exv4w22





Exhibit 4.22


EXECUTION VERSION



 




REVLON CONSUMER PRODUCTS CORPORATION


AND EACH OF THE GUARANTORS PARTY HERETO


93/4% SENIOR SECURED NOTES DUE 2015


 




INDENTURE


Dated as of November 23, 2009


 




U.S. BANK NATIONAL ASSOCIATION


Trustee



 













 







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)
	 	 	7.10	 
	(c)
	 	 	N.A.	 
	311(a)
	 	 	7.11	 
	(b)
	 	 	7.11	 
	(c)
	 	 	N.A.	 
	312(a)
	 	 	2.05	 
	(b)
	 	 	13.03	 
	(c)
	 	 	13.03	 
	313(a)
	 	 	7.06	 
	(b)(1)
	 	 	N.A.	 
	(b)(2)
	 	7.06 and 7.07	 
	(c)
	 	7.06 and 13.02	 
	(d)
	 	 	7.06	 
	314(a)(4)
	 	 	13.05	 
	(c)(1)
	 	 	N.A.	 
	(c)(2)
	 	 	N.A.	 
	(c)(3)
	 	 	N.A.	 
	(d)
	 	 	12.04	 
	(e)
	 	 	13.05	 
	(f)
	 	 	N.A.	 
	315(a)
	 	 	N.A.	 
	(b)
	 	 	N.A.	 
	(c)
	 	 	N.A.	 
	(d)
	 	 	N.A.	 
	(e)
	 	 	N.A.	 
	316(a) (last sentence)
	 	 	N.A.	 
	(a)(1)(A)
	 	 	N.A.	 
	(a)(1)(B)
	 	 	N.A.	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	N.A.	 
	(c)
	 	 	N.A.	 
	317(a)(1)
	 	 	N.A.	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	N.A.	 
	318(a)
	 	 	N.A.	 
	(b)
	 	 	N.A.	 
	(c)
	 	 	13.01	 





N.A. means not applicable.






 




			
	*	 	This Cross Reference Table is not part of the Indenture.













 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE 1	 	 	 	 
	DEFINITIONS AND INCORPORATION	 	 	 	 
	BY REFERENCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	31	 
	Section 1.03
	 	Incorporation by Reference of Trust Indenture Act	 	 	32	 
	Section 1.04
	 	Rules of Construction	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE 2	 	 	 	 
	THE NOTES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.01
	 	Form and Dating	 	 	33	 
	Section 2.02
	 	Execution and Authentication	 	 	34	 
	Section 2.03
	 	Registrar and Paying Agent	 	 	35	 
	Section 2.04
	 	Paying Agent to Hold Money in Trust	 	 	35	 
	Section 2.05
	 	Holder Lists	 	 	35	 
	Section 2.06
	 	Transfer and Exchange	 	 	35	 
	Section 2.07
	 	Replacement Notes	 	 	48	 
	Section 2.08
	 	Outstanding Notes	 	 	49	 
	Section 2.09
	 	Treasury Notes	 	 	49	 
	Section 2.10
	 	Temporary Notes	 	 	49	 
	Section 2.11
	 	Cancellation	 	 	49	 
	Section 2.12
	 	Defaulted Interest	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE 3	 	 	 	 
	REDEMPTION AND PREPAYMENT	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.01
	 	Notices to Trustee	 	 	50	 
	Section 3.02
	 	Selection of Notes to Be Redeemed or Purchased	 	 	51	 
	Section 3.03
	 	Notice of Redemption	 	 	51	 
	Section 3.04
	 	Effect of Notice of Redemption	 	 	52	 
	Section 3.05
	 	Deposit of Redemption or Purchase Price	 	 	52	 
	Section 3.06
	 	Notes Redeemed or Purchased in Part	 	 	52	 
	Section 3.07
	 	Optional Redemption	 	 	52	 
	Section 3.08
	 	Mandatory Redemption	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE 4	 	 	 	 
	COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Notes	 	 	53	 
	Section 4.02
	 	Maintenance of Office or Agency	 	 	54	 
	Section 4.03
	 	Commission Reports	 	 	54	 
	Section 4.04
	 	Compliance Certificate	 	 	55	 
	Section 4.05
	 	Taxes	 	 	55	 
	Section 4.06
	 	Stay, Extension and Usury Laws	 	 	55	 
	Section 4.07
	 	Limitation on Restricted Payments	 	 	56	 
	Section 4.08
	 	Limitation on Restrictions on Distributions from Subsidiaries	 	 	61	 
	Section 4.09
	 	Limitation on Debt	 	 	63	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 4.10
	 	Limitation on Asset Sales	 	 	68	 
	Section 4.11
	 	Limitation on Transactions with Affiliates	 	 	71	 
	Section 4.12
	 	Limitation on Liens	 	 	73	 
	Section 4.13
	 	Change of Control	 	 	77	 
	Section 4.14
	 	Future Subsidiary Guarantors	 	 	78	 
	Section 4.15
	 	Impairment of Collateral	 	 	78	 
	Section 4.16
	 	After-Acquired Property	 	 	78	 
	Section 4.17
	 	Information Regarding Collateral	 	 	79	 
	Section 4.18
	 	Further Assurances	 	 	79	 
	Section 4.19
	 	Covenant Suspension	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE 5	 	 	 	 
	SUCCESSOR COMPANY	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.01
	 	Merger, Consolidation, or Sale of Assets	 	 	80	 
	 
	 	 	 	 	 	 
	ARTICLE 6	 	 	 	 
	DEFAULTS AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.01
	 	Events of Default	 	 	81	 
	Section 6.02
	 	Acceleration	 	 	83	 
	Section 6.03
	 	Other Remedies	 	 	83	 
	Section 6.04
	 	Waiver of Past Defaults	 	 	83	 
	Section 6.05
	 	Control by Majority	 	 	84	 
	Section 6.06
	 	Limitation on Suits	 	 	84	 
	Section 6.07
	 	Rights of Holders of Notes to Receive Payment	 	 	84	 
	Section 6.08
	 	Collection Suit by Trustee	 	 	84	 
	Section 6.09
	 	Trustee May File Proofs of Claim	 	 	85	 
	Section 6.10
	 	Priorities	 	 	85	 
	Section 6.11
	 	Undertaking for Costs	 	 	85	 
	 
	 	 	 	 	 	 
	ARTICLE 7	 	 	 	 
	TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.01
	 	Duties of Trustee	 	 	86	 
	Section 7.02
	 	Rights of Trustee	 	 	87	 
	Section 7.03
	 	Individual Rights of Trustee	 	 	88	 
	Section 7.04
	 	Trustee's Disclaimer	 	 	88	 
	Section 7.05
	 	Notice of Defaults; Notice of Actionable Default	 	 	88	 
	Section 7.06
	 	Reports by Trustee to Holders of the Notes	 	 	88	 
	Section 7.07
	 	Compensation and Indemnity	 	 	89	 
	Section 7.08
	 	Replacement of Trustee	 	 	89	 
	Section 7.09
	 	Successor Trustee by Merger, etc.	 	 	90	 
	Section 7.10
	 	Eligibility; Disqualification	 	 	90	 
	Section 7.11
	 	Preferential Collection of Claims Against Company	 	 	91	 
	 
	 	 	 	 	 	 
	ARTICLE 8	 	 	 	 
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.01
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	91	 
	Section 8.02
	 	Legal Defeasance, Covenant Defeasance and Discharge	 	 	91	 
	Section 8.03
	 	Conditions to Legal or Covenant Defeasance	 	 	92	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 8.04
	 	Deposited Money and U.S. Government Securities to be Held in Trust; Other Miscellaneous Provisions	 	 	93	 
	Section 8.05
	 	Repayment to Company	 	 	93	 
	Section 8.06
	 	Reinstatement	 	 	94	 
	 
	 	 	 	 	 	 
	ARTICLE 9	 	 	 	 
	AMENDMENT, SUPPLEMENT AND WAIVER	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.01
	 	Without Consent of Holders of Notes	 	 	94	 
	Section 9.02
	 	With Consent of Holders of Notes	 	 	95	 
	Section 9.03
	 	Amendment of Certain Provisions of the Intercreditor Agreement and the Security Documents 	 	 	96	 
	Section 9.04
	 	Compliance with Trust Indenture Act	 	 	98	 
	Section 9.05
	 	Revocation and Effect of Consents	 	 	98	 
	Section 9.06
	 	Notation on or Exchange of Notes	 	 	98	 
	Section 9.07
	 	Trustee to Sign Amendments, etc.	 	 	98	 
	 
