 

(A)if the holder of such beneficial interest in a Restricted Global Note proposesto exchange such beneficial interest for a Restricted Certificated Note, acertificate from such holder substantially in the form of Exhibit Dhereto, including the certifications in item (2)(a) thereof;

 

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

 

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

 

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(D)if such beneficial interest is being transferred pursuant to an exemption fromthe registration requirements of the Securities Act in accordance with Rule144, a certificate substantially in the form of Exhibit C hereto,including the certifications in item (3)(a) thereof; or

 

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

 

theTrustee shall cause the aggregate principal amount of the applicable GlobalNote to be reduced accordingly pursuant to Section 2.6(g) hereof,and the Company shall execute and the Trustee shall authenticate and mail tothe Person designated in the instructions a Certificated Note in the applicableprincipal amount. Any Certificated Note issued in exchange for a beneficialinterest in a Restricted Global Note pursuant to this Section 2.6(c)shall be registered in such name or names and in such authorized denominationor denominations as the holder of such beneficial interest shall instruct theRegistrar through instructions from the Depositary and the Participant orIndirect Participant. The Trustee shall mail such Certificated Notes to thePersons in whose names such Notes are so registered. Any Certificated Noteissued in exchange for a beneficial interest in a Restricted Global Notepursuant to this Section 2.6(c)(i) shall bear the Restricted NotesLegend and shall be subject to all restrictions on transfer contained therein.

 

(ii) Beneficial Interests in Regulation STemporary Global Note to Certificated Notes. Notwithstanding Sections2.06(c)(i)(A) and (C) hereof, a beneficial interest in a Regulation STemporary Global Note may not be exchanged for a Certificated Note ortransferred to a Person who takes delivery thereof in the form of aCertificated Note prior to (A) the expiration of the Restricted Period and(B) the receipt by the Registrar of any certificates required pursuant toRule 903(b)(3)(ii)(B) of the Securities Act, except in the case of a transferpursuant to an exemption from the registration requirements of the SecuritiesAct other than Rule 903 or Rule 904.

 

(iii) Beneficial Interests in Restricted GlobalNotes to Unrestricted Certificated Notes. A holder of a beneficial interestin a Restricted Global Note may exchange such beneficial interest for anUnrestricted Certificated Note or may transfer such beneficial interest to aPerson who takes delivery thereof in the form of an Unrestricted CertificatedNote only upon the occurrence of any of the events in subsection (i) or(ii) of Section 2.6(a) hereof and if:

 

(A)such exchange or transfer is effected pursuant to the Exchange Offer inaccordance with the Registration Rights Agreement and the holder of suchbeneficial interest, in the case of an exchange, or the transferee, in the caseof a transfer, certifies in the applicable Letter of Transmittal that it is not(1) a Broker-Dealer, (2) a Person participating in the distributionof the Exchange Notes or (3) a Person who is an affiliate (as defined inRule 144) of the Company;

 

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

 

(C)such transfer is effected by a Broker-Dealer pursuant to the Exchange OfferRegistration Statement in accordance with the Registration Rights Agreement; or

 

(D)the Registrar receives the following:

 

(1)if the holder of such beneficial interest in a Restricted Global Note proposesto exchange such beneficial interest for an Unrestricted Certificated Note, acertificate from such holder substantially in the form of Exhibit Dhereto, including the certifications in item (1)(b) thereof; or

 

(2)if the holder of such beneficial interest in a Restricted Global Note proposesto transfer such beneficial interest to a Person who shall take deliverythereof in the form of an Unrestricted Certificated Note, a certificate fromsuch holder substantially in the form of Exhibit C hereto,including the certifications in item (4) thereof;

 

and, in each such case setforth in this subparagraph (D), if the Registrar so requests or if the ApplicableProcedures so require, an Opinion of Counsel in form reasonably acceptable tothe Registrar to the effect that such exchange or transfer is in compliancewith the Securities Act and that the restrictions on transfer contained hereinand in the Restricted Notes Legend are no longer required in order to maintaincompliance with the Securities Act.

 

(iv) Beneficial Interests in Unrestricted GlobalNotes to Unrestricted Certificated Notes. If any holder of a beneficialinterest in an Unrestricted Global Note proposes to exchange such beneficialinterest for a Certificated Note or to transfer such beneficial interest to aPerson who takes delivery thereof in the form of a Certificated Note, then,upon the occurrence of any of the events in subsection (i) of Section 2.6(a)hereof and satisfaction of the conditions set forth in Section 2.6(b)(ii)hereof, the Trustee shall cause the aggregate principal amount of theapplicable Global Note to be reduced accordingly pursuant to Section 2.6(g)hereof, and the Company shall execute and the Trustee shall authenticate andmail to the Person designated in the instructions a Certificated Note in theapplicable principal amount. Any Certificated Note issued in exchange for abeneficial interest pursuant to this Section 2.6(c)(iii) shall beregistered in such name or names and in such authorized denomination ordenominations as the holder of such beneficial interest shall instruct theRegistrar through instructions from or through the Depositary and theParticipant or Indirect Participant. The Trustee shall mail such CertificatedNotes to the Persons in whose names such Notes are so registered. AnyCertificated Note issued in exchange for a beneficial interest pursuant to thisSection 2.6(c)(iii) shall not bear the Restricted Notes Legend.

 

(d) Transfer and Exchange of Certificated Notesfor Beneficial Interests. Restricted Certificated US$ Denominated Notesshall be exchanged only for beneficial interests in Restricted Global US$Denominated Notes pursuant to this clause (d). Restricted Certificated

 

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EURDenominated Notes shall be exchanged only for beneficial interests inRestricted Global EUR Denominated Notes pursuant to this clause (d).

 

(i) Restricted Certificated Notes to BeneficialInterests in Restricted Global Notes. If any Holder of a RestrictedCertificated Note proposes to exchange such Note for a beneficial interest in aRestricted Global Note or to transfer such Restricted Certificated Note to aPerson who takes delivery thereof in the form of a beneficial interest in aRestricted Global Note, then, upon receipt by the Registrar of the followingdocumentation:

 

(A)if the Holder of such Restricted Certificated Note proposes to exchange suchNote for a beneficial interest in a Restricted Global Note, a certificate fromsuch Holder substantially in the form of Exhibit D hereto, including thecertifications in item (2)(b) thereof;

 

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

 

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

 

(D)if such Restricted Certificated Note is being transferred pursuant to anexemption from the registration requirements of the Securities Act inaccordance with Rule 144, a certificate substantially in the form of Exhibit Chereto, including the certifications in item (3)(a) thereof; or

 

(E)if such Restricted Certificated Note is being transferred pursuant to aneffective registration statement under the Securities Act, a certificatesubstantially in the form of Exhibit C hereto, including thecertifications in item (3)(c) thereof,

 

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

 

(ii) Restricted Certificated Notes to BeneficialInterests in Unrestricted Global Notes. A Holder of a RestrictedCertificated Note may exchange such Note for a beneficial interest in anUnrestricted Global Note or transfer such Restricted Certificated Note to aPerson who takes delivery thereof in the form of a beneficial interest in anUnrestricted Global Note only if:

 

(A)such exchange or transfer is effected pursuant to the Exchange Offer inaccordance with the Registration Rights Agreement and the Holder, in the caseof an exchange, or the transferee, in the case of a transfer, certifies in theapplicable Letter of Transmittal that it is

 

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not (1) aBroker-Dealer, (2) a Person participating in the distribution of theExchange Notes or (3) a Person who is an affiliate (as defined in Rule144) of the Company;

 

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

 

(C)such transfer is effected by a Broker-Dealer pursuant to the Exchange OfferRegistration Statement in accordance with the Registration Rights Agreement; or

 

(D)the Registrar receives the following:

 

(1)if the Holder of such Certificated Notes proposes to exchange such Notes for abeneficial interest in the Unrestricted Global Note, a certificate from suchHolder substantially in the form of Exhibit D hereto, including thecertifications in item (1)(c) thereof; or

 

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

 

and, in each such case setforth in this subparagraph (D), if the Registrar so requests or if theApplicable Procedures so require, an Opinion of Counsel in form reasonablyacceptable to the Registrar to the effect that such exchange or transfer is incompliance with the Securities Act and that the restrictions on transfercontained herein and in the Restricted Notes Legend are no longer required inorder to maintain compliance with the Securities Act.

 

Upon satisfaction of the conditions of any of thesubparagraphs in this Section 2.6(d)(ii), the Trustee shall cancelthe Certificated Notes and increase or cause to be increased the aggregateprincipal amount of the Unrestricted Global Note.

 

(iii) Unrestricted Certificated Notes toBeneficial Interests in Unrestricted Global Notes. A Holder of anUnrestricted Certificated Note may exchange such Note for a beneficial interestin an Unrestricted Global Note or transfer such Certificated Notes to a Personwho takes delivery thereof in the form of a beneficial interest in anUnrestricted Global Note at any time. Upon receipt of a request for such anexchange or transfer, the Trustee shall cancel the applicable UnrestrictedCertificated Note and increase or cause to be increased the aggregate principalamount of one of the Unrestricted Global Notes.

 

If any such exchange or transfer from a CertificatedNote to a beneficial interest is effected pursuant to subparagraph (ii)(B),(ii)(D) or (iii) above at a time when an Unrestricted Global Note has notyet been issued, the Company shall issue and, upon the written request of

 

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theCompany, the Trustee shall authenticate one or more Unrestricted Global Notesin an aggregate principal amount equal to the principal amount of CertificatedNotes so transferred.

 

(e) Transfer and Exchange of Certificated Notesfor Certificated Notes. Upon request by a Holder of Certificated Notes andsuch Holder’s compliance with the provisions of this Section 2.6(e),the Registrar shall register the transfer or exchange of Certificated Notes.Certificated US$ Denominated Notes shall be exchanged only for Certificated US$Denominated Notes pursuant to this clause (e). Beneficial interests inCertificated EUR Denominated Notes shall be exchanged only for Certificated EURDenominated Notes pursuant to this clause (e). Prior to such registration oftransfer or exchange, the requesting Holder shall present or surrender to theRegistrar the Certificated Notes duly endorsed or accompanied by a writteninstruction of transfer in form satisfactory to the Registrar duly executed bysuch Holder or by its attorney, duly authorized in writing. In addition, therequesting Holder shall provide any additional certifications, documents andinformation, as applicable, required pursuant to the following provisions ofthis Section 2.6(e):

 

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

 

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

 

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

 

(C)if the transfer will be made pursuant to any other exemption from theregistration requirements of the Securities Act, then the transferor mustdeliver a certificate in the form of Exhibit C hereto, includingthe certifications required by item (3) thereof, if applicable.

 

(ii)Restricted Certificated Notes to Unrestricted Certificated Notes. AnyRestricted Certificated Note may be exchanged by the Holder thereof for anUnrestricted Certificated Note or transferred to a Person or Persons who takedelivery thereof in the form of an Unrestricted Certificated Note if:

 

(A)such exchange or transfer is effected pursuant to the Exchange Offer inaccordance with the Registration Rights Agreement and the Holder, in the caseof an exchange, or the transferee, in the case of a transfer, certifies in theapplicable Letter of Transmittal that it is not (1) a Broker-Dealer,(2) a Person participating in the

 

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distribution of the ExchangeNotes or (3) a Person who is an affiliate (as defined in Rule 144) of theCompany;

 

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

 

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

 

(D)the Registrar receives the following:

 

(1)if the Holder of such Restricted Certificated Notes proposes to exchange suchNotes for an Unrestricted Certificated Note, a certificate from such Holdersubstantially in the form of Exhibit D hereto, including thecertifications in item (1)(d) thereof; or

 

(2)if the Holder of such Restricted Certificated Notes proposes to transfer suchNotes to a Person who shall take delivery thereof in the form of anUnrestricted Certificated Note, a certificate from such Holder substantially inthe form of Exhibit C hereto, including the certifications in item(4) thereof;

 

and, in each such case setforth in this subparagraph (D), if the Registrar so requests, an Opinion ofCounsel in form reasonably acceptable to the Registrar to the effect that suchexchange or transfer is in compliance with the Securities Act and that therestrictions on transfer contained herein and in the Restricted Notes Legendare no longer required in order to maintain compliance with the Securities Act.

 

(iii)Unrestricted Certificated Notes to Unrestricted Certificated Notes. AHolder of Unrestricted Certificated Notes may transfer such Notes to a Personwho takes delivery thereof in the form of an Unrestricted Certificated Note.Upon receipt of a request to register such a transfer, the Registrar shallregister the Unrestricted Certificated Notes pursuant to the instructions from theHolder thereof.

 

(f) Exchange Offer. Upon theoccurrence of the Exchange Offer in accordance with the Registration RightsAgreement, the Company shall issue and, upon the written request of theCompany, the Trustee shall authenticate (i) one or more UnrestrictedGlobal Notes in an aggregate principal amount equal to the principal amount ofthe beneficial interests in the Restricted Global Notes of the same tranchetendered for acceptance by Persons that certify in the applicable Letters ofTransmittal that (x) they are not Broker-Dealers, (y) they are notparticipating in a distribution of the Exchange Notes and (z) they are notaffiliates (as defined in Rule 144) of the Company, and accepted for exchangein the Exchange Offer and (ii) Unrestricted Certificated Notes in anaggregate principal amount equal to the principal amount of the RestrictedCertificated Notes of the same tranche tendered for acceptance by Persons thatcertify in the applicable Letters of Transmittal that (x) they are notBroker-Dealers,

 

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(y) they are not participating in a distribution of the ExchangeNotes and (z) they are not affiliates (as defined in Rule 144) of theCompany, and accepted for exchange in the Exchange Offer. Concurrently with theissuance of such Notes, the Trustee shall cause the aggregate principal amountof the applicable Restricted Global Notes to be reduced accordingly, and theCompany shall execute and the Trustee shall authenticate and mail to thePersons designated by the Holders of Certificated Notes so acceptedUnrestricted Certificated Notes in the applicable principal amount. Any Notesthat remain outstanding after the consummation of the Exchange Offer, andExchange Notes issued in connection with the Exchange Offer, shall be treatedas a single class of securities under this Indenture.

 

(g) Cancellation and/or Adjustment of GlobalNotes. At such time as all beneficial interests in a particular Global Notehave been exchanged for Certificated Notes or a particular Global Note has beenredeemed, repurchased or canceled in whole and not in part, each such GlobalNote shall be returned to or retained and canceled by the Trustee in accordancewith Section 2.11 hereof. At any time prior to such cancellation,if any beneficial interest in a Global Note is exchanged for or transferred toa Person who will take delivery thereof in the form of a beneficial interest inanother Global Note or for Certificated Notes, 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 by the Depositary at thedirection of the Trustee to reflect such reduction; and if the beneficialinterest is being exchanged for or transferred to a Person who will takedelivery thereof in the form of a beneficial interest in another Global Note,such other Global Note shall be increased accordingly and an endorsement shallbe made on such Global Note by the Trustee or by the Depositary at the directionof the Trustee to reflect such increase.

 

(h)  GeneralProvisions Relating to Transfers and Exchanges.

 

(i) To permit registrations of transfers andexchanges, the Company shall execute and the Trustee shall authenticate GlobalNotes and Certificated Notes upon the written request of the Company or at theRegistrar’s request.

 

(ii) No service charge shall be made to a holder ofa beneficial interest in a Global Note or to a Holder of a Certificated Notefor any registration of transfer or exchange, but the Company may requirepayment of a sum sufficient to cover any transfer tax or similar governmentalcharge payable in connection therewith (other than any such transfer taxes orsimilar governmental charge payable upon exchange or transfer pursuant to Sections2.7, 2.10, 3.6, 3.9, 4.10, 4.14 and 9.5hereof).

 

(iii) Neither the Registrar nor the Company shall berequired to register the transfer of or exchange any Note selected forredemption in whole or in part, except the unredeemed portion of any Note beingredeemed in part.

 

(iv) All Global Notes and Certificated Notes issuedupon any registration of transfer or exchange of Global Notes or CertificatedNotes shall be the valid obligations of the Company,

 

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evidencingthe same debt, and entitled to the same benefits under this Indenture, as theGlobal Notes or Certificated Notes surrendered upon such registration oftransfer or exchange.

 

(v) The Company shall not be required (A) toissue, to register the transfer of or to exchange any Notes during a periodbeginning at the opening of business 15 days before the day of any selection ofNotes for redemption under Section 3.2 hereof and ending at theclose of business on the day of selection, (B) to register the transfer ofor to exchange any Note so selected for redemption in whole or in part, exceptthe unredeemed portion of any Note being redeemed in part or (C) toregister the transfer of or to exchange a Note between a Record Date and thenext succeeding Interest Payment Date.

 

(vi) Prior to due presentment for the registrationof a transfer of any Note, the Trustee, any Agent and the Company may deem andtreat the Person in whose name any Note is registered as the absolute owner ofsuch Note for the purpose of receiving payment of principal of (and premium, ifany) and interest (including Additional Interest, if any) on such Notes and forall other purposes, and none of the Trustee, any Agent or the Company shall beaffected by notice to the contrary.

 

(vii) Upon surrender for registration of transfer ofany Note at the office or agency of the Company designated pursuant to Section 4.2hereof, the Company shall execute, and the Trustee shall authenticate and mail,in the name of the designated transferee or transferees, one or morereplacement Notes of any authorized denomination or denominations of a likeaggregate principal amount.

 

(viii) At the option of the Holder, Notes may beexchanged for other Notes of any authorized denomination or denominations of alike aggregate principal amount upon surrender of the Notes to be exchanged atsuch office or agency. Whenever any Global Notes or Certificated Notes are sosurrendered for exchange, the Company shall execute, and the Trustee shallauthenticate and mail, the replacement Global Notes and Certificated Noteswhich the Holder making the exchange is entitled to in accordance with theprovisions of Section 2.2 hereof.

 

(ix) All certifications, certificates and Opinionsof Counsel required to be submitted to the Registrar pursuant to this Section 2.6to effect a registration of transfer or exchange may be submitted by facsimile.

 

(x) Notwithstanding anything herein to thecontrary, no transfers or exchanges of the Notes of one tranche for the Notesof another tranche and no transfers or exchanges of beneficial interests in theNotes of one tranche for the beneficial interests in the Notes of anothertranche shall be permitted. Whenever this Indenture refers to transfers orexchanges of Notes (or beneficial interests therein) permitted or requiredhereunder, it shall be deemed to refer to transfers or exchanges of Notes (orbeneficial interests therein) of a particular tranche into or for the Notes (orbeneficial interests therein) of the same tranche.

 

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(i)  Legends.Each Global Note shall bear a Global Note Legend. Each Global Note and eachCertificated Note shall bear a Restricted Notes Legend, except that GlobalNotes and Certificated Notes issued pursuant to subparagraphs (b)(iv), c(iv),(d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.6 shall not bear aRestricted Notes Legend. Each Regulation S Temporary Global Note shall bearRegulation S Temporary Global Note Legend.

 

SECTION 2.7         Replacement Notes.

 

If anymutilated Note of a particular tranche is surrendered to the Trustee, or theCompany and the Trustee receive evidence to their satisfaction of thedestruction, loss or theft of any Note, the Company shall issue and theTrustee, upon the written order of the Company signed by two Officers of theCompany, shall authenticate a replacement Note of the same tranche if theTrustee’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 theCompany, the Trustee, any Agent and any authenticating agent from any loss thatany of them may suffer if a Note is replaced. The Company and the Trustee maycharge for their expenses in replacing a Note.

 

Everyreplacement Note is an additional obligation of the Company and shall beentitled to all of the benefits of this Indenture equally and proportionatelywith all other Notes duly issued hereunder.

 

SECTION 2.8         Outstanding Notes.

 

The Notesoutstanding at any time are all the Notes authenticated by the Trustee exceptfor those cancelled by it, those delivered to it for cancellation, thosereductions in the interest in a Global Note effected by the Trustee inaccordance with the provisions hereof, and those described in this Section 2.8as not outstanding. Except as set forth in Section 2.9 hereof, aNote does not cease to be outstanding because the Company or an Affiliate ofthe Company holds the Note.

 

If a Note isreplaced pursuant to Section 2.7 hereof, it ceases to beoutstanding unless the Trustee receives proof satisfactory to it that thereplaced Note is held by a bona fide purchaser.

 

If theprincipal amount of any Note is considered paid under Section 4.1hereof, it ceases to be outstanding and interest on it ceases to accrue.

 

If the PayingAgent (other than the Company, a Restricted Subsidiary or an Affiliate of anythereof) holds, on a redemption date or maturity date, money sufficient to payNotes payable on that date, then on and after that date such Notes shall bedeemed to be no longer outstanding and shall cease to accrue interest.

 

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SECTION 2.9         Treasury Notes.

 

In determiningwhether the Holders of the required aggregate principal amount of Notes haveconcurred in any direction, waiver or consent, Notes owned by the Company or byany Affiliate of the Company shall be considered as though not outstanding,except that for the purposes of determining whether the Trustee shall beprotected in relying on any such direction, waiver or consent, only Notes shownon the register or identified by the Company in an Officers’ Certificate asbeing owned shall be so disregarded. Notwithstanding the foregoing, Notes thatare to be acquired by the Company or an Affiliate of the Company pursuant to anexchange offer, tender offer or other agreement shall not be deemed to be ownedby such entity until legal title to such Notes passes to such entity.

 

SECTION 2.10       Temporary Notes.

 

UntilCertificated Notes are ready for delivery, the Company may prepare and theTrustee shall authenticate temporary Notes upon a written order of the Companysigned by two Officers of the Company in accordance with Section 2.2.Temporary Notes shall be substantially in the form of Certificated Notes butmay have variations that the Company considers appropriate for temporary Notes.Without unreasonable delay, the Company shall prepare and the Trustee shallupon receipt of a written order of the Company signed by two Officersauthenticate Certificated Notes in exchange for temporary Notes.

 

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

 

SECTION 2.11       Cancellation.

 

The Company atany time may deliver to the Trustee for cancellation any Notes previouslyauthenticated and delivered hereunder or which the Company may have acquired inany manner whatsoever, and all Notes so delivered shall be promptly cancelledby the Trustee. All Notes surrendered for registration of transfer, exchange orpayment, if surrendered to any Person other than the Trustee, shall bedelivered to the Trustee. The Trustee and no one else shall cancel all Notessurrendered for registration of transfer, exchange, payment, replacement orcancellation. Subject to Section 2.7 hereof, the Company may notissue new Notes to replace Notes that it has redeemed or paid or that have beendelivered to the Trustee for cancellation. All cancelled Notes held by theTrustee shall be disposed of in accordance with its customary practice, andcertification of their disposal delivered to the Company.

 

SECTION 2.12       Defaulted Interest.

 

If the Companydefaults in a payment of interest on the Notes, it shall pay the defaultedinterest in any lawful manner plus, to the extent lawful, interest payable onthe defaulted interest, to the Persons who are Holders on a subsequent specialrecord date, which date shall be at the earliest practicable date but in allevents at least five (5) Business Days prior to the payment date, in eachcase at the rate provided in the Notes and in Section 4.1 hereof.The Company shall fix or cause to be fixed each such special record date andpayment date and shall promptly thereafter

 

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notify the Trustee of any such date. 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.

 

Unlessotherwise set forth in this Indenture, the record date for purposes ofdetermining the identity of Holders entitled to vote or consent to any actionby vote or consent authorized or permitted under this Indenture shall bedetermined as provided for in TIA § 316(c).

 

SECTION 2.14       Computation of Interest.

 

Interest andAdditional Interest, if any, on the Notes shall be computed on the basis of a360-day year comprised of twelve 30-day months.

 

SECTION 2.15       CUSIP Numbers, ISINNumbers and Common Codes.

 

The Company inissuing the Notes may use a “CUSIP” number an “ISIN” number and a Common Code,and if it does so, the Trustee shall use the CUSIP number, the ISIN number orthe Common Code, as applicable, in notices of redemption or exchange as aconvenience to Holders;*provided*that any such notice may state that no representation is made as to thecorrectness or accuracy of the CUSIP number, ISIN number or Common Code printedin the notice or on the Notes and that reliance may be placed only on the otheridentification numbers printed on the Notes. The Company shall promptly notifythe Trustee of any change in the CUSIP number, the ISIN number or the CommonCode.

 

ARTICLE III

 

REDEMPTION AND PREPAYMENT

 

SECTION 3.1         Notices to Trustee.

 

If the Companyelects to redeem Notes pursuant to the optional redemption provisions of Section 3.7hereof, it shall furnish to the Trustee, at least 40 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. Inno event may the Company elect to redeem Notes of one tranche without electingto redeem the same percentage of Notes of the other tranche.

 

If the Companyis required to make an offer to purchase Notes pursuant to Section 4.10or 4.14 hereof, it shall furnish to the Trustee, at least 30 daysor such shorter period as is acceptable to the Trustee before the scheduledpurchase date, an Officers’ Certificate setting forth (i) the Section ofthis Indenture pursuant to which the offer to purchase shall occur,(ii) the

 

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terms of the offer, (iii) the principal amount of Notes to bepurchased, (iv) the purchase price and (v) the purchase date andfurther setting forth a statement to the effect that (a) the Company orone of its Subsidiaries has effected an Asset Sale and there are ExcessProceeds aggregating more than $20.0 million or (b) a Change ofControl has occurred, as applicable.

 

The Companywill also provide the Trustee with any additional information that the Trusteereasonably requests in connection with any redemption or offer.

 

SECTION 3.2         Selection of Notes toBe Redeemed.

 

If less thanall of the Notes are to be redeemed at any time, the Registrar shall select theNotes to be redeemed among the Holders in compliance with the requirements ofthe principal national securities exchange, if any, on which the Notes arelisted or, if the Notes are not so listed, on a*pro rata*basis, by lot or by such method as the Registrar shall deem fair andappropriate (and in a manner that complies with applicable legal requirements);*provided* that no US$ Denominated Notes of $2,000 or lessand no EUR Denominated of €50,000 or less shall be redeemed in part.

 

Notices ofredemption shall be mailed by first class mail at least 30 but not more than60 days before the redemption date to each Holder of Notes to be redeemedat its registered address; *provided* thatredemption notices may be mailed more than 60 days prior to a redemption dateif the notice is issued in connection with Sections 8.2, 8.3 or 8.8hereof. If any Note is to be redeemed in part only, the notice of redemptionthat relates to such Note shall state the portion of the principal amountthereof to be redeemed. A new Note in principal amount equal to the unredeemedportion of the original Note will be issued in the name of the Holder thereofupon cancellation of the original Note (or appropriate adjustments to theamount and beneficial interests in a Global Note will be made, as appropriate).

 

On and afterthe redemption date, interest will cease to accrue on Notes or portions of themcalled for redemption. The Registrar shall make the selection from the Notesoutstanding and not previously called for redemption as long as the Company hasdeposited with the Paying Agent funds in satisfaction of the applicableRedemption Price pursuant to this Indenture and shall promptly notify theCompany in writing of the Notes selected for redemption. US$ Denominated Notes and portions of US$ DenominatedNotes selected shall be in amounts of $2,000 or multiples of $1,000; exceptthat if all of the US$ Denominated Notes of a Holder are to be redeemed, theentire outstanding amount of US$ Denominated Notes held by such Holder,even if not a multiple of $1,000, shall be redeemed. EUR Denominated Notes and portions of EUR Denominated Notes selectedshall be in amounts of €50,000or multiples of €1,000; exceptthat if all of the EUR Denominated Notes of a Holder are to be redeemed, theentire outstanding amount of EUR Denominated Notes held by such Holder, even ifnot a multiple of €1,000, shallbe redeemed.

 

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SECTION 3.3         Notice of Redemption.

 

Subject to theprovisions of Section 3.9, at least 30 days but not more than60 days before a redemption date, the Company shall mail or cause to bemailed by first class mail, a notice of redemption to the Trustee, theRegistrar and each Holder whose Notes are to be redeemed.

 

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

 

(1)           the redemption date;

 

(2)           the Redemption Price;

 

(3)           if any Note is beingredeemed in part, the portion of the principal amount of such Notes to beredeemed and that, after the redemption date, upon surrender of such Note, anew Note or Notes in principal amount equal to the unredeemed portion shall beissued upon cancellation of the original Note;

 

(4)           the name, telephonenumber and address of the Paying Agent;

 

(5)           that Notes called forredemption must be surrendered to the Paying Agent to collect the RedemptionPrice;

 

(6)           that, on the redemptiondate and, if applicable, upon the satisfaction of any conditions to suchredemption set forth in such notice of redemption, the redemption price willbecome due and payable upon each such Note or portion thereof, and that, unlessthe Company defaults in making such redemption payment, interest, if any, onNotes called for redemption ceases to accrue on and after the redemption date;

 

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

 

(8)           that no representationis made as to the correctness or accuracy of the CUSIP number, if any, listedin such notice or printed on the Notes.

 

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

 

The Companymay provide in such notice that payment of the redemption price and theperformance of the Company’s obligations with respect to such redemption may beperformed by another person

 

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At theCompany’s request, the Trustee shall give the notice of redemption in theCompany’s name and at the Company’s expense;*provided*,*however*, that the Company shall have delivered to theTrustee, at least 40 days prior to the redemption date (or such shorterperiod as is acceptable to the Trustee), an Officers’ Certificate requestingthat the Trustee give such notice and setting forth the information to bestated in the notice as provided in the preceding paragraph. The notice mailed inthe manner herein provided shall be conclusively presumed to have been dulygiven whether or not the Holder receives such notice. In any case, failure togive such notice by mail or any defect in the notice to the Holder of any Noteshall not affect the validity of the proceeding for the redemption of any otherNote.

 

SECTION 3.4         Effect of Notice ofRedemption.

 

Except withrespect to notices of redemption given in accordance with Section 3.7(d)hereof, once notice of redemption is mailed in accordance with Section 3.3hereof, Notes called for redemption become irrevocably due and payable on theredemption date at the Redemption Price plus accrued and unpaid interest andAdditional Interest, if any, to such date, subject to the satisfaction of anyconditions precedent provided in such notice.

 

SECTION 3.5         Deposit of Redemptionof Purchase Price.

 

On or before10:00 a.m. (New York City time) on each redemption date or the date onwhich Notes must be accepted for purchase pursuant to Section 4.10or 4.14, the Company shall deposit or with the Paying Agent (other thanthe Company or an Affiliate of the Company), in US$ with respect to US$ Denominated Notes and in Euro withrespect to EUR Denominated Notes,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 Paying Agent shall promptly return to the Company any moneydeposited with the Paying Agent by the Company in excess of the amounts necessaryto pay the Redemption Price of (including any applicable premium), and accruedinterest and Additional Interest, if any, on, all Notes to be redeemed orpurchased.

 

If Notescalled for redemption or tendered in an Asset Sale Offer or Change of Control Offerare paid or if the Company has deposited with the Paying Agent money sufficientto pay the redemption or purchase price of, and unpaid and accrued interest, ifany, on, all Notes to be redeemed or purchased, on and after the redemption orpurchase date, interest, if any, shall cease to accrue on the Notes or theportions of Notes called for redemption or tendered and not withdrawn in anAsset Sale Offer or Change of Control Offer (regardless of whether certificatesfor such securities are actually surrendered). If a Note is redeemed orpurchased on or after an interest record date but on or prior to the relatedinterest payment date, then any accrued and unpaid interest and AdditionalInterest, if any, shall be paid to the Person in whose name such Note wasregistered at the close of business on such record date. If any Note called forredemption shall not be so paid upon surrender for redemption because of thefailure of the Company to comply with the preceding paragraph, interest shallbe paid on the unpaid principal from the redemption or purchase date until suchprincipal is paid, and to the extent lawful on any interest not paid on suchunpaid principal, in each case, at the rate provided in the Notes and in

 

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Section 4.1 hereof. If any Note calledfor redemption or tendered in an Asset Sale Offer or Change of Control Offershall not be so paid upon surrender for redemption because of the failure ofthe Company to comply with the preceding paragraph, interest and AdditionalInterest, if any, shall be paid on the unpaid principal, from the redemptiondate until such principal is paid, and to the extent lawful on any interest notpaid on such unpaid principal.

 

SECTION 3.6         Notes Redeemed in Part.

 

Upon surrenderand cancellation of a Note that is redeemed in part, the Company shall issueand, upon the written request of an Officer of the Company, the Trustee shallauthenticate for the Holder at the expense of the Company a new Note equal inprincipal amount to the unredeemed portion of the Note surrendered andcancelled; *provided* that each such new Note will bein a principal amount of $2,000 or integral multiples of $1,000 in excessthereof with regards to US$ Denominated Notes and €50,000 or integral multiples of €1,000 in excess thereof withregards to EUR Denominated Notes.

 

SECTION 3.7         Optional Redemption.

 

(a)           TheNotes may be redeemed in whole or in part, at any time prior to June 30, 2012,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 the 100% of the Current Accretion Amount of theNotes redeemed plus the Applicable Premium multiplied by the Current AccretionAmount (as defined below) as of, and accrued and unpaid interest not includedin the calculation of the Current Accretion Amount and Additional Interest, ifany, to, the applicable redemption date (subject to the right of Holders on therelevant record date to receive interest due on the relevant interest paymentdate).

 

For the purposes hereof,“*Current Accretion Amount*” shallmean the sum of (x) the then outstanding principal principal amount of theNotes being redeemed (including all the interest previously added to theprincipal of the Notes), and (y) to the extent such redemption occurs prior toJune 30, 2010, if a portion (up to 3% *perannum*) of the accrued and unpaid interest on the Notes as of thequarterly interest payment date immediately prior to the redemption date wascapitalized on such interest payment date, that same portion of accrued andunpaid interest on the Notes to the redemption date that may be permitted to becapitalized on the next quarterly 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 June 30, 2012, upon not less than 30 nor morethan 60 days’ prior notice mailed by first-class mail to each Holder’sregistered address, at the following Redemption Prices (expressed aspercentages of the Current Accretion Amount to be redeemed) set forth below,plus accrued and unpaid interest not included in the calculation of the CurrentAccretion Amount and Additional Interest, if any, to, but not including, the redemptiondate (subject to the right of Holders of record on the relevant regular recorddate to receive interest due on an interest payment date that is on or prior tothe redemption date, as determined by the

 

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Company), if redeemed during the 12-month periodbeginning June 30 of the years indicated below:

 

| **Year**            | ** ** | **Redemption Price** | ** ** |
|---------------------|------------|----------------------|------------|
| 2012                |       | 105.375              | %          |
| 2013                |       | 102.6875             | %          |
| 2014 and thereafter |       | 100                  | %          |

 

(c)           Inaddition to the optional redemption of the Notes in accordance with theprovisions of the preceding paragraphs, prior to June 30, 2012, the Company mayon one or more occasions, with the net cash proceeds of one or more EquityOfferings, redeem up to 40% of the aggregate principal amount of theoutstanding Notes at a Redemption Price of 110.75% of the Current AccretionAmount thereof, plus accrued and unpaid interest not included in thecalculation of the Current Accretion Amount and Additional Interest, if any,thereon to the date of redemption;*provided* thatat least 60% of the aggregate principal amount of Notes originally issued onthe Issue Date remains outstanding immediately after the occurrence of any suchredemption (excluding Notes held by Parent and its Affiliates) and that anysuch redemption occurs within 90 days following the closing of any suchEquity Offering.

 

(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.

 

(e)           Eachredemption must relate to an aggregate principal amount of Notes of $5.0million or €5.0 million as the case may be, or if lower the remaining principalamount of the Notes then outstanding.

 

SECTION 3.8         Mandatory Redemption.

 

Except as setforth under Sections 3.9, 4.10 and 4.14 hereof andexcept as set forth below, the Company shall not be required to make mandatoryredemption or sinking fund payments with respect to the Notes.

 

If the Noteswould otherwise constitute “applicable high yield discount obligations” withinthe meaning of Section 163(i)(1) of the Code, at the end of the firstaccrual period ending after the fifth anniversary of the Notes’ issuance (the “AHYDOredemption date”), the Issuer will be required to redeem for cash a portionof each Note then outstanding equal to the “Mandatory Principal RedemptionAmount” (such redemption, a “Mandatory Principal Redemption”). Theredemption price for the portion of each Note redeemed pursuant to a MandatoryPrincipal Redemption will be 100% of the principal amount of such portion plusany accrued interest thereon on the date of redemption. The “MandatoryPrincipal Redemption Amount” means the portion of a Note required to beredeemed to prevent such Note from being treated as an “applicable high yielddiscount obligation” within the meaning of Section 163(i)(1) of the Code.No partial redemption or repurchase of the Notes prior to the AHYDO redemption 

 

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date pursuant to any other provision of this Indenture will alter theIssuer’s obligation to make the Mandatory Principal Redemption with respect toany Notes that remain outstanding on the AHYDO redemption date.

 

SECTION 3.9         Offers to Repurchaseby Application of Excess Proceeds..

 

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

 

(b) The Asset Sale Offer shall remain open for aperiod of 20 Business Days following its commencement and no longer, except tothe extent that a longer period is required by applicable law (the “*Offer Period*”). On the purchase date,which will be no earlier than 30 days nor later than 60 days from the date thenotice governing such Asset Sale Offer has been mailed (the “*Purchase Date*”), the Company shall applyall Excess Proceeds (the “*Offer Amount*”)to the purchase of Notes and, if required, Indebtedness that ranks *pari*passu with the Notes and containsprovisions similar to those set forth in this Indenture with respect to theoffers to purchase (“*Pari Passu Indebtedness*”)(on a *pro rata* basis, ifapplicable), or, if less than the Offer Amount has been tendered, all Notes andPari Passu Indebtedness tendered in response to the Asset Sale Offer. Paymentfor any Notes so purchased shall be made in the same manner as interestpayments are made.