	 	 	 	 	 	 
	ARTICLE 10	 	 	 	 
	GUARANTEES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.01
	 	Guarantee	 	 	98	 
	Section 10.02
	 	Limitation on Guarantor Liability	 	 	99	 
	Section 10.03
	 	Execution and Delivery of Guarantee	 	 	100	 
	Section 10.04
	 	Releases	 	 	100	 
	 
	 	 	 	 	 	 
	ARTICLE 11	 	 	 	 
	SATISFACTION AND DISCHARGE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.01
	 	Satisfaction and Discharge	 	 	101	 
	Section 11.02
	 	Application of Trust Money	 	 	102	 
	 
	 	 	 	 	 	 
	ARTICLE 12	 	 	 	 
	COLLATERAL	 	 	 	 
	 
	 	 	 	 	 	 
	Section 12.01
	 	Security Documents	 	 	102	 
	Section 12.02
	 	Opinions of Counsel	 	 	103	 
	Section 12.03
	 	Suits to Protect the Collateral	 	 	103	 
	Section 12.04
	 	Release of Collateral	 	 	103	 
	 
	 	 	 	 	 	 
	ARTICLE 13	 	 	 	 
	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 13.01
	 	Trust Indenture Act Controls	 	 	106	 
	Section 13.02
	 	Notices	 	 	106	 
	Section 13.03
	 	Communication by Holders of Notes with Other Holders of Notes	 	 	107	 
	Section 13.04
	 	Certificate and Opinion as to Conditions Precedent	 	 	107	 
	Section 13.05
	 	Statements Required in Certificate or Opinion	 	 	107	 
	Section 13.06
	 	Rules by Trustee and Indenture Agents	 	 	108	 
	Section 13.07
	 	No Personal Liability of Directors, Officers, Employees, Stockholders or Controlling Persons	 	 	108	 
	Section 13.08
	 	Governing Law	 	 	108	 
	Section 13.09
	 	No Adverse Interpretation of Other Agreements	 	 	108	 
	Section 13.10
	 	Successors	 	 	108	 
	Section 13.11
	 	Severability	 	 	108	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 13.12
	 	Counterpart Originals	 	 	109	 
	Section 13.13
	 	Table of Contents, Headings, etc.	 	 	109	 
	Section 13.14
	 	Force Majeure	 	 	109	 
	Section 13.15
	 	Intercreditor Agreement and Security Documents	 	 	109	 
	Section 13.16
	 	Waiver of Jury Trial	 	 	109	 






EXHIBITS




	 	 	 
	Exhibit A1

	 	FORM OF NOTE
	Exhibit A2

	 	FORM OF REGULATION S TEMPORARY GLOBAL NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit E

	 	FORM OF NOTATION OF GUARANTEE
	Exhibit F

	 	FORM OF SUPPLEMENTAL INDENTURE
	EXHIBIT G

	 	FORM OF OFFICERS’ CERTIFICATE TO BE DELIVERED BY THE COMPANY PURSUANT TO SECTION 12.04 OF THE
INDENTURE






iv









 






     INDENTURE dated as of November 23, 2009 among Revlon Consumer Products Corporation, a Delaware
corporation (the “Company”), the Guarantors (as defined) and U.S. Bank National Association, as
trustee.



     The Company (as defined), the Guarantors and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders (as defined) of the 93/4% Senior
Secured Notes due 2015 (the “Notes”):



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE



Section 1.01 Definitions.



“144A Global Note” means a Global Note substantially in the form of Exhibit A1 or Exhibit A2 hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of,
and registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.



“Additional Assets” means: (a) any one or more businesses primarily engaged in a Permitted
Business; provided that the investment in any such business is in the form of (x) a merger with the
Company or a Subsidiary of the Company (other than a Non-Recourse Subsidiary), (y) the acquisition
of Capital Stock of a Person that is a Subsidiary or becomes a Subsidiary of the Company (other
than a Non-Recourse Subsidiary) as a result of the acquisition of such Capital Stock by the Company
or a Subsidiary of the Company (other than a Non-Recourse Subsidiary) or (z) the acquisition of all
or substantially all the assets of such business, (b) properties, (c) capital expenditures or
(d) acquisitions of other assets, that in each of (a), (b), (c) and (d), are used or useful in a
Permitted Business or replace the businesses, properties and assets that are the subject of an
Asset Sale.



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



“Additional Notes” additional Notes (other than the Initial Notes) issued under this Indenture in
accordance with this Indenture, as part of the same series as the Initial Notes (except that Notes
that bear the legend required by Section 2.06(g)(4) hereof will be treated where necessary as
separate series as contemplated by Section 2.06(i)(9)) hereof, and the Exchange Notes issued in
respect of such Initial Notes.



“Affiliate” of any specified Person means (i) any other Person which, directly or indirectly, is in
control of, is controlled by or is under common control with such specified Person or (ii) any
other Person who is a director or officer (A) of such specified Person, (B) of any Subsidiary of
such specified Person or (C) of any Person described in clause (i) of this definition. For
purposes of this definition, control of a Person means the power, direct or indirect, to direct or
cause the direction of the management and policies of such Person whether by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the foregoing.



“After-Acquired Property” means any property of the Company or any Subsidiary Guarantor acquired
after the Issue Date (other than Excluded Property) that secures the obligations under this
Indenture, the Notes, the Security Documents and Other Pari Passu Lien Obligations.



“Applicable Premium” means, with respect to a Note at any redemption date, the greater of (i) 1.0%
of the then outstanding principal amount of such Note at such time and (ii) the excess of (A) the
present value at






 








 







such redemption date of (1) the redemption price of such Note on November 15, 2012 (such redemption
price being described in Section 3.07(c) hereof, exclusive of any accrued interest) plus (2) all
required remaining scheduled interest payments due on such Note through November 15, 2012, computed
using a discount rate equal to the Treasury Rate plus 75 basis points, over (B) the then
outstanding principal amount of such Note at such time.



“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer or exchange.



“Asset Sale” means any sale, lease, transfer, issuance or other disposition (or series of related
sales, leases, transfers, issuances or dispositions) by the Company or any Subsidiary of the
Company (other than a Non-Recourse Subsidiary), including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this definition as a
“disposition”), of (a) any shares of Capital Stock of a Subsidiary of the Company (other than a
Non-Recourse Subsidiary) (other than directors’ qualifying shares or employee stock options), or
(b) any other property of the Company or any Subsidiary of the Company (other than a Non-Recourse
Subsidiary) outside of the ordinary course of business of the Company or such Subsidiary, other
than, in the case of clause (a) or (b) of this definition,





     (1) (A) any disposition by the Company or a Subsidiary Guarantor to the Company or
another Subsidiary Guarantor or (B) any disposition by a Subsidiary (other than a
Non-Recourse Subsidiary) that is not a Subsidiary Guarantor to another Subsidiary (other
than a Non-Recourse Subsidiary) or the Company;




     (2) any disposition (A) that constitutes a Restricted Payment permitted by Section 4.07
hereof (or is not a Restricted Payment by virtue of the definition thereof) or (B) of all or
substantially all the assets of the Company or a Subsidiary Guarantor in accordance with
Article 5 hereof;




     (3) any disposition in any single transaction or any series of related transactions of
Capital Stock or other property for aggregate consideration of less than $7.5 million;




     (4) the disposition of cash, Cash Equivalents, the foreign equivalent of Cash
Equivalents or Investment Grade Securities;




     (5) any foreclosure upon any assets of the Company or any Subsidiary of the Company
(other than a Non-Recourse Subsidiary) in connection with the exercise of remedies by a
secured lender pursuant to the terms of Debt otherwise permitted to be incurred under this
Indenture;




     (6) the sale of the Capital Stock, Debt or other securities of a Non-Recourse
Subsidiary;




     (7) the disposition of obsolete, worn-out or otherwise unsuitable assets, properties or
plants or excess equipment in an amount not to exceed $10.0 million or of other assets no
longer used or useful or necessary in the conduct of business of the Company its
Subsidiaries (other than Non-Recourse Subsidiaries);




     (8) sales of accounts receivable, payment intangibles and related assets or
participations therein, in connection with any Receivables Facility;



2








 






     (9) the unwinding of any Hedging Obligations;




     (10) creation or realization of Liens that are permitted to be incurred by this
Indenture;




     (11) any transfer of property or assets that represents a surrender or waiver of a
contract right or a settlement, surrender or release of a contract or tort claim;




     (12) dispositions of Investments in joint ventures to the extent required by, or made
pursuant to customary buy/sell arrangements between, the joint venture parties set forth in
joint venture agreements and similar binding agreements (provided that the proceeds of such
a disposition, to the extent they would constitute Net Available Cash if such disposition
were an Asset Sale, are applied in accordance with Section 4.10 hereof as if such
disposition were an Asset Sale);




     (13) the lease, assignment or sub-lease of any real or personal property in the
ordinary course of business; and




     (14) the sale or grant of licenses or sub-licenses of intellectual property entered
into in the ordinary course of business.


“Bank Agents” means the Multi-Currency Administrative Agent and the Term Loan Administrative Agent.



“Bank Debt” means any and all amounts payable by the Company or any of its Subsidiaries under or in
respect of a Credit Agreement or any Refinancing thereof, or any other agreements with lenders
party to the foregoing, including principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the
Company), fees, charges, expenses, reimbursement obligations, guarantees and all other amounts
payable thereunder or in respect thereof; provided, however, that nothing in this
definition shall permit the Company or any of its Subsidiaries to Issue any Debt that is not
permitted pursuant to Section 4.09 hereof.



“Bankruptcy Code” means Title 11, United States Code.



“Bankruptcy Law” means the Bankruptcy Code, or any similar federal, state or foreign Requirement of
Law for the relief of debtors or any arrangement, reorganization, insolvency, moratorium,
assignment for the benefit of creditors, any other marshalling of the assets and liabilities of the
Company or any other Loan Party or any similar law relating to or affecting the enforcement of
creditors’ rights generally.



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



“Board of Directors” means:





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



3









 






     (2) with respect to a partnership the general partner of which is a corporation, the
board of directors of the general partner of the partnership or any committee thereof;




     (3) with respect to a limited liability company, any managing member thereof or, if
managed by managers, the board of managers or any committee thereof; and




     (4) with respect to any other Person, the board or committee of such Person (or such
Person’s general partner, manager or equivalent) serving a similar function;


provided, that committees of any of the bodies described in clauses (1) through (4) above
shall not constitute the Board of Directors for purposes of the definition of “Change of Control.”



“Broker-Dealer” has the meaning set forth in the Registration Agreement.



“Business Day” means each day that is not a Legal Holiday.



“Capital Lease Obligations” of a Person means any obligation which is required to be classified and
accounted for as a capital lease on the face of a balance sheet of such Person prepared in
accordance with GAAP; the amount of such obligation shall be the capitalized principal amount
thereof, determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.



“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however designated) equity of such
Person, including any Preferred Stock, but excluding any debt securities convertible into or
exchangeable for such equity.



“Cash Equivalents” means (a) securities issued or fully guaranteed or insured by the United States
federal government or any agency thereof, (b) certificates of deposit and time deposits with
maturities of one year or less from the date of acquisition and overnight bank deposits of any
commercial bank or any other financial institution having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any commercial bank or any other financial institution
satisfying the requirements of clause (b) of this definition, having a term of not more than
30 days with respect to securities issued or fully guaranteed or insured by the United States
federal government or any agency thereof, (d) commercial paper of a domestic issuer rated (on the
date of acquisition thereof) at least “A-2” by S&P or “P-2” by Moody’s, (e) securities with
maturities of one year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States or by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated (on the date of acquisition thereof) at least “A” by S&P
or “A” by Moody’s, (f) securities with maturities of one year or less from the date of acquisition
backed by standby letters of credit issued by any commercial bank or any other financial
institution satisfying the requirements of clause (b) of this definition, (g) shares of money
market mutual or similar funds having an investment policy that requires substantially all of the
invested assets of such fund to be invested in assets satisfying the requirements of clause (a) of
this definition, (h) shares of money market mutual or similar funds having assets in excess of
$500,000,000 and having an investment policy that requires substantially all of the invested assets
of such fund to be invested in assets satisfying the requirements of any clause of this definition,
(i) guaranteed investment contracts of any financial institution having long-term unsecured debt
securities rated (on the date of acquisition thereof) at least “A” or “A2” or the equivalent by any
Rating Agency and maturing one year or less from the date of acquisition thereof, (j) any other
debt instruments of any Person (other than an Affiliate of the Company) which instruments are rated
(on the






4









 







date of acquisition thereof) at least “A”, “A2”, “A-1” or “P-1” or the equivalent by any Rating
Agency and maturing one year or less from the date of acquisition thereof, (k) periodic auction
reset securities which have final maturities between one and 30 years from the date of issuance and
are repriced through a Dutch auction or other similar method every 35 days or (l) auction preferred
shares which are senior securities of leveraged closed and municipal bond funds and are repriced
pursuant to a variety of rate reset periods, in each case having a rating (on the date of
acquisition thereof) of at least “A” or “A2” or the equivalent by any Rating Agency.



“Cash Management Obligations” means any obligations of the Company or any of its Subsidiaries
(other than Non-Recourse Subsidiaries) in respect of any arrangement for treasury, depository,
overdraft or cash management services provided to the Company or any of its Subsidiaries (other
than Non-Recourse Subsidiaries).



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





     (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than one or more Permitted Holders, is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person will be deemed
to have “beneficial ownership” of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of time), directly
or indirectly, of more than 50% of the total voting power of the Voting Stock of the
Company; provided, however, that the Permitted Holders do not have the right or
ability by voting power, contract or otherwise to elect or designate for election a majority
of the Board of Directors of the Company (for the purposes of this clause (i), such other
person will be deemed to beneficially own any Voting Stock of a specified corporation held
by a parent corporation, if such other person beneficially owns, directly or indirectly,
more than 50% of the voting power of the Voting Stock of such parent corporation and the
Permitted Holders do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of such parent
corporation);




     (ii) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority of the directors of the
Company then still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors of the Company then in office; or




     (iii) a “Change of Control” shall have occurred under any instrument governing
Subordinated Obligations so long as such Subordinated Obligations are outstanding.



     Notwithstanding the foregoing, a “person” or “group” shall not be deemed to have beneficial
ownership of securities subject to a stock purchase agreement, merger agreement or similar
agreement (or voting or option agreement related thereto) until the consummation of the
transactions contemplated by such agreement.


“Clearstream” means Clearstream Banking, S.A.



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



“Collateral” means, collectively, the Multi-Currency Collateral and the Term Loan Collateral.







5









 







“Collateral Agent” means Citicorp USA, Inc., as collateral agent under the Security Documents and
the Intercreditor Agreement, and any successors and assigns thereto in such capacity permitted
under the Intercreditor Agreement.



“Commission” means the United States Securities and Exchange Commission.



“Consolidated EBITDA Coverage Ratio” means, for any period, the ratio of (i) the aggregate amount
of EBITDA for such period to (ii) Consolidated Interest Expense for such period; provided,
however, that (1) if the Company or any Subsidiary of the Company has Issued any Debt since the
beginning of such period that remains outstanding or if the transaction giving rise to the need to
calculate the Consolidated EBITDA Coverage Ratio is an Issuance of Debt, an issuance of equity or
the receipt of a cash capital contribution which is used to reduce Debt or the receipt of a capital
contribution in the form of Debt of the Company or any Subsidiary, or any of them, EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving effect on a Pro
Forma basis to such Debt as if such Debt had been Issued on the first day of such period and the
discharge of any other Debt Refinanced or otherwise discharged with the proceeds of such new Debt,
equity or capital contribution as if such discharge had occurred on the first day of such period,
(2) if since the beginning of such period the Company or any Subsidiary of the Company shall have
made any Asset Sale, EBITDA for such period shall be reduced by an amount equal to the EBITDA (if
positive) directly attributable to the assets which are the subject of such Asset Sale for such
period, or increased by an amount equal to the EBITDA (if negative), directly attributable thereto
for such period and Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any Debt of the Company or any
Subsidiary of the Company Refinanced or otherwise discharged with respect to the Company and its
continuing Subsidiaries in connection with such Asset Sales for such period (or if the Capital
Stock of any Subsidiary of the Company is sold, the Consolidated Interest Expense for such period
directly attributable to the Debt of such Subsidiary to the extent the Company and its continuing
Subsidiaries are no longer liable for such Debt after such sale) or (3) if since the beginning of
such period the Company or any Subsidiary of the Company (by merger or otherwise) shall have made
an Investment in any Subsidiary of the Company (or any Person which becomes a Subsidiary of the
Company) or an acquisition of assets, including any acquisition of assets occurring in connection
with a transaction causing a calculation to be made hereunder, which constitutes all of an
operating unit of a business, or shall have Issued Debt, the net proceeds of which are intended to
be used to make such an Investment or acquisition and prior thereto, such proceeds are placed in
escrow for such purpose, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving Pro Forma effect thereto (including the Issuance of any Debt), as if such
Investment or acquisition occurred on the first day of such period. If any Debt bears a floating
rate of interest and is being given Pro Forma effect, the interest on such Debt shall be calculated
as if the rate in effect on the date of determination had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such Debt).