 

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

 

(d) Upon the commencement of an Asset Sale Offer,the Company shall send, by first-class mail, a notice to each of the Holders,with a copy to the Trustee and Agents. The notice shall contain allinstructions and materials necessary to enable such Holders to tender Notespursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to allHolders and holders of Pari Passu Indebtedness. The notice, which shall governthe terms of the Asset Sale Offer, shall state:

 

(i)that the Asset Sale Offer is being made pursuant to this Section 3.9and Section 4.10 hereof and the length of time the Asset Sale Offershall remain open;

 

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

 

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

 

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

 

(v)that Holders electing to have a Note purchased pursuant to an Asset Sale Offermay elect to have Notes purchased in denominations of $2,000 and integralmultiples of $1,000 in excess of $2,000 with regards to the US$ DenominatedNotes and in denominations of €50,000 and integral multiples of €1,000 inexcess of €5,000 with regards to the EUR Denominated Notes;

 

(vi)that Holders electing to have a Note purchased pursuant to any Asset Sale Offershall be required to surrender the Note, with the form entitled “Option ofHolder to Elect Purchase” attached to the Note completed, or transfer bybook-entry transfer, to the Company, the US$ Depositary or Common Depositary,as the case may be, if appointed by the Company, or a Paying Agent at the addressspecified in the notice at least three days before the Purchase Date;

 

(vii)that Holders shall be entitled to withdraw their election if the Company, theDepositary or the Paying Agent, as the case may be, receive, not later than theexpiration of the Offer Period, a telegram, facsimile transmission or lettersetting forth the name of the Holder, the principal amount of the Note theHolder delivered for purchase and a statement that such Holder is withdrawinghis election to have such Note purchased;

 

(viii)that, if the aggregate principal amount of Notes and Pari Passu Indebtednesssurrendered by the holders thereof exceeds the Offer Amount, the applicableCustodian shall select the Notes and such Pari Passu Indebtedness to bepurchased on a *pro rata* basisbased on the accreted value or principal amount of the Notes or such Pari PassuIndebtedness tendered (with such adjustments as may be deemed appropriate bythe applicable Note Custodian, so that only US$ Denominated Notes indenominations of $2,000, or integral multiples of $1,000 in excess of $2,000 orEUR Denominated Notes in denominations of €50,000, or integral multiples of€1,000 in excess of €50,000, shall be purchased); and

 

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

 

(e) On or before the Purchase Date, the Companyshall, to the extent lawful, (1) accept for payment, on a *pro rata* basis to the extent necessary,the Offer Amount of Notes or portions thereof validly tendered pursuant to theAsset Sale Offer, or if less than the Offer Amount has been tendered, all Notestendered and (2) deliver or cause to be delivered to the Trustee the Notesproperly accepted together with an Officer’s Certificate stating the aggregateprincipal amount of Notes or portions thereof so tendered.

 

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(f) The Company, the Depositary or the Paying Agent,as the case may be, shall promptly mail or deliver to each tendering Holder anamount equal to the purchase price of the Notes properly tendered by suchHolder and accepted by the Company for purchase, and the Company shall promptlyissue a new Note, and the Trustee, upon the written request of the Company,shall authenticate and mail or deliver (or cause to be transferred bybook-entry) such new Note to such Holder (it being understood that, notwithstandinganything in this Indenture to the contrary, no Opinion of Counsel or Officer’sCertificate is required for the Trustee to authenticate and mail or deliversuch new Note) in a principal amount equal to any unpurchased portion of theNote surrendered representing the same indebtedness to the extent notrepurchased; provided, that (i) each such new US$ Denominated Noteshall be in a principal amount of $2,000 or an integral multiple of $1,000 inexcess of $2,000 and (ii) each new EUR Denominated Note shall be in aprincipal amount of €50,000 or an integral multiple of €1,000 in excess of€50,000. Any Note not so accepted shall be promptly mailed or delivered by theCompany to the Holder thereof. The Company shall publicly announce the resultsof the Asset Sale Offer on or as soon as practicable after the Purchase Date.

 

Other than as specifically provided in this Section 3.9or Section 4.10 hereof, any purchase pursuant to this Section 3.9shall be made pursuant to the applicable provisions of Sections 3.1 through3.6 hereof.

 

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 the Notes.Principal, premium, if any, and interest and Additional Interest, if any, shallbe considered paid for all purposes hereunder on the date the Paying Agent, ifother than the Company or a Subsidiary thereof, holds, as of 10:00 a.m.(New York City time), money deposited by the Company in immediately availablefunds and designated for and sufficient to pay all such principal, premium, ifany, and interest and Additional Interest, if any, then due. The Company shallpay 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 anOfficers’ Certificate to the Trustee stating that Additional Interest is dueand stating the amount of such Additional Interest on $1,000 aggregateprincipal amount of Notes or €1,000 aggregate principal amount of Notes, as thecase may be, to the Trustee no later than the Record Date of such payment.Unless and until the Trustee receives an Officers’ Certificate stating thatAdditional Interest is due and payable, the Trustee is entitle to assume noAdditional Interest 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 2% *per annum* in excess of the then applicable interest rate onthe Notes to the extent lawful; it shall pay interest (including 

 

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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), at the same rate to theextent lawful.

 

SECTION 4.2         Maintenance of Officeor Agency.

 

The Companyshall maintain in the Borough of Manhattan, the City of New York an office oragency (which may be an office of the Trustee or an Affiliate of the Trustee orRegistrar) where Notes may be surrendered for registration of transfer or forexchange and where notices and demands to or upon the Company in respect of theNotes and this Indenture may be served. The Company shall give prompt writtennotice to the Trustee of the location, and any change in the location, of suchoffice or agency. If at any time the Company shall fail to maintain any suchrequired office or agency or shall fail to furnish the Trustee with the addressthereof, such presentations, surrenders, notices and demands may be made orserved at the Corporate Trust Office of the Trustee.

 

The Companymay also from time to time designate one or more other offices or agencieswhere the Notes may be presented or surrendered for any or all such purposesand may from time to time rescind such designations; *provided*,*however*, that no such designation orrescission shall in any manner relieve the company of its obligation tomaintain an office or agency in the Borough of Manhattan, the City of New Yorkfor such purposes. The Company shall give prompt written notice to the Trusteeof any such designation or rescission and of any change in the location of anysuch other office or agency.

 

The Companyhereby designates the Corporate Trust Office of the Trustee as one such officeor agency of the Company in accordance with Section 2.3 hereof.

 

SECTION 4.3         Reports.

 

Whether or notrequired by the Commission, so long as any Notes are outstanding, if not filedelectronically with the Commission through the Commission’s Electronic DataGathering, Analysis, and Retrieval System (or any successor system), theCompany will furnish to the Holders of Notes, within the time periods specifiedin the Commission’s rules and regulations for a filer that is a“non-accelerated filer”:

 

(1)           substantially the samequarterly and annual financial information that would be required to becontained in a filing with the Commission on Forms 10-Q and 10-K, if theCompany were required to file such forms, including a “Management’s Discussionand Analysis of Financial Condition and Results of Operations” and, withrespect to the annual information only, a report on the annual financialstatements by the Company’s certified independent accountants; and

 

(2)           substantially the samecurrent reports that would be required to be filed with the Commission onForm 8-K if the Company were required to file such reports.

 

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In addition,whether or not required by the Commission, after the consummation of theExchange Offer or the effectiveness of the Shelf Registration Statement, theCompany will file a copy of all of the information and reports referred to inclauses (1) and (2) above with the Commission for public availabilitywithin the time periods specified in the Commission’s rules andregulations (unless the Commission will not accept such a filing) for afiler that is not an “accelerated filer” (as defined in such rules andregulations) and make such information available to securities analysts andprospective investors upon request. To the extent any such information is notso filed or furnished, as applicable, within the time periods specified aboveand such information is subsequently filed or furnished, as applicable, theCompany will be deemed to have satisfied its obligations with respect theretoat such time and any Default or Event of Default with respect thereto shall bedeemed to have been cured; *provided* thatsuch cure shall not otherwise affect the rights of the Holders pursuant toArticle VI if holders of at least 25% in principal amount of the thentotal outstanding Notes have declared the principal, premium, if any, interestand any other monetary obligations on all the then outstanding Notes to be dueand payable immediately and such declaration shall not have been rescinded orcancelled prior to such cure. In addition, the Company has agreed that, for solong 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) underthe Securities Act.

 

In addition,if at any time any direct or indirect parent company becomes a Guarantor (therebeing no obligation of any such parent company to do so), and complies with therequirements of Rule 3-10 of Regulation S-X promulgated by theCommission (or any successor provision), the reports, information and otherdocuments required to be filed and furnished to Holders of the Notes pursuantto this Section 4.3 may, at the option of the Company, be filed by andbe those of such parent company rather than the Company; *provided*thatthe same are accompanied by consolidating information as required by Rule 3-10of Regulation S-X that explains in reasonable detail the differences betweenthe information relating to Parent and such other parent, on the one hand, andthe information relating to the Company and its Restricted Subsidiaries on astandalone basis, on the other hand.

 

Notwithstandingthe foregoing, the requirement to provide the information and reports referredto in clause (1) above shall be deemed satisfied prior to the commencementof the Exchange Offer or the effectiveness of a Shelf Registration Statementrelating to the registration of the Notes under the Securities Act by thefiling with the Commission of a registration statement, and any amendmentsthereto, with such financial information that satisfies Regulation S-X ofthe Securities Act within the timeframes required by the Registration RightsAgreement.

 

The Companyshall provide the Trustee with a sufficient number of copies of all reports andother documents and information and, if requested by the Company, at itsexpense, the Trustee will deliver such reports to the Holders under this Section 4.3(unless such Default or Event of Default has been cured prior to such time).

 

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SECTION 4.4         ComplianceCertificate.

 

The Companyshall deliver to the Trustee, within 90 days after the end of each fiscalyear beginning with the fiscal year ended December 28, 2007, an Officers’Certificate stating that a review of the activities of the Company and its Subsidiariesduring the preceding fiscal year has been made under the supervision of thesigning Officers with a view to determining whether each has kept, observed,performed and fulfilled its obligations under this Indenture, and furtherstating, as to each such Officer signing such certificate, that, to the best ofhis or her knowledge, each entity has kept, observed, performed and fulfilledeach and every covenant contained in this Indenture and is not in default inthe performance or observance of any of the terms, provisions and conditions ofthis Indenture (or, if a Default or Event of Default shall have occurred,describing all such Defaults or Events of Default of which he or she may haveknowledge and what action the Company is taking or proposes to take withrespect thereto) and that, to the best of his or her knowledge, no event hasoccurred and remains in existence by reason of which payments on account of theprincipal of, premium, if any, or interest or Additional Interest, if any, onthe Notes is prohibited or if such event has occurred, a description of theevent and what action the Company is taking or proposes to take with respectthereto.

 

The Companyshall, so long as any of the Notes are outstanding, deliver to the Trustee,forthwith upon any Officer becoming aware of any Default or Event of Default,an Officers’ Certificate specifying such Default or Event of Default (unlesssuch Default or Event of Default has been cured prior to such time) and whataction the Company is taking or proposes to take with respect thereto.

 

SECTION 4.5         Taxes.

 

The Companyshall pay, and shall cause each of its Subsidiaries to pay, prior todelinquency, all material taxes, charges, assessments and governmental levies,except such as are contested in good faith and by appropriate proceedings andwith respect to which appropriate reserves have been taken in accordance withGAAP or where the failure to effect such payment is not adverse in any materialrespect to the Holders of the Notes.

 

SECTION 4.6         Stay, Extension andUsury Laws.

 

The Companyand each of the Guarantors covenant (to the extent that it may lawfully do so)that it shall not at any time insist upon, plead, or in any manner whatsoeverclaim or take the benefit or advantage of, any stay, extension or usury lawwherever enacted, now or at any time hereafter in force, that may affect thecovenants or the performance of this Indenture; and the Company and each of theGuarantors (to the extent that it may lawfully do so) hereby expressly waivesall benefit or advantage of any such law, and covenants that it shall not, byresort to any such law, hinder, delay or impede the execution of any powerherein granted to the Trustee, but shall suffer and permit the execution ofevery such power as though no such law has been enacted.

 

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SECTION 4.7         Limitation onRestricted Payments.

 

The Companywill not and will not permit any of its Restricted Subsidiaries to, directly orindirectly:

 

(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 theCompany or any other Restricted Subsidiary or (iii) in the case of anydividend or distribution payable on or in respect of any class or series ofEquity Interests issued by a Restricted Subsidiary other than a Wholly OwnedSubsidiary,*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 oneof its Restricted Subsidiaries receives at least its*pro rata*share 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) Indebtednesspermitted under clause (8) of the definition of “Permitted Debt” or(y) the purchase, repurchase or other acquisition or retirement ofSubordinated Indebtedness purchased in anticipation of satisfying a sinkingfund obligation, principal installment or final maturity, in each case duewithin one year of the date of purchase, repurchase, acquisition or retirement);or

 

(d)           make any RestrictedInvestment;

 

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

 

(1)           no Default or Event ofDefault has occurred and is continuing or would occur as a consequence of suchRestricted Payment;

 

(2)           the Company would, atthe time of such Restricted Payment and after giving*pro forma*effect thereto as if such Restricted Payment had been made 

 

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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 RestrictedPayment, together with the aggregate amount of all other Restricted Paymentsmade by the Company and its Restricted Subsidiaries after the Issue Date(excluding Restricted Payments permitted by clauses (2), (3), (4), (5),(6), (7), (9), (10), (11), (13), (14), (15), (16), (17) and (18) of the nextsucceeding paragraph;*provided* thatthe calculation of Restricted Payments shall also exclude the amounts paid ordistributed pursuant to clause (1) of the next paragraph to the extentthat the declaration of such dividend or other distribution shall havepreviously been included as a Restricted Payment), is less than the sum,without duplication, of

 

(a)           50% of the ConsolidatedNet Income of the Company for the period (taken as one accounting period) fromJuly 1, 2007 to the end of the Company’s most recently ended fiscal quarter forwhich internal financial statements are available at the time of suchRestricted Payment (or, in the case such Consolidated Net Income for suchperiod is a deficit, minus 100% of such deficit),*plus*

 

(b)           100% of the aggregatenet cash proceeds and the fair market value, as determined in good faith by theBoard of Directors of the Company, of property and marketable securitiesreceived by the Company after the Issue Date from the issue or sale of(x) Equity Interests of the Company (including Retired Capital Stock (asdefined below) but excluding (i) cash proceeds received from the sale ofEquity Interests of the Company and, to the extent actually contributed to theCompany, Equity Interests of any direct or indirect parent company of theCompany to members of management, directors or consultants of the Company, anydirect or indirect parent company of the Company and the Subsidiaries of theCompany after the Issue Date, in each case to the extent such amounts have beenapplied to Restricted Payments made in accordance with clause (4) of thenext succeeding 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 and(iv) Disqualified Stock) or (y) debt securities or Disqualified Stockof the Company that have been converted into or exchanged for Equity Interestsof the Company (other than Refunding Capital Stock or Equity Interests orconvertible debt securities of Parent or any other direct or indirect parentcompany sold to a Restricted Subsidiary or Parent and other than DisqualifiedStock or 

 

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Designated Preferred Stock or debt securitiesthat have been converted into Disqualified Stock or Designated PreferredStock),*plus*

 

(c)           100% of the aggregateamount of cash and the fair market value, as determined in good faith by theBoard of Directors of the Company, of property and marketable securitiescontributed 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) any Designated Preferred Stock and (vi) cash proceeds applied toRestricted Payments made in accordance with clause (4) of the nextsucceeding paragraph),*plus*

 

(d)           to the extent notalready included in Consolidated Net Income, 100% of the aggregate amountreceived in cash and the fair market value, as determined in good faith by theBoard of Directors of the Company, of property and marketable securitiesreceived after the Issue Date by means of (A) the sale or otherdisposition (other than to the Company or a Restricted Subsidiary) of, orinterest, return, profits, distribution, income or similar amounts in respectof, Restricted Investments made by the Company or its Restricted Subsidiariesand repurchases and redemptions of such Restricted Investments from the Companyor its Restricted Subsidiaries and repayments of loans or advances whichconstitute Restricted Investments of the Company or its Restricted Subsidiariesor (B) the sale (other than to the Company or a Restricted Subsidiary) ofthe Capital Stock of an Unrestricted Subsidiary or a distribution from anUnrestricted Subsidiary (other than, in each case, to the extent the Investmentin such Unrestricted Subsidiary was made by a Restricted Subsidiary pursuant toclause (10) of the next succeeding paragraph or to the extent suchInvestment constituted a Permitted Investment) or a dividend or other distributionfrom an Unrestricted Subsidiary,*plus*

 

(e)           in the case of theredesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or themerger or consolidation of an Unrestricted Subsidiary into the Company or aRestricted Subsidiary or the transfer of assets of an Unrestricted Subsidiaryto the Company or a Restricted Subsidiary, the fair market value of theInvestment 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 

 

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succeeding paragraph or to the extent suchInvestment constituted a Permitted Investment).

 

The preceding provisions will not prohibit:

 

(1)   the payment of any dividend orother distribution within 60 days after the date of declaration thereof,if at the date of declaration such payment would have complied with theprovisions of this 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*”)or Subordinated 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) the declaration and payment of dividends on the Retired CapitalStock out of the net cash proceeds of the substantially concurrent sale (otherthan to a Subsidiary of the Company or to an employee stock ownership plan orany trust established by the Company or any of its Subsidiaries) of RefundingCapital Stock;

 

(3)   the redemption, repurchase orother acquisition or retirement of Subordinated Indebtedness made by exchangefor, or out of the proceeds of the substantially concurrent sale of, newIndebtedness of 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 SubordinatedIndebtedness so redeemed, repurchased, acquired or retired, (B) such newIndebtedness has a final scheduled maturity date equal to or later than thefinal scheduled maturity date of the Subordinated Indebtedness being soredeemed, repurchased, acquired or retired and (C) such new Indebtednesshas a Weighted Average Life to Maturity equal to or greater than the remainingWeighted Average Life to Maturity of the Subordinated Indebtedness being soredeemed, repurchased, acquired or retired;

 

(4)   a Restricted Payment to pay forthe repurchase, retirement, redemption or other acquisition or retirement forvalue of Equity Interests of the Company or any of its direct or indirectparent companies 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 plan, agreementor arrangement (including, for the avoidance of doubt, any principal andinterest 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 aggregate amount of Restricted Paymentsmade under this clause (4) does not exceed in any calendar year (x) on orprior to December 31, 2008, $15.0 million and (y) thereafter, $25.0 millionwith any unused amounts in any calendar year being carried over to the twoimmediately succeeding calendar years 

 

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subject to a maximum of $50.0 million in anycalendar 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 contributed to theCompany, Equity Interests of any of its direct or indirect parent companies, ineach case to members of management, directors or consultants of the Company,any of its Subsidiaries or any of its direct or indirect parent companies thatoccurs after the Issue Date plus (B) the cash proceeds of “key man” lifeinsurance policies received by the Company or its Restricted Subsidiaries afterthe Issue Date (*provided* that the Company mayelect to apply all or any portion of the aggregate increase contemplated byclauses (A) and (B) above in any calendar year) (it being understood thatthe forgiveness of any debt by such Person shall not be a Restricted Paymenthereunder) less (C) the amount of any Restricted Payments previously madepursuant to 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 fourfull fiscal quarters for which internal financial statements are availableimmediately preceding the date of issuance of such Designated Preferred Stock,after giving effect to such issuance (and the payment of dividends ordistributions thereon) on a*pro forma*basis, the Company would have had a Fixed Charge Coverage Ratio of at least 2.0to 1.0 and (B) the aggregate amount of dividends declared and paidpursuant to this clause (6) does not exceed the net cash proceeds actuallyreceived by the Company from any such sale of Designated Preferred Stock (otherthan 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 theCompany’s common stock (or the payment of dividends to any direct or indirectparent company of the Company, as the case may be, to fund the payment by anysuch parent 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 proceedsreceived by or contributed to the Company after the Issue Date in any suchpublic offering, other than public offerings of common stock of the

 

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Company (or any direct or indirect parentcompany of the Company) registered on Form S-4 or Form S-8 and otherthan any public sale constituting an Excluded Contribution;

 

(9)                   Investmentsthat are made with Excluded Contributions;

 

(10)                 other RestrictedPayments after the Issue Date in an aggregate amount not to exceed$25.0 million;

 

(11)                 distributions orpayments of Receivables Fees and purchase of any assets in connection with aReceivables Facility;

 

(12)                 the repurchase,redemption or other acquisition or retirement for value of any SubordinatedIndebtedness or Disqualified Stock pursuant to provisions similar to thosedescribed in Sections 3.9, 4.10 and 4.14;*provided* that a Change of Control Offer or Asset SaleOffer, as applicable, has been made and all Notes tendered by Holders of theNotes in connection with a Change of Control Offer or Asset Sale Offer, asapplicable, have been repurchased, redeemed or acquired for value;

 

(13)                 the declarationand payment of dividends or the payment of other distributions by the Companyto, or the making of loans or advances to, any of their respective direct orindirect parents or the equity interest holders thereof in amounts required forany direct 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, stateand local income or franchise taxes (or any alternative tax in lieu thereof); *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 to officersand employees of any direct or indirect parent company of the Company and anypayroll, social security or similar taxes thereof to the extent such salaries,bonuses, severance, indemnification obligations and other benefits are reasonablyattributable to the ownership or operation of the Company and its RestrictedSubsidiaries;

 

(iv)          general corporateoperating and overhead costs and expenses of any direct or indirect parentcompany of the Company to the extent such costs and 

 

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expenses are reasonably attributableto the ownership or operation of the Company and its Restricted Subsidiaries;

 

(v)           amounts payable to theSponsor pursuant to the Management Agreement as in effect on the Issue Date;

 

(vi)          fees and expenses otherthan to Affiliates of the Company related to (1) any equity or debtoffering of such parent entity (whether or not successful), (2) anyInvestment otherwise permitted under this covenant (whether or not successful)and (3) any transaction of the type described in under the Section 5.1;

 

(vii)         cash payments in lieu ofissuing fractional shares in connection with the exercise of warrants, optionsor other securities convertible into or exchangeable for Equity Interests ofthe 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 bemade substantially concurrently with the closing of such Investment and(2) such direct or indirect parent company shall, immediately followingthe closing thereof, cause (x) all property acquired (whether assets orEquity Interests) to be contributed to the capital of the Company or one of itsRestricted Subsidiaries or (y) the merger of the Person formed or acquiredinto the Company or one of its Restricted Subsidiaries (to the extent notprohibited by Section 5.1) in order to consummate such Investment;(3) such direct or indirect parent company and its Affiliates (other thanthe Company or a Restricted Subsidiary) receives no consideration or otherpayment in connection with such transaction, (4) any property received bythe Company shall not increase amounts available for Restricted Payments pursuantto Section 4.7(d)(3) and (5) such Investment shall be deemed to be made bythe Company or such Restricted Subsidiary by another paragraph of thisparagraph  (other than pursuant toclause (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 employees 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;

 

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(14)                 cash payments inlieu of the issuance of fractional shares in connection with the exercise ofwarrants, options or other securities convertible into or exchangeable forEquity Interests of the Company;*provided*,*however*, that any such cash payment shall not be for thepurpose of evading the limitation of this Section 4.7 (asdetermined in good faith by the Board of Directors of the Company);

 

(15)                 distributions, bydividends or otherwise, of Capital Stock of, or Indebtedness owed to theCompany or a Restricted Subsidiary by, Unrestricted Subsidiaries;

 

(16)                 cash dividends orother distributions on the Company’s or any Restricted Subsidiary’s CapitalStock used to, or the making of loans the proceeds of which will be used to,fund the payment of fees and expenses, including any severance andindemnification obligations or deferred compensation, incurred in connectionwith the Transactions or this offering, in each case to the extent permitted(to the extent applicable) by Section 4.11;

 

(17)                 [reserved];

 

(18)                 any RestrictedPayment used to fund the Transactions and the fees and expenses related thereto(including any repurchase of the Existing Notes on the Issue Date orthereafter);

 

(19)                 Investments inUnrestricted Subsidiaries having an aggregate fair market value, taken togetherwith all other Investments made pursuant to this clause (19) that are at thetime outstanding, without giving effect to any distribution pursuant toclause (15) of this paragraph or the sale of an Unrestricted Subsidiary tothe extent the proceeds of such sale do not consist of cash or marketablesecurities, not to exceed 1.5% of Consolidated Tangible Assets at the time ofsuch Investment (with the fair market value of each Investment being measuredat the time made and without giving effect to subsequent changes in value);

 

(20)                 payments anddistributions to dissenting stockholders pursuant to applicable law, pursuantto or in connection with a consolidation, merger or transfer of all orsubstantially all of the assets of the Company and its Restricted Subsidiariestaken as a whole that complies with the terms of this Indenture, including thecovenant described under Section 5.1; and

 

(21)                 the ForeignSubsidiary Reorganization and payments or distributions in connectiontherewith;

 

*provided*,*however*, that at the time of, and after giving effect to,any Restricted Payment permitted under clauses (5), (6), (8), (10), (12),(13)(v) and (vi) and (19) above, no Default or an Event of Default shall haveoccurred and be continuing or would occur as a consequence thereof.

 

The amount ofall Restricted Payments (other than cash) will be the fair market value on thedate of the Restricted Payment of the asset(s) or securities proposed to betransferred or issued by the Company or such Subsidiary, as the case may be,pursuant to the Restricted 

 

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Payment. The fair market value of any assets or securities that arerequired to be valued by this Section 4.7 will be determined in goodfaith by the Board of Directors of the Company.

 

As of theIssue Date, all of the Company’s Subsidiaries will be Restricted Subsidiaries.The Company will not permit any Unrestricted Subsidiary to become a RestrictedSubsidiary except pursuant to the second to last sentence of the definition of“Unrestricted Subsidiary.” For purposes of designating any RestrictedSubsidiary as an Unrestricted Subsidiary, all outstanding investments by theCompany and the Restricted Subsidiaries (except to the extent repaid) in theSubsidiary so designated will be deemed to be Restricted Payments in an amountdetermined as set forth in the second paragraph of the definition of“Investments.”  Such designation will bepermitted only if a Restricted Payment in such amount would be permitted at suchtime under this Section 4.7 or the definition of “Permitted Investments”and if such Subsidiary otherwise meets the definition of an UnrestrictedSubsidiary. Unrestricted Subsidiaries will not be subject to any of therestrictive covenants of this Indenture.

 

For theavoidance of doubt, any dividend or distribution otherwise permitted pursuantto this Section 4.7 may be in the form of a loan.

 

Notwithstandinganything to the contrary herein, the Company will not, and will not permit anyRestricted Subsidiary to, directly or indirectly, make any (i) RestrictedPayment covered in clauses (a) through (c) of the definition of RestrictedPayments (including, without limitation, any payment, dividend or distribution)to the holders of Equity Interests of the Company or any of its direct orindirect parent companies (which shall include the Sponsor and its Affiliates)(other than (x) to the Company and its Restricted Subsidiaries, future, presentor former employees, directors, managers or consultants of the Company, any ofits Subsidiaries or any of its direct or indirect parent companies with respectto Equity Interests held by them in such capacities pursuant to clause (4) and(y) a Restricted Payment made pursuant to clause (13)(i)-(iv), (x) or (xi) ofthe second paragraph of this covenant) 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 its 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 capitalize interest pursuant to paragraph 1 of theNote with respect to any interest period and ending on the first date aftersuch interest period on which the Company makes a full cash payment of cashinterest with respect to a subsequent interest period.

 

SECTION 4.8         Limitation on Dividendsand Other Payment Restrictions Affecting Subsidiaries.

 

The Companywill not, and will not permit any of its Restricted Subsidiaries to, directlyor indirectly, create or permit to exist or become effective any consensualencumbrance or restriction on the ability of any such Restricted Subsidiary to:

 

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(1)           pay dividends or makeany other distributions on its Capital Stock to the Company or any of itsRestricted Subsidiaries, or with respect to any other interest or participationin, or measured by, its profits, or pay any Indebtedness owed to the Company orany of its Restricted Subsidiaries;

 

(2)           make loans or advancesto the Company or any of its Restricted Subsidiaries; or

 

(3)           sell, lease or transferany of its properties or assets to the Company or any of its RestrictedSubsidiaries.

 

However, thepreceding restrictions will not apply to encumbrances or restrictions existingunder or by reason of:

 

(4)           contractualencumbrances or restrictions in effect (x) pursuant to a Credit Facilityor related documents as in effect on the Issue Date or (y) on the IssueDate, including, without limitation, pursuant to Indebtedness in existence onthe Issue Date;

 

(5)           this Indenture, theNotes and Guarantees (including any Exchange Notes with respect to the Notesand related Guarantees);

 

(6)           the Senior Indenture,the Senior Notes and related guarantees thereof (including any Senior Notesregistered under the Securities Act that are issued in exchange for the SeniorNotes pursuant to the registration rights agreement with respect to the SeniorNotes and related guarantees);

 

(7)           purchase moneyobligations or other obligations described in clause (5) of the definitionof “Permitted Debt” that, in each case, impose restrictions of the naturediscussed in clause (3) above in the first paragraph of this Section4.8 on the property so acquired;

 

(8)           applicable law or anyapplicable rule, regulation or order;

 

(9)           any agreement or otherinstrument of a Person acquired by the Company or any Restricted Subsidiary inexistence at the time of such acquisition or at the time a RestrictedSubsidiary is first designated as a Restricted Subsidiary (but not created inconnection therewith or in contemplation thereof or to provide all or a portionof the funds or credit support utilized to consummate such acquisition), whichencumbrance or restriction is not applicable to any Person, or the propertiesor assets of any Person, other than the Person, or the property or assets ofthe Person, so acquired;

 

(10)         contracts for the sale ofassets, including without limitation, customary restrictions with respect to aSubsidiary pursuant to an agreement that has been entered into for the sale ordisposition of all or substantially all of the Capital Stock or assets of suchSubsidiary;

 

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(11)         Secured Indebtednessotherwise permitted to be incurred pursuant to Sections 4.9 and 4.12that limits the right of the debtor to dispose of the assets securing suchIndebtedness;

 

(12)         restrictions on cash orother deposits or net worth imposed by customers under contracts entered intoin the ordinary course of business;

 

(13)         other Indebtedness orPreferred Stock of any Restricted Subsidiary (i) that is a Guarantor thatis incurred subsequent to the Issue Date pursuant to Section 4.9 or(ii) that is incurred by a Foreign Subsidiary of the Company subsequent tothe Issue Date pursuant to Section 4.9;

 

(14)         customary provisions injoint venture agreements and other similar agreements entered into in theordinary course of business;

 

(15)         customary provisionscontained in leases, subleases, licenses or asset sale agreements and otheragreements;

 

(16)         restrictions andconditions by the terms of the documentation governing any Receivables Facilitythat in the good faith determination of the Company are necessary or advisableto effect such Receivables Facility;

 

(17)         negative pledges andrestrictions on Liens in favor of any holder of Indebtedness permitted underthis Indenture; and

 

(18)         any encumbrances orrestrictions of the type referred to in clauses (1), (2) and (3) of thefirst 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 such amendments,modifications, restatements, renewals, increases, supplements, refundings,replacements or refinancings are, in the good faith judgment of the Board ofDirectors of the Company, not materially less favorable to the Holders of theNotes 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*, thatwith respect to agreements existing on the Issue Date, any refinancings oramendments thereof contain such encumbrances or restrictions that are notmaterially less favorable to the Holders of the Notes than the encumbrances orrestrictions contained in such agreements as in effect on the Issue Date.

 

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SECTION 4.9         Limitation onIncurrence of Indebtedness and Issuance of Preferred Stock.

 

The Companywill not, and will not permit any of its Restricted Subsidiaries to, directlyor indirectly, create, incur, issue, assume, guarantee or otherwise becomedirectly or indirectly liable, contingently or otherwise, with respect to(collectively “*incur*”) any Indebtedness(including Acquired Debt) and will not permit any of its Restricted Subsidiariesto issue any shares of Preferred Stock;*provided*,*however*, that the Company and any Restricted Subsidiary mayincur Indebtedness (including Acquired Debt) and any Restricted Subsidiary mayissue Preferred 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 suchadditional Indebtedness is incurred or such Preferred Stock is issued wouldhave been at least 2.0 to 1.0 determined on a*pro forma*basis (including a*pro forma* application of the netproceeds therefrom), as if the additional Indebtedness had been incurred or thePreferred Stock had been issued, as the case may be, and the application ofproceeds therefrom had occurred at the beginning of such four-quarter period;provided further, that any incurrence of Indebtedness or issuance of PreferredStock by a Restricted Subsidiary that is not a Guarantor pursuant to thisparagraph is subject to the limitations set forth in the sixth paragraph ofthis Section 4.9.