     For purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations, disposed or discontinued operations (as determined in
accordance with GAAP), reductions in force and furloughs that have been made by the Company or any
Subsidiary of the Company (other than a Non-Recourse Subsidiary) since the beginning of such period
shall be given Pro Forma effect assuming that all such actions (and the change in any associated
Consolidated Interest Expense and the change in EBITDA resulting therefrom) had occurred on the
first day of such period; provided that no such Pro Forma adjustment shall be required
(but, for the avoidance of doubt, may be made, at the Company’s option) in respect of any such
transaction to the extent the aggregate consideration in connection therewith was less than
$10.0 million for such period. If since the beginning of such period any Person (that subsequently
became a Subsidiary of the Company (other than a Non-Recourse Subsidiary) or was merged with or
into the Company or any Subsidiary of the Company (other than a Non-Recourse Subsidiary) since the
beginning of such period) shall have made any Investment,



6









 




acquisition, disposition, merger, consolidation, disposed or discontinued operation or
reduction in force or furlough that would have required adjustment pursuant to this definition,
then the Consolidated EBITDA Coverage Ratio shall be calculated giving Pro Forma effect thereto for
such period as if such actions had occurred at the beginning of such period (subject to the
threshold specified in the previous sentence).



“Consolidated Interest Expense” means, for any period, the sum of (a) the interest expense, of the
Company and its consolidated Subsidiaries (other than Non-Recourse Subsidiaries) for such period as
determined in accordance with GAAP consistently applied, plus (b) Preferred Stock dividends in
respect of Redeemable Stock or Exchangeable Stock of the Company or Preferred Stock of any
Subsidiary of the Company (other than a Non-Recourse Subsidiary) in each case held by Persons other
than the Company or a Wholly Owned Recourse Subsidiary, plus (c) the cash contributions to an
employee stock ownership plan of the Company and its Subsidiaries (other than Non-Recourse
Subsidiaries) to the extent such contributions are used by an employee stock ownership plan to pay
interest, minus (d) interest income of the Company and its consolidated Subsidiaries (other than
Non- Recourse Subsidiaries), and minus (e) net receipts, if any, of the Company and its
consolidated Subsidiaries (other than Non-Recourse Subsidiaries) pursuant to interest rate Hedging
Obligations with respect to Debt. Notwithstanding the foregoing, Consolidated Interest Expense
shall not include (1) amounts expensed, written off or amortized in respect of deferred financing
and debt incurrence costs or (2) amounts recorded as interest expense with respect to dividends on
Designated Preferred Stock or Preferred Stock of the Company that is not Redeemable Stock or
Exchangeable Stock.



“Consolidated Net Income” means with respect to any Person, for any period, the consolidated net
income (or loss) of such Person and its consolidated Subsidiaries for such period as determined in
accordance with GAAP, adjusted to the extent included in calculating such net income (or loss), by
excluding:





     (i) net after tax extraordinary or non-recurring gains or losses (less all fees and
expenses relating thereto) and any restructuring charges or expenses (including any
severance expenses);




     (ii) the portion of net income (or loss) of such Person and its consolidated
Subsidiaries attributable to minority interests in unconsolidated Persons except to the
extent that, in the case of net income, cash dividends or distributions have actually been
received by such Person or one of its consolidated Subsidiaries (subject, in the case of a
dividend or distribution received by a Subsidiary of such Person, to the limitations
contained in clause (v) below) and, in the case of net loss, such Person or any Subsidiary
of such Person has actually contributed, lent or transferred cash to such unconsolidated
Person;




     (iii) net income (or loss) of any other Person attributable to any period prior to the
date of combination of such other Person with such Person or any of its Subsidiaries on a
“pooling of interests” basis;




     (iv) net gains or losses in respect of dispositions of assets of such Person or any of
its Subsidiaries (including pursuant to a sale-and-leaseback arrangement) other than in the
ordinary course of business;




     (v) the net income of any Subsidiary of such Person to the extent that the declaration
of dividends or distributions by that Subsidiary of that income is not at the time
permitted, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulations
applicable to that Subsidiary or its shareholders, unless such restriction with respect to
the payment of dividends or similar distributions has been legally waived; provided
that (A) Consolidated Net Income will be



7









 







increased by the amount of dividends or other distributions or other payments actually
paid in cash (or to the extent converted into cash) to such Person or a Subsidiary thereof
in respect of such period, to the extent not already included therein, and (B) the exclusion
in this clause (v) shall not apply to the net income of a Subsidiary Guarantor except in the
determination the amount available for Restricted Payments under Section 4.07(a)(3)(A)
hereof;




     (vi) net income or loss of any Non-Recourse Subsidiary, except that such Person’s
equity in the net income of any such Non-Recourse Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Non-Recourse Subsidiary during such period to such Person as a dividend
or other distribution;




     (vii) the net after-tax cumulative effect of any change in accounting principles or
change in accounting rules;




     (viii) net after-tax gains and losses from Hedging Obligations, Cash Management
Obligations or other derivative instruments or from early extinguishment of Debt;




     (ix) any net after-tax impairment charge or asset write-off, in each case pursuant to
GAAP;




     (x) any net after-tax noncash compensation expense recorded from grants of stock
appreciation or similar rights, stock options, restricted stock or other rights to officers,
directors, employees, managers or consultants;




     (xi) increase in amortization or depreciation or other noncash charges (including,
without limitation, any non-cash fair value adjustment of inventory) resulting from the
application of purchase accounting in relation to any acquisition that is consummated at or
after the Issue Date;




     (xii) non-cash cost related to the termination of any employee pension benefit plan,
together with any related provision for taxes on any such termination (or the tax effect of
any such termination);




     (xiii) deferred financing costs amortized or written off, and premiums and prepayment
penalties paid in connection with Transactions, any expenses (including professional fees)
to the extent not deferred and paid in connection with the Transactions or any other
acquisition or disposition that is consummated after the Issue Date;




     (xiv) net after-tax gain or loss resulting in such period from currency transaction
gains or losses related to currency remeasurements of Debt;




     (xv) non-cash gains, losses, income and expenses resulting from fair value accounting
required by the applicable standard under GAAP and related interpretations, together with
the tax effects of such items; and




     (xvi) charges resulting from the application of Accounting Standards Codification Topic
805 “Business Combinations” or Accounting Standards Codification Topic 480 “Distinguishing
Liability from Equity” together with the tax effects of such charges.


“Consolidated Net Worth” of any Person means, at any date, all amounts which would, in conformity
with GAAP, be included under shareholders’ equity on a consolidated balance sheet of such Person as
at






8









 







such date, less (x) any amounts attributable to Redeemable Stock and (y) any amounts attributable
to Exchangeable Stock.



“Consolidated Secured Debt Ratio” as of any date of determination means the ratio of (x) the excess
of (i) Consolidated Total Debt of the Company and its Subsidiaries (other than Non-Recourse
Subsidiaries) that is secured by a Lien as of the end of the most recent fiscal quarter for which
financial statements are available immediately preceding the date on which such event for which
such calculation is being made shall occur over (ii) an amount equal to the amount of cash and Cash
Equivalents of Company and its Subsidiaries (other than Non-Recourse Subsidiaries) on such date
that are free and clear of any Lien (other than non-consensual Liens and Liens described under
clauses (17) through (19) of the definition of Permitted Liens) to (y) the aggregate amount of
EBITDA of the Company and its Subsidiaries (other than Non-Recourse Subsidiaries) for the period of
the most recently ended consecutive four full fiscal quarters for which financial statements are
available immediately preceding the date on which such event for which such calculation is being
made, in each case of clauses (x) and (y), calculated on a Pro Forma basis, giving effect, without
duplication and where applicable, to the events and transactions for which Pro Forma adjustments
are to be made in the calculation of the Consolidated EBITDA Coverage Ratio.



“Consolidated Total Assets” means the total consolidated assets of the Company and its
Subsidiaries, as shown on the most recently consolidated balance sheet (excluding the footnotes
thereto) of the Company.



“Consolidated Total Debt” means, as at any date of determination, an amount equal to the sum,
without duplication, of the aggregate amount of all outstanding Debt of the Company and its
Subsidiaries (other than Non-Recourse Subsidiaries) (and excluding (1) any undrawn letters of
credit issued in the ordinary course of business and (2) all obligations relating to any
Receivables Facility).



“Contributed Existing Subordinated Loan” means the portion of the Debt under the Existing
Subordinated Loan that is as of the Issue Date owed to and held by Revlon, Inc. or a Subsidiary
thereof, including any Refinancing Debt Issued in respect thereof.



“Controlling Agent” has the meaning set forth in the Intercreditor Agreement.



“Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 13.02 hereof or such other address as to which the Trustee may give notice to the Company.



“Credit Agreements” means each of (i) the Multi-Currency Credit Agreement and (ii) the Term Loan
Agreement, including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case as such Credit Agreements, in whole or in
part, in one or more instances, may be amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified from time to time (including, without
limitation, any successive renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplementations or other modifications of the foregoing and including, without
limitation, any amendment increasing the amount of Debt incurred or available to be borrowed
thereunder, extending the maturity of any Debt incurred thereunder or contemplated thereby or
deleting, adding or substituting one or more parties thereto (whether or not such added or
substituted parties are banks or other institutional lenders)), including into one or more debt
facilities, commercial paper facilities or other debt instruments, indentures or agreements
(including by means of sales of debt securities (including Additional Notes) to institutional
investors), providing for revolving credit loans, term loans, letters of credit or other debt
obligations, whether any such extension, replacement or refinancing (1) occurs simultaneously or
not with the termination or repayment of a prior Credit Agreements or (2) occurs on one or more
separate occasions.







9









 







“Custodian” means the Trustee, as custodian for the Depositary with respect to the Notes in global
form, or any successor entity thereto.



“Debt” of any Person means, without duplication,





     (i) the principal of and premium (if any) in respect of (A) indebtedness of such Person
for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or liable;




     (ii) all Capital Lease Obligations of such Person;




     (iii) all obligations of such Person issued or assumed as the deferred purchase price
of property (but excluding trade accounts payable and other accrued current liabilities
arising in the ordinary course of business);


if and to the extent that any of the foregoing Debt under clauses (i), (ii) and (iii) would appear
as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in
accordance with GAAP;





     (iv) all obligations of such Person for the reimbursement of any obligor on any letter
of credit, banker’s acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations described in
(i) through (iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the third Business Day following receipt by such
Person of a demand for reimbursement following payment on the letter of credit);




     (v) the amount of all obligations of such Person with respect to the redemption,
repayment (including liquidation preference) or other repurchase of, in the case of a
Subsidiary of the Company that is not a Non-Recourse Subsidiary, any Preferred Stock and, in
the case of any the Company, any Redeemable Stock (but excluding in each case any accrued
dividends);




     (vi) all obligations of the type referred to in clauses (i) through (v) of other
Persons and all dividends of other Persons for the payment of which such Person, in either
case, is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise,
including guarantees of such obligations and dividends, other than by endorsement of
negotiable instruments for collection in the ordinary course of business; and




     (vii) all obligations of the type referred to in clauses (i) through (vi) of other
Persons secured by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation so secured.


Notwithstanding the foregoing, Debt will be deemed not to include contingent obligations incurred
in the ordinary course of business or obligations under or in respect of Receivables Facilities.



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



“Defaulting Subsidiary” means any Subsidiary of the Company (other than a Non-Recourse Subsidiary)
with respect to which an event described in Section 6.01(iv), (v) or (vi) hereof has occurred and
is continuing.







10









 







“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued
in accordance with Section 2.06 hereof, substantially in the form of Exhibit A1 hereto, except that
such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.



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



“Designated Eligible Obligations” means, at any time, those additional obligations which the Credit
Agreements permit the Company to designate to be secured by the Collateral to the extent that such
obligations have been so designated (which designation shall not have been revoked by the Company
on or prior to such time).



“Designated Noncash Consideration” means any non-cash consideration received by the Company or one
of its Subsidiaries (other than its Non-Recourse Subsidiaries) in connection with an Asset Sale
that is designated as “Designated Noncash Consideration” pursuant to an Officers’ Certificate
executed by the Chief Financial Officer of the Company or a resolution of the Board of Directors of
the Company, as applicable. Such Officers’ Certificate or resolution shall state the Fair Market
Value of such non-cash consideration and the basis of such valuation. A particular item of
Designated Noncash Consideration shall no longer be considered to be outstanding to the extent it
has been sold or liquidated for cash (but only to the extent of the cash received).



“Designated Preferred Stock” means preferred stock of the Company or any direct or indirect parent
thereof (in each case other than Redeemable Stock) that is issued for cash (other than to a
Subsidiary (other than a Non-Recourse Subsidiary)) and is so designated as Designated Preferred
Stock pursuant to an Officers’ Certificate, as the case may be, on the issuance date thereof.



“Domestic Subsidiary” means, with respect to any Person, any Subsidiary (other than a Non-Recourse
Subsidiary) of such Person other than (x) a Foreign Subsidiary or (y) any Domestic Subsidiary of a
Foreign Subsidiary.



“EBITDA” means, for any period, the Consolidated Net Income of the Company for such period, plus
the following, without duplication, to the extent included in calculating such Consolidated Net
Income: (i) income tax expense, plus franchise or similar taxes, (ii) Consolidated Interest
Expense, (iii) depreciation expense, (iv) amortization expense, (v) all other write offs, write
downs and noncash charges (excluding any noncash charge to the extent that it requires an accrual
of or a reserve for cash disbursements for any future period), (vi) restructuring charges that
appear in the Company’s financial statements for such period, including any redemption premium,
prepayment penalty, premium and other related fee or reserve deducted in such period in computing
Consolidated Net Income, including any one-time costs incurred in connection with (A) acquisitions
after the Issue Date or (B) the closing or consolidation of production or other operating
facilities, (vii) any expenses or charges related to any equity offering, permitted acquisition or
other Investment, permitted disposition, recapitalization or the incurrence of Debt permitted to be
incurred under this Indenture including a refinancing thereof (in each case, whether or not
successful) and any amendment or modification to the terms of any such transactions, including such
fees, expenses or charges related to the execution and delivery of this Indenture and the
transactions contemplated thereby, (viii) the amount of management, monitoring, consulting and
advisory fees and related expenses paid (or any accruals related to such fees or related expenses)
(including by means of a dividend) to the Parent to the extent permitted under Section 4.11 hereof,
and (ix) other non-recurring one-time charges and miscellaneous expenses taken in such period to






11









 







the extent that such other charges and expenses are associated with the Company’s growth plan and
operating margin improvement initiatives, as determined in good faith by the Company’s principal
financial officer or principal accounting officer in consultation with the Company’s certified
independent auditors.



“Equity Offering” means any public or private offer and sale of Capital Stock (other than
Redeemable Stock or Exchangeable Stock) other than:





     (1) public offerings with respect to the Company’s or any direct or indirect parent
company’s common stock registered on Form S-4 or Form S-8;




     (2) any such public or private sale that constitutes an Restricted Contribution; and




     (3) any such issuance to any Subsidiary of the Company.


“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.



“Exchange Act” means the Securities Exchange Act of 1934, as amended.



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



“Exchangeable Stock” means any Capital Stock of a Person which by its terms or by the terms of any
security for which it is exchangeable at the option of the holder (other than Capital Stock of such
Person which is neither Exchangeable Stock nor Redeemable Stock) or otherwise is convertible or
exchangeable at the option of the holder thereof for Debt, Exchangeable Stock or Redeemable Stock
on or prior to the date that is one year after the Stated Maturity of the Notes; provided,
however, that only the portion of the Capital Stock which so matures or is so convertible or
exchangeable prior to such date, shall be deemed to be Exchangeable Stock; provided, further,
however, that any Capital Stock that would constitute Exchangeable Stock solely because the
holders thereof have the right to require the Company or a Subsidiary of the Company (other than a
Non-Recourse Subsidiary) to exchange such Capital Stock upon the occurrence of a change of control
or asset sale (each defined in a substantially similar manner to the corresponding definitions in
this Indenture) shall not constitute Exchangeable Stock if the terms of such Capital Stock (and all
such securities into which it is convertible or for which it is exchangeable) provide that the
Company and the Subsidiaries (other than Non-Recourse Subsidiaries) may not exchange any such
Capital Stock (and all such securities into which it is convertible or for which it is
exchangeable) pursuant to such provision prior to compliance by the Company with the provisions of
Sections 4.10 and 4.13 hereof and such repurchase or redemption complies with Section 4.07 hereof.



“Exchange Notes” means the registered Notes that will be exchanged for the Notes, pursuant to the
terms of the Registration Agreement, having substantially the same terms as the Notes and
evidencing the same Debt as the Notes.