 

The firstparagraph of this Section 4.9 will not prohibit the incurrence of any ofthe following items of Indebtedness (collectively, “*PermittedDebt*”):

 

(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 amountthereof), 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 secondparagraph of Section 4.9 or by a Foreign Subsidiary and then outstandingpursuant to clause (26)(C) of this second paragraph of Section 4.9 thatwas used to permanently reduce commitments under a Credit Facility *minus* (C) the amount of all mandatoryprincipal payments actually made by the borrower thereunder in respect ofIndebtedness thereunder with Net Proceeds from Asset Sales;

 

(2)           the incurrence by theCompany and the Guarantors of Indebtedness represented by the Notes (includingany Guarantee thereof) on the Issue Date and any Exchange Notes and relatedexchange guarantees to be issued (including any Guarantee thereof) pursuant tothe Registration Rights Agreement;

 

(3)           the incurrence by theCompany and the Guarantors of Indebtedness represented by the Senior Notes(including any guarantee thereof) on the Issue Date and 

 

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any Senior Notes to be issued in exchange forsuch Senior Notes (including any guarantees thereof) pursuant to theregistration rights agreement with respect thereto;

 

(4)           any Indebtedness of theCompany and its Restricted Subsidiaries in existence on the Issue Date (otherthan Indebtedness described in clauses (1), (2) or (3) above or (22)below);

 

(5)           Indebtedness (includingCapitalized Lease Obligations) incurred by the Company or any RestrictedSubsidiary to finance the purchase, construction, lease or improvement ofproperty (real or personal) or equipment that is used or useful in a PermittedBusiness (whether through the direct purchase of assets or the Capital Stock ofany Person owning such assets) in an aggregate principal amount that, whenaggregated with the principal amount of all other Indebtedness then outstandingand incurred pursuant to this clause (5) does not exceed $50.0 million;

 

(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 letters of credit or the incurrence of suchIndebtedness, such obligations are reimbursed within 45 days followingsuch drawing or incurrence;

 

(7)           Indebtedness arisingfrom agreements of the Company or a Restricted Subsidiary providing forindemnification, adjustment of purchase price, earn-outs or similar obligations,in each case, incurred or assumed in connection with the disposition oracquisition of any business, assets or a Subsidiary, other than guarantees ofIndebtedness incurred by any Person acquiring all or any portion of suchbusiness, assets or a Subsidiary for the purpose of financing such acquisition;*provided*,*however*, thatsuch Indebtedness is not reflected on the balance sheet (other than byapplication of FIN 45 as a result of an amendment to an obligation in existenceon the Issue Date) of the Company or any Restricted Subsidiary (contingentobligations referred to in a footnote to financial statements and not otherwisereflected on the balance sheet will not be deemed to be reflected on suchbalance sheet for purposes of this clause (7));

 

(8)           Indebtedness of theCompany owed to and held by any Wholly Owned Restricted Subsidiary or aRestricted Subsidiary that is a Guarantor, or Indebtedness of a Wholly OwnedRestricted Subsidiary or a Restricted Subsidiary that is a Guarantor owed toand held by the Company or any other Wholly Owned Restricted Subsidiary or aRestricted Subsidiary that is a Guarantor;*provided*,*however*, that (A) any subsequent issuance or transferof any Capital Stock or any other event that results in any such RestrictedSubsidiary ceasing to be a Wholly Owned Restricted Subsidiary or a Guarantor,or any subsequent transfer of any such Indebtedness (except to the Company, 

 

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a Wholly Owned Restricted Subsidiary or aRestricted Subsidiary that is a Guarantor or any pledge of such Indebtednessconstituting a Permitted Lien) shall be deemed, in each case, to constitute theincurrence of such Indebtedness not permitted by this clause (8) and(B) if the Company or a Guarantor is the obligor on such Indebtedness,such Indebtedness is expressly subordinated in right of payment to allobligations 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 Wholly OwnedRestricted Subsidiary or a Restricted Subsidiary that is a Guarantor;*provided* that any subsequent issuance or transfer of anyCapital Stock or any other event which results in any such RestrictedSubsidiary ceasing to be a Wholly Owned Restricted Subsidiary or a RestrictedSubsidiary that is a Guarantor, or any other subsequent transfer of any suchshares of Preferred Stock (except to the Company, a Wholly Owned RestrictedSubsidiary or a Restricted Subsidiary that is a Guarantor) shall be deemed ineach case to be an issuance of such shares of Preferred Stock not permitted bythis clause (9);

 

(10)         Hedging Obligations ofthe Company 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 theCompany or any Restricted Subsidiary or Preferred Stock of any RestrictedSubsidiary not otherwise permitted hereunder in an aggregate principal amountor liquidation 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 onetime outstanding exceed $100.0 million; *provided*that any Indebtedness or Preferred Stock incurred pursuant to thisclause (12) shall cease to be deemed incurred or outstanding for purposesof this clause (12) but shall be deemed incurred for the purposes of thefirst paragraph of this Section 4.9 from and after the first dateon which the Company or such Restricted Subsidiary could have incurred suchIndebtedness or issued such Disqualified Stock or Preferred Stock under thefirst paragraph of this Section 4.9 without reliance on thisclause (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;*provided* that if such Indebtedness is by its express termssubordinated in right of payment to the Notes or the Guarantee of suchRestricted Subsidiary or the Company, as applicable, any such guarantee of suchGuarantor with respect to such 

 

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Indebtedness shall be subordinated in rightof payment to such Guarantor’s Guarantee with respect to the Notessubstantially to the same extent as such Indebtedness is subordinated to theNotes or the Guarantee of such Restricted Subsidiary, as applicable, and(y) any guarantee by a Restricted Subsidiary of Indebtedness of theCompany incurred in accordance with the terms of this Indenture;

 

(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 clause (15) below or any Indebtednessissued to so refund, replace or refinance such Indebtedness includingadditional Indebtedness incurred to pay premiums and fees in connectiontherewith (the “*Refinancing Indebtedness*”) priorto its respective maturity;*provided*,*however*, that such Refinancing Indebtedness (A) has aWeighted Average Life to Maturity at the time such Refinancing Indebtedness isincurred which is not less than the Weighted Average Life to Maturity of theIndebtedness being refunded or refinanced, (B) to the extent suchRefinancing Indebtedness refinances Subordinated Indebtedness or**Indebtedness*pari passu* tothe Notes or the Guarantees, such Refinancing Indebtedness is subordinated or *pari passu* to the Notes or the Guarantees at least to thesame extent as the Indebtedness being refinanced or refunded, (C) shallnot include (x) Indebtedness or Preferred Stock of a Subsidiary that isnot a Guarantor that refinances Indebtedness or Preferred Stock of the Companyor a Guarantor or (y) Indebtedness or Preferred Stock of the Company or aRestricted Subsidiary that refinances Indebtedness or Preferred Stock of anUnrestricted Subsidiary and (D) shall not be in a principal amount inexcess of the principal amount of, premium, if any, deemed interest on, andrelated fees and expenses of, the Indebtedness being refunded, replaced orrefinanced;

 

(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 Business (whether through the direct purchase of assetsor the purchase of Capital Stock of, or merger or consolidation with, anyPerson owning such assets); *provided* thatafter giving effect to such incurrence of Indebtedness either (A) theCompany would be permitted to incur at least $1.00 of additional Indebtednesspursuant to the Fixed Charge Coverage Ratio test set forth in the firstparagraph of this Section 4.9 or (B) the Fixed Charge CoverageRatio would be at least equal to or greater than such Fixed Charge CoverageRatio immediately prior 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 

 

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course of business;*provided*that such Indebtedness is extinguished within five (5) Business Days of itsincurrence;

 

(17)         Indebtedness of theCompany or any of its Restricted Subsidiaries supported by a letter of creditissued pursuant to a Credit Facility in a principal amount not in excess of thestated amount of such letter of credit;

 

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

 

(19)         Indebtedness consistingof promissory 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)         Indebtedness of theCompany or any Restricted Subsidiary to the extent the proceeds of suchIndebtedness are deposited and used to defease the Notes as described inArticle VIII hereof;

 

(21)         Indebtedness of theCompany or any Restricted Subsidiary consisting of the financing of insurancepremiums in the ordinary course of business; and

 

(22)         Indebtedness evidenced bythe Existing Notes not tendered in the tender offer with respect to suchExisting Notes effected in connection with the Transactions;

 

(23)         cash managementobligations and Indebtedness in respect of netting services, overdraftfacilities, employee credit card programs, Cash Pooling Arrangements or similararrangements in connection with cash management and deposit accounts; *provided* that, with respect to any Cash Pooling Arrangements,the total amount of all deposits subject to any such Cash Pooling Arrangementat all times equals or exceeds the total amount of overdrafts that may besubject to such Cash Pooling Arrangements;

 

(24)         Indebtedness of theCompany or any of its Restricted Subsidiaries in respect of Sale and Lease-BackTransactions;

 

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

 

(26)         Indebtedness or PreferredStock of any Foreign Subsidiary: (A) incurred under local credit facilities forgeneral corporate purposes not exceeding, as to all such Foreign Subsidiaries,$50.0 million in the aggregate at any one time outstanding, (B) incurred tofinance or assumed in connection with the Foreign Subsidiary Reorganization or(C) which serves to refund or refinance any Indebtedness incurred under clause(1), (2) or (3) of this paragraph or the payment of any dividend to the Companyor any Restricted 

 

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Subsidiary in a principal amount not toexceed $200.0 million in the aggregate at any one time outstanding; providedthat any incurrence of Indebtedness or issuance of Preferred Stock by aRestricted Subsidiary that is not a Guarantor pursuant to this clause (26)(B)is subject to the sixth paragraph of this Section 4.9.

 

For purposesof determining compliance with this Section 4.9 in the event that anitem of proposed Indebtedness meets the criteria of more than one of thecategories of Permitted Debt described in clauses (1) through (26) above,or is entitled to be incurred pursuant to the first paragraph of this Section 4.9,the Company will be permitted to classify and later reclassify such item ofIndebtedness in any manner that complies with this Section 4.9, and suchitem of Indebtedness will be treated as having been incurred pursuant to onlyone of such categories. Accrual of interest or dividends, the accretion ofaccreted value and the payment of interest or dividends in the form ofadditional Indebtedness or Preferred Stock will not be deemed to be anincurrence of Indebtedness or Preferred Stock for purposes of this Section4.9 and Section 4.12. Notwithstanding the foregoing, Indebtednessunder the Credit Agreement outstanding on the Issue Date will be deemed to havebeen incurred on such date in reliance on the exception provided byclause (1) of the definition of “Permitted Debt” and any such Indebtednessthat was outstanding under the Credit Agreement as of the Issue Date may notlater be re-classified. Additionally, all or any portion of any other item ofIndebtedness may later be reclassified as having been incurred pursuant to thefirst paragraph of this Section 4.9 or under any category of PermittedDebt described in clauses (1) through (26) above so long as suchIndebtedness is permitted to be incurred pursuant to such provision at the timeof reclassification.

 

For purposesof determining compliance with any U.S. dollar restriction on the incurrence ofIndebtedness where the Indebtedness incurred is denominated in a differentcurrency, the amount of such Indebtedness will be the U.S. Dollar Equivalentdetermined on the date of the incurrence of such Indebtedness;*provided*,*however*, thatif any 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 being refinanced, except to the extent that(1) such U.S. Dollar Equivalent was determined based on a currencyagreement, in which case the refinancing Indebtedness will be determined inaccordance with the preceding sentence, and (2) the principal amount ofthe refinancing Indebtedness exceeds the principal amount of the Indebtednessbeing refinanced, in which case the U.S. Dollar Equivalent of such excess willbe determined on the date such refinancing Indebtedness is incurred. Themaximum amount of Indebtedness that the Company and its Restricted Subsidiariesmay incur pursuant to this Section 4.9 shall not be deemed to beexceeded, with respect to any outstanding Indebtedness, solely as a result offluctuations in the exchange rate of currencies.

 

Notwithstandinganything to the contrary contained in the first paragraph of this Section 4.9or in the definition of Permitted Debt, no Restricted Subsidiary of the Companythat is not a 

 

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Subsidiary Guarantor shall incur anyIndebtedness or issue any Preferred Stock in reliance on the first paragraph ofthis Section 4.9 or clause (15) or (26)(B) of the definition ofPermitted Debt (the “*Limited Non-Guarantor DebtExceptions*”) if the amount of such Indebtedness or Preferred Stock,when aggregated with the amount of all other Indebtedness or Preferred Stock outstandingunder such Limited Non-Guarantor Debt Exceptions, together with any RefinancingIndebtedness in respect thereof, would exceed $100.0 million; *provided*, that in no event shall any Indebtedness orPreferred Stock of any Restricted Subsidiary that is not a Guarantor(x) existing at the time it became a Restricted Subsidiary or (y) assumedin connection with any acquisition, merger or acquisition of minority interestsof a non-Wholly-Owned Subsidiary (and in the case of clauses (x) and (y), notcreated in contemplation of such Person becoming a Restricted Subsidiary orsuch acquisition, merger or acquisition of minority interests) be deemed to beIndebtedness outstanding under the Limited Non-Guarantor Debt Exceptions forpurposes of this paragraph.

 

SECTION 4.10       Limitation on AssetSales.

 

The Companywill not, and will not permit any of its Restricted Subsidiaries to, consummatean Asset Sale unless:

 

(1)           the Company (or suchRestricted Subsidiary, as the case may be) receives consideration at the timeof the Asset Sale at least equal to the fair market value of the assets orEquity Interests issued or sold or otherwise disposed of; and

 

(2)           at least 75% of theconsideration received in the Asset Sale by the Company or such RestrictedSubsidiary is in the form of cash or Cash Equivalents.

 

For purposesof clause (2) above, the amount of (i) any liabilities other thancontingent liabilities (as shown on the Company’s or the applicable RestrictedSubsidiary’s most recent balance sheet or in the notes thereto) of the Companyor any Restricted Subsidiary (other than liabilities that are by their termssubordinated to the Notes or the Guarantees) that are assumed by the transfereeof any such assets and from which the Company and all Restricted Subsidiarieshave been validly released by the applicable creditor(s) in writing,(ii) any securities received by the Company or such Restricted Subsidiaryfrom such transferee that are converted by the Company or Restricted Subsidiaryinto cash (to the extent of the cash received) within 180 days followingthe closing of such Asset Sale, (iii) any assets described inclauses (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 goodfaith by the Board of Directors of the Company), taken together with all otherDesignated Non-cash Consideration received pursuant to this clause (iv)that is at that time outstanding, not to exceed the greater of(x) $75.0 million and (y) an amount equal to 2% of Total Assetsof the Company on the date on which such Designated Non-cash Consideration isreceived (with the fair market value of each item of Designated Non-cashConsideration being 

 

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measured at the time received without giving effect to subsequentchanges in value), shall be deemed to be cash for purposes of this paragraphand for no other purpose.

 

Within 365 daysafter the receipt of any Net Proceeds from an Asset Sale, the Company or suchRestricted Subsidiary as the case may be, may apply those Net Proceeds at itsoption:

 

(3)           (i) to reduceObligations under Senior Indebtedness of the Company or any RestrictedSubsidiary, (ii) to reduce Obligations under Indebtedness of a RestrictedSubsidiary that is not a Guarantor (other than Indebtedness owed to the Companyor another Restricted Subsidiary) or (iii) to reduce Indebtedness of theCompany that ranks*pari passu*with the Notes orIndebtedness of a Guarantor that ranks *pari passu* withsuch Guarantor’s Guarantee of the Notes (*provided* thatif the Company shall so reduce Obligations under Indebtedness that ranks*pari passu* with the Notes (other than Indebtednessspecified in clauses (i) and (ii) above), it will equally and ratablyreduce Obligations under the Notes through open-market purchases (to the extentsuch purchases are at or above 100% of the principal amount thereof) or bycausing the Company to make an offer (in accordance with the procedures setforth below in this Section 4.10) to all Holders of Notes topurchase at a purchase price equal to 100% of the principal amount thereof,plus accrued and unpaid interest and Additional Interest, if any, on the*pro rata* principal amount of Notes), in each case otherthan Indebtedness owed to Parent or any Restricted Subsidiary;

 

(4)           to an investment in(A) any one or more businesses;*provided* thatsuch investment in any business is in the form of the acquisition of CapitalStock and results in the Company or a Restricted Subsidiary owning an amount ofthe Capital Stock of such business such that such business constitutes aRestricted Subsidiary, (B) capital expenditures or (C) othernon-current assets, in each of (A), (B) and (C), used or useful in a PermittedBusiness; and/or

 

(5)           to an investment in(A) any one or more businesses;*provided* thatsuch investment in any business is in the form of the acquisition of CapitalStock and results in the Company or a Restricted Subsidiary owning an amount ofthe Capital Stock of such business such that such business constitutes aRestricted Subsidiary, (B) properties or (C) assets that, in each of(A), (B) and (C), replace the businesses, properties and assets that are thesubject of such Asset Sale.

 

Any NetProceeds from an Asset Sale not applied or invested in accordance with thepreceding paragraph within 365 days from the date of the receipt of suchNet Proceeds shall constitute “*Excess Proceeds*”;*provided* that if during such 365-day period the Company ora Restricted Subsidiary enters into a definitive binding agreement committingit to apply such Net Proceeds in accordance with the requirements ofclause (2) or (3) of the immediately preceding paragraph after such 365thday, such 365-day period will be extended with respect to the amount of NetProceeds so committed for a period not to exceed 180 days until such NetProceeds are required to be applied in accordance with such agreement (or, ifearlier, until termination of such agreement).

 

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When theaggregate amount of Excess Proceeds exceeds $25.0 million, the Company orthe applicable Restricted Subsidiary will make an offer (an “*Asset Sale Offer*”) to all Holders of Notes and Pari PassuIndebtedness, on a*pro rata* basis, the maximumprincipal amount of Notes and such other Pari Passu Indebtedness t that may bepurchased out of the Excess Proceeds. The offer price in any Asset Sale Offerwill be equal to 100% of the principal amount thereof, plus accrued and unpaidinterest and Additional Interest, if any, to the date of purchase, and will bepayable in cash.

 

Pending thefinal application of any Net Proceeds, the Company or the applicable RestrictedSubsidiary may temporarily reduce revolving credit borrowings or otherwiseinvest the Net Proceeds in any manner that is not prohibited by this Indenture.

 

If any ExcessProceeds remain after consummation of an Asset Sale Offer, the Company or theapplicable Restricted Subsidiary may use those Excess Proceeds for any purposenot otherwise prohibited by this Indenture. If the aggregate principal amountof Notes tendered into such Asset Sale Offer exceeds the amount of ExcessProceeds, the Registrar will select the Notes to be purchased on a*pro rata* basis. Upon completion of each Asset Sale Offer,the amount of Excess Proceeds will be reset at zero.

 

The Company orthe applicable Restricted Subsidiary will comply with the requirements ofRule 14e-1 under the Exchange Act and any other securities laws andregulations thereunder to the extent those laws and regulations are applicablein connection with each repurchase of Notes pursuant to an Asset Sale Offer. Tothe extent that the provisions of any securities laws or regulations conflictwith the Asset Sale provisions of this Indenture, the Company or the applicableRestricted Subsidiary will comply with the applicable securities laws andregulations and will not be deemed to have breached its obligations under theAsset Sale provisions of this Indenture by virtue of such conflict.

 

SECTION 4.11       Limitation onTransactions with Affiliates.

 

The Companywill not, and will not permit any of its Restricted Subsidiaries to, make anypayment to, or sell, lease, assign, transfer or otherwise dispose of any of itsproperties or assets to, or purchase any property or assets from, or enter intoor make or amend any transaction, contract, agreement, understanding, loan,advance or guarantee with, or for the benefit of, any Affiliate (each, an “*Affiliate Transaction*”) involving aggregate consideration inexcess of $10.0 million, unless:

 

(1)           the AffiliateTransaction is on terms that are not materially less favorable to the Companyor the relevant Restricted Subsidiary than those that would have been obtainedin a comparable transaction by the Company or Restricted Subsidiary with anunrelated Person; and

 

(2)           with respect to anyAffiliate Transaction or series of related Affiliate Transactions involvingaggregate consideration in excess of $25.0 million, a majority of theBoard of Directors of the Company (and, if any, a majority of the disinterested

 

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members of the Board of Directors of theCompany with respect to such Affiliate Transaction) have determined in goodfaith that the criteria set forth in the immediately preceding clause (1)are satisfied and have approved the relevant Affiliate Transaction as evidencedby a Board Resolution.

 

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

 

(3)           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;

 

(4)           Restricted Payments andPermitted Investments permitted by this Indenture;

 

(5)           (A) so long as noDefault or Event of Default pursuant to Sections 6.1(1), 6.1(2) or 6.1(8) shallhave occurred or is continuing or shall result therefrom, the payment to theSponsor, 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 (B) related expenses, in eachcase, pursuant to the Management Agreement as in effect on the Issue Date orany amendment thereto (so long as any such amendment (x) does not increase theamount of fees payable to the Sponsor and (y) is not otherwise lessadvantageous to the Holders of the Notes in any material respect than theManagement Agreement), including, without limitation, the $35 million paymentto the Sponsor in connection with the Transactions;

 

(6)           payments in respect ofemployment, severance and any other compensation arrangements with, and feesand expenses paid to, and indemnities provided on behalf of (and entering intorelated agreements with) officers, directors, employees or consultants of theCompany, any of its direct or indirect parent companies, or any RestrictedSubsidiary, in the ordinary course of business

 

(7)           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 a 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;

 

(8)           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 clause (1) of the first paragraph of this Section4.11;

 

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(9)           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;

 

(10)         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,each of the other agreements entered into in connection with the Transactions)disclosed in the Offering Memorandum, including with additional parties thatmay 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;

 

(11)         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 reasonable determinationof the members of the Board of Directors of the Company or the seniormanagement thereof, or are on terms at least as favorable as would reasonablyhave been entered into at such time with an unaffiliated party;

 

(12)         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);

 

(13)         any transaction permittedby Section 5.1;

 

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

 

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

 

(16)         payments by the Companyand its Restricted Subsidiaries to each other pursuant to tax sharingagreements or arrangements among Parent and its subsidiaries on customary terms(including, without limitation, transfer pricing initiatives); and

 

(17)         transactions amongForeign Subsidiaries for tax planning and tax efficiency purposes.

 

SECTION 4.12       Limitation on Liens.

 

The Companywill not, and will not permit any of its Restricted Subsidiaries that areGuarantors to, directly or indirectly, create, incur, assume or suffer to existany Lien that secures obligations under any Indebtedness ranking *pari passu* with or subordinated to the Notes or, if 

 

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applicable, any related Guarantee on any asset or property of theCompany or any Restricted Subsidiary, or any income or profits therefrom, orassign or convey any right to receive income therefrom, unless:

 

(1)           in the case of Lienssecuring Subordinated Indebtedness, the Notes and any related Guarantees aresecured by a Lien on such property, assets or proceeds that is senior inpriority to such Liens; or

 

(2)           in all other cases, theNotes and any related Guarantees are equally and ratably secured, except thatthe foregoing shall not apply to:

 

(i)            Liens existing on theIssue Date to the extent and in the manner such Liens are in effect on theIssue Date;

 

(ii)           Liens securing SeniorIndebtedness of the Company or any Guarantor;

 

(iii)          (A) Liens securingthe Notes and the related Guarantees and any Notes issued in exchange thereforpursuant to the Registration Rights Agreement and secured by a Lien (in eachcase in accordance with the terms of this Indenture) and the related Guaranteesand (B) Liens securing Indebtedness permitted to be incurred pursuant toclauses (1) and (5) of the definition of “Permitted Debt”; or

 

(iv)          Permitted Liens.

 

Any Lien created for the benefit of the Holders of Notes pursuant tothis Section 4.12 shall be deemed automatically and unconditionally releasedand discharged upon the release and discharge of each of the Liens described inclauses (1) and (2) above.

 

SECTION 4.13       Payments for Consent.

 

The Companywill not, and will not permit any of its Subsidiaries to, directly orindirectly, pay or cause to be paid any consideration to or for the benefit ofany Holder of Notes for or as an inducement to any consent, waiver or amendmentof any of the terms or provisions of this Indenture or the Notes unless suchconsideration is offered to be paid and is paid to all Holders of the Notesthat so consent, waive or agree to amend in the time frame set forth in thesolicitation documents relating to such consent, waiver or agreement.

 

SECTION 4.14       Offer to Purchase uponChange of Control.

 

If a Change ofControl occurs, unless the Company at such time has given notice of redemptionunder Section 3.7 with respect to all outstanding Notes, eachholder of Notes will have the right to require the Company to repurchase all orany part (equal to $2,000 or integral multiples of $1,000 in excess thereofwith regards to US$ Denominated Notes and €50,000 or 

 

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integral multiples of €1,000 in excess thereof with regards to EURDenominated Notes) of that Holder’s Notes pursuant to a Change of Control Offeron the terms set forth in this Indenture. In the Change of Control Offer, theCompany will offer a payment (a “*Change of Control Payment*”)in cash equal to 101% of the aggregate Current Accretion Amount of Notesrepurchased plus accrued and unpaid interest not included in the calculation ofthe Current Accretion Amount and Additional Interest, if any, on the Notesrepurchased, to the date of purchase.

 

Within 30 days following any Change ofControl, unless the Company at such time has given notice of redemption under Section 3.7with respect to all outstanding Notes, or, at the Company’s option, in advanceof a Change of Control, the Company shall send notice of such Change ofControl Offer by first-class mail, with a copy to the Trustee and each Agent,to each Holder of Notes to the address of such Holder appearing in the securityregister with a copy to the Trustee and each Agent, with the followinginformation:

 

(1)that a Change of Control Offer is being made pursuant to this Section 4.14.and that all Notes properly tendered pursuant to such Change of Control Offerwill be accepted for payment by the Company;

 

(2)the purchase price and the purchase date, which will be no earlier than30 days nor later than 60 days from the date such notice is mailed(the “*Change of Control Payment Date*”);

 

(3)that any Note not properly tendered will remain outstanding and continue to accrueinterest;

 

(4)that unless the Company defaults in the payment of the Change of ControlPayment, all Notes accepted for payment pursuant to the Change of Control Offerwill cease to accrue interest on the Change of Control Payment Date;

 

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

 

(6)that Holders will be entitled to withdraw their tendered Notes and theirelection to require the Company to purchase such Notes, provided thatthe paying agent receives, not later than the close of business on the 30th dayfollowing the date of the Change of Control notice, a telegram, telex,facsimile transmission or letter setting forth the name of the Holder of theNotes, the principal amount of Notes tendered for purchase, and a statementthat such Holder is withdrawing its tendered Notes and its election to havesuch Notes purchased;

 

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(7)that if the Company is redeeming less than all of the Notes, the Holders of theremaining Notes will be issued new Notes and such new Notes will be equal inprincipal amount to the unpurchased portion of the Notes surrendered. Theunpurchased portion of the Notes must be equal to a minimum principalamount of $2,000 or integral multiples of $1,000 in excess thereof with regardsto US$ Denominated Notes and €50,000 orintegral multiples of €1,000 in excess thereof with regards to EUR DenominatedNotes; and

 

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

 

The notice, if mailed in a manner herein provided,shall be conclusively presumed to have been given, whether or not the Holderreceives such notice. If (a) the notice is mailed in a manner hereinprovided and (b) any Holder fails to receive such notice or a Holderreceives such notice but it is defective, such Holder’s failure to receive suchnotice or such defect shall not affect the validity of the proceedings for thepurchase of the Notes as to all other Holders that properly received suchnotice without defect. The Company shall comply with the requirements ofRule 14e-1 under the Exchange Act and any other securities laws andregulations thereunder to the extent such laws or regulations are applicable inconnection with the repurchase of Notes pursuant to a Change of Control Offer.To the extent that the provisions of any securities laws or regulationsconflict with the provisions of this Section 4.14, the Companyshall comply with the applicable securities laws and regulations and shall notbe deemed to have breached its obligations under this Section 4.14by virtue thereof.

 

On the Changeof Control Payment Date, the Company will, to the extent lawful:

 

(1)           accept for payment allNotes or portions of Notes properly tendered pursuant to the Change of ControlOffer;

 

(2)           deposit with the payingagent an amount equal to the Change of Control Payment in respect of all Notesor portions of Notes properly tendered; and

 

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

 

The PayingAgent will promptly mail to each holder of Notes properly tendered the Changeof Control Payment for such Notes, and the Trustee will promptly authenticateand mail (or cause to be transferred by book entry) to each holder a new Noteequal in principal amount to any unpurchased portion of the Notes surrendered,if any;*provided* that each new Note will be ina minimum principal amount of $2,000 or integral multiples of $1,000 in excessthereof with regards to US$ Denominated Notes and €50,000 or integral multiples of €1,000 in excess thereof withregards to EUR Denominated Notes.

 

The Companywill not be required to make a Change of Control Offer upon a Change of Controlif (i) a third party makes the Change of Control Offer in the manner, atthe times and 

 

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otherwise in compliance with the requirements set forth in thisIndenture applicable to a Change of Control Offer made by the Company andpurchases all Notes properly tendered and not withdrawn under the Change ofControl Offer or (ii) a notice of redemption has been given pursuant to Section 3.9of this Indenture unless and until there is a default in the payment of theapplicable redemption price. A Change of Control Offer may be made in advanceof a Change of Control and may be conditional upon the occurrence of a Changeof Control, if a definitive agreement is in place for the Change of Control atthe time the Change of Control Offer is made.

 

The provisionsdescribed above that require the Company to make a Change of Control Offerfollowing a Change of Control will be applicable whether or not any other provisionsof this Indenture are applicable.

 

SECTION 4.15       Corporate Existence.

 

Subject to Section 4.14and Article V hereof, as the case may be, the Company shall do or cause tobe done 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 to preserveany such right, license or franchise, or the corporate, partnership or otherexistence of any of its Subsidiaries, if the Board of Directors of the Companyshall determine that the preservation thereof is no longer desirable in theconduct of the business of the Company and its Subsidiaries, taken as a whole,and that the loss thereof is not adverse in any material respect to theHolders.

 

SECTION 4.16       Business Activities.

 

The Companywill not, and will not permit any Restricted Subsidiary to, engage in anybusiness other than Permitted Businesses, except to such extent as would not bematerial to the Company and its Subsidiaries taken as a whole.

 

SECTION 4.17       Additional Guarantees.

 

After theIssue Date, the Company will cause (i) each of its Domestic Subsidiaries(other than any Unrestricted Subsidiary) that incurs any Indebtedness in excessof $25 million (other than Indebtedness permitted to be incurred pursuant toclauses (6), (7), (8), (9), (11), (16), or (19) of the definition of “PermittedDebt” and (ii) each Restricted Subsidiary that guarantees any Indebtednessof the Company or any of the Guarantors, in each case, within ten (10) BusinessDays of such incurrence of any such Indebtedness or guarantee of suchIndebtedness, to execute and deliver to the Trustee a Guarantee, together withan Opinion of Counsel, pursuant to which such Restricted Subsidiary willunconditionally Guarantee, on a joint and several basis, the full and promptpayment of the principal of, premium, if any and interest on the Notes and allother obligations under this Indenture on the same terms and conditions asthose set forth in this Indenture.

 

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Each Guaranteewill be limited to an amount not to exceed the maximum amount that can beguaranteed by that Restricted Subsidiary without rendering the Guarantee, as itrelates to such Restricted Subsidiary, voidable under applicable law relatingto fraudulent conveyance or fraudulent transfer or similar laws affecting therights of creditors generally.

 

Each Guaranteeshall automatically be released in accordance with the provisions of thisIndenture described under Section 11.1.

 

SECTION 4.18       Limitationon Layering

 

The Companyshall not, and shall not permit any Restricted Subsidiary that is a Guarantorto, directly or indirectly, incur any Indebtedness that is or purports to be byits terms (or by the terms of any agreement governing such Indebtedness)contractually subordinated or junior in right of payment to any Indebtedness(including Acquired Debt) of the Company or such Restricted Subsidiary, as thecase may be, unless such Indebtedness is also by its terms (or by the terms ofany agreement governing such Indebtedness) either (i) *pari passu*in right of payment with the Notes or such Guarantor’s Guarantee of the Notes(as applicable), or (ii) expressly subordinate to the Notes or such Guarantor’sGuarantee of the Notes (as applicable). This Indenture will not treat (x)unsecured Indebtedness as subordinated or junior to Secured Indebtedness merelybecause it is unsecured or (y) Senior Indebtedness as subordinated or junior toany other Senior Indebtedness merely because it has a junior priority withrespect to the same collateral; *provided*,*however*, that notwithstanding theforegoing, until the Disposition Date (unless otherwise consented by the GSMPGroup), any Secured Indebtedness (including any second lien debt) which is, byits express terms, subordinated as to rights to receive proceeds of collateralto any other Secured Indebtedness of the Company or a Guarantor secured inwhole or in part by the same collateral shall not be permitted.

 

SECTION 4.19       [Reserved].

 

SECTION 4.20       Further Instruments and Acts.

 

Upon requestby the Trustee, the Company shall execute and deliver such further instrumentsand do such further acts as may be reasonably necessary or proper to carry outmore effectively the purposes of this Indenture.

 

SECTION 4.21       Changes in CovenantsUpon Change in Ratings.

 

If the Notes, on any date following the dateof this Indenture are rated an Investment Grade Rating by both Rating Agencies;and no Default or Event of Default shall have occurred and be continuing (theforegoing conditions being referred to collectively as the “*Suspension Condition*”), then, beginning onthat day and subject to the provisions of the following paragraph, thecovenants under Sections4.7, 4.8, 4.9, 4.10,4.11 and 5.1(a)(4) will be suspended as to the Notes (collectively,the “*Suspended Covenants*”).

 

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During any period that the foregoingcovenants have been suspended, the Company’s Board of Directors may notdesignate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to thesecond sentence of the definition of “Unrestricted Subsidiary.”

 

If and while the Company meets the SuspensionCondition, the Notes will be entitled to substantially less covenantprotection. If the Company and its Restricted Subsidiaries are not subject tothe Suspended Covenants with respect to the Notes for any period of time as aresult of the foregoing and, subsequently, one or both Rating Agencies withdrawtheir Investment Grade Rating or downgrade the Investment Grade Rating assignedto the Notes such that the Notes are no longer rated Investment Grade Rating byboth Rating Agencies, then the Company and each of its Restricted Subsidiarieswill thereafter again be subject to the Suspended Covenants. Compliance withthe Suspended Covenants with respect to Restricted Payments made after the timeof such withdrawal or downgrade will be calculated in accordance with the termsof Section 4.7 hereof, as if such Section 4.7 had been in effectduring the entire period of time from the Issue Date; provided, further, thatno Default, Event of Default or breach of any kind will be deemed to existunder this Indenture for the Notes or the related Guarantees with respect tothe Suspended Covenants based on, and none of the Company or any of itsSubsidiaries will bear any liability for, any actions taken or events occurringafter the Notes attain the required ratings and before any reinstatement of theSuspended Covenants as provided above, or any actions taken at any timepursuant to any contractual obligations arising prior to the reinstatement ofthe Suspended Covenants, regardless of whether those actions or events wouldhave been permitted if the applicable covenant had remained in effect duringsuch period.

 

ARTICLE V

 

SUCCESSORS

 

SECTION 5.1         Merger, Consolidationor Sale of Assets.

 

The Companymay not, directly or indirectly: (1) consolidate or merge with or into another Person (whether ornot the Company is the surviving corporation); or (2) sell, assign,transfer, convey, lease or otherwise dispose of all or substantially all of theproperties or assets of the Company and its Restricted Subsidiaries, taken as awhole, in one or more related transactions, to another Person; unless:

 

(1) (a) theCompany is the surviving corporation; or (b) the Person formed by orsurviving any such consolidation or merger (if other than the Company) or towhich such sale, assignment, transfer, conveyance, lease or other dispositionhas been made is a corporation or limited liability company organized orexisting under the laws of the United States, any state of the United States,the District of Columbia or any territory thereof (the Company or such Person,including the Person to which such sale, assignment, transfer, conveyance,lease or other disposition has been made, as the case may be, being hereincalled the “*Successor Company*”);

 

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(2) the Successor Company (if other thanthe Company) assumes all the obligations of the Company under the Notes, thisIndenture and the Registration Rights Agreement pursuant to agreementsreasonably satisfactory to the Trustee;

 

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

 

(4) immediately after giving*pro forma* effect to such transaction and any relatedfinancing transactions, as if the same had occurred at the beginning of theapplicable four-quarter period, either (a) the Successor Company would bepermitted to incur at least $1.00 of additional Indebtedness pursuant to theFixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.9or (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 theother party to the transactions described above in which case clause (2) aboveshall apply) shall have by supplemental indenture confirmed that its Guaranteeshall apply to such Person’s obligations under the Notes, this Indenture andthe Registration Rights Agreement.

 

Notwithstandingthe foregoing, clauses (3), (4) and (5) above will not be applicable to(a) any Restricted Subsidiary consolidating with, merging into or selling,assigning, transferring, conveying, leasing or otherwise disposing of all orpart of its properties and assets to the Company or to another Guarantor;(b) the Company merging with an Affiliate solely for the purpose ofreincorporating the Company, as the case may be, in another jurisdiction; (c)any Foreign Subsidiary may consolidate with or merge into or transfer all orpart of its properties and assets to any other Foreign Subsidiary; *provided* that if the Foreign Subsidiary so consolidating,merging or transferring all or part of its properties and assets is a ForeignSubsidiary that is a Guarantor, such Foreign Subsidiary shall, substantiallysimultaneously with such merger, transfer or disposition, terminate itsGuarantee and otherwise be in compliance with the terms of this Indenture; (d)the Foreign Subsidiary Reorganization; (e) CDRV Holdings, Inc. may consolidateor merge with or into or wind up into CDRV Investment Holdings Corporation; and(f) CDRV Investment Holdings Corporation may consolidate or merge with or intoor wind up into the Company.

 

For purposesof this Section 5.1, the sale, lease, conveyance, assignment, transferor other disposition of all or substantially all of the properties and assetsof one or more Restricted Subsidiaries of the Company, which properties andassets, if held by the Company instead of such Restricted Subsidiaries, wouldconstitute all or substantially all of the properties and assets of the Companyon a consolidated basis, shall be deemed to be the sale, lease, conveyance,assignment, transfer or other disposition of all or substantially all of theproperties and assets of the Company.

 

Thepredecessor company will be released from its obligations under this Indentureand the Notes and the Successor Company will succeed to, and be substitutedfor, and may exercise 

 

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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.

 

In connectionwith any 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 this Indenture and Notes bysupplemental indenture and shall execute and deliver to the Trustee asupplemental indenture, 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         Successor CorporationSubstituted.

 

Upon anyconsolidation or merger, or any sale, assignment, transfer, lease, conveyanceor other disposition of all or substantially all of the assets of the Companyin accordance with Section 5.1 hereof, the successor corporationformed by such consolidation or into or with which the Company is merged or towhich such sale, assignment, transfer, lease, conveyance or other dispositionis made shall succeed to, and be substituted for (so that from and after thedate 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 AND REMEDIES

 

SECTION 6.1         Events of Default.Each of the following constitutes an “*Event of Default*”:

 

(1)           the Company defaults in payment when due andpayable, upon redemption, acceleration or otherwise, of principal of, orpremium, if any, on the Notes, whether or not such payment is prohibited byArticle X;

 

(2)           the Company defaults in the payment when dueof interest or Additional Interest, if any, on or with respect to the Notes andsuch default continues for a period of 30 days, whether or not suchpayment is prohibited by Article X;

 

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(3)           the Company defaults in the performance of,or breaches any covenant, warranty or other agreement contained in, thisIndenture (other than a default in the performance or breach of a covenant,warranty or agreement which is specifically dealt with in clause (1) or(2) above), whether or not such payment is prohibited by the subordinationprovisions of this Indenture and such default or breach continues for a periodof 60 days after the notice specified below or 90 days if such default orbreach is with respect to the covenant described under Section 4.3;

 

(4)           a default under any mortgage, indenture orinstrument under which there is issued or by which there is secured orevidenced any Indebtedness for money borrowed by the Company or any RestrictedSubsidiary or the payment of which is guaranteed by the Company or anyRestricted Subsidiary (other than Indebtedness owed to the Company or aRestricted Subsidiary), whether such Indebtedness or guarantee now exists or iscreated after the Issue Date, if (A) in the case of any such default underthe Senior Indebtedness only, such default either (1) results from thefailure to pay any such Senior Indebtedness at its stated final maturity (aftergiving effect to any applicable grace periods) or (2) relates to an obligationother than the obligation to pay principal of any such Senior Indebtedness atits stated final maturity and results in the holder or holders of suchIndebtedness causing such Indebtedness to become due prior to its statedmaturity and (B) the principal amount of such Indebtedness, together withthe principal amount of any other such Indebtedness in default or, in the caseof any other such Senior Indebtedness, in default for failure to pay principalat stated final maturity (after giving effect to any applicable grace periods),or the maturity of which has been so accelerated, aggregate $50.0 million(or its foreign currency equivalent) or more at any one time outstanding;

 

(5)           until the Disposition Date (unless waived bythe GSMP Group), (A) the failure of any representation, warranty, certificationor statement made or deemed to have been made by or on behalf of the Company orby any of its officers or employees in any statement or certificate at any timegiven by or on behalf of the Company in writing pursuant paragraphs (e) (as itrelates to corporate power and authority to enter into and performance of theagreements referenced in paragraphs (g), (h) and (i)), (g), (h), (i), (j), (r),(s), (t) and (dd) of Section 1 of the Note Purchase Agreement to be true andcorrect in any material respect on the date as of which made or (B) default inthe performance of, or breach of any covenant, warranty or other agreementcontained in, the Note Purchase Agreement and such default or breach continuesfor a period of 60 days after notice specified below or 90 days afternotice specified below with respect to the covenant set forth in Section 9(a)thereof;

 

(6)           the failure by the Company or anySignificant Subsidiary to pay final judgments aggregating in excess of$50.0 million (or its foreign currency equivalent) (other than anyjudgments covered by indemnities or insurance policies as to which liabilitycoverage has not been denied by the insurance company or indemnifying party),which final judgments remain unpaid, undischarged and unstayed for a period ofmore than 60 days after the applicable judgment becomes final andnon-appealable;

 

(7)           the Guarantee of a Significant Subsidiarythat is a Guarantor or any group of Subsidiaries that are Guarantors and that,taken together as of the date of the most recent audited financial statementsof the Company, would constitute a Significant Subsidiary ceases to be in 

 

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full force and effect (except as contemplated by the terms hereof) orany Guarantor denies or disaffirms its obligations under this Indenture or anyGuarantee, other than by reason of the release of the Guarantee in accordancewith the terms of this Indenture;

 

(8)           (i) the Company, any Restricted Subsidiarythat is a Significant Subsidiary or any group of Restricted Subsidiaries that,taken as a whole, would constitute a Significant Subsidiary, pursuant to orwithin the meaning of any Bankruptcy Law:

 

(a)           commences a voluntarycase,

 

(b)           consents to the entryof an order for relief against it in an involuntary case,

 

(c)           consents to theappointment of a custodian of it or for all or substantially all of itsproperty,

 

(d)           makes a generalassignment for the benefit of its creditors, or

 

(e)           generally is not payingits debts as they become due;

 

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

 

(f)            is for relief againstthe Company or any Restricted Subsidiary that is a Significant Subsidiary orany group of Restricted Subsidiaries that, taken together, would constitute aSignificant Subsidiary, in an involuntary case;

 

(g)           appoints a custodian ofthe Company or any Restricted Subsidiary that is a Significant Subsidiary orany group of Restricted Subsidiaries that, taken together, would constitute aSignificant Subsidiary or for all or substantially all of the property of theCompany or any of its Restricted Subsidiaries; or

 

(h)           orders the liquidationof the Company or any Restricted Subsidiary that is a Significant Subsidiary orany group of Restricted Subsidiaries that, taken together, would constitute aSignificant Subsidiary and the order or decree remains unstayed and in effectfor 60 consecutive days; or

 

(9)           Parent ceases to directly own, eitherdirectly or through one or more entities, 100% of the Capital Stock of theCompany.