“Excluded Equity” means, as more fully described in the Security Documents, any Voting Stock in
excess of 66% of the total outstanding Voting Stock of any direct Subsidiary of the Company or any
Guarantor if such Subsidiary is not a “United States person” under and as defined in
Section 7701(a)(30) of the Code. For the purposes of this definition, “Voting Stock” means, as to
any issuer, the issued and outstanding shares of each class of capital stock or other ownership
interests of such issuer entitled to vote (within the meaning of Treasury Regulations
§ 1.956-2(c)(2)).



“Excluded Property” means, as more fully described in the Security Documents, collectively,







12









 









     (i) Excluded Equity;




     (ii) any permit, lease, license, contract, instrument or other agreement held by the
Company or any Guarantor that prohibits or requires the consent of any Person other than the
Company and its Affiliates as a condition to the creation by the Company or such Guarantor
of a Lien thereon, or any permit, lease, license, contract, instrument or other agreement
held by the Company or such Guarantor to the extent that any requirement of law applicable
thereto prohibits the creation of a Lien thereon, but only, in each case, to the extent, and
for so long as, such prohibition is not terminated or rendered unenforceable or otherwise
deemed ineffective by the Uniform Commercial Code or any other requirement of law;




     (iii) equipment or fixtures owned by the Company or any Guarantor that is subject to a
purchase money Lien or a capital lease if the contract or other agreement in which such Lien
is granted (or in the documentation providing for such capital lease) prohibits or requires
the consent of any Person other than the Company and its Affiliates as a condition to the
creation of any other Lien on such equipment or fixtures;




     (iv) an application to register a trademark under Section 1(b) of the Trademark Act,
15 U.S.C. Section 1051(b), prior to the filing of an amendment under Section 1(c) or
statement of use under Section 1(d), 15 U.S.C. Sections 1051(c) or (d);




     (v) any property or asset of the Company or any Guarantor situated (or deemed to be
situated) in the Commonwealth of Australia; and




     (vi) any Other Excluded Assets;


provided, however, “Excluded Property” shall not include any proceeds, substitutions or
replacements of Excluded Property (unless such proceeds, substitutions or replacements would
constitute Excluded Property).



“Existing Subordinated Loan” means the Senior Subordinated Term Loan Agreement between the Company
and Affiliates of the Company, dated as of January 30, 2008 (as amended from time to time),
including any Refinancing Debt Issued in respect thereof.



“Fair Market Value” means, with respect to any asset or property, the price which could be
negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction, as determined in good faith by the chief executive officer, chief financial officer,
chief accounting officer, controller or Board of Directors of the Company or its Subsidiary, as
applicable; provided that a Fair Market Value equal to or in excess of $20.0 million shall
be determined in good faith by the Board of Directors of the Company, whose determination shall be
conclusive and evidenced by a resolution of such Board of Directors (including as to the value of
all non-cash consideration); provided, however, that in making any such determination the
Board of Directors shall be entitled to rely on the advice it receives from the chief accounting
officer and chief financial officer of the Company, and shall not be required to consult with any
independent third party or have such determination approved by an independent third party.



“Financing Documents” means, collectively, the Loan Documents (as defined in each Credit
Agreement), the Indenture Documents and the Security Documents.



“Foreign Subsidiary” means any Subsidiary of the Company which (i) is organized under the laws of
any jurisdiction outside of the United States, (ii) is organized under the laws of Puerto Rico or
the U.S. Virgin






13









 







Islands, (iii) has substantially all its operations outside of the United States, or (iv) has
substantially all its operations in Puerto Rico or the U.S. Virgin Islands.



“GAAP” means generally accepted accounting principles in the United States, as in effect on the
Issue Date; except that if the Company notifies the Trustee in writing, GAAP shall mean IFRS
(except where the context requires otherwise); provided that the Company shall not be
entitled to make the foregoing election on more than one occasion. In the event the Company makes
such election, (i) it shall present comparative financial statements also in accordance with IFRS
for the fiscal year ending immediately prior to the first fiscal year for which financial
statements have been prepared in accordance with IFRS; (ii) all accounting terms and references in
this Indenture to accounting standards shall be deemed to be references to the most comparable
terms or standards under IFRS; (iii) the reports filed pursuant to Section 4.03 hereof may contain
financial statements prepared in accordance with IFRS, to the extent permitted by the rules and
regulations of the Commission; and (iv) any calculation or determination in this Indenture that
requires the application of GAAP for periods that include fiscal quarters ended prior to the
Company’s election to apply IFRS shall remain as previously calculated or determined in accordance
with GAAP.



“Global Note Legend” means the legend set forth in Section 2.06(g)(2) hereof, which is required to
be placed on all Global Notes issued under this Indenture.



“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A1 or Exhibit A2 hereto and that
bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global
Note” attached thereto.



“guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial statement conditions or
otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term “guarantee” shall not
include endorsements for collection or deposit in the ordinary course of business. The term
“guarantee” used as a verb has a corresponding meaning.



“Guarantees” means, collectively, the Parent Guarantee and the Subsidiary Guarantees.



“Guarantors” means, collectively, the Parent Guarantor and the Subsidiary Guarantors.



“Hedging Obligations” of any Person means the obligations of such Person pursuant to any interest
rate swap agreement, foreign currency exchange agreement, interest rate collar agreement, option or
futures contract or other similar agreement or arrangement designed to protect such Person against
changes in interest rates or foreign exchange rates.



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



“IAI Global Note” means a Global Note substantially in the form of Exhibit A1 or Exhibit A2 hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and






14









 







registered in the name of the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.



“IFRS” means International Financial Reporting Standards, as promulgated by the International
Accounting Standards Board, as in effect at the time of the Company’s election to use IFRS.



“Immaterial Subsidiary” means, at any date of determination, any Subsidiary (other than a
Non-Recourse Subsidiary) designated as such in writing by the Company that (i) contributed 2.5% or
less of EBITDA of the Company and its Subsidiaries (other than Non-Recourse Subsidiaries) for the
period of four fiscal quarters most recently ended more than forty-five (45) days prior to the date
of determination and (ii) had consolidated assets representing 2.5% or less of Consolidated Total
Assets on the last day of the most recent fiscal quarter ended more than forty-five (45) days prior
to the date of determination.



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



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



“Indenture Documents” means this Indenture, the Notes and the Guarantees.



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



“Initial Notes” means the $330,000,000.00 in aggregate principal amount of 93/4% Senior Secured Notes
due 2015 issued under this Indenture on the date hereof.



“Initial Purchasers” means Citigroup Global Markets Inc., Banc of America Securities LLC, Credit
Suisse Securities (USA) LLC and J.P. Morgan Securities Inc.



“Insolvency Proceeding” means, collectively, (a) any voluntary or involuntary case or proceeding
under the Bankruptcy Law with respect to the Company or any other Loan Party, (b) any other
voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding with respect to the
Company or any other Loan Party or with respect to any of their respective assets, (c) any
liquidation, dissolution, reorganization or winding up of the Company or any Loan Party, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy (except as permitted
by the Credit Agreements and this Indenture), and (d) any assignment for the benefit of creditors
or any other marshaling of assets and liabilities of the Company or any other Loan Party.



“Institutional Accredited Investor” means an institution that is an “accredited investor” pursuant
to Rule 501(a)(1), (2), (3) or (7) under the Securities Act, that is not also a QIB.



“Intercreditor Agreement” means the Second Amended and Restated Intercreditor and Collateral Agency
Agreement dated as of the Issue Date among the Bank Agents, the Collateral Agent, the Trustee,
Parent Guarantor, the Company and each other Guarantor, as it may be amended, restated,
supplemented or otherwise modified from time to time in accordance with its terms.



“Investment” in any Person means any loan or advance to, any net payment on a guarantee of, any
acquisition of Capital Stock, equity interest, obligation or other security of, or capital
contribution or other investment in, such Person. Investments shall exclude advances to customers
and suppliers in the ordinary course of business. The term “Invest” used as verb has a
corresponding meaning. For purposes of the definitions of “Non-Recourse Subsidiary” and
“Restricted Payment” and for purposes of Section






15









 







4.07 hereof, (i) “Investment” shall include a designation after the Issue Date of a Subsidiary of
the Company as a Non-Recourse Subsidiary, and such Investment shall be valued at an amount equal to
the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market
Value of the net assets of such Subsidiary at the time that such Subsidiary is designated a
Non-Recourse Subsidiary; and (ii) any property transferred to or from a Non-Recourse Subsidiary
shall be valued at its Fair Market Value at the time of such transfer, in each case as determined
in good faith by the Board of Directors of the Company.



“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by S&P
and a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, or an equivalent rating
by any other Rating Agency, in every case with no “negative” outlook.