 

SECTION 6.2         Acceleration.

 

If an Event ofDefault (other than an Event of Default specified in clause (8) above withrespect to the Company) shall occur and be continuing, the Trustee acting atthe written direction of the holders or the Holders of at least 25% inaggregate principal amount of the outstanding Notes may declare the principalof the Notes and any accrued interest on the Notes to be due and payable bynotice in writing to the Company and the Trustee specifying the respectiveEvent of 

 

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Default and that it is a “notice of acceleration” (the “*Acceleration Notice*”), and the same shall become immediatelydue and payable; *provided* that, so long as anyIndebtedness permitted to be incurred under this Indenture as part of theCredit Agreement or any series of the Senior Notes shall be outstanding, nosuch acceleration shall be effective until the earlier of:

 

(1)           acceleration of anysuch Indebtedness under the Credit Agreement and/or the Senior Notes, and

 

(2)           five (5) Business Daysafter the giving of written notice of such acceleration to the Company and eachRepresentative under the Credit Agreement and the trustee under the SeniorIndenture.

 

Upon suchdeclaration of acceleration, the aggregate principal amount of, and accrued andunpaid interest and Additional Interest, if any, on all of the outstandingNotes shall *ipso facto* become and be immediately dueand payable without any declaration or other act on the part of the Trustee orany Holder of the Notes. After such acceleration, but before a judgment ordecree based on acceleration, the Holders of a majority in aggregate principalamount of such outstanding Notes may, under certain circumstances, rescind andannul such acceleration if all Events of Default, other than the nonpayment ofaccelerated principal of or interest on such Notes, have been cured or waivedas provided in this Indenture.

 

The Holders ofa majority in aggregate principal amount of the Notes then outstanding bywritten notice to the Trustee may on behalf of the Holders of all of the Noteswaive any existing Default or Event of Default and its consequences under thisIndenture and its consequences:

 

(1)           if the rescission wouldnot conflict with any judgment or decree;

 

(2)           if all existing Eventsof Default have been cured or waived except nonpayment of principal or interestthat has become due solely because of the acceleration;

 

(3)           to the extent the paymentof such interest is lawful, interest on overdue installments of interest andoverdue principal, which has become due otherwise than by such declaration ofacceleration, has been paid;

 

(4)           if the Company has paidthe 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 (6)of Section 6.1, the Trustee shall have received an Officers’Certificate and an Opinion of Counsel that such Event of Default has been curedor waived.

 

No suchrescission shall affect any subsequent Default or impair any right consequentthereto.

 

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In the eventof any Event of Default specified in clause (4) of Section 6.1,such Event of Default and all consequences thereof (excluding, however, anyresulting payment default) will be annulled, waived and rescinded,automatically and without any action by the Trustee or the Holders of theNotes, if within 30 days after such Event of Default arose the Companydelivers an Officers’ Certificate to the Trustee stating that (x) theIndebtedness or guarantee that is the basis for such Event of Default has beendischarged, (y) the holders thereof have rescinded or waived theacceleration, notice or action (as the case may be) giving rise to such Eventof Default or (z) the default that is the basis for such Event of Defaulthas been cured, it being understood that in no event shall an acceleration ofthe principal amount of the Notes as described above be annulled, waived orrescinded upon the happening of any such events.

 

If an Event ofDefault specified in clause (8) above with respect to the Company occursand is continuing, then all unpaid principal of, and premium, if any, andaccrued and unpaid interest and Additional Interest, if any, on all of theoutstanding Notes shall*ipso facto*become and be immediately due and payable without any declaration or other acton the part of the Trustee or any holder of the Notes.

 

No Holder ofany Note (except for the GSMP Group until the Disposition Date) will have anyright to institute any proceeding with respect to this Indenture or for anyremedy thereunder, unless such Holder shall have previously given to theTrustee written notice of a continuing Event of Default and unless also theHolders of at least 25% in aggregate principal amount of the then outstandingNotes shall have made written request, and offered reasonable indemnity, to theTrustee to institute such proceeding as Trustee, and the Trustee shall not havereceived from the Holders of a majority in aggregate principal amount of theoutstanding Notes a direction inconsistent with such request and shall havefailed to institute such proceeding within 60 days. Such limitations donot apply, however, to a suit instituted by a Holder of a Note for enforcementof payment of the principal of (and premium, if any) or interest on such Noteon or after the respective due dates expressed in such Note.

 

In the case ofany Event of Default occurring by reason of any willful action (or inaction)taken (or not taken) by or on behalf of the Company with the intention ofavoiding payment of the premium that the Company would have had to pay if theCompany then had elected to redeem the Notes pursuant to Section 3.7,an equivalent premium shall also become and be immediately due and payable tothe extent permitted by law upon the acceleration of the Notes.

 

SECTION 6.3         Other Remedies.

 

If, at anytime prior to the Disposition Date, unless waived by the GSMP Group, a Defaultin the payment when due of interest on, principal of, or premium, if any, on,the Notes or an Event of Default has occurred and is continuing, then in eachcase the Notes will accrue interest at the stated interest rate on the Notesplus the Default Interest Rate until the earlier of such time as no suchDefault or such Event of Default shall be continuing (to the extent that thepayment of such interest shall be legally enforceable) or the Disposition Date.At any other time, a****nyamounts payable under or in respect of the Notes not paid when due will****accrue interest at the stated interest rate on the Notes plus the Default InterestRate until such time as such 

 

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amounts are paid in full, including any interest thereon (to the extentthat the payment of such overdue interest shall be legally enforceable).Default interest shall be payable in cash on demand and, to the extentapplicable, in accordance with Section 2.12 hereof.

 

If an Event ofDefault occurs and is continuing, the Trustee may pursue any available remedyto collect the payment of principal, premium, if any, interest and AdditionalInterest, if any, on the Notes or to enforce the performance of any provisionof the Notes or this Indenture.

 

The Trusteemay maintain a proceeding even if it does not possess any of the Notes or doesnot produce any of them in the proceeding. A delay or omission by the Trusteeor any Holder in exercising any right or remedy accruing upon an Event ofDefault shall not impair the right or remedy or constitute a waiver of oracquiescence in the Event of Default. All remedies are cumulative to the extentpermitted by law.

 

SECTION 6.4         Waiver of Past Defaults.

 

The Holders ofa majority in principal amount of the Notes issued and then outstanding underthis Indenture by notice to the Trustee may on behalf of the Holders of all ofthe Notes waive any existing Default or Event of Default under this Indenture, andits consequences, except a default in the payment of the principal of orinterest on Notes (other than as a result of an acceleration), which shallrequire the consent of all of the Holders of the Notes then outstanding.

 

SECTION 6.5         Control by Majority.

 

The Holders ofa majority in aggregate principal amount of the then outstanding Notes maydirect the time, method and place of conducting any proceeding for any remedyavailable to the Trustee or exercising any trust or power conferred on theTrustee. However, (i) the Trustee may refuse to follow any direction thatconflicts with law or this Indenture, that the Trustee determines may be undulyprejudicial to the rights of other Holders or that may involve the Trustee inpersonal liability, and (ii) the Trustee may take any other action deemedproper by the Trustee which is not inconsistent with such direction. In case anEvent of Default shall occur (which shall not be cured), the Trustee will berequired, in the exercise of its power, to use the degree of care of a prudentman in the conduct of his own affairs. Notwithstanding any provision to thecontrary in this Indenture, the Trustee is under no obligation to exercise anyof its rights or powers under this Indenture at the request, order or directionof any Holder, unless such Holder shall offer to the Trustee security andindemnity satisfactory to it against any loss, liability or expense.

 

SECTION 6.6         Limitation on Suits.A Holder may pursue a remedy with respect to this Indenture or the Notes only if:

 

(a)           the Holder gives to theTrustee written notice of a continuing Event of Default or the Trustee receivessuch notice from the Company;

 

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(b)           the Holders of at least25% in aggregate principal amount of the then outstanding Notes make a writtenrequest to the Trustee to pursue the remedy;

 

(c)           such Holder or Holdersoffer and, if requested, provide to the Trustee indemnity or securityreasonably satisfactory to the Trustee against any loss, liability or expense;

 

(d)           the Trustee does notcomply with the request within 60 days after receipt of the request andthe offer and, if requested, the provision of such indemnity or security; and

 

(e)           during such 60-dayperiod the Holders of a majority in aggregate principal amount of the thenoutstanding Notes do not give the Trustee a direction inconsistent with therequest.

 

A Holder maynot use this Indenture to prejudice the rights of another Holder or to obtain apreference or priority over another Holder. The limitations set forth in thisSection 6.6 shall not apply to the GSMP Group until the Disposition Date.

 

SECTION 6.7         Rights of Holders ofNotes to Receive Payment.

 

Notwithstandingany other provision of this Indenture, the right of any Holder to receivepayment of principal, premium, if any, and interest on or after the respectivedue dates expressed in the Note (including in connection with an offer topurchase), or to bring suit for the enforcement of any such payment on or aftersuch respective dates, shall not be impaired or affected without the consent ofsuch Holder.

 

SECTION 6.8         Collection Suit byTrustee.

 

If an Event ofDefault specified in Section 6.1(1) or (2) hereof occurs andis continuing, the Trustee is authorized to recover judgment in its own nameand as trustee of an express trust against the Company for the whole amount ofprincipal of, premium and interest remaining unpaid on the Notes and intereston overdue principal and, to the extent lawful, interest and such furtheramount as shall be sufficient to cover the costs and expenses of collection,including the reasonable compensation, expenses, disbursements and advances ofthe Trustee, its agents and counsel.

 

SECTION 6.9         Trustee May FileProofs of Claim.

 

The Trustee isauthorized to file such proofs of claim and other papers or documents as may benecessary or advisable in order to have the claims of the Trustee (includingany claim for the reasonable compensation, expenses, disbursements and advancesof the Trustee, its agents and counsel) and the Holders allowed in any judicialproceedings relative to the Company (or any other obligor upon the Notes), itscreditors or its property and shall be entitled and empowered to collect,receive and distribute any money or other securities or property payable or 

 

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deliverable upon the conversion or exchange of the Notes or on any suchclaims and any custodian in any such judicial proceeding is hereby authorizedby each Holder to make such payments to the Trustee, and in the event that theTrustee shall consent to the making of such payments directly to the Holders,to pay to the Trustee any amount due to it for the reasonable compensation,expenses, disbursements and advances of the Trustee, its agents and counsel,and any other amounts due the Trustee under Section 7.7 hereof. Tothe extent that the payment of any such compensation, expenses, disbursementsand advances of the Trustee, its agents and counsel, and any other amounts duethe Trustee under Section 7.7 hereof out of the estate in any suchproceeding, shall be denied for any reason, payment of the same shall besecured by a Lien on, and shall be paid out of, any and all distributions,dividends, money, securities and other properties that the Holders may beentitled to receive in such proceeding whether in liquidation or under any planof reorganization or arrangement or otherwise. Nothing herein contained shallbe deemed to authorize the Trustee to authorize or consent to or accept oradopt on behalf of any Holder any plan of reorganization, arrangement,adjustment or composition affecting the Notes or the rights of any Holder, orto authorize the Trustee to vote in respect of the claim of any Holder in anysuch proceeding.

 

SECTION 6.10       Priorities.

 

If the Trusteecollects any money or property pursuant to this Article VI, it shall payout the money and property in the 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;

 

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 Trusteemay fix a record date and payment date for any payment to Holders pursuant tothis Section 6.10.

 

SECTION 6.11       Undertaking for Costs.

 

In any suitfor the enforcement of any right or remedy under this Indenture or in any suitagainst the Trustee for any action taken or omitted by it as a Trustee, a courtin its discretion may require the filing by any party litigant in the suit ofan undertaking to pay the costs of the suit, 

 

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and the court in its discretion may assess reasonable costs, includingreasonable attorneys’ fees and expenses, against any party litigant in thesuit, having due regard to the merits and good faith of the claims or defensesmade by the party litigant. This Section 6.11 does not apply to asuit 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         Duties of Trustee.

 

(a)           Ifan Event of Default has occurred and is continuing, the Trustee shall exercisesuch of the rights and powers vested in it by this Indenture and use the samedegree of care and skill in its exercise, as a prudent person would exercise oruse under the circumstances in the conduct of such person’s affairs.

 

(b)           Exceptduring the continuance of an Event of Default:

 

(i)            the duties of theTrustee shall be determined solely by the express provisions of this Indentureor the TIA once this Indenture is qualified under the TIA and the Trustee needperform only those duties that are specifically set forth in this Indenture orthe TIA once this Indenture is qualified under the TIA and no others, and noimplied covenants or obligations shall be read into this Indenture against theTrustee; and

 

(ii)           in the absence of badfaith on its part, the Trustee may conclusively rely, as to the truth of thestatements and the correctness of the opinions expressed therein, uponcertificates or opinions furnished to the Trustee and conforming to therequirements of this Indenture (but need not confirm or investigate theaccuracy of mathematical calculations or other facts stated therein).

 

However, theTrustee shall examine the certificates and opinions furnished to it todetermine whether or not they conform to the requirements of this Indenture.

 

(c)           TheTrustee may not be relieved from liabilities for its own negligent action, itsown negligent failure to act, or its own willful misconduct, except that:

 

(i)            this paragraph doesnot limit the effect of paragraph (b) of this Section 7.1;

 

(ii)           the Trustee shall notbe liable for any error of judgment made in good faith by a ResponsibleOfficer, unless it is proved that the Trustee was negligent in ascertaining thepertinent facts; and

 

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(iii)          the Trustee shall not beliable with respect to any action it takes or omits to take in good faith inaccordance with a direction received by it pursuant to Section 6.5hereof.

 

(d)           Whetheror not therein expressly so provided, every provision of this Indenture that inany way relates to the Trustee is subject to paragraphs (a), (b) and (c)of this Section 7.1.

 

(e)           Noprovision of this Indenture shall require the Trustee to expend or risk its ownfunds or incur any liability. The Trustee shall be under no obligation toexercise any of its rights and powers under this Indenture at the request ofany Holders, unless such Holder shall have offered to the Trustee security andindemnity satisfactory to it against any loss, liability or expense.

 

(f)            TheTrustee shall not be liable for interest on any money received by it except asthe Trustee may agree in writing with the Company. Money held in trust by theTrustee need not be segregated from other funds except to the extent requiredby law.

 

SECTION 7.2         Rights of Trustee.

 

(a)           TheTrustee may conclusively rely and shall be fully protected in acting orrefraining from acting on any document (whether in original or facsimile form)believed by it to be genuine and to have been signed or presented by the properPerson. The Trustee need not investigate any fact or matter stated in thedocument.

 

(b)           Beforethe Trustee acts or refrains from acting, it may require an Officers’Certificate or an Opinion of Counsel or both. The Trustee shall not be liablefor any action it takes or omits to take in good faith in reliance on suchOfficers’ Certificate or Opinion of Counsel. Prior to taking, suffering oradmitting any action, the Trustee may consult with counsel of the Trustee’s ownchoosing and the Trustee shall be fully protected from liability in respect ofany action taken, suffered or omitted by it hereunder in good faith and inconclusive reliance on the advice or opinion of such counsel.

 

(c)           TheTrustee may act through its attorneys and agents and shall not be responsiblefor the misconduct or negligence of any attorney or agent appointed with duecare.

 

(d)           TheTrustee shall not be liable for any action it takes or omits to take in goodfaith that it believes to be authorized or within the rights or powersconferred upon it by this Indenture. Any request or direction of the Companymentioned herein shall be sufficiently evidenced by an Officers’ Certificateand any resolution of the Board of Directors may be sufficiently evidenced by aBoard Resolution. Whenever in the administration of this Indenture the Trusteeshall deem it desirable that a matter be proved or established prior to taking,suffering or omitting any action hereunder, the Trustee (unless other evidencebe herein specifically prescribed) may, in the absence of bad faith on itspart, conclusively rely upon an Officers’ Certificate.

 

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

 

(f)            TheTrustee shall be under no obligation to exercise any of the rights or powersvested in it by this Indenture at the request or direction of any of theHolders unless such Holders shall have offered to the Trustee reasonablesecurity or indemnity satisfactory to the Trustee against the costs, expensesand liabilities that might be incurred by it in compliance with such request ordirection.

 

(g)           TheTrustee shall not be bound to make any investigation into the facts or mattersstated in any resolution, certificate, statement, instrument, opinion, report,notice, request, direction, consent, order, bond, debenture, note, otherevidence of indebtedness or other paper or documents, but the Trustee, in its discretion,may make such further inquiry or investigation into such facts or matters as itmay see fit, and, if the Trustee shall determine to make such further inquiryor investigation, it shall be entitled to examine during normal business hoursthe books, records and premises of the Company, personally or by agent orattorney at the sole cost of the Company, and shall incur no liability oradditional liability of any kind by reason of such inquiry or investigation.

 

(h)           Therights, privileges, protections and benefits given to the Trustee, including,without limitation, its rights to compensation and to be indemnified asprovided in Section 7.7, are extended to, and shall be enforceable by,the Trustee in each of its capacities hereunder, and to the Paying Agents,Depositaries and Registrars and to each other agent, custodian and otherPersons employed to act hereunder.

 

(i)            TheTrustee may request that the Company deliver an Officers’ Certificate settingforth the names of individuals and/or titles of officers authorized at suchtime to take specified actions pursuant to this Indenture, which Officers’Certificate may be signed by any person authorized to sign an Officers’Certificate, including any person specified as so authorized in any suchcertificate previously delivered and not superseded.

 

(j)            TheTrustee shall not be deemed to have notice or be charged with knowledge of anyDefault or Event of Default unless the Trustee shall have received from theCompany or any other obligor upon the Notes or from any Holder written noticethereof at its address set forth in Section 12.2 hereof, and suchnotice references the Notes and this Indenture. In the absence of any suchnotice, the Trustee may conclusively assume that no such Default or Event ofDefault exists.

 

SECTION 7.3         Individual Rights ofTrustee.

 

The Trustee inits individual or any other capacity may become the owner or pledgee of Notesand may otherwise deal with the Company or any Affiliate of the Company withthe same rights it would have if it were not Trustee. However, in the eventthat the Trustee acquires any conflicting interest it must eliminate suchconflict within 90 days, apply to the Commission for 

 

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permission to continue as Trustee or resign. Any Agent may do the samewith like rights and duties. The Trustee is also subject to Sections 7.10and 7.11 hereof.

 

SECTION 7.4         Trustee’s Disclaimer.

 

The Trusteeshall not be responsible for and makes no representation as to the validity oradequacy of this Indenture or the Notes or the Offering Memorandum, it shallnot be accountable for the Company’s use of the proceeds from the Notes or anymoney paid to the Company or upon the Company’s direction under any provisionof this Indenture, it shall not be responsible for the use or application ofany money received by any Paying Agent other than the Trustee, and it shall notbe responsible for any statement or recital herein or any statement in theNotes or the Offering Memorandum, any statement or recital on any Officers’Certificate delivered to the Trustee under Article IV or Section 8.4or 10.4 hereof, or any other document in connection with the sale of theNotes or pursuant to this Indenture other than its certificate ofauthentication.

 

SECTION 7.5         Notice of Defaults.

 

If a Defaultor Event of Default occurs and is continuing and if it is actually known to aResponsible Officer, the Trustee shall mail to Holders a notice of the Defaultor Event of Default within 90 days after it occurs. Except in the case ofa Default or Event of Default in payment of principal of, premium, if any, orinterest or Additional Interest on any Note, the Trustee may withhold thenotice if and so long as the board of directors, the executive committee or atrust committee of directors or Responsible Officers of the Trustee in goodfaith determines that withholding the notice is in the interests of theHolders.

 

SECTION 7.6         Reports by Trustee toHolders of the Notes.

 

Once thisIndenture is qualified under the TIA, if required by the TIA, 60 daysafter each May 15 beginning with May 15, 2007, and for so long as Notes remainoutstanding, the Trustee shall mail to the Holders a brief report dated as ofsuch reporting date that complies with TIA § 313(a) (but if no eventdescribed in TIA § 313(a) has occurred within the twelve months precedingthe reporting date, no report need be transmitted). The Trustee also shallcomply with TIA § 313(b). The Trustee shall also transmit by mail allreports as required by TIA § 313(c).

 

A copy of eachreport at the time of its mailing to the Holders shall be mailed to the Companyand filed with the Commission and each stock exchange on which the Notes arelisted in accordance with TIA § 313(d). The Company shall promptly notifythe Trustee when the Notes are listed on any stock exchange or delistedtherefrom.

 

SECTION 7.7         Compensation andIndemnity.

 

The Company shall pay to the Trustee from time to time compensation forits acceptance of this Indenture and services hereunder as agreed upon inwriting. The Trustee’s compensation shall not be limited by any law oncompensation of a trustee of an express trust. The Company shall reimburse theTrustee promptly upon request for all reasonable disbursements, advances

 

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and expenses incurred or made by it in addition to the compensation forits services. Such expenses shall include the reasonable compensation,disbursements and expenses of the Trustee’s agents and counsel.

 

The Companyand the Guarantors, jointly and severally, shall indemnify the Trustee (whichfor purposes of this Section 7.7 shall include its officers,directors, employees and agents) against any and all claims, damage, losses,liabilities or expenses incurred by it arising out of or in connection with theacceptance or administration of its duties under this Indenture, including thecosts and expenses of enforcing this Indenture against the Company (includingthis Section 7.7) and defending itself against any claim (whetherasserted by the Company or any Holder or any other Person) or liability inconnection with the exercise or performance of any of its powers or dutieshereunder except to the extent any such loss, claim, damage, liability orexpense may be attributable to its negligence or bad faith. The Trustee shallnotify the Company promptly of any claim for which it may seek indemnity.Failure by the Trustee to so notify the Company shall not relieve the Companyof its obligations hereunder. The Company shall defend the claim and theTrustee shall cooperate in the defense. The Trustee may have separate counseland the Company shall pay the reasonable fees and expenses of one such counsel.The Company need not pay for any settlement made without its consent, whichconsent shall not be unreasonably withheld. Under no circumstances shall theTrustee be liable for any consequential or punitive damages of any kind.

 

Theobligations of the Company and the Guarantors under this Section 7.7shall survive the satisfaction and discharge of this Indenture or theresignation or removal of the Trustee, including any termination under anyBankruptcy Law.

 

To secure theCompany’s payment obligations in this Section 7.7, the Trusteeshall have a Lien prior to the Notes on all money or property held or collectedby the Trustee, except that held in trust to pay principal or interest, if any,on particular Notes. Such Lien shall survive the satisfaction and discharge ofthis Indenture and the resignation or removal of the Trustee, including anytermination under any Bankruptcy Law.

 

When theTrustee incurs expenses or renders services after an Event of Default specifiedin Section 6.1(8) hereof occurs, the expenses and the compensationfor the services (including the fees and expenses of its agents and counsel)are intended to constitute expenses of administration under any Bankruptcy Law.

 

The Trusteeshall comply with the provisions of TIA § 313(b)(2) to the extentapplicable.

 

SECTION 7.8         Replacement ofTrustee.

 

A resignationor removal of the Trustee and appointment of a successor Trustee shall becomeeffective only upon the successor Trustee’s acceptance of appointment asprovided in this Section 7.8.

 

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The Trusteemay resign in writing at any time and be discharged from the trust herebycreated by so notifying the Company. The Holders of a majority in principalamount of the then outstanding Notes may remove the Trustee by so notifying theTrustee and the Company in writing. The Company may remove the Trustee if:

 

(a)           the Trustee fails tocomply with Section 7.10 hereof;

 

(b)           the Trustee is adjudgeda bankrupt or an insolvent or an order for relief is entered with respect tothe Trustee under any Bankruptcy Law;

 

(c)           a custodian or publicofficer takes charge of the Trustee or its property; or

 

(d)           the Trustee becomesincapable of acting.

 

If the Trusteeresigns or is removed or if a vacancy exists in the office of Trustee for anyreason, the Company shall promptly appoint a successor Trustee. Within one yearafter the successor Trustee takes office, the Holders of a majority inprincipal amount of the then outstanding Notes may appoint a successor Trusteeto replace the successor Trustee appointed by the Company.

 

If a successorTrustee does not take office within 60 days after the retiring Trusteeresigns or is removed, the retiring Trustee, the Company or the Holders of atleast 10% in principal amount of the then outstanding Notes may, at the expenseof the Company, petition any court of competent jurisdiction for theappointment of a successor Trustee.

 

If theTrustee, after written request by any Holder who has been a Holder for at leastsix months, fails to comply with Section 7.10 hereof, such Holdermay, at the expense of the Company, petition any court of competentjurisdiction for the removal of the Trustee and the appointment of a successorTrustee.

 

A successorTrustee shall deliver a written acceptance of its appointment to the retiringTrustee and to the Company. Thereupon, the resignation or removal of theretiring Trustee shall become effective, and the successor Trustee shall haveall the rights, powers and the duties of the Trustee under this Indenture. Thesuccessor Trustee shall mail a notice of its succession to the Holders. Theretiring Trustee shall promptly transfer all property held by it as Trustee tothe successor Trustee,*provided* thatall sums owing to the Trustee hereunder have been paid and subject to the Lienprovided for in Section 7.7 hereof. Notwithstanding replacement ofthe Trustee pursuant to this Section 7.8, the Company’s and theGuarantors’ obligations under Section 7.7 hereof shall continue forthe benefit of the retiring Trustee.

 

SECTION 7.9         Successor Trustee byMerger, Etc.

 

If the Trusteeconsolidates, merges or converts into, or transfers all or substantially all ofits corporate trust business (including the administration of this Indenture)to, another corporation, the successor corporation without any further actshall be the successor Trustee.

 

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SECTION 7.10       Eligibility;Disqualification.

 

There shall atall times be a Trustee hereunder that is a corporation organized and doingbusiness under the laws of the United States of America or of any state thereofthat is authorized under such laws to exercise corporate trustee power and thatis subject to supervision or examination by federal or state authorities. TheTrustee together with its affiliates shall at all times have a combined capitalsurplus of at least $50.0 million as set forth in its most recent publishedannual report of condition.

 

This Indentureshall always have a Trustee who satisfies the requirements of TIA§§ 310(a)(l), (2) and (5). The Trustee is subject to TIA § 310(b)including the provision in § 310(b)(1);*provided* thatthere shall be excluded from the operation of TIA § 310(b)(1) anyindenture or indentures under which other securities, or conflicts of interestor participation in other securities, of the Company or the Guarantors areoutstanding if the requirements for exclusion set forth in TIA § 310(b)(1)are met.

 

SECTION 7.11       Preferential Collectionof Claims Against the Company.

 

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

 

SECTION 7.12       Trustee’s Applicationfor Instructions from the Company.

 

Anyapplication by the Trustee for written instructions from the Company may, atthe option of the Trustee, set forth in writing any action proposed to be takenor omitted by the Trustee under this Indenture and the date on and/or afterwhich such action shall be taken or such omission shall be effective. TheTrustee shall not be liable for any action taken by, or omission of, theTrustee in accordance with a proposal included in such application on or afterthe date specified in such application (which date shall not be less than 20Business Days after the date any officer of the Company actually receives suchapplication, unless any such officer shall have consented in writing to anyearlier date) unless prior to taking any such action (or the effective date inthe case of an omission), the Trustee shall have received written instructionsin response to such application specifying the action to be taken or omitted.

 

ARTICLE VIII

 

DEFEASANCE; DISCHARGE OF THEINDENTURE

 

SECTION 8.1         Option to Effect LegalDefeasance or Covenant Defeasance.

 

The Companymay, at the option of its Board of Directors and evidenced by a BoardResolution set forth in an Officers’ Certificate, at any time, elect to haveeither Section 8.2 or 8.3 hereof applied to all outstandingNotes upon compliance with the conditions set forth below in thisArticle VIII.

 

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SECTION 8.2         Legal Defeasance.

 

Upon the Company’s exercise under Section 8.1 hereof of theoption applicable to this Section 8.2, The Company shall, subjectto the satisfaction of the conditions set forth in Section 8.4 hereof,be deemed to have been discharged from its obligations with respect to alloutstanding Notes on the date the conditions set forth below are satisfied(hereinafter, “*Legal Defeasance*”) except for (i)the rights of Holders of outstanding Notes to receive payments in respect ofthe principal of, premium, if any, and interest and Additional Interest, ifany, on such Notes when such payments are due from the trust referred to below,(ii) the Company’s obligations with respect to the Notes concerning issuingtemporary Notes, registration of Notes, mutilated, destroyed, lost or stolenNotes and the maintenance of an office or agency for payment and money forsecurity payments held in trust, (iii) the rights, powers, trusts, duties andimmunities of the Trustee, and the Company’s obligations in connectiontherewith and (iv) the Legal Defeasance provisions of this Indenture. For thispurpose, Legal Defeasance means that the Company shall be deemed to have paidand discharged the entire Indebtedness represented by the outstanding Notes,which shall thereafter 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         Covenant Defeasance.

 

Upon theCompany’s exercise under Section 8.1 hereof of the optionapplicable to this Section 8.3, the Company shall, subject to thesatisfaction of the conditions set forth in Section 8.4 hereof, bereleased from its obligations under the covenants contained in Sections 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 5.1hereof 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 date the conditions setforth below are satisfied (hereinafter, “*Covenant Defeasance*”),and the Notes shall thereafter be deemed not “outstanding” for the purposes ofany direction, waiver, consent or declaration or act of Holders (and theconsequences of any thereof) in connection with such covenants, but shallcontinue to be deemed “outstanding” for all other purposes hereunder (it beingunderstood that such Notes shall not be deemed outstanding for accountingpurposes). For this purpose, Covenant Defeasance means that, with respect tothe 

 

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outstanding Notes, the Company or any of its Subsidiaries may omit tocomply with and shall have no liability in respect of any term, condition orlimitation set forth in any such covenant, whether directly or indirectly, byreason of any reference elsewhere herein to any such covenant or by reason ofany reference in any such covenant to any other provision herein or in anyother document and such omission to comply shall not constitute a Default or anEvent of Default under Section 6.1 hereof, but, except as specifiedabove, the remainder of this Indenture and such Notes shall be unaffectedthereby. 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.

 

Notwithstandingany discharge or release of any obligations pursuant to Section 8.2or 8.3, the Company’s obligations in Sections 2.5, 2.6,2.7, 2.8, 7.7, 8.6 and 8.7 shall surviveuntil the Notes are no 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.

 

SECTION 8.4         Conditions to Legal orCovenant Defeasance. The following shall be the conditions to theapplication of either Section 8.2 or 8.3 hereof to theoutstanding Notes:

 

(1) the Company must irrevocably depositwith the Trustee, in trust, for the benefit of the Holders of the Notes issuedhereunder, Appropriate Trust Funds in amounts as will be sufficient, in theopinion of a nationally recognized investment bank, appraisal firm or firm ofindependent public accountants, to pay the principal of, or interest andpremium and Additional Interest, if any, on the outstanding Notes issuedhereunder on the Stated Maturity or on the applicable redemption date, as thecase may be, and the Company must specify whether the Notes are being defeasedto maturity or to a particular redemption date;

 

(2) in the case of Legal Defeasance, theCompany shall have delivered to the Trustee an Opinion of Counsel in the UnitedStates reasonably acceptable to the Trustee confirming that (a) theCompany has received from, or there has been published by, the Internal RevenueService a ruling or (b) since the date of this Indenture, there has been achange in the applicable federal income tax law, in either case to the effectthat, and based thereon such Opinion of Counsel in the United States willconfirm that, the holders of the outstanding Notes will not recognize income,gain or loss for federal income tax purposes as a result of such LegalDefeasance and will be subject to federal income tax on the same amounts, inthe same manner and at the same times as would have been the case if such LegalDefeasance had not occurred;

 

(3) in the case of Covenant Defeasance,the Company shall have delivered to the Trustee an Opinion of Counsel in theUnited States reasonably acceptable to the Trustee confirming that the holdersof the outstanding Notes will not recognize income, gain or loss for federalincome tax purposes as a result of such Covenant Defeasance and will be 

 

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subject to federal income tax on the same amounts, in the same mannerand at the same times as would have been the case if such Covenant Defeasancehad not occurred;

 

(4) no Default or Event of Default shallhave occurred and be continuing on the date of such deposit (other than aDefault or Event of Default resulting from the borrowing of funds to be appliedto such deposit and the grant of any Lien securing such borrowings);

 

(5) such Legal Defeasance or CovenantDefeasance will not result in a breach or violation of, or constitute a defaultunder any material agreement or instrument (other than this Indenture) to whichthe Company or any of its Restricted Subsidiaries are a party or by which theCompany or any of its Restricted Subsidiaries is bound;

 

(6) the Company shall deliver to theTrustee an Officers’ Certificate stating that the deposit was not made by theCompany with the intent of preferring the Holders of Notes over the othercreditors of the Company or any Guarantor or with the intent of defeating,hindering, delaying or defrauding creditors of the Company or any Guarantor orothers; and

 

(7) the Company shall deliver to theTrustee an Officers’ Certificate and an Opinion of Counsel in the UnitedStates, each stating that all conditions precedent provided for or relating tothe Legal Defeasance or the Covenant Defeasance have been complied with.

 

Notwithstandingthe foregoing, the requirements of clause (2) above with respect to aLegal Defeasance need not be complied with if all Notes not theretoforedelivered to the Trustee for cancellation (x) have become due and payableor (y) will become due and payable on the maturity date within one yearunder arrangements satisfactory to the Trustee for the giving of notice ofredemption by the Trustee in the name, and at the expense, of the Company.

 

SECTION 8.5         Deposited Money andGovernment Securities to Be Held in Trust; Other Miscellaneous Provisions.

 

Subject to Section 8.6hereof, all money and Appropriate Trust Funds (including the proceeds thereof)deposited with the Trustee (or other qualifying trustee, collectively forpurposes of this Section 8.5, the “*Trustee*”)pursuant to Section 8.4 hereof in respect of the outstanding Notesshall be held in trust, shall not be invested, and applied by the Trustee, inaccordance with the provisions of such Notes and this Indenture, to thepayment, either directly or through any Paying Agent (including the Company orany Subsidiary acting as Paying Agent) as the Trustee may determine, to theHolders of such Notes of all sums due and to become due thereon in respect ofprincipal, premium, if any, and interest and Additional Interest, if any, butsuch money need not be segregated from other funds except to the extentrequired by law.

 

The Companyshall pay and indemnify the Trustee against any tax, fee or other chargeimposed on or assessed against any of the Appropriate Trust Funds depositedpursuant to 

 

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Section 8.4 hereof or the principal andinterest received in respect thereof other than any such tax, fee or othercharge which by law is for the account of the Holders of the outstanding Notes.

 

Anything inthis Article VIII to the contrary notwithstanding, the Trustee shalldeliver or pay to the Company from time to time upon the written request of theCompany and be relieved of all liability with respect to any money orAppropriate Trust Funds held by it as provided in Section 8.4hereof which, in the opinion of a nationally recognized firm of independentpublic accountants expressed in a written certification thereof delivered tothe Trustee (which may be the opinion delivered under Section 8.4(a)hereof), are in excess of the amount thereof that would then be required to bedeposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

SECTION 8.6         Repayment to Company.

 

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

 

SECTION 8.7         Reinstatement.