“Investment Grade Securities” means:





     (1) securities issued or directly and fully guaranteed or insured by the government of
the United States of America or any agency or instrumentality thereof (other than Cash
Equivalents);




     (2) debt securities or debt instruments with a rating of BBB- or higher by S&P or Baa3
or higher by Moody’s or the equivalent of such rating by such rating organization, or, if no
rating of S&P or Moody’s then exists, the equivalent of such rating by any other nationally
recognized securities rating agency, but excluding any debt securities or instruments
constituting loans or advances among the Company and its Subsidiaries;




     (3) investments in any fund that invests exclusively in investments of the type
described in clauses (1) and (2), which fund may also hold immaterial amounts of cash
pending investment or distribution; and




     (4) corresponding instruments in countries other than the United States of America
customarily utilized for high quality investments.


“Issue” means issue, assume, guarantee, incur or otherwise become liable for; provided,
however, that any Debt or Capital Stock of a Person existing at the time such Person becomes a
Subsidiary of another Person (whether by merger, consolidation, acquisition or otherwise) shall be
deemed to be issued by such Subsidiary at the time it becomes a Subsidiary of such other Person.
The term “Issuance” or “Issued” has a corresponding meaning.



“Issue Date” means November 23, 2009, the date of this Indenture.



“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions are not required
to be open in the State of New York or in the state where the principal office of the Trustee is
located.



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



“Lien” means any mortgage, pledge, security interest, conditional sale or other title retention
agreement or other similar lien.



“Loan Party” shall mean the Parent Guarantor, the Company and each Subsidiary Guarantor.







16









 







“MacAndrews & Forbes Holdings” means MacAndrews & Forbes Holdings Inc., a Delaware corporation, and
its successors.



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



“Multi-Currency Administrative Agent” means (a) Citicorp USA, Inc., in its capacity as
administrative agent under the Multi-Currency Credit Agreement, (b) any successors and assigns
thereto or any acting administrative agent, in each case, as permitted under the Multi-Currency
Credit Agreement, and (c) if there is no acting Multi-Currency Administrative Agent, the Required
Lenders (as defined in the Multi-Currency Credit Agreement).



“Multi-Currency Claims” means all Multi-Currency Secured Obligations and all extensions of credit
under any financing, or any arrangement for use of cash collateral, under any Bankruptcy Law
extended or provided to any Loan Party by the Multi-Currency Lenders.



“Multi-Currency Collateral” has the meaning set forth in the Intercreditor Agreement; provided,
however, that “Multi-Currency Collateral” shall not include any Excluded Property; and
provided, further, that if any Excluded Property would have otherwise constituted
Multi-Currency Collateral, when such property shall cease to be Excluded Property, such property
shall be deemed to constitute Multi-Currency Collateral.



“Multi-Currency Credit Agreement” means the Credit Agreement dated as of July 9, 2004 among the
Company, certain local borrowing subsidiaries, Citicorp USA, Inc., as administrative agent and
collateral agent, and the Lenders named therein, as amended, renewed, extended, substituted,
refinanced, restructured, replaced, supplemented or otherwise modified from time to time, and any
other Credit Agreement, to the extent that the Company designates any of the foregoing as a
“Multi-Currency Credit Agreement”.



“Multi-Currency Lenders” means the Lenders (as defined in the Multi-Currency Credit Agreement).



“Multi-Currency Secured Obligations” means collectively, (a) the “Payment Obligations” (as defined
in the Multi-Currency Credit Agreement), (b) the obligations of the Company and the Guarantors
under the other “Loan Documents” (as defined in the Multi-Currency Credit Agreement), (c) the
Multi-Currency Eligible Obligations (as defined in the Intercreditor Agreement) and (d) any other
obligations that the Company designates as “Multi-Currency Secured Obligations.”



“Multi-Currency Secured Party” means the Multi-Currency Administrative Agent and each holder of any
Multi-Currency Secured Obligations.



“Net Available Cash” from an Asset Sale means cash payments received (including any cash payments
received by way of deferred payment of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, but excluding any other consideration received in the
form of assumption by the acquiring Person of Debt or other obligations relating to such properties
or assets or received in any other noncash form) therefrom, in each case net of direct costs
relating to such Asset Sale, including (i) all legal, title and recording tax expenses, commissions
and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes
required or estimated in good faith to be required to be accrued as a liability under GAAP, as a
consequence of such Asset Sale, (ii) all payments made on any Debt which is secured by any assets
subject to such Asset Sale, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Sale, or by applicable law be repaid out of the proceeds
from or in connection with such Asset Sale, (iii) all distributions and other payments required to






17









 






be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset
Sale, (iv) payments of or reserves for unassumed liabilities (not constituting Debt) relating to
the properties or assets sold, including pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification obligations associated
with such transaction, (v) any relocation, restructuring or severance expenses incurred as a result
of such Asset Sale and (vi) any deduction of appropriate amounts to be provided by the Company or
any Subsidiary of the Company (other than a Non-Recourse Subsidiary) as a reserve in accordance
with GAAP in respect of the sale price of the assets that are the subject of such sale or other
disposition (including in respect of working capital adjustments or any evaluation of such assets),
provided that to the extent such amounts are received in cash by the Company or a Subsidiary and
are released from such reserve, such amounts shall be deemed to be Net Available Cash received in
respect of an Asset Sale as of the date of such release.



“Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the cash proceeds
of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement
agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred
in connection with such issuance or sale and net of taxes paid or estimated in good faith to be
payable as a result thereof.



“Non-Contributed Existing Subordinated Loan” means the portion of the Debt under the Existing
Subordinated Loan that as of the Issue Date is owed to and held by MacAndrews & Forbes Holdings,
including any Refinancing Debt Issued in respect thereof.



“Non-Convertible Capital Stock” means, with respect to any Person, any Capital Stock of such
Person, other than any Redeemable Stock or Exchangeable Stock.



“Non-Recourse Debt” means Debt or that portion of Debt as to which neither the Company nor its
Subsidiaries (other than a Non-Recourse Subsidiary) (A) provide credit support (including any
undertaking, agreement or instrument which would constitute Debt), (B) is directly or indirectly
liable or (C) constitute the lender.



“Non-Recourse Subsidiary” means a Subsidiary of the Company (i) which has been designated as such
by the Company, (ii) which has no Debt other than Non-Recourse Debt and (iii) which is in the same
line of business as the Company and its Wholly Owned Recourse Subsidiaries existing on the Issue
Date or in a Permitted Business.



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



“Note Obligations” means all obligations of the Company and the Guarantors under the Notes, this
Indenture, the Guarantees and the Security Documents.



“Noteholder Claims” means all Note Obligations and all extensions of credit under any financing, or
any arrangement for use of cash collateral, under any Bankruptcy Law extended or provided to any
Loan Party by the Holders of the Notes.



“Noteholder Secured Parties” means the Trustee and each Holder of Notes.



“Notes” has the meaning assigned to it in the preamble to this Indenture. Except as expressly
provided herein, the Initial Notes, the Exchange Notes and the Additional Notes shall be treated as
a single class for all purposes under this Indenture, and unless the context otherwise requires,
all references to the Notes shall include the Initial Notes, the Exchange Notes and any Additional
Notes.







18









 







“Notice of Actionable Default” means a written certification identified as a “Notice of Actionable
Default,” substantially in the form attached to the Intercreditor Agreement or such other form
reasonably satisfactory to the Collateral Agent, from any Bank Agent or the Trustee addressed to
the Collateral Agent certifying that an Event of Default has occurred and is continuing under the
applicable Financing Documents, and that any required notice thereof has been given and any grace
periods provided for therein have expired.



“Offering Memorandum” means the offering memorandum of the Company, dated November 13, 2009.



“Officer” means the Chairman of the Board, the President, any Vice President, the Treasurer, an
Assistant Treasurer or the Secretary or an Assistant Secretary of the Company.



“Officers’ Certificate” means a certificate signed by the Chairman of the Board, Vice Chairman, the
President or a Vice President (regardless of Vice Presidential designation), and by the Treasurer,
an Assistant Treasurer, Secretary or an Assistant Secretary, of the Company and delivered to the
Trustee in connection with the delivery of the Annual Certificate, unless this Indenture
specifically identifies a different time of delivery. One of the Officers signing an Officers’
Certificate given pursuant to Section 4.04(a) hereof shall be the principal executive, financial or
accounting officer of the Company.



“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company (or to Parent or one of its
Subsidiaries or the Trustee).