 

If the Trusteeor Paying Agent is unable to apply any Appropriate Trust Funds in accordancewith Section 8.2, 8.3 or 8.8 hereof, as the case maybe, by reason of any order or judgment of any court or governmental authorityenjoining, restraining or otherwise prohibiting such application, then theobligations of the Company under this Indenture and the Notes shall be revivedand reinstated as though no deposit had occurred pursuant to Section 8.2,8.3 or 8.8 hereof until such time as the Trustee or Paying Agentis permitted to apply all such money in accordance with Section 8.2,8.3 or 8.8 hereof, as the case may be;*provided*,*however*, that, if the Company makes any payment ofprincipal of, premium, if any, or interest or Additional Interest, if any, onany Note following the reinstatement of its obligations, the Company shall besubrogated to the rights of the Holders of such Notes to receive such paymentfrom the money held by the Trustee or Paying Agent.

 

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SECTION 8.8         Discharge. TheCompany and the Guarantors may terminate the obligations under this Indentureand the Notes when:

 

(1)           either:

 

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

 

(b)           all Notes that have not been delivered tothe Trustee for cancellation have become due and payable by reason of the mailingof a notice of redemption or otherwise or will become due and payable by reasonof the mailing of a notice of redemption or otherwise within one year and theCompany has irrevocably deposited or caused to be deposited with the Trustee astrust funds in trust solely for the benefit of the Holders of the Notes,Appropriate Trust Funds, in amounts as will be sufficient without considerationof any reinvestment of interest, to pay and discharge the entire Indebtednesson the Notes not delivered to the Trustee for cancellation for principal,premium and Additional Interest, if any, and accrued interest to the date ofmaturity or redemption;

 

(2)           no Default or Event ofDefault 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 andsimultaneous deposit relating to other Indebtedness, and in each case the grantof any Lien securing such borrowing) and the deposit will not result in abreach or violation of, or constitute a default under, any other materialinstrument to which the Company is a party or by which the Company is bound;

 

(3)           the Company shall havepaid or caused to be paid all sums payable by it under this Indenture;

 

(4)           the Company shall havedelivered irrevocable instructions to the Trustee under this Indenture to applythe deposited money toward the payment of the Notes issued thereunder atmaturity or the redemption date, as the case may be; and

 

(5)           the Company shall havedelivered an Officers’ Certificate and an Opinion of Counsel in the UnitedStates to the Trustee stating that all conditions precedent to satisfaction anddischarge have been satisfied.

 

In the case ofclause (1)(b) of this Section 8.8, and subject to the nextsentence and notwithstanding the foregoing paragraph, the Company’s obligationsin Sections 2.5, 2.6, 2.7, 2.8, 4.1, 4.2,4.15 (as to legal existence of the Company only), 7.7, 8.6and 8.7 shall survive until the Notes are no longer outstanding pursuantto the last paragraph of Section 2.8. After the 

 

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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 suchdelivery or irrevocable deposit, the Trustee upon request shall acknowledge inwriting the discharge of the Company’s obligations under the Notes and thisIndenture except for those surviving obligations specified above.

 

In connectionwith a discharge, in the event the Company becomes insolvent within theapplicable preference period after the date of deposit, monies held for thepayment of the Notes may be part of the bankruptcy estate of the Company,disbursement of such monies may be subject to the automatic stay of theBankruptcy Law and monies disbursed to Holders may be subject to disgorgementin favor of the Company’s estate.

 

ARTICLE IX

 

AMENDMENT, SUPPLEMENT AND WAIVER

 

SECTION 9.1         Without Consent ofHolders of the Notes.

 

NotwithstandingSection 9.2, without the consent of any Holders, the Company, theGuarantors, if any, and the Trustee, at any time and from time to time, mayamend or supplement this Indenture, the Notes or the Guarantees for any of thefollowing purposes:

 

(1)           to cure any ambiguity,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 change thatwould provide any additional rights or benefits to the Holders of Notes or thatdoes not adversely affect the legal rights under this Indenture of any suchHolder;

 

(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 of theNotes; or

 

(8)           to release a Guarantorupon its sale or designation as an Unrestricted Subsidiary or other permittedrelease from its Guarantee;*provided* thatsuch sale, designation or release is in accordance with the applicableprovisions of this Indenture.

 

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SECTION 9.2         With Consent ofHolders of Notes.

 

With theconsent of the Holders of not less than a majority in aggregate principalamount of the outstanding Notes, the Company, the Guarantors, if any, and theTrustee may amend or supplement this Indenture and the Notes for the purpose ofadding any provisions to or changing in any manner or eliminating any of theprovisions of this Indenture or the Notes or of modifying in any manner therights of the Holders under this Indenture or the Notes, including thedefinitions 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 principal ofor 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 in theprovisions of this Indenture relating to waivers of past Defaults or the rightsof Holders of Notes to receive payments of principal of, or interest or premiumor Additional Interest, if any, on such Notes issued thereunder or impair theright of any holder of Notes to institute suit for the enforcement of anypayment on or with respect to such Holder’s Notes;

 

(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 in theranking, 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;

 

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(10)         amend, change or modifyin any 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 ofnot less than a majority in principal amount of the outstanding Notes may onbehalf of the Holders of all the Notes waive any past Default under thisIndenture and its consequences, except a Default:

 

(12)         in any payment in respectof the principal of (or premium, if any) or interest on any Notes (includingany Note which is required to have been purchased pursuant to a Change ofControl Offer or an Asset Sale Offer which has been made by the Company), or

 

(13)         in respect of a covenantor provision hereof which under this Indenture cannot be modified or amendedwithout the consent of the Holder of each outstanding Note affected.

 

It shall notbe necessary for the consent of the Holders of Notes under this Section 9.2to approve the particular form of any proposed amendment or waiver, but itshall be sufficient if such consent approves the substance thereof.

 

After anamendment, supplement or waiver under this Section 9.2 becomeseffective, the Company shall mail to the Holders of Notes affected thereby anotice briefly describing the amendment, supplement or waiver. Any failure ofthe Company to mail such notice, or any defect therein, shall not, however, inany way impair or affect the validity of any such amended or supplementalIndenture or waiver.

 

SECTION 9.3         Compliance with TrustIndenture Act.

 

Everyamendment or supplement to this Indenture or the Notes shall be set forth in anamended or supplemental indenture that complies with the TIA as then in effect.

 

SECTION 9.4         Revocation and Effectof Consents.

 

Until anamendment, supplement or waiver becomes effective, a consent to it by a Holderof a Note is a continuing consent by the Holder and every subsequent Holder ofthat Note or portion of the Note that evidences the same debt as the consentingHolder’s Note, even if notation of the consent is not made on the Note. However,any such Holder or subsequent Holder may revoke the consent as to its Note ifthe Trustee receives written notice of revocation before the date the waiver,supplement or amendment becomes effective. When an amendment, 

 

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supplement or waiver becomes effective in accordance with its terms, itthereafter binds every Holder.

 

The Companymay, but shall not be obligated to, fix a record date for determining whichHolders consent to such amendment, supplement or waiver. If the Company fixes arecord date, the record date shall be fixed at (i) the later of30 days prior to the first solicitation of such consent or the date of themost recent list of Holders furnished for the Trustee prior to such solicitationpursuant to Section 2.5 hereof or (ii) such other date as theCompany shall designate.

 

SECTION 9.5         Notation on orExchange 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 tomake the appropriate notation or issue a new Note shall not affect the validityand effect of such amendment, supplement or waiver.

 

SECTION 9.6         Trustee to SignAmendments, Etc.

 

The Trustee,Deutsche Bank Trust Company Americas and Deutsche Bank AG, London Branch, shallsign any amended or supplemental indenture authorized pursuant to thisArticle IX if the amendment or supplement does not adversely affect therights, duties, liabilities or immunities of the Trustee. The Company and theGuarantors may not sign an amendment or supplemental indenture until theirrespective Boards of Directors approve it. In signing or refusing to sign anyamendment or supplemental indenture the Trustee, Deutsche Bank Trust CompanyAmericas and Deutsche Bank AG, London Branch, shall be entitled to receive and(subject to Section 7.1 hereof) shall be fully protected in relyingupon an Officers’ Certificate and an Opinion of Counsel stating that theexecution 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 notinconsistent herewith, and that it will be valid and binding upon the Companyin accordance with its terms. Notwithstanding the foregoing, no Opinion of Counsel shall be required inconnection with the addition of a Guarantor under this Indenture upon executionand delivery by such Guarantor, the Trustee, Deutsche Bank Trust CompanyAmericas and Deutsche Bank AG, London Branch, of a supplemental indenture to this Indenture, the form of which isattached as Exhibit E hereto, and delivery of an Officer’s Certificate.

 

ARTICLE X

 

SUBORDINATION

 

SECTION 10.1       Agreement To Subordinate. TheCompany and the Guarantors agree, and each Holder by accepting a Note agrees,that the Indebtedness evidenced by the Notes and 

 

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the Guarantees shall be subordinated in right of payment, to the extentand in the manner provided in this Article X, to the prior payment of allSenior Indebtedness of the Company and the Guarantors and that thesubordination is for the benefit of and enforceable by the holders of suchSenior Indebtedness. The Notes and the Guarantees shall in all respects rank *pari passu* in right of payment with all existing and futureSenior Subordinated Indebtedness of the Company and the Guarantors,respectively, and will be senior in right of payment to all existing and futureSubordinated Indebtedness of the Company and the Guarantors; and onlyIndebtedness of the Company or a Guarantor that is Senior Indebtedness shallrank senior to the Notes and the Guarantees in accordance with the provisionsset forth herein. All provisions of this Article X shall be subject to Section10.12 hereof.

 

SECTION 10.2       Liquidation, Dissolution,Bankruptcy. Upon any payment or distribution of the assets of theCompany upon (i) a total or partial liquidation or dissolution, (ii)bankruptcy, reorganization, insolvency, receivership or similar proceedingrelating to the Company or its property, (iii) an assignment of the Company’sassets for the benefit of its creditors, or (iv) any marshalling of the Company’sassets and liabilities:

 

(1)           the holders of SeniorIndebtedness of the Company shall be entitled to receive payment in full incash of such Senior Indebtedness before the Holders are entitled to receive anypayment or distribution of any kind or character with respect to anyObligations on, or relating to, the Notes; and

 

(2)           until the SeniorIndebtedness of the Company is paid in full in cash, any payment ordistribution to which Holders would be entitled but for the subordinationprovisions of this Indenture shall be made to holders of such SeniorIndebtedness as their interests may appear, except that Holders may receivePermitted Junior Securities and capitalization of interest on the Notes asprovided in Paragraph 1 of the reverse of the Notes.

 

If a distribution is made to Holders that, due to the subordinationprovisions, should not have been made to them, such Holders are required tohold it in trust for the holders of Senior Indebtedness of the Company and payit over to them as their interests may appear.

 

SECTION 10.3       Default on DesignatedSenior Indebtedness of the Company. The Company or any Guarantor shallnot pay the principal of, premium, if any, or interest or Additional Interest,if any, on the Notes or make any deposit pursuant to Article VIII hereof andmay not purchase, redeem or otherwise retire any Notes (collectively, “*pay the Notes*”) (except in the form ofPermitted Junior Securities (other than Disqualified Stock) or in the form ofinterest on the Notes capitalized as provided in Paragraph 1 of the reverse ofthe Notes) if either of the following (a “*Payment Default*”)occurs: (a) any Obligation on Designated Senior Indebtedness of the Company isnot paid in full in cash when due; or (b) any other default on DesignatedSenior Indebtedness of the Company occurs and the maturity of such DesignatedSenior Indebtedness is accelerated in accordance with its terms unless, ineither case, the Payment Default has been cured or waived and any suchacceleration has been rescinded or such Designated Senior Indebtedness has beenpaid in full in cash; *provided*,*however*, that the 

 

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Company shall be entitled to pay the Notes without regard to theforegoing if the Company and the Trustee receive written notice approving suchpayment from the Representatives of all Designated Senior Indebtedness withrespect to which the Payment Default has occurred and is continuing.

 

During thecontinuance of any default (other than a Payment Default) (a “*Non-Payment Default*”) with respect to any Designated SeniorIndebtedness of the Company pursuant to which the maturity thereof may beaccelerated without further notice (except such notice as may be required toeffect such acceleration) or the expiration of any applicable grace periods,the Company shall not pay the Notes (except in the form of Permitted JuniorSecurities or in the form of interest on the Notes capitalized as provided inParagraph 1 of the reverse of the Notes) for a period (a “*PaymentBlockage Period*”) commencing upon the receipt by the Trustee atleast two (2) Business Days prior to any such payment in accordance withSection 10.9 hereof of (with a copy to the Company) written notice (a “*Blockage Notice*”) of such Non-Payment Default from theRepresentative of such Designated Senior Indebtedness specifying an election toeffect a Payment Blockage Period and ending 179 days thereafter. The PaymentBlockage Period shall end earlier if such Payment Blockage Period is terminated(1) by written notice to the Trustee and the Company from the Person or Personswho gave such Blockage Notice at least two (2) Business Days prior to any suchpayment in accordance with Section 10.9 hereof; (2) because the Non-PaymentDefault giving rise to such Blockage Notice is cured, waived or otherwise nolonger continuing; or (3) because such Designated Senior Indebtedness has beendischarged or repaid in full in cash.

 

Notwithstandingthe provisions described in the immediately preceding paragraph (but subject tothe provisions contained in the first sentence of this Section 10.3),unless the holders of such Designated Senior Indebtedness or the Representativeof such Designated Senior Indebtedness shall have accelerated the maturity ofsuch Designated Senior Indebtedness or a Payment Default shall have occurredand be continuing, the Company and the related Guarantors shall be entitled toresume payments on the Notes after termination of such Payment Blockage Period.The Notes shall not be subject to more than one Payment Blockage Period in anyconsecutive 360-day period, irrespective of the number of Non-Payment Defaultswith respect to Designated Senior Indebtedness of the Company during suchperiod; *provided* that in no event shall thetotal number of days during which any Payment Blockage Period or Periods is ineffect exceed 179 days in the aggregate during any consecutive 365-day period,and there must be at least 186 days during any consecutive 365-day periodduring which no Payment Blockage Period is in effect. For purposes of this Section10.3, no Non-Payment Default that existed or was continuing on the date ofdelivery of any Blockage Notice with respect to any Designated SeniorIndebtedness and that was the basis for the initiation of such Blockage Noticeshall be, or be made, the basis for a subsequent Blockage Notice by theRepresentative of such Designated Senior Indebtedness unless such Non-Payment Defaulthas been waived for a period of not less than 90 consecutive days (it beingacknowledged that any subsequent action, or any breach of any financialcovenants during the period after the date of delivery of such initial BlockageNotice, that, in either case, would give rise to a Non-Payment Default pursuantto any provisions under which a Non-Payment Default previously existed or wascontinuing shall constitute a new 

 

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Non-Payment Default for this purpose). So long as there shall remainoutstanding Senior Indebtedness under the Credit Agreement, a Blockage Noticewith respect to the Credit Agreement may only be given by the Representativesthereunder unless otherwise agreed to in writing by the requisite lenders namedtherein.

 

SECTION 10.4       Acceleration of Paymentof Securities. If payment of the Notes is accelerated because of anEvent of Default, the Company or the Trustee shall promptly notify the holdersof Designated Senior Indebtedness of the Company or the Representative of suchDesignated Senior Indebtedness of the acceleration; *provided*that any failure to give such notice shall have no effect whatsoever on theprovisions of this Article X. If any Designated Senior Indebtedness of theCompany is outstanding, neither the Company nor any Guarantor may pay the Notes(except in the form of Permitted Junior Securities or in the form of intereston the Notes capitalized as provided in Paragraph 1 of the reverse of theNotes) until five (5) Business Days after the Representatives of suchDesignated Senior Indebtedness receive notice of such acceleration and,thereafter, may pay the Notes only if this Indenture otherwise permits paymentat that time.

 

SECTION 10.5       When Distribution MustBe Paid Over. If a distribution is made to Holders that because ofthis Article X should not have been made to them, the Holders who receive thedistribution shall hold it in trust for holders of Senior Indebtedness of theCompany and pay it over to them as their interests may appear.

 

SECTION 10.6       Subrogation. Afterall Senior Indebtedness of the Company is paid in full and until the Notes arepaid in full, Holders shall be subrogated to the rights of holders of suchSenior Indebtedness to receive distributions applicable to such SeniorIndebtedness. A distribution made under this Article X to holders of suchSenior Indebtedness which otherwise would have been made to Holders of Notes isnot, as between the Company and Holders, a payment by the Company on suchSenior Indebtedness.

 

SECTION 10.7       Relative Rights. ThisArticle X defines the relative rights of Holders and holders of SeniorIndebtedness of the Company. Nothing in this Indenture shall:

 

(1)           impair, as between theCompany and Holders, the obligation of the Company, which is absolute andunconditional, to pay principal of and interest on the Notes in accordance withtheir terms;

 

(2)           prevent the Trustee orany Holder from exercising its available remedies upon a Default or Event ofDefault, subject to the rights of holders of Senior Indebtedness of the Companyto receive distributions otherwise payable to Holders; or

 

(3)           affect the relativeright of Holders and creditors of the Company other than their rights inrelation to Holders of Senior Indebtedness.

 

SECTION 10.8       Subordination May Not BeImpaired by Company. No right of any holder of Senior Indebtedness ofthe Company to enforce the subordination of the Indebtedness 

 

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evidenced by the Notes shall be impaired by any act or failure to actby the Company or by its failure to comply with this Indenture.

 

SECTION 10.9       Rights of Trustee andPaying Agent. (a) Notwithstanding Section 10.3, the Trustee orPaying Agent shall continue to make payments on the Notes and shall not becharged with knowledge of the existence of facts that under this Article Xwould prohibit the making of any such payments unless, not less than two (2)Business Days prior to the date of such payment, a Responsible Officer of theTrustee receives written notice satisfactory to it that such payments areprohibited by this Article X. The Company, the Note Registrar or co-registrar,the Paying Agent, a Representative or a holder of Senior Indebtedness of theCompany shall be entitled to give the notice; *provided*,*however*, that, if an issue of SeniorIndebtedness of the Company has a Representative, only the Representative shallbe entitled to give the notice.

 

(b)           TheTrustee in its individual or any other capacity shall be entitled to holdSenior Indebtedness of the Company with the same rights it would have if itwere not Trustee. The Note Registrar and co-registrar and the Paying Agentshall be entitled to do the same with like rights. The Trustee shall beentitled to all the rights set forth in this Article X with respect to anySenior Indebtedness of the Company which may at any time be held by it, to thesame extent as any other holder of such Senior Indebtedness; and nothing inArticle X shall deprive the Trustee of any of its rights as such holder.Nothing in this Article X shall apply to claims of, or payments to, the Trusteeunder or pursuant to Section 7.7 hereof.

 

SECTION 10.10     Distribution or Notice toRepresentative. Whenever any Person is to make a distribution or givea notice to holders of Senior Indebtedness of the Company, such Person shall beentitled to make such distribution or give such notice to their Representative(if any).

 

SECTION 10.11     Article X Not To PreventEvents of Default or Limit Right To Accelerate. The failure to make apayment pursuant to the Notes by reason of any provision in this Article Xshall not be construed as preventing the occurrence of a Default. Nothing inthis Article X shall have any effect on the right of the Holders of Notes orthe Trustee to accelerate the maturity of the Notes.

 

SECTION 10.12     Trust Moneys NotSubordinated. Notwithstanding anything contained herein to thecontrary, payments from money or the proceeds of Appropriate Trust Funds heldin trust under Article VIII by the Trustee for the payment of principal of andinterest on the Notes shall not be subordinated to the prior payment of anySenior Indebtedness of the Company or subject to the restrictions set forth inthis Article X, and none of the Holders of Notes shall be obligated to pay overany such amount to the Company or any holder of Senior Indebtedness of theCompany or any other creditor of the Company; *provided*that the subordination provisions of this Article X and Section 11.4hereof were not violated at the time the applicable amounts were deposited intrust pursuant to Article VIII herein, as the case may be.

 

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SECTION 10.13     Trustee Entitled To Rely. Uponany payment or distribution pursuant to this Article X, the Trustee and theHolders of Notes shall be entitled to rely (a) upon any order or decree of acourt of competent jurisdiction in which any proceedings of the nature referredto in Section 10.2 are pending, (b) upon a certificate of theliquidating trustee or agent or other Person making such payment ordistribution to the Trustee or to the Holders or (c) upon the Representativesof Senior Indebtedness of the Company for the purpose of ascertaining thePersons entitled to participate in such payment or distribution, the holders ofsuch Senior Indebtedness and other Indebtedness of the Company, the amountthereof or payable thereon, the amount or amounts paid or distributed thereonand all other facts pertinent thereto or to this Article X. In the event thatthe Trustee determines, in good faith, that evidence is required with respectto the right of any Person as a holder of Senior Indebtedness of the Company toparticipate in any payment or distribution pursuant to this Article X, theTrustee shall be entitled to request such Person to furnish evidence to thereasonable satisfaction of the Trustee as to the amount of such SeniorIndebtedness held by such Person, the extent to which such Person is entitledto participate in such payment or distribution and other facts pertinent to therights of such Person under this Article X, and, if such evidence is notfurnished, the Trustee shall be entitled to defer any payment to such Personpending judicial determination as to the right of such Person to receive suchpayment. The provisions of Sections 7.1 and 7.3 shall beapplicable to all actions or omissions of actions by the Trustee pursuant tothis Article X.

 

SECTION 10.14     Trustee To EffectuateSubordination. Each Holder by accepting a Note authorizes andexpressly directs the Trustee, on its behalf, to take such action as may benecessary or appropriate to acknowledge or effectuate the subordination betweenthe Holders and the holders of Senior Indebtedness of the Company as providedin this Article X and appoints the Trustee as attorney-in-fact for any and allsuch purposes.

 

SECTION 10.15     Trustee Not Fiduciary forHolders of Senior Indebtedness of the Company. The Trustee shall notbe deemed to owe any fiduciary duty to the holders of Senior Indebtedness ofthe Company and shall not be liable to any such holders if it shall mistakenlypay over or distribute to Holders or the Company or any other Person, money orassets to which any holders of Senior Indebtedness of the Company shall beentitled by virtue of this Article X or otherwise. Nothing in this Article 10shall apply to claims of, or payment to, the Trustee pursuant to Section 7.7hereof.

 

SECTION 10.16     Reliance by Holders ofSenior Indebtedness of the Company on Subordination Provisions. EachHolder by accepting a Note acknowledges and agrees that the foregoingsubordination provisions are, and are intended to be, an inducement and aconsideration to each holder of any Senior Indebtedness of the Company, whethersuch Senior Indebtedness was created or acquired before or after the issuanceof the Notes, to acquire and continue to hold, or to continue to hold, suchSenior Indebtedness and such holder of such Senior Indebtedness shall be deemedconclusively to have relied on such subordination provisions in acquiring andcontinuing to hold, or in continuing to hold, such Senior Indebtedness.

 

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ARTICLE XI

 

NOTE GUARANTEES

 

SECTION 11.1       Guarantees.

 

(a)           EachGuarantor hereby jointly and severally, fully, unconditionally and irrevocablyguarantees the Notes and obligations of the Company hereunder and thereunder,and guarantees to each Holder of a Note authenticated and delivered by theTrustee and to the Trustee on behalf of such Holder, that:  (i) the principal of and premium, ifany, and interest and Additional Interest, if any, on the Notes shall be paidin full when due, whether at Stated Maturity, by acceleration, call forredemption or otherwise (including, without limitation, the amount that wouldbecome due but for the operation of the automatic stay underSection 362(a) of the Bankruptcy Law), together with interest on theoverdue principal, if any, and interest on any overdue interest and AdditionalInterest, if any, to the extent lawful, and all other obligations of theCompany to the Holders or the Trustee hereunder or thereunder shall be paid infull or performed, all in accordance with the terms hereof and thereof; and(ii) in case of any extension of time of payment or renewal of any Notesor of any such other obligations, the same shall be paid in full when due orperformed in accordance with the terms of the extension or renewal, whether atStated Maturity, by acceleration or otherwise. Each of the Guarantees shall bea guarantee of payment and not of collection.

 

(b)           EachGuarantor hereby agrees that its obligations hereunder shall be unconditional,irrespective of the validity, regularity or enforceability of the Notes or thisIndenture, the absence of any action to enforce the same, any waiver or consentby any Holder with respect to any provisions hereof or thereof, the recovery ofany judgment against the Company, any action to enforce the same or any othercircumstance which might otherwise constitute a legal or equitable discharge ordefense of a Guarantor.

 

(c)           EachGuarantor hereby waives the benefits of diligence, presentment, demand forpayment, filing of claims with a court in the event of insolvency or bankruptcyof the Company, any right to require a proceeding first against the Company orany other Person, protest, notice and all demands whatsoever and covenants thatthe Guarantee of such Guarantor shall not be discharged as to any Note exceptby complete performance of the obligations contained in such Note and suchGuarantee or as provided for in this Indenture. Each of the Guarantors herebyagrees that, in the event of a default in payment of principal or premium, ifany or interest on such Note, whether at its Stated Maturity, by acceleration,call for redemption, purchase or otherwise, legal proceedings may be institutedby the Trustee on behalf of, or by, the Holder of such Note, subject to theterms and conditions set forth in this Indenture, directly against each of theGuarantors to enforce such Guarantor’s Guarantee without first proceedingagainst the Company or any other Guarantor. Each Guarantor agrees that if,after the occurrence and during the continuance of an Event of Default, theTrustee or any of the Holders are prevented by applicable law from exercisingtheir respective rights to accelerate the maturity of the Notes, to collectinterest on the Notes, or to enforce or exercise any other right or remedy withrespect to the Notes, such Guarantor shall pay to the Trustee for the accountof the Holders, upon demand 

 

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therefor, the amount that would otherwise have beendue and payable had such rights and remedies been permitted to be exercised bythe Trustee or any of the Holders.

 

(d)           EachGuarantor also agrees to pay any and all costs and expenses (includingreasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcingany rights under this Section 11.1.

 

(e)           Ifany Holder or the Trustee is required by any court or otherwise to return tothe Company or any Guarantor, or any custodian, trustee, liquidator or othersimilar official acting in relation to the Company or any Guarantor, any amountpaid by any of them to the Trustee or such Holder, the Guarantee of each of theGuarantors, to the extent theretofore discharged, shall be reinstated in fullforce and effect. This paragraph (e) shall remain effectivenotwithstanding any contrary action which may be taken by the Trustee or anyHolder in reliance upon such amount required to be returned. Thisparagraph (e) shall survive the termination of this Indenture.

 

(f)            EachGuarantor further agrees that, as between each Guarantor, on the one hand, andthe Holders and the Trustee, on the other hand, (x) the maturity of theobligations guaranteed hereby may be accelerated as provided in Article VIhereof for the purposes of the Guarantee of such Guarantor, notwithstanding anystay, injunction or other prohibition preventing such acceleration in respectof the obligations guaranteed hereby, and (y) in the event of any accelerationof such 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       Execution and Deliveryof Guarantee.

 

To evidenceits Guarantee set forth in Section 11.1, each Guarantor agrees thata notation of such Guarantee substantially in the form attached hereto as Exhibit Bshall be endorsed on each Note authenticated and delivered by the Trustee. Suchnotation of Guarantee shall be signed on behalf of such Guarantor by an officerof such Guarantor (or, if an officer is not available, by a board member ordirector) on behalf of such Guarantor by manual or facsimile signature. In casethe officer, board member or director of such Guarantor who shall have signedsuch notation of Guarantee shall cease to be such officer, board member ordirector before the Note on which such Guarantee is endorsed shall have beenauthenticated and delivered by the Trustee, such Note nevertheless may beauthenticated and delivered as though the Person who signed such notation ofGuarantee had not ceased to be such officer, board member or director.

 

Each Guarantoragrees that its Guarantee set forth in Section 11.1 shall remain infull force and effect and apply to all the Notes notwithstanding any failure toendorse on each Note a notation of such Guarantee. The delivery of any Note bythe Trustee, after the authentication thereof hereunder, shall constitute duedelivery of any Guarantee set forth in this Indenture on behalf of theGuarantors.

 

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SECTION 11.3       Severability.

 

In case anyprovision of any Guarantee shall be invalid, illegal or unenforceable, thevalidity, legality, and enforceability of the remaining provisions shall not inany way be affected or impaired thereby.

 

SECTION 11.4       Limitation of Guarantors’Liability.

 

Each Guarantorand by its acceptance hereof each Holder confirms that it is the intention ofall such parties that the Guarantee of such Guarantor not constitute afraudulent transfer or conveyance for purposes of the Federal Bankruptcy Law,the Uniform Fraudulent Conveyance Act, the Uniform FraudulentTransfer Act or any similar federal or state law or the provisions of its locallaw relating to fraudulent transfer or conveyance. To effectuate the foregoingintention, the Trustee, the Holders and Guarantors hereby irrevocably agreethat the obligations of such Guarantor under its Guarantee shall be limited tothe maximum amount that will not, after giving effect to all other contingentand fixed liabilities of such Guarantor and after giving effect to anycollections from, rights to receive contribution from or payments made by or onbehalf of any other Guarantor in respect of the obligations of such otherGuarantor under its Guarantee, result in the obligations of such Guarantorunder its Guarantee constituting a fraudulent transfer or conveyance.

 

SECTION 11.5       Guarantors MayConsolidate, Etc., on Certain Terms.

 

Except asotherwise provided 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 “*SuccessorGuarantor*”);

 

(2)           the Successor Guarantor(if other than such Guarantor) assumes all the obligations of such Guarantorunder the Guarantee, the Indenture and the Registration Rights Agreementpursuant to agreements reasonably satisfactory to the Trustee;

 

(3)           immediately after suchtransaction, no Event of Default exists; and

 

(4)           the Net Proceeds of anysuch sale or other disposition of a Guarantor are applied in accordance withthe provisions of Section 4.10 hereof.

 

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In case of anysuch consolidation, merger, sale or conveyance and upon the assumption by thesuccessor Person, by supplemental indenture, executed and delivered, togetherwith an Opinion of Counsel to the effect that such consolidation, merger, saleor conveyance was made in accordance with the provisions of this Indenture, tothe Trustee and satisfactory in form to the Trustee , of the Guarantee and thedue and punctual performance of all of the covenants and conditions of thisIndenture and the Registration Rights Agreement to be performed by theGuarantor, such successor Person shall succeed to and be substituted for theGuarantor with the same effect as if it had been named herein as a Guarantor.All the Guarantees so issued shall in all respects have the same legal rank andbenefit under this Indenture as the Guarantees theretofore and thereafterissued in accordance with the terms of this Indenture as though all suchGuarantees had been issued at the date of the execution hereof.

 

Upon deliveryto the Trustee of an Officers’ Certificate and an Opinion of Counsel to theeffect that such sale or other disposition was made by the Company inaccordance with the provisions of this Indenture, including without limitation Section 4.10,the Trustee shall execute any documents reasonably required in order toevidence the release 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       Releases Following Saleof Assets. Any Guarantor shall be automatically released and relievedof any obligations under this Guarantee, in the event that:

 

(a)           the sale, dispositionor other transfer (including through merger or consolidation) of (x) CapitalStock of the applicable Guarantor if after such sale, disposition or othertransfer such Guarantor is no longer a Restricted Subsidiary, or (y) all orsubstantially all the assets of the applicable Guarantor, *provided*that, in each case, such sale, disposition or other transfer is made incompliance with the provisions of this Indenture;

 

(b)           the Company designatesany Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary inaccordance with the provisions of this Indenture;

 

(c)           in the case of anyRestricted Subsidiary which after the Issue Date is required to guarantee theNotes pursuant to Section 4.17 the release or discharge of theguarantee by such Restricted Subsidiary of all of the Indebtedness (other thanthe Senior Notes (to the extent the Senior Notes are outstanding)) of theCompany or any Restricted Subsidiary or the repayment of all of theIndebtedness or Disqualified Stock, in each case, which resulted in theobligation to guarantee the Notes;

 

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(d)           the Company exercisesits legal defeasance option or its covenant defeasance option pursuant to Sections 8.2or 8.3 or if its obligations under this Indenture are discharged inaccordance with the terms of this Indenture; or

 

(e)           such Guarantor is alsoa guarantor or borrower under the Credit Agreement as in effect on the IssueDate and, at the time of release of its Guarantee, (x) has been releasedfrom its guarantee of, and all pledges and security, if any, granted inconnection with the Credit Agreement (which may be conditioned on theconcurrent release hereunder), (y) is not an obligor under anyIndebtedness (other than Indebtedness permitted to be incurred pursuant toclause (6), (7), (8), (9), (11), (16) or (19) of the definition of “PermittedDebt” and (z) does not guarantee any Indebtedness of the Company or anyRestricted Subsidiaries (other than any guarantee that will be released uponthe release of the Guarantee hereunder).

 

Upon deliveryto the Trustee of an Officers’ Certificate and an Opinion of Counsel to theeffect that such sale or other disposition was made by the Company inaccordance with the provisions of this Indenture, including without limitation Section 4.10,the Trustee shall execute any documents reasonably required in order toevidence the release of any Guarantor from its obligations under its Guarantee.

 

Any Guarantornot released from its obligations under this Guarantee shall remain liable forthe full amount of principal of and interest on the Notes and for the otherobligations of any Guarantor under this Indenture as provided in thisArticle XI.

 

SECTION 11.7       Release of a Guarantor.

 

Any Guarantorthat is designated by the Board of Directors of the Company as an UnrestrictedSubsidiary in accordance with the terms of this Indenture shall, at such time,be deemed automatically and unconditionally released and discharged of itsobligations under its Guarantee without any further action on the part of theTrustee or any Holder. The Trustee shall deliver an appropriate instrumentevidencing such release upon receipt of the Company’s request for such releaseaccompanied by an Officers’ Certificate and an Opinion of Counsel certifying asto the compliance with this Section 11.7. Any Guarantor not soreleased shall remain liable for the full amount of principal of and intereston the Notes as provided in its Guarantee.

 

SECTION 11.8       Benefits Acknowledged.

 

Each Guarantoracknowledges that it will receive direct and indirect benefits from thefinancing arrangements contemplated by this Indenture and that its guaranteeand waivers pursuant to its Guarantee are knowingly made in contemplation ofsuch benefits.

 

SECTION 11.9       Future Guarantors.

 

Within ten(10) days of becoming a Restricted Subsidiary that is obligated to becomea Guarantor under Section 4.17, such Subsidiary shall execute anddeliver to the Trustee a 

 

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supplemental indenture to this Indenture, the form of which is attached as Exhibit Ehereto, and other agreements making such Subsidiary a party to thisIndenture.

 

ARTICLE XII

 

MISCELLANEOUS

 

SECTION 12.1       Trust Indenture ActControls.

 

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

 

SECTION 12.2       Notices.

 

Any notice orcommunication by the Company, any Guarantor or the Trustee to the others isduly given if in writing and delivered in Person or mailed by first class mail(registered or certified, return receipt requested), telecopier or overnightair courier guaranteeing next day delivery, to the others’ address:

 

If to theCompany:

 

VWR Funding, Inc. (formerly known as CDRV Investors, Inc.)

1310 Goshen Parkway

West Chester, PA 19380

Facsimile:  (610) 431-1700

Attention:  ChiefFinancial Officer

 

With a copyto:

Kirkland & Ellis LLP

200 East Randolph Drive

Chicago, Illinois 60601

Facsimile: (312) 861-2200

Attention: Dennis Myers

 

If to theTrustee:

 

Law Debenture Trust Company of New York, as Trustee

767 Third Avenue, 31st Floor

New York, NY  10017

Facsimile: (212) 750-1361

Attention: Boris Treyger

 

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If to theRegistrar and Paying Agent with respect to the US$ Denominated Notes:

 

Deutsche Bank Trust Company Americas

60 Wall Street, 27th Floor

Mail Stop: NYC60-2710

New York, NY 10005

Facsimile: 

Attention: Trust and Securities Services

 

With a copy to:

Deutsche Bank National Trust Company

25 DeForest Avenue, 2nd Floor

Mail Stop: SUM01-01-05

Summit, NJ 07901

Facsimile: (732) 578-4635

Attention: Trust and Securities Services

 

If to the Common Depositary and Paying Agentwith respect to the EUR Denominated Notes:

Deutsche Bank AG, London Branch

Winchester House

1 Great Winchester Street

London EC2N 2DB

Facsimile: 0207 547 5782

Attention: Corporate Trust and Agency Services

 

The Company orthe Trustee, by notice to the other, may designate additional or differentaddresses for subsequent notices or communications.

 

All noticesand communications (other than those sent to Holders) shall be deemed to havebeen duly given:  at the time deliveredby hand, if personally delivered; five (5) Business Days after being depositedin the mail, postage prepaid, if mailed; when receipt acknowledged, iftelecopied; and the next Business Day after timely delivery to the courier, ifsent by overnight air courier guaranteeing next Business Day delivery.

 

Any notice orcommunication to a Holder shall be mailed by first class mail, certified orregistered, return receipt requested, or by overnight air courier guaranteeingnext Business Day delivery to its address shown on the register kept by theRegistrar. Any notice or communication shall also be so mailed to any Persondescribed in TIA § 313(c), to the extent required by the TIA. Failure tomail a notice or communication to a Holder or any defect in it shall not affectits sufficiency with respect to other Holders.

 

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If a notice orcommunication is mailed in the manner provided above within the timeprescribed, it is duly given, whether or not the addressee receives it, exceptin the case of notices or communications given to the Trustee, which shall beeffective only upon actual receipt.

 

If the Companymails a notice or communication to Holders, it shall mail a copy to the Trusteeand each Agent at the same time.

 

SECTION 12.3       Communication by Holdersof Notes with Other Holders of Notes.

 

Holders maycommunicate pursuant to TIA § 312(b) with other Holders with respect to theirrights under this Indenture or the Notes. The Company, the Trustee, theRegistrar and anyone else shall have the protection of TIA § 312(c).

 

SECTION 12.4       Certificate and Opinionas to Conditions Precedent.

 

Upon anyrequest or application by the Company to the Trustee to take any action underthis Indenture (other than the initial issuance of the Notes), the Company shallfurnish to the Trustee upon request:

 

(a)           an Officers’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)           an Opinion of Counsel(which shall include the statements set forth in Section 12.5hereof) stating that, in the opinion of such counsel, all such conditionsprecedent and covenants have been satisfied.

 

SECTION 12.5       Statements Required inCertificate or Opinion.

 

Eachcertificate or opinion with respect to compliance with a condition or covenantprovided for in this Indenture (other than a certificate provided pursuant toTIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) andshall include:

 

(a)           a statement that thePerson making such certificate or opinion has read such covenant or condition;

 

(b)           a brief statement as tothe nature and scope of the examination or investigation upon which thestatements or opinions contained in such certificate or opinion are based;

 

(c)           a statement that, inthe opinion of such Person, he or she has made such examination orinvestigation as is necessary to enable him to express an informed opinion asto whether or not such covenant or condition has been satisfied; and

 

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(d)           a statement as to whether or not, inthe opinion of such Person, such condition or covenant has been satisfied.

 

SECTION 12.6       Rules by Trustee and Agents.

 

The Trusteemay make reasonable rules for action by or at a meeting of Holders. TheRegistrar or Paying Agent may make reasonable rules and set reasonablerequirements for its functions.

 

SECTION 12.7       No Personal Liability of Directors,Officers, Employees and Stockholders.

 

No director,officer, employee, incorporator, stockholder, unitholder or member of theCompany, any of its Subsidiaries or any of its direct or indirect parentcompanies, as such, will have any liability for any obligations of the Companyor any Guarantor under the Notes, this Indenture, the Guarantees, or for anyclaim based on, in respect of, or by reason of, such obligations or theircreation. Each holder of Notes by accepting a Note waives and releases all suchliability. The waiver and release are part of the consideration for issuance ofthe Notes. The waiver may not be effective to waive liabilities under thefederal securities laws, and it is the view of the Commission that such waiveris against public policy.

 

SECTION 12.8       Governing Law.

 

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       No Adverse Interpretation of OtherAgreements.

 

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

 

SECTION 12.10     Successors.

 

All agreementsof the Company and the Guarantors in this Indenture and the Notes and theGuarantees, as applicable, shall bind their respective successors and assigns.All agreements of the Trustee in this Indenture shall bind its successors andassigns.

 

SECTION 12.11     Severability.

 

In case anyprovision in this Indenture or in the Notes shall be invalid, illegal orunenforceable, the validity, legality and enforceability of the remainingprovisions shall not in any way be affected or impaired thereby.

 

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SECTION 12.12     Counterpart Originals.

 

The partiesmay sign any number of copies of this Indenture. Each signed copy shall be anoriginal, but all of them together represent the same agreement.

 

SECTION 12.13     Table of Contents, Headings, Etc.

 

The Table ofContents, Cross-Reference Table and Headings of the Articles and Sections ofthis Indenture have been inserted for convenience of reference only, are not tobe considered a part of this Indenture and shall in no way modify or restrictany of the terms or provisions hereof.

 

SECTION 12.14     Acts of Holders.

 

(a)           Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction provided by this Indenture to be given or taken by Holders may beembodied in and evidenced by one or more instruments of substantially similartenor signed by such Holders in person or by agent duly appointed in writing;and, except as herein otherwise expressly provided, such action shall becomeeffective when such instrument or instruments are delivered to the Trustee and,where it is hereby expressly required, to the Company. Such instrument orinstruments (and the action embodied therein and evidenced thereby) are hereinsometimes referred to as the “*Act*” of Holderssigning such instrument or instruments. Proof of execution of any suchinstrument or of a writing appointing any such agent shall be sufficient forany purpose of this Indenture and conclusive in favor of the Trustee and theCompany, if made in the manner provided in this Section 12.14.

 

(b)           Thefact and date of the execution by any Person of any such instrument or writingmay be proved by the affidavit of a witness of such execution or by acertificate of a notary public or other officer authorized by law to takeacknowledgments of deeds, certifying that the individual signing such instrumentor writing acknowledged to such officer the execution thereof. Where suchexecution is by a signer acting in a capacity other than such signer’sindividual capacity, such certificate or affidavit shall also constitutesufficient proof of such signer’s authority. The fact and date of the executionof any such instrument or writing, or the authority of the Person executing thesame, may also be proved in any other manner which the Trustee deemssufficient.

 

(c)           Theownership of Notes shall be proved by the Holder list maintained under Section 2.5hereunder.

 

(d)           Anyrequest, demand, authorization, direction, notice, consent, waiver or other Actof the Holder of any Note shall bind every future Holder of the same Note andthe holder of every Note issued upon the registration of transfer thereof or inexchange therefor or in lieu thereof in respect of anything done, omitted orsuffered to be done by the Trustee or the Company in reliance thereon, whetheror not notation of such action is made upon such Note.

 

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(e)           Ifthe Company shall solicit from the Holders any request, demand, authorization,direction, notice, consent, waiver or other Act, the Company may, at itsoption, by or pursuant to a Board Resolution, fix in advance a record date forthe determination of Holders entitled to give such request, demand,authorization, direction, notice, consent, waiver or other Act, but the Companyshall have no obligation to do so. If such a record date is fixed, suchrequest, demand, authorization, direction, notice, consent, waiver or other Actmay be given before or after such record date, but only the Holders of recordat the close of business on such record date shall be deemed to be Holders forthe purposes of determining whether Holders of the requisite proportion ofoutstanding Notes have authorized or agreed or consented to such request,demand, authorization, direction, notice, consent, waiver or other Act, and forthat purpose the outstanding Notes shall be computed as of such record date;*provided* that no such authorization, agreement or consentby the Holders on such record date shall be deemed effective unless it shallbecome effective pursuant to the provisions of this Indenture not later thansix months after the record date.

 

SECTION 12.15     Currency of Account; Conversion ofCurrency; Foreign Exchange Restrictions.

 

(a) U.S. dollars are the sole currency of accountand payment for all sums payable by the Company and the Guarantors under or inconnection with the US$ Denominated Notes, the Guarantees of the US$Denominated Notes or this Indenture to the extent it relates to the US$Denominated Notes, including damages related thereto, and euros are the solecurrency of account and payment for all sums payable by the Company and theGuarantors under or in connection with the EUR Denominated Notes, theGuarantees of the EUR Denominated Notes or this Indenture to the extent itrelates to the EUR Denominated Notes, including damages related thereto. Anyamount received or recovered in a currency other than U.S. dollars by a Holderof US$ Denominated Notes or euros by a Holder of EUR Denominated Notes (whetheras a result of, or of the enforcement of, a judgment or order of a court of anyjurisdiction, in the winding-up or dissolution of the Company or otherwise) inrespect of any sum expressed to be due to it from the Company shall onlyconstitute a discharge to the Company to the extent of the U.S. dollar or Euroamount, as the case may be, which the recipient is able to purchase with theamount so received or recovered in that other currency on the date of thatreceipt or recovery (or, if it is not practicable to make that purchase on thatdate, on the first date on which it is practicable to do so). If that U.S.dollar or Euro amount is less than the U.S. dollar or Euro amount expressed tobe due to the recipient under the applicable Notes, the Company shall indemnifyit against any loss sustained by it as a result as set forth in Section 12.17(b).In any event, the Company and the Guarantors shall indemnify the recipientagainst the cost of making any such purchase. For the purposes of this Section 12.17,it will be sufficient for the Holder of a Note to certify in a satisfactorymanner (indicating sources of information used) that it would have suffered aloss had an actual purchase of U.S. dollars or euros, as the case may be, beenmade with the amount so received in that other currency on the date of receiptor recovery (or, if a purchase of U.S. dollars or euros, as applicable, on suchdate had not been practicable, on the first date on which it would have beenpracticable, it being required that the need for a change of date be certifiedin the manner mentioned above). The indemnities set forth in this Section 12.17constitute separate 

 

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andindependent obligations from other obligations of the Company and theGuarantors, shall give rise to a separate and independent cause of action,shall apply irrespective of any indulgence granted by any Holder of the Notesand shall continue in full force and effect despite any other judgment, order,claim or proof for a liquidated amount in respect of any sum due under theNotes.

 

(b) The Company and the Guarantors, jointly andseverally, covenant and agree that the following provisions shall apply toconversion of currency in the case of the Notes, the Guarantees and thisIndenture:

 

(1)(A)If for the purpose of obtaining judgment in, or enforcing the judgment of, any courtin any country, it becomes necessary to convert into a currency (the “*Judgment Currency*”) an amount due in anyother currency (the “*Base Currency*”),then the conversion shall be made at the rate of exchange prevailing on theBusiness Day before the day on which the judgment is given or the order ofenforcement is made, as the case may be (unless a court shall otherwisedetermine).

 

(B)If there is a change in the rate of exchange prevailing between the BusinessDay before the day on which the judgment is given or an order of enforcement ismade, as the case may be (or such other date as a court shall determine), andthe date of receipt of the amount due, the Company and the Guarantors will paysuch additional (or, as the case may be, such lesser) amount, if any, as may benecessary so that the amount paid in the Judgment Currency when converted atthe rate of exchange prevailing on the date of receipt will produce the amountin the Base Currency originally due.

 

(2)In the event of the winding-up of the Company or any Guarantor at any timewhile any amount or damages owing under the Notes, the Guarantees and thisIndenture, or any judgment or order rendered in respect thereof, shall remainoutstanding, the Company and the Guarantors shall indemnify and hold theHolders and the Trustee harmless against any deficiency arising or resultingfrom any variation in rates of exchange between (i) the date as of whichthe Applicable Currency Equivalent of the amount due or contingently due underthe Notes, the Guarantees and this Indenture (other than under this subsection(b)(2)) is calculated for the purposes of such winding-up and (ii) thefinal date for the filing of proofs of claim in such winding-up. For thepurpose of this subsection (b)(2), the final date for the filing of proofs ofclaim in the winding-up of the Company or any Guarantor shall be the date fixedby the liquidator or otherwise in accordance with the relevant provisions ofapplicable law as being the latest practicable date as at which liabilities ofthe Company or such Guarantor may be ascertained for such winding-up prior topayment by the liquidator or otherwise in respect thereto.

 

(c) The obligations contained in subsections (a),(b)(1)(B) and (b)(2) of this Section 12.17 shall constitute separate andindependent obligations from the other obligations of the Company and theGuarantors under this Indenture, shall give rise to separate and independentcauses of action against the Company and the Guarantors, shall applyirrespective of any waiver 

 

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orextension granted by any Holder or the Trustee or either of them from time totime and shall continue in full force and effect notwithstanding any judgmentor order or the filing of any proof of claim in the winding-up of the Companyor any Guarantor for a liquidated sum in respect of amounts due hereunder(other than under subsection (b)(2) above) or under any such judgment or order.Any such deficiency as aforesaid shall be deemed to constitute a loss sufferedby the Holders or the Trustee, as the case may be, and no proof or evidence ofany actual loss shall be required by the Company or any Guarantor or theliquidator or otherwise or any of them. In the case of subsection (b)(2) above,the amount of such deficiency shall not be deemed to be reduced by anyvariation in rates of exchange occurring between the said final date and thedate of any liquidating distribution.

 

(d) The term “rate(s) of exchange” shall mean therate of exchange as published in*The Wall Street Journal*in the “Exchange Rates” column under the heading “Currency Trading” for spot purchases of the Base Currency withthe Judgment Currency other than the Base Currency referred to in subsections(b)(1) and (b)(2) above and includes any premiums and costs of exchangepayable.

 

[Signatures on following page]

 

149

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to beduly executed as of the day and year first above written.

 
|   | VARIETAL DISTRIBUTION MERGER SUB,   INC. |
|--------|------------------------------------------|
|   |                                     |
|   |                                     |
|   | By:                                      |   |   |
|   | Name:                                    |
|   | Title:                                   |

 

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|   | VWR Funding, Inc., as successor by merger to Varietal Distribution  Merger Sub, Inc., hereby confirms that it has assumed all of the obligations  of Varietal Distribution Merger Sub, Inc. under this Indenture and the Notes: |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                            |
|   |                                                                                                                                                                                                                            |
|   |                                                                                                                                                                                                                            |
|   | VWR FUNDING, INC.                                                                                                                                                                                                               |
|   |                                                                                                                                                                                                                            |
|   |                                                                                                                                                                                                                            |
|   | By:                                                                                                                                                                                                                             |   |   |
|   | Name:                                                                                                                                                                                                                           |
|   | Title:                                                                                                                                                                                                                          |

 

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|   | LAW DEBENTURE TRUST COMPANY OF NEW   YORK, |
|--------|--------------------------------------------|
|   | as Trustee                                 |
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|   |                                       |
|   | DEUTSCHE BANK TRUST COMPANY   AMERICAS,    |
|   | as Registrar and Paying Agent              |
|   |                                       |
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|   |                                       |
|   | DEUTSCHE BANK AG, LONDON BRANCH,           |
|   | as Paying Agent and Common Depositary      |
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|   |                                       |

 

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EXHIBIT A-1

 

FORM OF US$ DENOMINATED NOTE

(Face of 10.75% Senior Subordinated Note due2017)

 

[Global Note Legend]

 

THISGLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNINGTHIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF,AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANTTO SECTION 2.6(g) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED INWHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THISGLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TOSECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO ASUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS ANDUNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THISNOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OFTHE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHERNOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO ASUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THISCERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORYTRUST COMPANY TO THE COMPANY OR THEIR AGENT FOR REGISTRATION OF TRANSFER,EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OFCEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZEDREPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCHOTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANYTRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSONIS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HASAN INTEREST HEREIN.”

 

[Restricted Notes Legend]

 

THIS NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTEREDUNDER 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 

 

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WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THESECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THESECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO ANINSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT, (5) IN ACCORDANCE WITH ANOTHER EXEMPTIONFROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINIONOF COUNSEL IF THE COMPANY SO REQUESTS) OR (6) PURSUANT TO AN EFFECTIVEREGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALLAPPLICABLE BLUE SKY LAWS OF THE STATES OF THE UNITED STATES.

 

[Regulation S TemporaryGlobal Note Legend]

 

THERIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONSAND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIEDIN THE INDENTURE (AS DEFINED HEREIN).

 

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VARIETAL DISTRIBUTION MERGER SUB, INC.

 

10.75% Senior SubordinatedNotes due 2017

 
| No.    |   | $                        |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                        |
|   |   | CUSIP NO. [     ](1)                                                                                               |
|   |   | ISIN NO. [        ]                                                                                           |

 

Varietal Distribution Merger Sub, Inc. (the “*Company*,” which includes any successorentity) promises to pay to Cede & Co. or registered assigns, the principalsum of             US Dollars ($       ) on June 30, 2017. Uponconsummation of the Transactions CDRV Investors, Inc. (to be renamed VWRFunding, Inc.) will assume the obligations of the Company under this Note.

 

Interest Payment Dates:  December31, March 31, June 30 and September 30, commencing on September 30, 2007

 

Record Dates:  December 15, March15, June 15 and September 15

 

Reference ismade to further provisions of this Note set forth on the reverse hereof, whichfurther provisions shall for all purposes have the same effect as set forth atthis place.

 

Unless thecertificate of authentication hereon has been executed by the Trustee referredto on the reverse hereof by manual signature, this Note shall not be entitledto any benefits under this Indenture referred to on the reverse hereof or bevalid or obligatory for any purpose.

 

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| (1)    |   | Rule 144A Note CUSIP: 918436 AB2     |
|--------|--------|--------------------------------------|
|   |   | Rule 144A Note ISIN: US918436AB20    |
|   |   | Regulation S Note CUSIP: U9291U AB5  |
|   |   | Regulation S Note ISIN: USU9291UAB53 |

 

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IN WITNESS WHEREOF, theCompany has caused this Note to be signed manually or by facsimile by its dulyauthorized officers.

 

Dated:

 
|   | VARIETAL DISTRIBUTION MERGER SUB, INC. |
|--------|----------------------------------------|
|   |                                   |
|   |                                   |
|   | By:                                    |   |   |
|   | Name:                                  |
|   | Title:                                 |

 

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This is one of the Senior Subordinated Notes referred to in thewithin-mentionedIndenture:

 

Dated:

 

LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee

 

 
| By: |   |   |
|-----|--------|--------|

 

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(Back of 10.75% Senior Subordinated Note)10.75% Senior Subordinated Notes due 2017

 

Capitalizedterms used herein shall have the meanings assigned to them in the Indenturereferred to below unless otherwise indicated.

 

(1)           Interest.Varietal Distribution Merger Sub, Inc., a Delaware corporation (the “*Company*,”which includes any successor entity) promises to pay interest on the principalamount of this 10.75% Senior Subordinated Note due 2017 (a “*10.75% Senior Subordinated Note*”) at a fixed rate of 10.75% *per annum*. The Company will pay interestin United States dollars (except as otherwise provided herein) quarterly inarrears on December 31, March 31, June 30 and September 30, commencing onSeptember 30, 2007 or if any such day is not a Business Day, on thenext succeeding Business Day (each an “*Interest Payment Date*”).Interest on the 10.75% Senior Subordinated Notes shall accrue from the mostrecent date to which interest has been paid or, if no interest has been paid,from the Issue Date;*provided* thatif there is no existing Default or Event of Default in the payment of interest,and if this 10.75% Senior Subordinated Note is authenticated between a recorddate referred to on the face hereof and the next succeeding Interest PaymentDate, interest shall accrue from such next succeeding Interest Payment Date,except in the case of the original issuance of 10.75% Senior SubordinatedNotes, in which case interest shall accrue from the date of authentication. Allinterest on the Notes shall be paid in cash; *provided*,*however*, that on any InterestPayment Date prior to June 30, 2010, the Company shall have the option tocapitalize and to add to the principal amount outstanding of each Note aportion of the interest payable on such Note on such Interest Payment Date notto exceed 3% of such interest rate per annum. . In the event that the Companyopts to capitalize interest, it shall provide written notice to the PayingAgent, no later than three Business Days prior to the relevant Interest PaymentDate of (i) the amount of interest that it intends to capitalize, and (ii) theaggregate principal amount of Notes outstanding after giving effect to thecapitalization of interest. All references to the “principal” of the Notesshall include interest accrued and capitalized as provided herein. The Companyshall pay interest (including post-petition interest in any proceeding underany Bankruptcy 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 basis of a 360-day year comprised of twelve30-day months. The interest rate on the Notes will in no event be higher thanthe maximum rate permitted by New York law as the same may be modified byUnited States law of general application.

 

(2)           Method of Payment.The Company will pay interest on the 10.75% Senior Subordinated Notes (exceptdefaulted interest) on the applicable Interest Payment Date to the Persons whoare registered Holders of 10.75% Senior Subordinated Notes at the close ofbusiness on the December 15, March 15, June 15 and September 15 preceding theInterest Payment Date, even if such 10.75% Senior Subordinated Notes arecancelled after such record date and on or before such Interest Payment Date,except as provided in Section 2.12 of the Indenture with respect todefaulted interest. The 10.75% Senior Subordinated 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, 

 

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or, at theoption of the Company, payment of interest may be made by check mailed to theHolders at their addresses set forth in the register of Holders;*provided* that payment by wire transfer of immediatelyavailable funds shall be required with respect to principal of, premium, ifany, and interest on, all Global Notes and all other 10.75% Senior SubordinatedNotes the Holders of which shall have provided, at least three Business Daysprior to the applicable payment date, written wire transfer instructions to theCompany and the Paying Agent. Such payment shall be in such coin or currency ofthe United States of America as at the time of payment is legal tender forpayment of public and private debts.

 

Any paymentsof principal of this 10.75% Senior Subordinated Note prior to Stated Maturityshall be binding upon all future Holders of this Note and of any Note issuedupon the registration of transfer hereof or in exchange hereof or in lieuhereof, whether or not noted hereon. The amount due and payable at the maturityof this Note shall be payable only upon presentation and surrender of this Noteat an office of the Trustee or the Trustee’s agent appointed for such purposes.

 

(3)           Paying Agent andRegistrar. Initially, Deutsche Bank Trust Company Americas, shall act as Paying Agent andRegistrar with respect to the US$ Denominated Notes. The Company may change anyPaying Agent or Registrar without notice to any Holder. The Company or any ofits Restricted Subsidiaries may act in any such capacity.

 

(4)           Indenture.The Company issued the 10.75% Senior Subordinated Notes under an Indenture,dated as of June 29, 2007 (the “*Indenture*”),by and among Varietal Distribution Merger Sub, Inc., VWR Funding, Inc.(formerly known as CDRV Investors, Inc.), the Trustee, Deutsche Bank TrustCompany Americas, and Deutsche Bank AG, London Branch. The terms of the 10.75%Senior Subordinated Notes include those stated in the Indenture and those madea part of the Indenture by reference to the Trust Indenture Act of 1939, asamended (15 U.S. Code §§ 77aaa-77bbbb) (the “*TIA*”). To the extent the provisions of this 10.75% SeniorSubordinated Note are inconsistent with the provisions of the Indenture, theIndenture shall govern. The 10.75% Senior Subordinated Notes are subject to allsuch terms, and Holders are referred to the Indenture and such Act for astatement of such terms. The 10.75% Senior Subordinated Notes issued on theIssue Date are senior subordinated obligations of the Company limited to$520,000,000 (or U.S. Dollar Equivalent thereof) in aggregate principal amount,plus interest capitalized pursuant to Paragraph 1 hereof and plus amounts, ifany, sufficient to pay premium and interest on outstanding 10.75% SeniorSubordinated Notes as set forth in Paragraph 2 hereof. The Notes areissued in two tranches: (i) the tranche designated as EUR Denominated Noteslimited to €125,000,000.00 (or U.S. Dollar Equivalent thereof) in the aggregateprincipal amount, plus interest capitalized pursuant to Paragraph 1 hereof andplus amounts, if any, sufficient to pay premium and interest on outstanding EURDenominated Notes as set forth in Paragraph 2 hereof and (ii) the tranchedesignated as US$ Denominated Notes limited to $353,335,000.00 in the aggregateprincipal amount, plus interest capitalized pursuant to Paragraph 1 hereof andplus amounts, if any, sufficient to pay premium and interest on outstanding US$Denominated Notes as set forth in Paragraph 2 hereof; *provided*, *however*,that all Notes issued under the Indenture vote and consent together on allmatters (as to which any of such Notes may vote or consent) as one tranche andno tranche of Notes has the right to vote or consent as a separate tranche onany matter. Except as stated in the Indenture, any Note issued in 

 

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exchange,substitution or replacement for any other Note may only be of the same trancheas the Note being so exchanged, replaced or substituted for.

 

The payment ofprincipal and interest on the 10.75% Senior Subordinated Notes isunconditionally guaranteed on an unsecured senior subordinated basis by theGuarantors.

 

(5)           OptionalRedemption.

 

(a)         The Notes may be redeemed in whole orin part, at any time prior to June 30, 2012, at the option of the Company uponnot less than 30 nor more than 60 days’ prior notice mailed by first-classmail to each Holder’s registered address, at a redemption price equal to the100% of the Current Accretion Amount of the Notes redeemed plus the ApplicablePremium multiplied by the Current Accretion Amount (as defined below) as of,and accrued and unpaid interest not included in the calculation of the CurrentAccretion Amount and Additional Interest, if any, to, the applicable redemptiondate (subject to the right of Holders on the relevant record date to receiveinterest due on the relevant interest payment date).

 

For the purposes hereof, “*Current Accretion Amount*” shall mean thesum of (x) the then outstanding principal principal amount of the Notes beingredeemed (including all the interest previously added to the principal of theNotes), and (y) to the extent such redemption occurs prior to June 30, 2010, ifa portion of the accrued and unpaid interest on the Notes as of the InterestPayment Date immediately prior to the redemption date was capitalized on suchinterest payment date as permitted by Paragraph 1 above, that same portion ofaccrued and unpaid interest on the Notes to the redemption date that may bepermitted to be capitalized on the next Interest Payment Date.

 

(b)        The Notes are subject to redemption, atthe option of the Company, in whole or in part, at any time on or after June30, 2012, upon not less than 30 nor more than 60 days’ notice at thefollowing Redemption Prices (expressed as percentages of the Current AccretionAmount to be redeemed) set forth below, plus accrued and unpaid interest notincluded in the calculation of the Current Accretion Amount and AdditionalInterest, if any, to, but not including, the redemption date (subject to theright of Holders of record on the relevant regular record date to receiveinterest due on an interest payment date that is on or prior to the redemptiondate), if redeemed during the 12-month period beginning June 30 of the yearsindicated below: 

 
| **Year**            | ** ** | **Redemption Price** | ** ** |
|---------------------|------------|----------------------|------------|
| 2012                |       | 105.375              | %          |
| 2013                |       | 102.6875             | %          |
| 2014 and thereafter |       | 100                  | %          |

 

(c)           In addition to the optionalredemption of the Notes in accordance with the provisions of the precedingparagraphs, prior to June 30, 2012, the Company may on one or more occasions,with the net cash proceeds of one or more Equity Offerings, redeem up to 40% ofthe aggregate principal amount of the outstanding Notes at a Redemption Priceof 110.75% of the Current Accretion Amount thereof, plus accrued and unpaid

 

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interest not included in the calculation of theCurrent Accretion Amount and Additional Interest, if any, thereon to the dateof redemption;*provided* that at least 60% 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)           Notice of any redemption upon anEquity Offering may be given prior to the completion of the related EquityOffering, and any such redemption or notice may, at the Company’s discretion,be subject to one or more conditions precedent, including, but not limited tocompletion of the related Equity Offering.

 

(e)           Each redemption must relate to anaggregate principal amount of Notes of $5.0 million or, if lower, the remainingprincipal amount of the Notes then outstanding.

 

(6)           MandatoryRedemption. Except as set forth below, the Company shall not be required tomake mandatory redemption or sinking fund payments with respect to the 10.75%Senior Subordinated 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 Issuer will be required to redeem forcash a portion of each Note then outstanding equal to the Mandatory PrincipalRedemption Amount. The redemption price for the portion of each Note redeemedpursuant to a Mandatory Principal Redemption will be 100% of the principalamount of such portion plus any accrued interest thereon on the date ofredemption. The “*Mandatory PrincipalRedemption Amount*” means the portion of a Note required to beredeemed to prevent such Note from being treated as an “applicable high yielddiscount obligation” within the meaning of Section 163(i)(1) of the Code.No partial redemption or repurchase of the Notes prior to the AHYDO redemptiondate pursuant to any other provision of this Indenture will alter the Issuer’sobligation to make the Mandatory Principal Redemption with respect to any Notesthat remain outstanding on the AHYDO redemption date.

 

(7)           Repurchase atOption 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 10.75% SeniorSubordinated Notes pursuant to the offer described below (the “*Change of Control Offer*”) at an offerprice in cash equal to 101% of the aggregate Current Accretion Amount thereofplus accrued and unpaid interest not included in the calculation of the CurrentAccretion Amount and Additional Interest, if any, thereon to the date ofpurchase. The Change of Control Offer shall be made in accordance with Section4.14 of the Indenture.

 

(b)           Uponthe occurrence of certain Asset Sales, the Company may be required to offer topurchase Notes. The Asset Sale Offer shall be made in accordance with Sections3.9 and 4.10 of the Indenture.

 

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(c)           Holdersof the 10.75% Senior Subordinated Notes that are the subject of an offer topurchase will receive notice of a Change of Control Offer or an Asset SaleOffer from the Company prior to any related purchase date and may elect to havesuch 10.75% Senior Subordinated Notes purchased by completing the form titled “Optionof Holder to Elect Purchase” appearing below.

 

(8)           Notice ofRedemption. Notice of redemption shall be mailed by first-class mail atleast 30 days but not more than 60 days before the redemption date toeach Holder whose 10.75% Senior Subordinated Notes are to be redeemed at itsregistered address. 10.75% Senior Subordinated Notes in denominations largerthan $2,000 may be redeemed in part but only in minimum denominations of $2,000and integral multiples of $1,000 thereof, unless all of the 10.75% SeniorSubordinated Notes held by a Holder are to be redeemed. On and after theredemption date, interest will cease to accrue on the 10.75% SeniorSubordinated Notes or portions hereof called for redemption.

 

(9)           Subordination.The Notes are unsecured obligations of the Company and subordinated in right ofpayment, to the extent and in the manner set forth in the Indenture, to theprior payment of all Senior Indebtedness of the Company, whether outstanding onthe date of the Indenture or thereafter created, incurred, assumed orguaranteed. Each Guarantee by a Guarantor is subordinated and junior to thesame extent and in the same manner as the Notes are subordinated and junior tothe Senior Indebtedness of the Company. Each Holder, by his acceptance hereofagrees to be bound by such provisions and authorizes and expressly directs theTrustee, on his behalf, to take such action as may be necessary or appropriateto effectuate the subordination provided for in the Indenture and appoints theTrustee his attorney-in-fact for such purposes.

 

(10)         Successor Entity.When a successor entity assumes, in accordance with the Indenture, all of theobligations of its predecessor under the Notes and the Indenture andimmediately before and after such transaction no Event of Default exists andcertain other conditions are satisfied, the predecessor entity will be releasedfrom those obligations.

 

(11)         Denominations,Transfer, Exchange. The 10.75% Senior Subordinated Notes are in registeredform without coupons in initial denominations of $2,000 and integral multiplesof $1,000 thereof. The transfer of the 10.75% Senior Subordinated Notes may beregistered and the 10.75% Senior Subordinated Notes may be exchanged asprovided in the Indenture. The Registrar and the Trustee may require a Holder,among other things, to furnish appropriate endorsements and transfer documentsand the Company may require a Holder to pay any taxes and fees required by lawor permitted by the Indenture. The Company need not exchange or register thetransfer of any 10.75% Senior Subordinated Note or portion of a 10.75% SeniorSubordinated Note selected for redemption, except for the unredeemed portion ofany 10.75% Senior Subordinated Note being redeemed in part. Also, it need notexchange or register the transfer of any 10.75% Senior Subordinated Notes for aperiod of 15 days before a selection of 10.75% Senior Subordinated Notesto be redeemed or during the period between a record date and the correspondingInterest Payment Date.

 

(12)         Persons DeemedOwners. The registered holder of a 10.75% Senior Subordinated Note may betreated as its owner for all purposes.

 

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(13)         Amendment,Supplement and Waiver. Subject to the following paragraphs, the Indentureand the 10.75% Senior Subordinated Notes may be amended or supplemented withthe consent of the Holders of at least a majority in aggregate principal amountof the outstanding 10.75% Senior Subordinated Notes, and any existing Defaultor Event of Default or compliance with any provision of the Indenture or the10.75% Senior Subordinated Notes may be waived with the consent of the Holdersof a majority in aggregate principal amount of the outstanding 10.75% SeniorSubordinated Notes.

 

NotwithstandingSection 9.2 of the Indenture, without the consent of any Holders,the Company, the Guarantors, if any, and the Trustee, at any time and from timeto time, may amend or supplement the Indenture for any of the followingpurposes:

 

(1)   to cure any ambiguity, mistake, defect or inconsistency;

 

(2)   to provide for uncertificated Notes in addition to or in place ofcertificated Notes;

 

(3)   to provide for the assumption by a Successor Company or asuccessor company of a Guarantor, as applicable, of the Company’s or suchGuarantor’s obligations under this Indenture, the Notes or any Guarantee;

 

(4)   to make any change that would provide any additional rights orbenefits to the Holders of Notes or that does not adversely affect the legalrights under this Indenture of any such Holder;

 

(5)   to secure the Notes;

 

(6)   to comply with requirements of the Commission in order to effector maintain the qualification of this Indenture under the TIA, as amended;

 

(7)   to add a Guarantee of the Notes; or

 

(8)   to release a Guarantor upon its sale or designation as anUnrestricted Subsidiary or other permitted release from its Guarantee;*provided* that such sale, designation or release is inaccordance with the applicable provisions of this Indenture.

 

With theconsent of the Holders of not less than a majority in aggregate principalamount of the outstanding Notes, the Company, the Guarantors, if any, and theTrustee may amend or supplement the Indenture for the purpose of adding anyprovisions to or changing in any manner or eliminating any of the provisions ofthe Indenture or the Notes or of modifying in any manner the rights of theHolders under the Indenture or the Notes, including the definitions herein;*provided*,*however*, thatno such amendment or supplement shall, without the consent of the Holder ofeach outstanding Note affected thereby:

 

(9)   reduce the principal amount of Notes issued thereunder whoseHolders must consent to an amendment, supplement or waiver;

 

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(10)         reduce the principal of or change the fixed maturity of anyNote or alter the provisions with respect to the redemption of such Notesissued thereunder (other than provisions relating to Sections 3.9, 4.10and 4.14 except as set forth in item (10) below);

 

(11)         reduce the rate of or change the time for payment ofinterest on any Note issued thereunder;

 

(12)         waive a Default or Event of Default in the payment ofprincipal of, or interest or premium, or Additional Interest, if any, on theNotes issued thereunder (except a rescission of acceleration of such Notesissued thereunder by the holders of at least a majority in aggregate principalamount of such Notes issued thereunder with respect to a nonpayment default anda waiver of the payment default that resulted from such acceleration);

 

(13)         make any Note payable in money other than that stated in theNotes;

 

(14)         make any change in the provisions of this Indenture relatingto waivers of past Defaults or the rights of Holders of Notes to receivepayments of principal of, or interest or premium or Additional Interest, ifany, on such Notes issued thereunder or impair the right of any holder of Notesto institute suit for the enforcement of any payment on or with respect to suchHolder’s Notes;

 

(15)         waive a redemption payment with respect to any Note issuedthereunder (other than a payment required by Sections 3.9, 4.10and 4.14 except as set forth in item (10) below);

 

(16)         make any change in the ranking, priority or subordinationprovisions of any Note that would adversely affect the Holders of such Notes;

 

(17)         modify the Guarantees in any manner adverse to the Holdersof the Notes;

 

(18)         amend, change or modify in any material respect theobligation of the Company to make and consummate a Change of Control Offer inrespect of a Change of Control that has occurred or make and consummate anAsset Sale Offer in respect of an Asset Sale that has been consummated after arequirement to make an Asset Sale Offer has arisen; or

 

(19)         make any change in the preceding amendment and waiverprovisions.

 

The Holders ofnot less than a majority in aggregate principal amount of the outstanding Notesmay on behalf 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 a Change of Control Offer or an Asset Sale Offer which has been made by theCompany), or

 

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(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 notbe necessary for the consent of the Holders of Notes under Section 9.2of the Indenture to approve the particular form of any proposed amendment orwaiver, but it shall be sufficient if such consent approves the substancethereof.

 

After an amendment, supplement or waiver under Section 9.2 ofthe Indenture becomes effective, the Company shall mail to the Holders of Notesaffected thereby a notice briefly describing the amendment, supplement orwaiver. Any failure of the Company to mail such notice, or any defect therein,shall not, however, in any way impair or affect the validity of any suchamended or supplemental Indenture or waiver.

 

(14)         Defaults andRemedies. 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, whether or notsuch payment is prohibited by Article X of the Indenture;

 

(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, whether or not such payment is prohibited by Article X of theIndenture;

 

(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 clause (1) or (2) above), whether or not suchpayment is prohibited by the subordination provisions of the Indenture, andsuch default or breach continues for a period of 60 days after the noticespecified below;

 

(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) in thecase of any such default under the Senior Indebtedness only, such defaulteither (1) results from the failure to pay any such Senior Indebtedness atits stated final maturity (after giving effect to any applicable grace periods)or (2) relates to an obligation other than the obligation to pay principalof any such Senior Indebtedness at its stated final maturity and results in theholder or holders of such Indebtedness causing such Indebtedness to become dueprior to its stated maturity and (B) the principal amount of suchIndebtedness, together with the principal amount of any other such Indebtednessin default or, in the case of any other such Senior Indebtedness, in defaultfor failure to pay principal at stated final maturity (after giving effect toany applicable grace periods), or the maturity of which has been soaccelerated, 

 

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aggregate $40.0 million (or its foreign currency equivalent) ormore 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)           theoccurrence of any event of default under any Indebtedness that ranks*pari passu* with the Notes or Subordinated Indebtedness ofthe Company or any Restricted Subsidiary, if the total amount of such Indebtednessas to which a Default or Event of Default has occurred exceeds $30.0 million orits foreign currency equivalent,

 

(7)           untilthe Disposition Date (unless waived by the GSMP Group), (A) the failure of anyrepresentation, warranty, certification or statement made or deemed to havebeen made by or on behalf of the Company or by any of its officers or employeesin any statement or certificate at any time given by or on behalf of theCompany in writing pursuant to the Note Purchase Agreement to be true andcorrect in any material respect on the date as of which made or (B) default inthe performance of, or breach of any covenant, warranty or other agreementcontained in, the Note Purchase Agreement and such default or breach continuesfor a period of 30 days;

 

(8)           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, wouldconstitute a Significant Subsidiary ceases to be in full force and effect(except as contemplated by the terms hereof) or Parent or any Guarantor deniesor disaffirms its obligations under this Indenture or any Guarantee, other thanby reason of the release of the Guarantee in accordance with the terms of theIndenture; or

 

(9)           (i)the Company, any Restricted Subsidiary that is a Significant Subsidiary or anygroup of Restricted Subsidiaries that, taken as a whole, would constitute aSignificant Subsidiary, pursuant to or within the meaning of any BankruptcyLaw:

 

(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;

 

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(ii)           a court ofcompetent jurisdiction enters 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 of RestrictedSubsidiaries that, taken together, would constitute a Significant Subsidiary orfor all or substantially all of the property of the Company or any of itsRestricted 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 ofDefault (other than an Event of Default specified in clause (8) above withrespect to the Company) shall occur and be continuing, the Trustee or theHolders of at least 25% in aggregate principal amount of the outstanding Notesmay declare the principal of the Notes and any accrued interest on the Notes tobe due and payable by notice in writing to the Company and the Trusteespecifying the respective Event of Default and that it is a “notice ofacceleration” (the “*Acceleration Notice*”)and the same shall immediately become due and payable; *provided*that, so long as any Indebtedness permitted to be incurred under this Indentureas part of the Credit Agreement or any series of the Senior Notes shall beoutstanding, no such acceleration shall be effective until the earlier of:

 

(1)           accelerationof any such Indebtedness under the Credit Agreement and the Senior Notes, and

 

(2)           five(5) Business Days after the giving of written notice of such acceleration tothe Company and each Representative under the Credit Agreement and the trusteeunder the Senior Indenture.

 

Upon suchdeclaration of acceleration, the aggregate principal amount of, and accrued andunpaid interest and Additional Interest, if any, on all of the outstandingNotes shall *ipso facto* become and be immediately dueand payable without any declaration or other act on the part of the Trustee orany Holder of Notes. After such acceleration, but before a judgment or decreebased on acceleration, the Holders of a majority in aggregate principal amountof such outstanding Notes may, under certain circumstances, rescind and annulsuch acceleration if all Events of Default, other than the nonpayment ofaccelerated principal of or interest on such Notes, have been cured or waivedas provided in this Indenture.

 

In the event ofany Event of Default specified in clause (4) above, 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) theIndebtedness or guarantee that is the basis for such Event of Default has beendischarged, (y) the holders thereof have rescinded or waived theacceleration, notice or action (as the case may be) giving rise to such Eventof Default or (z) the default that is the basis for such Event of Defaulthas been cured, it being understood that in no event shall an acceleration ofthe principal amount of the Notes as described above be annulled, waived orrescinded upon the happening of any such events.

 

If an Event ofDefault specified in clause (8) above with respect to the Company occursand is continuing, then all unpaid principal of, and premium, if any, andaccrued and unpaid interest and Additional Interest, if any, on all of theoutstanding Notes shall*ipso facto*become and be immediately due and payable without any declaration or other acton the part of the Trustee or any holder of the Notes.

 

If, at anytime prior to the Disposition Date, unless waived by the GSMP Group, a Defaultin the payment when due of interest on, principal of, or premium, if any, on,the Notes or an Event of Default has occurred and is continuing, then in eachcase the Notes will accrue interest at the stated interest rate on the Notesplus the Default Interest Rate until the earlier of such time as no suchDefault or such Event of Default shall be continuing (to the extent that thepayment of such interest shall be legally enforceable) or the Disposition Date.At any other time, a****nyamounts payable under or in respect of the Notes not paid when due will****accrue interest at the stated interest rate on the Notes plus the Default InterestRate until such time as such amounts are paid in full, including any interestthereon (to the extent that the payment of such overdue interest shall belegally enforceable). Default interest shall be payable in cash on demand and,to the extent applicable, in accordance with Section 2.12 of the Indenture.

 

(15)         CurrencyProvisions. (i) US Dollars are the sole currency of account andpayment for all sums payable by the Company and the Guarantors under or inconnection with the US$ Denominated Notes, the Guarantees of the US$Denominated Notes or this Indenture to the extent it relates to the US$Denominated Notes, including damages related thereto. Any amount received orrecovered in a currency other than US Dollars by a Holder of US$ DenominatedNotes (whether as a result of, or of the enforcement of, a judgment or order ofa court of any jurisdiction, in the winding-up or dissolution of the Company orotherwise) in respect of any sum expressed to be due to it from the Companyshall only constitute a discharge to the Company to the extent of the US Dollaramount, which the recipient is able to purchase with the amount so received orrecovered in US Dollars on the date of that receipt or recovery (or, if it isnot practicable to make that purchase on that date, on the first date on whichit is practicable to do so). If US Dollar amount is less than the US Dollaramount expressed to be due to the recipient under the applicable Notes, theCompany shall indemnify it against any loss sustained by it as a result of suchshortfall. In any event, the Company and the Guarantors shall indemnify therecipient against the cost of making any such purchase.

 

(ii)   TheIndenture contains provisions governing currency conversions for purposes ofobtaining or enforcing a judgment in a different currency.

 

(16)         Trustee Dealingswith the Company. The Trustee, in its individual or any other capacity, maymake loans to, accept deposits from, and perform services for the Company, the

 

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Guarantors or their respective Affiliates, and may otherwise deal withthe Company, the Guarantors or their respective Affiliates, as if it were notthe Trustee.

 

(17)         No RecourseAgainst Others. No director, officer, employee, stockholder, unitholder,member, general or limited partner or incorporator, past, present or future, ofthe Company, any of its Subsidiaries or any of its direct or indirect parentcompanies as such or in such capacity, shall have any personal liability forany obligations of the Company or any Guarantor under the Notes, any Guaranteeor the Indenture by reason of his, her or its status as such director, officer,employee, stockholder, unitholder, member, general or limited partner orincorporator.

 

(18)         Authentication.This 10.75% Senior Subordinated Note shall not be valid until authenticated bythe manual signature of the Trustee or an authenticating agent.

 

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

 

(20)         CUSIP and ISINNumbers. Pursuant to a recommendation promulgated by the Committee onUniform Security Identification Procedures, the Company has caused CUSIPand ISIN numbers to be printed on the 10.75% Senior Subordinated Notes and theTrustee may use CUSIP and ISIN numbers in notices of redemption as aconvenience to the Holders. No representation is made as to the accuracy ofsuch numbers either as printed on the 10.75% Senior Subordinated Notes or ascontained in any notice of redemption and reliance may be placed only on theother identification numbers placed thereon.

 

(21)         RegistrationRights. The Notes are entitled to the benefits of a registration rightsagreement to be executed in connection with the issuance of Notes.

 

(22)         Successor Entity. When a successor entity assumes, in accordance with the Indenture, all ofthe obligations of its predecessor under the Notes and the Indenture, andimmediately after such transaction, no Event of Default exists and certainother conditions are satisfied, the predecessor entity will be released fromthose obligations.

 

The Companyshall furnish to any Holder upon written request and without charge a copy ofthe Indenture. Requests may be made to:

 

VWR Funding, Inc. (formerly known as CDRV Investors, Inc.)

1310 Goshen Parkway

West Chester, PA 19380Facsimile:  (610) 431-1700

Attention:  Chief Financial Officer

 

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ASSIGNMENT FORM

 

To assign this10.75% Senior Subordinated Note, fill in the form below:  (I) or (we) assign and transfer this 10.75%Senior Subordinated Note to

 

 
|                                                                                                                            |
|---------------------------------------------------------------------------------------------------------------------------------|
| (Insert assignee’s soc. sec. or tax I.D.  no.)                                                                             |
|                                                                                                                            |
|                                                                                                                            |
|                                                                                                                            |
|                                                                                                                            |
|                                                                                                                            |
|                                                                                                                            |
| (Print or type assignee’s name, address and  zip code)                                                                     |
|                                                                                                                            |
| and irrevocably appoint                                                                                                         |
|                                                                                                                            |
|                                                                                                                            |
| to transfer this 10.75% Senior Subordinated Note on the books of the  Company. The agent may substitute another to act for him. |
|                                                                                                                            |
| Date:                                                                                                                           |   |   |
|                                                                                                                            |
|                                                                                                                            | Your Signature: |   |   |
|                                                                                                                            |   | (Sign  exactly as your name   appears on the face of this 10.75%   Senior Subordinated Note) |
|                                                                                                                            |   |   |
| Signature guarantee:                                                                                                            |   |   |
|                                                                                                                                 |  |  |  |  |  |

 

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OPTION OF HOLDER TO ELECT PURCHASE

 

If you want toelect to have this 10.75% Senior Subordinated Note purchased by the Companypursuant to Section 4.10 or 4.14 of the Indenture, check thebox below:

 

[  ]Section 4.10     [  ]Section 4.14

 

If you want toelect to have only part of the 10.75% Senior Subordinated Note purchased by theCompany pursuant to Section 4.10 or Section 4.14 of theIndenture, state the amount you elect to have purchased:  $             

 
| Date:                   |                                                                           |   |
|-------------------------|--------------------------------------------------------------------------------|--------|
|                    |
|                    | Your Signature:                                                                |   |   |
|                    | (Sign exactly as your name   appears on the 10.75% Senior   Subordinated Note) |
|                    |                                                                           |
| Tax Identification No.: |                                                                           |
|                    |                                                                           |
| Signature guarantee:    |                                                                           |
|                         |                                                                                |        |  |  |  |

 

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SCHEDULE OF EXCHANGES OF 10.75% SeniorSubordinated Notes

 

The followingexchanges of a part of this Global Note for other 10.75% Senior SubordinatedNotes 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 or Note   Custodian** | ** ** |
|----------------------|------------|------------------------------------------------------------------------|------------|------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------|------------|--------------------------------------------------------------------------|------------|
| ** **           | ** ** | ** **                                                             | ** ** | ** **                                                             | ** ** | ** **                                                                               | ** ** | ** **                                                               | ** ** |
| ** **           | ** ** | ** **                                                             | ** ** | ** **                                                             | ** ** | ** **                                                                               | ** ** | ** **                                                               | ** ** |
| ** **           | ** ** | ** **                                                             | ** ** | ** **                                                             | ** ** | ** **                                                                               | ** ** | ** **                                                               | ** ** |

 

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EXHIBIT A-2

 

FORM OF EUR DENOMINATED NOTE

(Face of 10.75% Senior Subordinated Note due2017)

 

[Global Note Legend]

 

THIS GLOBAL NOTE IS HELD BYTHE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITSNOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOTTRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THETRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION2.6(g) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUTNOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTEMAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OFTHE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSORCOMMON DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS ANDUNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTEMAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE COMMON DEPOSITARY TO A NOMINEEOF THE COMMON DEPOSITARY OR BY A NOMINEE OF THE COMMON DEPOSITARY TO THE COMMONDEPOSITARY OR ANOTHER NOMINEE OF THE COMMON DEPOSITARY OR BY THE COMMONDEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR COMMON DEPOSITARY OR A NOMINEE OFSUCH SUCCESSOR COMMON DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY ANAUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITORY TO THE COMPANY OR THEIRAGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATEISSUED IS REGISTERED IN THE NAME OF DEUTSCHE BANK AG, LONDON BRANCH, OR SUCHOTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMONDEPOSITORY (AND ANY PAYMENT IS MADE TO DEUTSCHE BANK AG, LONDON BRANCH, OR SUCHOTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMONDEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BYOR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, DEUTSCHEBANK AG, LONDON BRANCH, HAS AN INTEREST HEREIN.

 

[Restricted Notes Legend]

 

THIS NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTEREDUNDER 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 

 

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INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144AUNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AQUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OFREGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATIONUNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TOAN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THEREGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (5) IN ACCORDANCE WITH ANOTHEREXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED UPONAN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS) OR (6) PURSUANT TO ANEFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCEWITH ALL APPLICABLE BLUE SKY LAWS OF THE STATES OF THE UNITED STATES.

 

[Regulation S TemporaryGlobal Note Legend]

 

THERIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONSAND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIEDIN THE INDENTURE (AS DEFINED HEREIN).

 

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VARIETAL DISTRIBUTION MERGER SUB, INC.

 

10.75% Senior SubordinatedNotes due 2017

 
| No.    |                                                            | € |   |   |
|--------|-----------------------------------------------------------------|--------|--------|--------|
|   |                                                            |   |
|   | ISIN NO.: [        ](2) |
|   | COMMON CODE: [        ] |

 

Varietal Distribution Merger Sub, Inc. (the “*Company*,” which includes any successorentity) promises to pay to Deutsche Bank AG, London Branch, as commondepository for Euroclear Bank S.A./N.V. and Clearstream Banking Société Anonymeor registered assigns, the principal sum of             Euro (€       ) on June 30, 2017. 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:  December31, March 31, June 30 and September 30, commencing on September 30, 2007

 

Record Dates:  December 15, March15, June 15 and September 15

 

Reference ismade to further provisions of this Note set forth on the reverse hereof, whichfurther provisions shall for all purposes have the same effect as set forth atthis place.

 

Unless thecertificate of authentication hereon has been executed by the Trustee referredto on the reverse hereof by manual signature, this Note shall not be entitledto any benefits under the Indenture referred to on the reverse hereof or bevalid or obligatory for any purpose.

 

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(2)           Rule 144A Note CommonCode: 030928687

Rule 144A NoteISIN: US918436AC03

Regulation SNote Common Code: 030928679

Regulation SNote ISIN: USU9291UAC37

 

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IN WITNESS WHEREOF, theCompany has caused this Note to be signed manually or by facsimile by its dulyauthorized officers.

 

Dated:

 
|   | VARIETAL DISTRIBUTION MERGER SUB, INC. |
|--------|----------------------------------------|
|   |                                   |
|   |                                   |
|   | By:                                    |   |   |
|   | Name:                                  |
|   | Title:                                 |

 

 

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This is one of the Senior Subordinated Notes referred to in thewithin-mentionedIndenture:

 

Dated:

 

Law Debenture Trust Company of NewYork, as Trustee

 

 
| By: |   |   |
|-----|--------|--------|

 

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(Back of 10.75% Senior Subordinated Note)10.75% Senior Subordinated Notes due 2017

 

Capitalizedterms used herein shall have the meanings assigned to them in the Indenturereferred to below unless otherwise indicated.

 

(1)           Interest.Varietal Distribution Merger Sub, Inc. (the “*Company*,” which includes any successorentity) promises to pay interest on the principal amount of this 10.75% SeniorSubordinated Note due 2017 (a “*10.75% Senior SubordinatedNote*”) at a fixed rate of 10.75% *perannum*. The Company will pay interest in Euros (except as otherwiseprovided herein) quarterly in arrears on December 31, March 31, June 30 andSeptember 30, commencing on September 30, 2007 or if any such day is not aBusiness Day, on the next succeeding Business Day (each an “*Interest Payment Date*”). Interest on the 10.75% SeniorSubordinated Notes shall accrue from the most recent date to which interest hasbeen paid or, if no interest has been paid, from the Issue Date;*provided* that if there is no existing Default or Event ofDefault in the payment of interest, and if this 10.75% Senior Subordinated Noteis authenticated between a record date referred to on the face hereof and thenext succeeding Interest Payment Date, interest shall accrue from such nextsucceeding Interest Payment Date, except in the case of the original issuanceof 10.75% Senior Subordinated Notes, in which case interest shall accrue fromthe date of authentication. All interest on the Notes shall be paid in cash; *provided*, *however*,that on any Interest Payment Date prior to June 30, 2010, the Company shallhave the option to capitalize and to add to the principal amount outstanding ofeach Note a portion of the interest payable on such Note on such InterestPayment Date not to exceed 3% of such interest rate per annum. . In the eventthat the Company opts to capitalize interest, it shall provide written noticeto the Paying Agent, no later than three Business Days prior to the relevantInterest Payment Date of (i) the amount of interest that it intends tocapitalize, and (ii) the aggregate principal amount of Notes outstanding aftergiving effect to the capitalization of interest. All references to the “principal”of the Notes shall include interest accrued and capitalized as provided herein.The Company shall pay interest (including post-petition interest in anyproceeding under any Bankruptcy Law) on overdue principal to the extent lawful;it shall pay interest (including post-petition interest in any proceeding underany Bankruptcy Law) on overdue installments of interest and AdditionalInterest, if any (without regard to any applicable grace period) to the extentlawful. Interest shall be computed on the basis of a 360-day year comprised oftwelve 30-day months. The interest rate on the Notes will in no event be higherthan the maximum rate permitted by New York law as the same may be modified byUnited States law of general application.

 

(2)           Method of Payment.The Company will pay interest on the 10.75% Senior Subordinated Notes (exceptdefaulted interest) on the applicable Interest Payment Date to the Persons whoare registered Holders of 10.75% Senior Subordinated Notes at the close ofbusiness on the December 15, March 15, June 15 and September 15 preceding theInterest Payment Date, even if such 10.75% Senior Subordinated Notes arecancelled after such record date and on or before such Interest Payment Date,except as provided in Section 2.12 of the Indenture with respect todefaulted interest. The 10.75% Senior Subordinated Notes shall be 

 

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payable as toprincipal, premium, if any, and interest and Additional Interest, if any, atthe offices or agencies of one or more Paying Agents maintained for suchpurpose as provided in the Indenture, or, at the option of the Company, paymentof interest may be made by check mailed to the Holders at their addresses setforth in the register of Holders;*provided* thatpayment by wire transfer of immediately available funds shall be required withrespect to principal of, premium, if any, and interest on, all Global Notes andall other 10.75% Senior Subordinated Notes the Holders of which shall haveprovided, at least three  Business Daysprior to the applicable payment date, written wire transfer instructions to theCompany and the Paying Agent. Such payment shall be in Euro.

 

Any paymentsof principal of this 10.75% Senior Subordinated Note prior to Stated Maturityshall be binding upon all future Holders of this Note and of any Note issuedupon the registration of transfer hereof or in exchange hereof or in lieuhereof, whether or not noted hereon. The amount due and payable at the maturityof this Note shall be payable only upon presentation and surrender of this Noteat an office of the Trustee or the Trustee’s agent appointed for such purposes.

 

(3)           Paying Agent andRegistrar. Initially, Deutsche Bank Trust Company Americas shall act asRegistrar and Deutsche Bank AG, London Branch, shall act as Paying Agent withrespect to the EUR Denominated Notes. The Company may change any Paying Agentor 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 10.75% Senior Subordinated Notes under an Indenture,dated as of June 29, 2007 (the “*Indenture*”),by and among Varietal Distribution Merger Sub, Inc., VWR Funding, Inc.(formerly known as CDRV Investors, Inc.), the Trustee, Deutsche Bank Trust CompanyAmericas, and Deutsche Bank AG, London Branch. The terms of the 10.75% SeniorSubordinated Notes include those stated in the Indenture and those made a partof the Indenture 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 10.75% Senior Subordinated Note areinconsistent with the provisions of the Indenture, the Indenture shall govern.The 10.75% Senior Subordinated Notes are subject to all such terms, and Holdersare referred to the Indenture and such Act for a statement of such terms. The10.75% Senior Subordinated Notes issued on the Issue Date are seniorsubordinated obligations of the Company limited to $520,000,000 (or U.S. DollarEquivalent thereof) in aggregate principal amount, plus interest capitalizedpursuant to Paragraph 1 hereof and plus amounts, if any, sufficient to paypremium and interest on outstanding 10.75% Senior Subordinated Notes as setforth in Paragraph 2 hereof. The Notes are issued in two tranches: (i) thetranche designated as EUR Denominated Notes limited to €125,000,000.00 (or U.S.Dollar Equivalent thereof) in the aggregate principal amount, plus interestcapitalized pursuant to Paragraph 1 hereof and plus amounts, if any, sufficientto pay premium and interest on outstanding EUR Denominated Notes as set forthin Paragraph 2 hereof and (ii) the tranche designated as US$ DenominatedNotes limited to $353,335,000.00 in the aggregate principal amount, plusinterest capitalized pursuant to Paragraph 1 hereof and plus amounts, if any,sufficient to pay premium and interest on 

 

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outstandingUS$ Denominated Notes as set forth in Paragraph 2 hereof; *provided*, *however*,that all Notes issued under the Indenture vote and consent together on allmatters (as to which any of such Notes may vote or consent) as one tranche andno tranche of Notes has the right to vote or consent as a separate tranche onany matter. Except as stated in the Indenture, any Note issued in exchange,substitution or replacement for any other Note may only be of the same trancheas the Note being so exchanged, replaced or substituted for.

 

The payment ofprincipal and interest on the 10.75% Senior Subordinated Notes isunconditionally guaranteed on an unsecured senior subordinated basis by theGuarantors.

 

(5)           OptionalRedemption.

 

(f)         The Notes may be redeemed in whole orin part, at any time prior to June 30, 2012, at the option of the Company uponnot less than 30 nor more than 60 days’ prior notice mailed by first-classmail to each Holder’s registered address, at a redemption price equal to the100% of the Current Accretion Amount of the Notes redeemed plus the ApplicablePremium multiplied by the Current Accretion Amount (as defined below) as of,and accrued and unpaid interest not included in the calculation of the CurrentAccretion Amount and Additional Interest, if any, to, the applicable redemptiondate (subject to the right of Holders on the relevant record date to receiveinterest due on the relevant interest payment date).

 

For the purposes hereof, “*Current Accretion Amount*” shall mean thesum of (x) the then outstanding principal principal amount of the Notes beingredeemed (including all the interest previously added to the principal of theNotes), and (y) to the extent such redemption occurs prior to June 30, 2010, ifa portion of the accrued and unpaid interest on the Notes as of the InterestPayment Date immediately prior to the redemption date was capitalized on suchinterest payment date as permitted by Paragraph 1 above, that same portion ofaccrued and unpaid interest on the Notes to the redemption date that may bepermitted to be capitalized on the next Interest Payment Date.

 

(g)        The Notes are subject to redemption, atthe option of the Company, in whole or in part, at any time on or after June30, 2012, upon not less than 30 nor more than 60 days’ notice at thefollowing Redemption Prices (expressed as percentages of the Current AccretionAmount to be redeemed) set forth below, plus accrued and unpaid interest notincluded in the calculation of the Current Accretion Amount and AdditionalInterest, if any, to, but not including, the redemption date (subject to theright of Holders of record on the relevant regular record date to receiveinterest due on an interest payment date that is on or prior to the redemptiondate), if redeemed during the 12-month period beginning June 30 of the yearsindicated below: 

 

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| **Year**            | ** ** | **Redemption Price** | ** ** |
|---------------------|------------|----------------------|------------|
| 2012                |       | 105.375              | %          |
| 2013                |       | 102.6875             | %          |
| 2014 and thereafter |       | 100                  | %          |

 

(h)           In addition to the optionalredemption of the Notes in accordance with the provisions of the precedingparagraphs, prior to June 30, 2012, the Company may on one or more occasions,with the net cash proceeds of one or more Equity Offerings, redeem up to 40% ofthe aggregate principal amount of the outstanding Notes at a Redemption Priceof 110.75% of the Current Accretion Amount thereof, plus accrued and unpaidinterest not included in the calculation of the Current Accretion Amount and AdditionalInterest, if any, thereon to the date of redemption;*provided*that at least 60% of the aggregate principal amount of Notes originally issuedon the Issue Date remains outstanding immediately after the occurrence of anysuch redemption (excluding Notes held by Parent and its Affiliates) and thatany such redemption occurs within 90 days following the closing of anysuch Equity Offering.

 

(i)            Notice of any redemption upon anEquity Offering may be given prior to the completion of the related EquityOffering, and any such redemption or notice may, at the Company’s discretion,be subject to one or more conditions precedent, including, but not limited tocompletion of the related Equity Offering.

 

(j)            Each redemption must relate to anaggregate principal amount of Notes of $€5.0 million or, if lower, theremaining principal amount of the Notes then outstanding.

 

(6)           MandatoryRedemption. Except as set forth below, the Company shall not be required tomake mandatory redemption or sinking fund payments with respect to the 10.75%Senior Subordinated 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 fifth anniversaryof the Notes’ issuance, the Issuer will be required to redeem for cash aportion of each Note then outstanding equal to the Mandatory PrincipalRedemption Amount. The redemption price for the portion of each Note redeemedpursuant to a Mandatory Principal Redemption will be 100% of the principalamount of such portion plus any accrued interest thereon on the date ofredemption. The “*Mandatory PrincipalRedemption Amount*” means the portion of a Note required to beredeemed to prevent such Note from being treated as an “applicable high yielddiscount obligation” within the meaning of Section 163(i)(1) of the Code.No partial redemption or repurchase of the Notes prior to the AHYDO redemptiondate pursuant to any other provision of this Indenture will alter the Issuer’sobligation to make the Mandatory Principal Redemption with respect to any Notesthat remain outstanding on the AHYDO redemption date.

 

(7)           Repurchase atOption 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 €50,000 or integral

 

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multiples of €1,000 in excess thereof) of such Holder’s 10.75% SeniorSubordinated Notes pursuant to the offer described below (the “*Change of Control Offer*”) at an offerprice in cash equal to 101% of the aggregate Current Accretion Amount thereofplus accrued and unpaid interest not included in the calculation of the CurrentAccretion Amount and Additional Interest, if any, thereon to the date ofpurchase. The Change of Control Offer shall be made in accordance with Section4.14 of the Indenture.

 

(b)           Uponthe occurrence of certain Asset Sales, the Company may be required to offer topurchase Notes. The Asset Sale Offer shall be made in accordance with Sections3.9 and 4.10 of the Indenture.

 

(c)           Holdersof the 10.75% Senior Subordinated Notes that are the subject of an offer topurchase will receive notice of a Change of Control Offer or an Asset SaleOffer from the Company prior to any related purchase date and may elect to havesuch 10.75% Senior Subordinated Notes purchased by completing the form titled “Optionof Holder to Elect Purchase” appearing below.

 

(8)           Notice ofRedemption. Notice of redemption shall be mailed by first-class mail atleast 30 days but not more than 60 days before the redemption date toeach Holder whose 10.75% Senior Subordinated Notes are to be redeemed at itsregistered address. 10.75% Senior Subordinated Notes in denominations largerthan €50,000 may be redeemed in part but only in minimum denominations of€50,000 and integral multiples of €1,000 thereof, unless all of the 10.75%Senior Subordinated Notes held by a Holder are to be redeemed. On and after theredemption date, interest will cease to accrue on the 10.75% SeniorSubordinated Notes or portions hereof called for redemption.

 

(9)           Subordination.The Notes are unsecured obligations of the Company and subordinated in right ofpayment, to the extent and in the manner set forth in the Indenture, to theprior payment of all Senior Indebtedness of the Company, whether outstanding onthe date of the Indenture or thereafter created, incurred, assumed orguaranteed. Each Guarantee by a Guarantor is subordinated  and junior to the same extent and in the samemanner as the Notes are subordinated and junior to the Senior Indebtedness ofthe Company. Each Holder, by his acceptance hereof agrees to be bound by suchprovisions and authorizes and expressly directs the Trustee, on his behalf, totake such action as may be necessary or appropriate to effectuate the subordinationprovided for in the Indenture and appoints the Trustee his attorney-in-fact forsuch purposes.

 

(10)         Successor Entity.When a successor entity assumes, in accordance with the Indenture, all of theobligations of its predecessor under the Notes and the Indenture andimmediately before and after such transaction no Event of Default exists andcertain other conditions are satisfied, the predecessor entity will be releasedfrom those obligations.

 

(11)         Denominations,Transfer, Exchange. The 10.75% Senior Subordinated Notes are in registeredform without coupons in initial denominations of €50,000 and integral multiplesof €1,000 thereof. The transfer of the 10.75% Senior Subordinated Notes may beregistered and the 

 

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10.75% SeniorSubordinated Notes may be exchanged as provided in the Indenture. The Registrarand the Trustee may require a Holder, among other things, to furnishappropriate endorsements and transfer documents and the Company may require aHolder to pay any taxes and fees required by law or permitted by the Indenture.The Company need not exchange or register the transfer of any 10.75% SeniorSubordinated Note or portion of a 10.75% Senior Subordinated Note selected forredemption, except for the unredeemed portion of any 10.75% Senior SubordinatedNote being redeemed in part. Also, it need not exchange or register thetransfer of any 10.75% Senior Subordinated Notes for a period of 15 daysbefore a selection of 10.75% Senior Subordinated Notes to be redeemed or duringthe period between a record date and the corresponding Interest Payment Date.

 

(12)         Persons DeemedOwners. The registered holder of a 10.75% Senior Subordinated Note may betreated as its owner for all purposes.

 

(13)         Amendment,Supplement and Waiver. Subject to the following paragraphs, the Indentureand the 10.75% Senior Subordinated Notes may be amended or supplemented withthe consent of the Holders of at least a majority in aggregate principal amountof the outstanding 10.75% Senior Subordinated Notes, and any existing Defaultor Event of Default or compliance with any provision of the Indenture or the10.75% Senior Subordinated Notes may be waived with the consent of the Holdersof a majority in aggregate principal amount of the outstanding 10.75% SeniorSubordinated Notes.

 

NotwithstandingSection 9.2 of the Indenture, without the consent of any Holders,the Company, the Guarantors, if any, and the Trustee, at any time and from timeto 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;

 

(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 this 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 thisIndenture of any such Holder;

 

(5)           tosecure the Notes;

 

(6)           tocomply with requirements of the Commission in order to effect or maintain thequalification of this Indenture under the TIA, as amended;

 

(7)           toadd a Guarantee of the Notes; or

 

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(8)           torelease a Guarantor upon its sale or designation as an Unrestricted Subsidiaryor other permitted release from its Guarantee;*provided*that such sale, designation or release is in accordance with the applicableprovisions of this Indenture.

 

With theconsent of the Holders of not less than a majority in aggregate principalamount of the outstanding Notes, the Company, the Guarantors, if any, and theTrustee may amend or supplement the Indenture for the purpose of adding anyprovisions to or changing in any manner or eliminating any of the provisions ofthe Indenture or the Notes or of modifying in any manner the rights of theHolders under the Indenture or the Notes, including the definitions herein;*provided*,*however*, thatno such amendment or supplement shall, without the consent of the Holder ofeach 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 theprovisions with respect to the redemption of such Notes issued thereunder(other than provisions 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;

 

(6)           makeany change in the provisions of this 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;

 

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(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 ofnot less than a majority in aggregate principal amount of the outstanding Notesmay on behalf of the Holders of all the Notes waive any past Default under theIndenture and its consequences, except a Default:

 

(10)         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 a Change of Control Offer or an Asset Sale Offer which has been made by theCompany), or

 

(12)         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 notbe necessary for the consent of the Holders of Notes under Section 9.2of the Indenture to approve the particular form of any proposed amendment orwaiver, but it shall be sufficient if such consent approves the substancethereof.

 

After an amendment, supplement or waiver under Section 9.2 ofthe Indenture becomes effective, the Company shall mail to the Holders of Notesaffected thereby a notice briefly describing the amendment, supplement orwaiver. Any failure of the Company to mail such notice, or any defect therein,shall not, however, in any way impair or affect the validity of any suchamended or supplemental Indenture or waiver.

 

(14)         Defaults andRemedies. 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, whether or notsuch payment is prohibited by Article X of the Indenture;

 

(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, whether or not such payment is prohibited by Article X of theIndenture;

 

(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 clause (1) or (2) above), whether or not suchpayment is prohibited by the 

 

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subordination provisions of the Indenture, and such default or breachcontinues for a period of 60 days after the notice specified below;

 

(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) in thecase of any such default under the Senior Indebtedness only, such defaulteither (1) results from the failure to pay any such Senior Indebtedness atits stated final maturity (after giving effect to any applicable grace periods)or (2) relates to an obligation other than the obligation to pay principalof any such Senior Indebtedness at its stated final maturity and results in theholder or holders of such Indebtedness causing such Indebtedness to become dueprior to its stated maturity and (B) the principal amount of suchIndebtedness, together with the principal amount of any other such Indebtednessin default or, in the case of any other such Senior Indebtedness, in defaultfor failure to pay principal at stated final maturity (after giving effect toany applicable grace periods), or the maturity of which has been soaccelerated, aggregate $40.0 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)           theoccurrence of any event of default under any Indebtedness that ranks*pari passu* with the Notes or Subordinated Indebtedness ofthe Company or any Restricted Subsidiary, if the total amount of such Indebtednessas to which a Default or Event of Default has occurred exceeds $30.0 million orits foreign currency equivalent,

 

(7)           untilthe Disposition Date (unless waived by the GSMP Group), (A) the failure of anyrepresentation, warranty, certification or statement made or deemed to havebeen made by or on behalf of the Company or by any of its officers or employeesin any statement or certificate at any time given by or on behalf of theCompany in writing pursuant to the Note Purchase Agreement to be true andcorrect in any material respect on the date as of which made or (B) default inthe performance of, or breach of any covenant, warranty or other agreementcontained in, the Note Purchase Agreement and such default or breach continuesfor a period of 30 days;

 

(8)           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, wouldconstitute a Significant Subsidiary ceases to be in full force and effect(except as contemplated by the terms 

 

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hereof) or Parent or any Guarantor denies or disaffirms its obligationsunder this Indenture or any Guarantee, other than by reason of the release ofthe Guarantee in accordance with the terms of the Indenture; or

 

(9)           (i)the Company, any Restricted Subsidiary that is a Significant Subsidiary or anygroup of Restricted Subsidiaries that, taken as a whole, would constitute aSignificant Subsidiary, pursuant to or within the meaning of any BankruptcyLaw:

 

(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 ofcompetent jurisdiction enters 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 ofDefault (other than an Event of Default specified in clause (8) above withrespect to the Company) shall occur and be continuing, the Trustee or theHolders of at least 25% in aggregate principal amount of the outstanding Notesmay declare the principal of the Notes and any accrued interest on the Notes tobe due and payable by notice in writing to the Company and the Trusteespecifying the respective Event of Default and that it is a “notice ofacceleration” (the “*Acceleration Notice*”)and the same shall immediately become due and payable; *provided*that, so long as any Indebtedness permitted to be incurred under this Indentureas part of the Credit Agreement or any series of the Senior Notes shall beoutstanding, no such acceleration shall be effective until the earlier of:

 

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(1)           accelerationof any such Indebtedness under the Credit Agreement and the Senior Notes, and

 

(2)           five(5) Business Days after the giving of written notice of such acceleration tothe Company and each Representative under the Credit Agreement and the trusteeunder the Senior Indenture.

 

Upon suchdeclaration of acceleration, the aggregate principal amount of, and accrued andunpaid interest and Additional Interest, if any, on all of the outstandingNotes shall *ipso facto* become and be immediately dueand payable without any declaration or other act on the part of the Trustee orany Holder of Notes. After such acceleration, but before a judgment or decreebased on acceleration, the Holders of a majority in aggregate principal amountof such outstanding Notes may, under certain circumstances, rescind and annulsuch acceleration if all Events of Default, other than the nonpayment ofaccelerated principal of or interest on such Notes, have been cured or waivedas provided in this Indenture.

 

In the eventof any Event of Default specified in clause (4) above, such Event ofDefault and 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 an Officers’ Certificate tothe Trustee stating that (x) the Indebtedness or guarantee that is thebasis for such Event of Default has been discharged, (y) the holdersthereof have rescinded or waived the acceleration, notice or action (as thecase may be) giving rise to such Event of Default or (z) the default thatis the basis for such Event of Default has been cured, it being understood thatin 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 ofDefault specified in clause (8) above with respect to the Company occursand is continuing, then all unpaid principal of, and premium, if any, andaccrued and unpaid interest and Additional Interest, if any, on all of theoutstanding Notes shall*ipso facto*become and be immediately due and payable without any declaration or other acton the part of the Trustee or any holder of the Notes.

 

If, at anytime prior to the Disposition Date, unless waived by the GSMP Group, a Defaultin the payment when due of interest on, principal of, or premium, if any, on,the Notes or an Event of Default has occurred and is continuing, then in eachcase the Notes will accrue interest at the stated interest rate on the Notesplus the Default Interest Rate until the earlier of such time as no such Defaultor such Event of Default shall be continuing (to the extent that the payment ofsuch interest shall be legally enforceable) or the Disposition Date. At anyother time, a****nyamounts payable under or in respect of the Notes not paid when due will****accrue interest at the stated interest rate on the Notes plus the Default InterestRate until such time as such amounts are paid in full, including any interestthereon (to the extent that the payment of such overdue interest shall belegally enforceable). Default interest shall be payable in cash on demand and,to the extent applicable, in accordance with Section 2.12 of the Indenture.

 

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(15)         CurrencyProvisions. (i) EUR are the sole currency of account and payment forall sums payable by the Company and the Guarantors under or in connection withthe EUR Denominated Notes, the Guarantees of the EUR Denominated Notes or thisIndenture to the extent it relates to the EUR Denominated Notes, includingdamages related thereto. Any amount received or recovered in a currency otherthan EUR by a Holder of EUR Denominated Notes (whether as a result of, or ofthe enforcement of, a judgment or order of a court of any jurisdiction, in thewinding-up or dissolution of the Company or otherwise) in respect of any sumexpressed to be due to it from the Company shall only constitute a discharge tothe Company to the extent of the EUR amount, which the recipient is able topurchase with the amount so received or recovered in EUR on the date of thatreceipt or recovery (or, if it is not practicable to make that purchase on thatdate, on the first date on which it is practicable to do so). If EUR amount isless than the EUR amount expressed to be due to the recipient under the applicableNotes, the Company shall indemnify it against any loss sustained by it as aresult of such shortfall. In any event, the Company and the Guarantors shallindemnify the recipient against the cost of making any such purchase.

 

(ii)           TheIndenture contains provisions governing currency conversions for purposes ofobtaining or enforcing a judgment in a different currency.

 

(16)         Trustee Dealingswith the Company. The Trustee, in its individual or any other capacity, maymake loans to, accept deposits from, and perform services for the Company, theGuarantors or their respective Affiliates, and may otherwise deal with theCompany, the Guarantors or their respective Affiliates, as if it were not theTrustee.

 

(17)         No RecourseAgainst Others. No director, officer, employee, stockholder, unitholder,member, general or limited partner or incorporator, past, present or future, ofthe Company, any of its Subsidiaries or any of its direct or indirect parentcompanies as such or in such capacity, shall have any personal liability forany obligations of the Company or any Guarantor under the Notes, any Guaranteeor the Indenture by reason of his, her or its status as such director, officer,employee, stockholder, unitholder, member, general or limited partner orincorporator.

 

(18)         Authentication.This 10.75% Senior Subordinated Note shall not be valid until authenticated bythe manual signature of the Trustee or an authenticating agent.

 

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

 

(20)         CUSIP Numbers, ISIN Numbers and Common Codes*.*The Company has caused CUSIP numbers, ISIN numbers and/orCommon Codes to be printed on the Notes and the Trustee may use CUSIP numbers,ISIN numbers or Common Codes in notices of redemption as a convenience toHolders. No representation is made as to the accuracy of such numbers or 

 

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codes eitheras printed on the Notes or as contained in any notice of redemption andreliance may be placed only on the other identification numbers placed thereon.

 

(21)         RegistrationRights. The Notes are entitled to the benefits of a registration rightsagreement to be executed in connection with the issuance of Notes.

 

(22)         Successor Entity. When a successor entity assumes, in accordance with the Indenture, all ofthe obligations of its predecessor under the Notes and the Indenture, andimmediately after such transaction, no Event of Default exists and certainother conditions are satisfied, the predecessor entity will be released from thoseobligations.

 

The Companyshall furnish to any Holder upon written request and without charge a copy ofthe Indenture. Requests may be made to:

 

VWR Funding, Inc. (formerly known as CDRV Investors, Inc.)

1310 Goshen Parkway

West Chester, PA 19380Facsimile:  (610) 431-1700

Attention:  Chief Financial Officer

 

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ASSIGNMENT FORM

 

To assign this10.75% Senior Subordinated Note, fill in the form below:  (I) or (we) assign and transfer this 10.75%Senior Subordinated Note to

 
|                                                                                                                            |
|---------------------------------------------------------------------------------------------------------------------------------|
| (Insert assignee’s soc. sec. or tax I.D.  no.)                                                                             |
|                                                                                                                            |
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| (Print or type assignee’s name, address and  zip code)                                                                     |
|                                                                                                                            |
| and irrevocably appoint                                                                                                         |
|                                                                                                                            |
|                                                                                                                            |
| to transfer this 10.75% Senior Subordinated Note on the books of the  Company. The agent may substitute another to act for him. |
|                                                                                                                            |
| Date:                                                                                                                           |   |   |
|                                                                                                                            |
| Your Signature:                                                                                                                 |   |   |
|                                                                                                                            | (Sign exactly as your name   appears on the face of this 10.75%   Senior Subordinated Note) |
|                                                                                                                            |
| Signature guarantee:                                                                                                            |
|                                                                                                                                 |  |  |  |  |

 

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OPTION OF HOLDER TO ELECT PURCHASE

 

If you want toelect to have this 10.75% Senior Subordinated Note purchased by the Companypursuant to Section 4.10 or 4.14 of the Indenture, check thebox below:

 

[  ]Section 4.10     [  ]Section 4.14

 

If you want toelect to have only part of the 10.75% Senior Subordinated Note purchased by theCompany pursuant to Section 4.10 or Section 4.14 of theIndenture, state the amount you elect to have purchased:  €              

 
| Date:                   |                                                                           |   |
|-------------------------|--------------------------------------------------------------------------------|--------|
|                    |
|                    | Your Signature:                                                                |   |   |
|                    | (Sign exactly as your name   appears on the 10.75% Senior   Subordinated Note) |
|                    |                                                                           |
| Tax Identification No.: |                                                                           |
|                    |                                                                           |
| Signature guarantee:    |                                                                           |
|                         |                                                                                |        |  |  |  |

 

A2-20

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SCHEDULE OF EXCHANGES OF 10.75% SeniorSubordinated Notes

 

The followingexchanges of a part of this Global Note for other 10.75% Senior SubordinatedNotes 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 Note   Custodian** | ** ** |
|----------------------|------------|------------------------------------------------------------------------|------------|------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------|------------|-------------------------------------------------------------|------------|
| ** **           | ** ** | ** **                                                             | ** ** | ** **                                                             | ** ** | ** **                                                                               | ** ** | ** **                                                  | ** ** |
| ** **           | ** ** | ** **                                                             | ** ** | ** **                                                             | ** ** | ** **                                                                               | ** ** | ** **                                                  | ** ** |
| ** **           | ** ** | ** **                                                             | ** ** | ** **                                                             | ** ** | ** **                                                                               | ** ** | ** **                                                  | ** ** |

 

A2-21

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EXHIBIT B

 

FORM OF NOTATIONAL GUARANTEE

 

The Guarantorslisted below (hereinafter referred to as the “*Guarantors*,”which term includes any successors or assigns under that certain Indenture,dated as of June 29, 2007 (as amended and supplemented from time to time, the “*Indenture*”), by and among Varietal Distribution Merger Sub,Inc., VWR Funding, Inc. (formerly known as CDRV Investors, Inc.), the Trustee,Deutsche Bank Trust Company Americas, and Deutsche Bank AG, London Branch, andthe Guarantors party thereto, have guaranteed the Notes and the obligations ofthe Company under the Indenture, which include (i) the due and punctualpayment of the principal of, premium, if any, and interest on the10.75% Senior Subordinated Notes due 2017 (the “*Notes*”)of the Company, whether at stated maturity, by acceleration or otherwise, thedue and punctual payment of interest on the overdue principal and premium, ifany, and (to the extent permitted by law) interest on any interest, if any, onthe Notes, 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 anyextension of time of payment or renewal of any Notes or any such other obligations,that the same will be promptly paid in full when due or performed in accordancewith the terms of the extension or renewal, whether at stated maturity, byacceleration or otherwise.

 

Theobligations of each Guarantor to the Holders and to the Trustee pursuant to thisGuarantee and the Indenture are expressly set forth in Article XI of theIndenture and reference is hereby made to such Indenture for the precise termsof this Guarantee.

 

Nostockholder, employee, officer, director, unitholder, member or incorporator,as such, past, present or future of each Guarantor shall have any liabilityunder this Guarantee by reason of his or its status as such stockholder,employee, officer, director, unitholder, member or incorporator.

 

This is acontinuing Guarantee and shall remain in full force and effect and shall bebinding upon each Guarantor and its successors and assigns until full and finalpayment of all of the Company’s obligations under the Notes and Indenture oruntil released in accordance with the Indenture and shall inure to the benefitof the successors and assigns of the Trustee and the Holders, and, in the eventof any transfer or assignment of rights by any Holder or the Trustee, therights and privileges herein conferred upon that party shall automatically extendto and be vested in such transferee or assignee, all subject to the terms andconditions hereof. This is a Guarantee of payment and not of collection.

 

This Guarantee shall not be valid or obligatory for any purpose untilthe certificate of authentication on the Note upon which this Guarantee isnoted shall have been executed by the Trustee under the Indenture by the manualsignature of one of its authorized officers. The Obligations of each Guarantorunder its Guarantee shall be limited to the extent necessary to insure that itdoes not constitute a fraudulent conveyance under applicable law.

 

B-1

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THE TERMS OFARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.

 

Capitalizedterms used herein have the same meanings given in the Indenture unlessotherwise indicated.

 
| Dated as of |   |        |
|-------------|--------|-------------|
|        |   |        |
|        |   | [Guarantor] |
|        |   |        |
|        |   | By:         |   |   |
|        |   | Name:       |
|        |   | Title:      |
|        |   |        |
|        |   | (SEAL)      |
|             |        |             |  |  |  |  |

 

B-2

----

 

EXHIBIT C

 

FORM OF CERTIFICATE OFTRANSFER

 

VWR Funding, Inc. (formerly known as CDRV Investors, Inc.)

1310 Goshen Parkway

West Chester, PA 19380Facsimile:  (610) 431-1700

Attention:  Chief FinancialOfficer

 

[For all US$ Denominated Notes]

 

[CUSTODIAN][ADDRESS OF CUSTODIAN]Facsimile: [              ]Attention: [              ]

 

[For all EUR Denominated Notes]

 

[CUSTODIAN][ADDRESS OF CUSTODIAN]Facsimile: [              ]Attention: [              ]

 

Re:  VWR Funding, Inc. (formerly known as CDRVInvestors, Inc.) (the “*Company*”)10.75% Senior Subordinated Notes due 2017 (the “*Notes*”)

 

Reference is hereby made to the Indenture, dated asof June 29, 2007 (the “Indenture”), by and among VarietalDistribution Merger Sub, Inc., VWR Funding, Inc. (formerly known as CDRVInvestors, Inc.), the Trustee, Deutsche Bank Trust Company Americas, andDeutsche Bank AG, London Branch.Capitalized terms used but not defined herein shall have the meanings given tothem in the Indenture.

 

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

 

[CHECK ALL THAT APPLY]

 

1. [    ] CHECK IF TRANSFEREEWILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT 144A GLOBAL NOTE ORA RELEVANT DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is beingeffected pursuant to and in 

 

C-1

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accordancewith Rule 144A under the United States Securities Act of 1933, as amended (the “SecuritiesAct”), and, accordingly, the Transferor hereby further certifies that thebeneficial interest or Certificated Note is being transferred to a Person thatthe Transferor reasonably believes is purchasing the beneficial interest orCertificated Note for its own account, or for one or more accounts with respectto which such Person exercises sole investment discretion, and such Person andeach such account is a “qualified institutional buyer” within the meaning ofRule 144A in a transaction meeting the requirements of Rule 144A and suchTransfer is in compliance with any applicable blue sky securities laws of anystate of the United States.

 

2. [    ] CHECK IF TRANSFEREEWILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT REGULATION S GLOBALNOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is beingeffected pursuant to and in accordance with Rule 903 or Rule 904 under theSecurities Act and, accordingly, the Transferor hereby further certifies that(i) the Transfer is not being made to a person in the United States and(x) at the time the buy order was originated, the Transferee was outsidethe United States or such Transferor and any Person acting on its behalfreasonably believed and believes that the Transferee was outside the UnitedStates or (y) the transaction was executed in, on or through thefacilities of a designated offshore securities market and neither suchTransferor nor any Person acting on its behalf knows that the transaction wasprearranged with a buyer in the United States, (ii) no directed sellingefforts have been made in contravention of the requirements of Rule 903(b) orRule 904(b) of Regulation S under the Securities Act, (iii) thetransaction is not part of a plan or scheme to evade the registrationrequirements of the Securities Act and (iv) if the proposed transfer isbeing made prior to the expiration of the Restricted Period, the transfer isnot being made to a U.S. Person or for the account or benefit of a U.S. Person(other than an Initial Purchaser). Upon consummation of the proposed transferin accordance with the terms of the Indenture, the transferred beneficialinterest or Certificated Note will be subject to the restrictions on Transferenumerated in the Indenture and the Securities Act.

 

3. [    ] CHECK AND COMPLETE IFTRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANTDEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE144A OR REGULATION S. The Transfer is being effected in compliance with thetransfer restrictions applicable to beneficial interests in Restricted GlobalNotes and Restricted Certificated Notes and pursuant to and in accordance withthe Securities Act and any applicable blue sky securities laws of any state ofthe United States, and accordingly the Transferor hereby further certifies that(check one):

 

(a)[    ] such Transfer is being effected pursuant to and inaccordance with Rule 144 under the Securities Act;

 

or

 

(b)[    ] such Transfer is being effected to the Issuers or asubsidiary thereof;

 

or

 

C-2

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(c)[    ] such Transfer is being effected pursuant to aneffective registration statement under the Securities Act and in compliancewith the prospectus delivery requirements of the Securities Act.

 

4. [    ] CHECK IF TRANSFEREEWILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OROF AN UNRESTRICTED DEFINITIVE NOTE.

 

(a) [    ] CHECK IF TRANSFER ISPURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to andin accordance with Rule 144 under the Securities Act and in compliance with thetransfer restrictions contained in the Indenture and any applicable blue skysecurities laws of any state of the United States and (ii) therestrictions on transfer contained in the Indenture and the Restricted NotesLegend are not required in order to maintain compliance with the SecuritiesAct. Upon consummation of the proposed Transfer in accordance with the terms ofthe Indenture, the transferred beneficial interest or Certificated Note will nolonger be subject to the restrictions on transfer enumerated in the RestrictedNotes Legend printed on the Restricted Global Notes, on Restricted CertificatedNotes and in the Indenture.

 

(b) [    ] CHECK IF TRANSFER ISPURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant toand in accordance with Rule 903 or Rule 904 under the Securities Act and incompliance with the transfer restrictions contained in the Indenture and anyapplicable blue sky securities laws of any state of the United States and(ii) the restrictions on transfer contained in the Indenture and theRestricted Notes Legend are not required in order to maintain compliance withthe Securities Act. Upon consummation of the proposed Transfer in accordancewith the terms of the Indenture, the transferred beneficial interest orCertificated Note will no longer be subject to the restrictions on transferenumerated in the Restricted Notes Legend printed on the Restricted GlobalNotes, on Restricted Certificated Notes and in the Indenture.

 

(c) [    ] CHECK IF TRANSFER ISPURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuantto and in compliance with an exemption from the registration requirements ofthe Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliancewith the transfer restrictions contained in the Indenture and any applicableblue sky securities laws of any State of the United States and (ii) therestrictions on transfer contained in the Indenture and the Restricted NotesLegend are not required in order to maintain compliance with the SecuritiesAct. Upon consummation of the proposed Transfer in accordance with the terms ofthe Indenture, the transferred beneficial interest or Certificated Note willnot be subject to the restrictions on transfer enumerated in the RestrictedNotes Legend printed on the Restricted Global Notes or Restricted CertificatedNotes and in the Indenture.

 

This certificate and the statements contained hereinare made for your benefit and the benefit of the Issuers.

 

[Insert Name of Transferor]

 

C-3

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|   | By:    |   |   |
|--------|--------|--------|--------|
|   | Name:  |
|   | Title: |
|   |   |
| Dated: |   |   |   |
|        |        |        |        |  |  |

 

C-4

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ANNEXA TO CERTIFICATE OF TRANSFER

 
| 1. The Transferor owns and proposes to  transfer the following: |
|-----------------------------------------------------------------|
|                                                            |

 
|   |   |                                                                                                         | [CHECK  ONE OF (a) OR (b)] |
|--------|--------|--------------------------------------------------------------------------------------------------------------|---------------------------------|
|   |   |                                                                                                         |                            |   |
| (a)    |   | [    ]  a beneficial interest in the:                                                    |                            |   |
|   |   |                                                                                                         |
|   |   | (i) [    ] 144A Global Note  (CUSIP 918436 AB2(3)/Common Code 030928687(4)), or          |
|   |   |                                                                                                         |
|   |   | (ii) [    ] Regulation S  Global Note (CUSIP U9291U AB5(3)/Common Code 030928679(4)), or |
|   |   |                                                                                                         |                            |   |
| (b)    |   | [    ]  a Restricted Certificated Note.                                                  |                            |
|   |   |                                                                                                         |                            |   |
| 2.     |   | After  the Transfer the Transferee will hold:                                                                |                            |

 

[CHECKONE] 

 
| [    ] 144A Global Note (CUSIP 918436 AB2(3)/Common  Code 030928687(4)), or                                                                                                                                                 |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                                                                                            |   |   |
| (a) [    ]  a beneficial interest in the:                                                                                                                                                                                   |   |   |
|                                                                                                                                                                                                                                            |
| (i)[    ] 144A Global Note (CUSIP 918436 AB2(3)/Common  Code 030928687(4)), or                                                                                                                                              |
|                                                                                                                                                                                                                                            |
| (ii) [    ] Regulation S Global Note (CUSIP U9291U  AB5(3)/Common Code 030928679(4)), or                                                                                                                                         |
|                                                                                                                                                                                                                                            |
| (iii)[    ] Unrestricted Global Note (CUSIP/Common  Code  [            ](3)  [            ](4)); or |
|                                                                                                                                                                                                                                            |
| (b) [    ]  a Restricted Certificated Note; or                                                                                                                                                                              |
|                                                                                                                                                                                                                                            |
| (c) [    ]  an Unrestricted Certificated Note, in accordance with the terms of the  Indenture.                                                                                                                              |

 

----

(3) US$ Denominated Notes.

(4) EUR Denominated Notes.

 

C-5

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EXHIBIT D

 

FORM OF CERTIFICATE OFEXCHANGE

 

VWR Funding, Inc. (formerly known as CDRV Investors, Inc.)

1310 Goshen Parkway

West Chester, PA 19380Facsimile:  (610) 431-1700

Attention:  Chief FinancialOfficer

 

[For all US$ Denominated Notes]

 

[CUSTODIAN][ADDRESS OF CUSTODIAN]Facsimile: [              ]Attention: [              ]

 

[For all EUR Denominated Notes]

 

[CUSTODIAN][ADDRESS OF CUSTODIAN]Facsimile: [              ]Attention: [              ]

 

Re:  VWR Funding, Inc. (formerly known as CDRVInvestors, Inc.) (the “*Company*”)10.75% Senior Subordinated Notes due 2017 (the “*Notes*”)

 

Reference is hereby made to the Indenture, dated asof June 29, 2007 (the “Indenture”), by and among VarietalDistribution Merger Sub, Inc., VWR Funding, Inc. (formerly known as CDRVInvestors, Inc.), the Trustee, Deutsche Bank Trust Company Americas, andDeutsche Bank AG, London Branch.Capitalized terms used but not defined herein shall have the meanings given tothem in the Indenture.

 

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

 

1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES ORBENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVENOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE

 

a)[    ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN ARESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OFTHE SAME TRANCHE. In connection with the Exchange of the 

 

D-1

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Owner’s beneficial interestin a Restricted Global Note for a beneficial interest in an Unrestricted GlobalNote of the same tranche in an equal principal amount, the Owner herebycertifies (i) the beneficial interest is being acquired for the Owner’sown account without transfer, (ii) such Exchange has been effected incompliance with the transfer restrictions applicable to the Global Notes andpursuant to and in accordance with the United States Securities Act of 1933, asamended (the “*Securities Act*”),(iii) the restrictions on transfer contained in the Indenture and theRestricted Notes Legend are not required in order to maintain compliance withthe Securities Act and (iv) the beneficial interest in an UnrestrictedGlobal Note is being acquired in compliance with any applicable blue skysecurities laws of any state of the United States.

 

b)[    ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN ARESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE OF THE SAME TRANCHE. Inconnection with the Exchange of the Owner’s beneficial interest in a RestrictedGlobal Note for an Unrestricted Certificated Note of the same tranche, theOwner hereby certifies (i) the Certificated Note is being acquired for theOwner’s own account without transfer, (ii) such Exchange has been effectedin compliance with the transfer restrictions applicable to the RestrictedGlobal Notes and pursuant to and in accordance with the Securities Act,(iii) the restrictions on transfer contained in the Indenture and theRestricted Notes Legend are not required in order to maintain compliance withthe Securities Act and (iv) the Certificated Note is being acquired incompliance with any applicable blue sky securities laws of any state of theUnited States.

 

c)[    ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTETO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OF THE SAME TRANCHE. Inconnection with the Owner’s Exchange of a Restricted Certificated Note for abeneficial interest in an Unrestricted Global Note of the same tranche, theOwner hereby certifies (i) the beneficial interest is being acquired forthe Owner’s own account without transfer, (ii) such Exchange has beeneffected in compliance with the transfer restrictions applicable to RestrictedCertificated Notes and pursuant to and in accordance with the Securities Act,(iii) the restrictions on transfer contained in the Indenture and theRestricted Notes Legend are not required in order to maintain compliance withthe Securities Act and (iv) the beneficial interest is being acquired incompliance with any applicable blue sky securities laws of any state of theUnited States.

 

d)[    ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTETO UNRESTRICTED DEFINITIVE NOTE OF THE SAME TRANCHE. In connection with theOwner’s Exchange of a Restricted Certificated Note for an UnrestrictedCertificated Note of the same tranche, the Owner hereby certifies (i) theUnrestricted Certificated Note is being acquired for the Owner’s own accountwithout transfer, (ii) such Exchange has been effected in compliance withthe transfer restrictions applicable to Restricted Certificated Notes andpursuant to and in accordance with the Securities Act, (iii) therestrictions on transfer contained in the Indenture and the Restricted NotesLegend are not required in order to maintain compliance with the Securities Actand (iv) the Unrestricted 

 

D-2

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Certificated Note is beingacquired in compliance with any applicable blue sky securities laws of anystate of the United States.

 

2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES ORBENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTESOF THE SAME TRANCHE OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES OF THESAME TRANCHE

 

a)[    ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN ARESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE OF THE SAME TRANCHE. Inconnection with the Exchange of the Owner’s beneficial interest in a RestrictedGlobal Note for a Restricted Certificated Note of the same tranche with anequal principal amount, the Owner hereby certifies that the RestrictedCertificated Note is being acquired for the Owner’s own account withouttransfer. Upon consummation of the proposed Exchange in accordance with theterms of the Indenture, the Restricted Certificated Note issued will continueto be subject to the restrictions on transfer enumerated in the RestrictedNotes Legend printed on the Restricted Certificated Note and in the Indentureand the Securities Act.

 

b)[    ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTETO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE OF THE SAME TRANCHE. Inconnection with the Exchange of the Owner’s Restricted Certificated Note for abeneficial interest in the [CHECK ONE][            ] 144AGlobal Note[            ]Regulation S Global Note of the same tranche, with an equal principal amount,the Owner hereby certifies (i) the beneficial interest is being acquiredfor the Owner’s own account without transfer and (ii) such Exchange hasbeen effected in compliance with the transfer restrictions applicable to theRestricted Global Notes and pursuant to and in accordance with the SecuritiesAct, and in compliance with any applicable blue sky securities laws of anystate of the United States. Upon consummation of the proposed Exchange inaccordance with the terms of the Indenture, the beneficial interest issued willbe subject to the restrictions on transfer enumerated in the Restricted NotesLegend printed on the relevant Restricted Global Note and in the Indenture andthe Securities Act.

 

This certificate and the statements contained hereinare made for your benefit and the benefit of the Issuers and are dated                            .

 

[Insert Name of Transferor]

 
|   | By:    |   |   |
|--------|--------|--------|--------|
|   | Name:  |
|   | Title: |
|   |   |
| Dated: |   |   |   |
|        |        |        |        |  |  |

 

 

D-3

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EXHIBIT E

 

[FORM OF SUPPLEMENTAL INDENTURETO BE DELIVERED BY SUBSEQUENT GUARANTORS]

 

Supplemental Indenture (this “SupplementalIndenture”), dated as of                     ,among                                  (the “Guaranteeing Subsidiary”), a subsidiary of VWR Funding, Inc.(formerly known as CDRV Investors, Inc.), a Delaware corporation (the “Company”),Law Debenture TrustCompany of New York, as trustee(the “Trustee”).

 

W I T N E S S E T H

 

WHEREAS, each of Varietal Distribution Merger Sub,Inc., as predecessor by merger to the Company, the Company, DeutscheBank Trust Company Americas, and Deutsche Bank AG, London Branch (as defined in the Indenture referred tobelow) has heretofore executed and delivered to the Trustee an indenture (the “Indenture”),dated as of June 29, 2007, providing for the issuance of an $520,000,000 (orU.S. Dollar Equivalent thereof) aggregate principal amount of 10.75% Senior SubordinatedNotes due 2017 (the “Notes”);

 

WHEREAS, the Indenture provides that under certaincircumstances the Guaranteeing Subsidiary shall execute and deliver to theTrustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaryshall unconditionally guarantee all of the Company’s Obligations under theNotes and the Indenture on the terms and conditions set forth herein and underthe Indenture (the “Guarantee”); and

 

WHEREAS, pursuant to Section 9.06 of the Indenture,the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing andfor other good and valuable consideration, the receipt of which is herebyacknowledged, the parties mutually covenant and agree for the equal and ratablebenefit of the Holders of the Notes as follows:

 

(1)           CapitalizedTerms. Capitalized terms used herein without definition shall have themeanings assigned to them in the Indenture.

 

(2)           Agreementto Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:

 

(a)           Along with all Guarantors named inthe Indenture, to jointly and severally unconditionally guarantee to eachHolder of a Note authenticated and delivered by the Trustee and to the Trusteeand its successors and assigns, irrespective of the validity and enforceabilityof the Indenture, the Notes or the obligations of the Company hereunder orthereunder, that:

 

(i)             the principal of and interest, premium, if any, on theNotes will be promptly paid in full when due, whether at maturity, byacceleration, redemption or otherwise, and interest on the overdue principal ofand interest on the Notes, if any, if lawful, and all other obligations of theCompany to the Holders or the 

 

E-1

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Trustee hereunder or thereunder will be promptly paid in full orperformed, all in accordance with the terms hereof and thereof; and

 

(ii)            in case of any extension of time of payment or renewal ofany Notes or any of such other obligations, that same will be promptly paid infull when due or performed in accordance with the terms of the extension orrenewal, whether at stated maturity, by acceleration or otherwise. Failingpayment when due of any amount so guaranteed or any performance so guaranteedfor whatever reason, the Guarantors and the Guaranteeing Subsidiary shall bejointly and severally obligated to pay the same immediately. This is aguarantee of payment and not a guarantee of collection.

 

(b)           The obligations hereunder shall beunconditional, irrespective of the validity, regularity or enforceability ofthe Notes or the Indenture, the absence of any action to enforce the same, anywaiver or consent by any Holder of the Notes with respect to any provisionshereof or thereof, the recovery of any judgment against the Company, any actionto enforce the same or any other circumstance which might otherwise constitutea legal or equitable discharge or defense of a guarantor.

 

(c)           The following is hereby waived:  diligence, presentment, demand of payment, filingof claims with a court in the event of insolvency or bankruptcy of the Company,any right to require a proceeding first against the Company, protest, noticeand all demands whatsoever.

 

(d)           This Guarantee shall not bedischarged except by complete performance of the obligations contained in theNotes, the Indenture and this Supplemental Indenture, and the GuaranteeingSubsidiary accepts all obligations of a Guarantor under the Indenture.

 

(e)           If any Holder or the Trustee isrequired by any court or otherwise to return to the Company, the Guarantors(including the Guaranteeing Subsidiary), or any custodian, trustee, liquidatoror other similar official acting in relation to either the Company or theGuarantors, any amount paid either to the Trustee or such Holder, thisGuarantee, to the extent theretofore discharged, shall be reinstated in fullforce and effect.

 

(f)            The Guaranteeing Subsidiary shallnot be entitled to any right of subrogation in relation to the Holders inrespect of any obligations guaranteed hereby until payment in full of all obligationsguaranteed hereby.

 

(g)           As between the GuaranteeingSubsidiary, on the one hand, and the Holders and the Trustee, on the otherhand, (x) the maturity of the obligations guaranteed hereby may be acceleratedas provided in Article 6 of the Indenture for the purposes of this Guarantee,notwithstanding any stay, injunction or other prohibition preventing suchacceleration in respect of the obligations guaranteed hereby, and (y) in theevent of any declaration of acceleration of such obligations as provided inArticle 6 of the Indenture, 

 

E-2

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such obligations (whether or not due and payable) shall forthwithbecome due and payable by the Guaranteeing Subsidiary for the purpose of thisGuarantee.

 

(h)           The Guaranteeing Subsidiary shallhave the right to seek contribution from any non-paying Guarantor so long asthe exercise of such right does not impair the rights of the Holders under thisGuarantee.

 

(i)            Pursuant to Section 11.4 of theIndenture, after giving effect to all other contingent and fixed liabilitiesthat are relevant under any applicable Bankruptcy or fraudulent conveyancelaws, and after giving effect to any collections from, rights to receivecontribution from or payments made by or on behalf of any other Guarantor inrespect of the obligations of such other Guarantor under Article 11 of theIndenture, this new Guarantee shall be limited to the maximum amountpermissible such that the obligations of such Guaranteeing Subsidiary underthis Guarantee will not constitute a fraudulent transfer or conveyance.

 

(j)            This Guarantee shall remain in fullforce and effect and continue to be effective should any petition be filed byor against the Company for liquidation, reorganization, should the Companybecome insolvent or make an assignment for the benefit of creditors or should areceiver or trustee be appointed for all or any significant part of the Company’sassets, and shall, to the fullest extent permitted by law, continue to beeffective or be reinstated, as the case may be, if at any time payment andperformance of the Notes are, pursuant to applicable law, rescinded or reducedin amount, or must otherwise be restored or returned by any obligee on theNotes and Guarantee, whether as a “voidable preference”, “fraudulent transfer”or otherwise, all as though such payment or performance had not been made. Inthe event that any payment or any part thereof, is rescinded, reduced, restoredor returned, the Note shall, to the fullest extent permitted by law, be reinstatedand deemed reduced only by such amount paid and not so rescinded, reduced,restored or returned.

 

(k)           In case any provision of thisGuarantee shall be invalid, illegal or unenforceable, the validity, legality,and enforceability of the remaining provisions shall not in any way be affectedor impaired thereby.

 

(l)            This Guarantee shall be a generalunsecured senior subordinated obligation of such Guaranteeing Subsidiary,ranking *pari passu* with any other future SeniorIndebtedness of the Guaranteeing Subsidiary, if any.

 

(m)          Each payment to be made by theGuaranteeing Subsidiary in respect of this Guarantee shall be made withoutset-off, counterclaim, reduction or diminution of any kind or nature.

 

(3)           Executionand Delivery. The Guaranteeing Subsidiary agrees that the Guarantee shallremain in full force and effect notwithstanding the absence of the endorsementof any notation of such Guarantee on the Notes.

 

E-3

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(4)           Merger,Consolidation or Sale of All or Substantially All Assets.

 

(a)           Exceptas otherwise provided in Section 11.5 of the Indenture, the GuaranteeingSubsidiary may not consolidate or merge with or into or wind up into (whetheror not the Company or Guaranteeing Subsidiary is the surviving corporation), orsell, assign, transfer, lease, convey or otherwise dispose of all orsubstantially all of its properties or assets, in one or more related transactions,to any Person unless:

 

(i)            (A) the Guaranteeing Subsidiaryis the surviving corporation or the Person formed by or surviving any suchconsolidation or merger (if other than the Guaranteeing Subsidiary) or to whichsuch sale, assignment, transfer, lease, conveyance or other disposition willhave been made is a corporation organized or existing under the laws of thejurisdiction of organization of the Guaranteeing Subsidiary, as the case maybe, or the laws of the United States, any state thereof, the District ofColumbia, or any territory thereof (the Guaranteeing Subsidiary or such Person,as the case may be, being herein called the “Successor Person”);

 

(B)           the Successor Person, if other thanthe Guaranteeing Subsidiary, expressly assumes all the obligations of theGuaranteeing Subsidiary under the Indenture and the Guaranteeing Subsidiary’srelated Guarantee pursuant to supplemental indentures or other documents or instrumentsin form reasonably satisfactory to the Trustee;

 

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

 

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

 

(ii)           the Net Proceeds of any suchsale or other disposition of the Guaranteeing Subsidiary are applied inaccordance with the provisions Section 4.10 of theIndenture;

 

(b)           Subjectto certain limitations described in the Indenture, the Successor Person willsucceed to, and be substituted for, the Guaranteeing Subsidiary under theIndenture and the Guaranteeing Subsidiary’s Guarantee. Notwithstanding theforegoing, the Guaranteeing Subsidiary may merge into or transfer all or partof its properties and assets to another Guarantor or the Company.

 

(5)           Releases.The Guarantee of the Guaranteeing Subsidiary shall be automatically andunconditionally released and discharged, and no further action by theGuaranteeing Subsidiary, the Company or the Trustee is required for the releaseof the Guaranteeing Subsidiary’s Guarantee, in the event that:

 

(A)          any sale, disposition or othertransfer (including through merger or consolidation) of (x) Capital Stock ofthe Guaranteeing Subsidiary if after such sale,disposition or other transfer the Guaranteeing Subsidiary is no longer aRestricted Subsidiary, or (y) all or substantially all the assets of the GuaranteeingSubsidiary, 

 

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*provided* that, in each case, suchsale, disposition or other transfer is made in compliance with the provisionsof the Indenture;

 

(B)           the Company designates the GuaranteeingSubsidiary as an Unrestricted Subsidiary in accordance with the provisions of theIndenture;

 

(C)           the release or discharge ofthe guarantee by the Guaranteeing Subsidiary of all of the Indebtedness (otherthan the Senior Notes (to the extent the Senior Notes are outstanding)) of theCompany or any Restricted Subsidiary or the repayment of all of the Indebtednessor Disqualified Stock, in each case, which resulted in the obligation toguarantee the Notes; or

 

(D)          the Company exercises itslegal defeasance option or its covenant defeasance option pursuant to Sections 8.2 or 8.3 or if its obligations under the Indenture aredischarged in accordance with the terms of this Indenture; or

 

(E)           the Guaranteeing Subsidiary is also aguarantor or borrower under the Credit Agreement as in effect on the Issue Dateand, at the time of release of its Guarantee, (x) has been released from itsguarantee of, and all pledges and security, if any, granted in connection withthe Credit Agreement (which may be conditioned on the concurrent releasehereunder), (y) is not an obligor under any Indebtedness (other than Indebtednesspermitted to be incurred pursuant to clause (6), (7), (8), (9), (11), (16) or(19) of the definition of “Permitted Debt” and (z) does not guarantee anyIndebtedness of the Company or any Restricted Subsidiaries (other than anyguarantee that will be released upon the release of the Guarantee hereunder).

 

Upon delivery by the Guaranteeing Subsidiary to theTrustee of an Officer’s Certificate and an Opinion of Counsel, to the effectthat such sale or other disposition was made by the Company in accordance withthe provisions of this Indenture, including without limitation Section 4.10,the Trustee shall execute any documents reasonably required in order toevidence the release of the Guaranteeing Subsidiary from its obligations underits Guarantee.

 

(6)           NoRecourse Against Others. No director, officer, employee, incorporator orstockholder of the Guaranteeing Subsidiary shall have any liability for anyobligations of the Company or the Guarantors (including the GuaranteeingSubsidiary) under the Notes, any Guarantees, the Indenture or this SupplementalIndenture or for any claim based on, in respect of, or by reason of, such obligationsor their creation. Each Holder by accepting Notes waives and releases all suchliability. The waiver and release are part of the consideration for issuance ofthe Notes.

 

(7)           GoverningLaw. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCEWITH THE LAWS OF THE STATE OF NEW YORK.

 

(8)           Counterparts.The parties may sign any number of copies of this Supplemental Indenture. Eachsigned copy shall be an original, but all of them together represent the sameagreement.

 

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(9)           Effectof Headings. The Section headings herein are for convenience only and shallnot affect the construction hereof.

 

(10)         TheTrustee. The Trustee shall not be responsible in any manner whatsoever foror in respect of the validity or sufficiency of this Supplemental Indenture orfor or in respect of the recitals contained herein, all of which recitals aremade solely by the Guaranteeing Subsidiary.

 

(11)         Subrogation.The Guaranteeing Subsidiary shall be subrogated to all rights of Holders ofNotes against the Company in respect of any amounts paid by the GuaranteeingSubsidiary pursuant to the provisions of Section 2 hereof and Section 11.1 ofthe Indenture; provided that, if an Event of Default has occurred and iscontinuing, the Guaranteeing Subsidiary shall not be entitled to enforce orreceive any payments arising out of, or based upon, such right of subrogationuntil all amounts then due and payable by the Company under the Indenture orthe Notes shall have been paid in full.

 

(12)         BenefitsAcknowledged. The Guaranteeing Subsidiary’s Guarantee is subject to theterms and conditions set forth in the Indenture. The Guaranteeing Subsidiaryacknowledges that it will receive direct and indirect benefits from thefinancing arrangements contemplated by the Indenture and this SupplementalIndenture and that the guarantee and waivers made by it pursuant to thisGuarantee are knowingly made in contemplation of such benefits.

 

(13)         Successors.All agreements of the Guaranteeing Subsidiary in this Supplemental Indentureshall bind its Successors, except as otherwise provided in Section 2(k) hereofor elsewhere in this Supplemental Indenture. All agreements of the Trustee inthis Supplemental Indenture shall bind its successors.

 

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IN WITNESS WHEREOF, the parties hereto havecaused this Supplemental Indenture to be duly executed, all as of the datefirst above written.

 
|   |   | [GUARANTEEING SUBSIDIARY]                             |   |
|--------|--------|-------------------------------------------------------|--------|
|   |   |                                                  |   |   |
|   |   |                                                  |   |   |
|   |   | By:                                                   |   |   |
|   |   | Name:                                                 |
|   |   | Title:                                                |
|   |   |                                                  |
|   |   |                                                  |
|   |   | LAW DEBENTURE TRUST COMPANY OF NEW   YORK, as Trustee |
|   |   |
|   |   |
|   |   | By:                                                   |   |   |
|   |   | Name:                                                 |
|   |   | Title:                                                |

 

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