“Other Excluded Assets” means, as more fully described in the Security Documents (and in addition
to any other Excluded Property), collectively, (i) all interests in real property other than fee
interests located in the United States, (ii) any fee interest in real property if the value of such
fee interest is less than $7.5 million and the Company’s fee interest, as of the Issue Date, in
real property located in Irvington, New Jersey; (iii) Capital Stock or assets owned by the Parent
Guarantor other than the Capital Stock of the Company and proceeds thereof; (iv) any Capital Stock
and other securities of each Subsidiary of the Company to the extent that the pledge of such
Capital Stock or other securities to secure the Notes or the Guarantees would cause such Subsidiary
to be required to file separate financial statements with the Commission pursuant to Rule 3-16 of
Regulation S-X; and (v) those assets that otherwise would constitute Collateral but as to which the
Bank Agents shall not have required a lien or security interest.



“Other Junior Lien Obligations” means any Debt (and obligations related thereto) Issued as
permitted by this Indenture that is intended to be secured by Liens permitted by this Indenture to
rank junior in priority to the Liens securing the Note Obligations.



“Other Pari Passu Lien Obligations” means any Debt (and obligations related thereto) Issued as
permitted by this Indenture that is intended to be secured by Liens that are permitted by this
Indenture to rank pari passu in priority with the Liens securing the Note Obligations.



“Other Senior Lien Obligations” means any Debt (and obligations related thereto) Issued as
permitted by this Indenture that is intended to be secured by Liens that are permitted by this
Indenture to rank higher in priority than the Liens securing the Note Obligations.



“Parent” means Revlon, Inc., a Delaware corporation, and any other Person which acquires or owns
directly or indirectly 80% or more of the voting power of the Voting Stock of the Company.



“Parent Guarantee” means a guarantee on the terms set forth in this Indenture by the Parent
Guarantor of the Company’s obligations with respect to the Notes and this Indenture.







19









 







“Parent Guarantor” means Revlon, Inc., a Delaware corporation, and its successors.



“Pari Passu Debt” means, with respect to any Person, the following obligations, whether outstanding
on the Issue Date or thereafter created, incurred or assumed, and whether at any time owing
actually or contingent:





     (i) all obligations of such Person consisting of the Bank Debt, the Notes and the
Subsidiary Guarantees;




     (ii) all obligations of such Person consisting of the principal of and premium (if any)
and accrued and unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to such Person), and all fees,
expenses and other amounts in respect of (A) indebtedness of such Person for money borrowed
and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such Person is responsible or liable;




     (iii) all Capital Lease Obligations of such Person;




     (iv) all obligations of such Person (A) for the reimbursement of any obligor on any
letter of credit, banker’s acceptance or similar credit transaction, (B) under interest rate
swaps, caps, collars, options and similar arrangements and foreign currency hedges entered
into in respect of any obligations described in clauses (i), (ii) and (iii) or (C) Issued or
assumed as the deferred purchase price of property and all conditional sale obligations of
such Person and all obligations of such Person under any title retention agreement;




     (v) all obligations of other Persons of the type referred to in clauses (ii), (iii) and
(iv) and all dividends of other persons for the payment of which, in either case, such
Person is responsible or liable as obligor, guarantor or otherwise, including by means of
any agreement which has the economic effect of a guarantee; and




     (vi) all obligations consisting of Refinancings of any obligation described in clauses
(i), (ii), (iii), (iv) or (v);


unless, in the case of any particular obligation, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such obligations are subordinate
in right of payment to the Notes or the Subsidiary Guarantees, as the case may be. However, Pari
Passu Debt will not include (1) any obligation of such Person to any Subsidiary of the Company or
any Qualified Affiliate Debt, (2) any liability for Federal, state, local or other taxes owed or
owing by such Person, (3) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments evidencing such
liabilities), (4) any indebtedness, guarantee or obligation of such Person that is subordinate or
junior in right of payment to any other indebtedness, guarantee or obligation of such Person or
(5) that portion of any Debt which at the time of Issuance is issued in violation of this
Indenture; provided, however, that in the case of this clause (5), (A) any Debt Issued to
any Person who had no actual knowledge that the Issuance of such Debt was not permitted under this
Indenture and who received on the date of Issuance thereof a certificate from an officer of the
Company to the effect that the Issuance of such Debt would not violate this Indenture shall
constitute Pari Passu Debt and (B) any Debt arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business shall constitute
Pari Passu Debt provided that such Debt would normally be extinguished within three Business Days
of Issuance.







20









 







“Pari Passu Liens” means, in the case of any Term Loan Collateral, all Liens securing the
Multi-Currency Claims and the Noteholder Claims.



“Partially Owned Recourse Subsidiary” means a Subsidiary (other than a Non-Recourse Subsidiary)
that is not a Wholly Owned Recourse Subsidiary.



“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an
account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC,
shall include Euroclear and Clearstream).



“Permitted Affiliate” means any individual that is a director or officer of the Company, of Parent,
of a Subsidiary of the Company or of a Qualified Joint Venture; provided, however, that
such individual is not also a director or officer of MacAndrews & Forbes Holdings or any Person
that controls MacAndrews & Forbes Holdings.



“Permitted Business” means any business that is reasonably related, ancillary or complementary to
the businesses of the Company and the Subsidiaries of the Company (other than the Non-Recourse
Subsidiaries) on the Issue Date or other business that is a reasonable extension or expansion of
such businesses.



“Permitted Existing Subordinated Loans Refinancing” means (a) a Refinancing of Existing
Subordinated Loans by exchange for or out of the proceeds of Refinancing Debt that is
unsubordinated in right of payment, if at the time of Issuance of such Refinancing Debt, the
Company would be able to Issue $1.00 of Debt pursuant to Section 4.09(a) hereof on a Pro Forma
basis; and (b) a subsequent Refinancing of any Debt Issued in a Permitted Existing Subordinated
Loans Refinancing.



“Permitted Holders” means (i) Ronald O. Perelman (or in the event of his incompetence or death, his
estate, heirs, executor, administrator, committee or other personal representative (collectively,
“heirs”)) and any Person controlled, directly or indirectly, by Ronald O. Perelman or his heirs,
(ii) MacAndrews & Forbes Holdings and each Parent and (iii) the members of any group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision) of
which any Person described in clause (i) or (ii) of this definition is a member, provided
that, in the case of such group and without giving effect to the existence of such group or any
other group, Persons who are either Persons described in clause (i) or (ii) of this definition have
aggregate beneficial ownership of more than 50% of the total voting power of the Voting Stock of
the Company or any of its direct or indirect parent companies. Any Person or group whose
acquisition of beneficial ownership or assets constitutes a Change of Control in respect of which a
Change of Control Offer is made in accordance with Section 4.13 hereof will thereafter, together
with its Affiliates, constitute an additional Permitted Holder.



“Permitted Investment” means any Investment by the Company or a Subsidiary of the Company (other
than a Non-Recourse Subsidiary) in:





     (a) the Company or any Subsidiary of the Company (other than a Non-Recourse
Subsidiary);




     (b) any Person that will, upon the making of such Investment, become a Subsidiary of
the Company (other than a Non-Recourse Subsidiary) and any Investment (other than an
Investment made in contemplation of becoming a Subsidiary of the Company that is not a
Non-Recourse Subsidiary) held by such Person; provided, however, that such
Subsidiary is engaged in a Permitted Business;



21









 






     (c) any Person if as a result of such Investment such Person is merged or consolidated
with or into, or transfers or conveys all or substantially all its property to, the Company
or a Subsidiary of the Company (other than a Non-Recourse Subsidiary) and any Investment
(other than an Investment made in contemplation of such transaction) held by such Person;
provided, however, that such Person’s is engaged in a Permitted Business;




     (d) cash, Cash Equivalents or the foreign equivalent of Cash Equivalents;




     (e) receivables owing to the Company or a Subsidiary of the Company (other than a
Non-Recourse Subsidiary) and prepaid expenses, in each case, created or acquired in the
ordinary course of business and payable or dischargeable in accordance with customary trade
terms; provided, however, that such trade terms may include such concessionary trade
terms as the Company or such Subsidiary of the Company (other than a Non-Recourse
Subsidiary) deems reasonable under the circumstances;




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




     (g) loans and advances to, and guarantees of Debt of, employees made in the ordinary
course of business; provided, however, that such loans and advances do not exceed
$10.0 million in the aggregate at any one time outstanding;




     (h) Investments received in settlement, compromise, resolution or enforcement of
(i) Investments acquired by the Company or any Subsidiary (other than a Non-Recourse
Subsidiary) in exchange for any other Investment or accounts receivable held by the Company
or any such Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the Person in which such other Investment is made or
which is the obligor with respect to such accounts receivable, (ii) debts created in the
ordinary course of business and owing to the Company or a Subsidiary of the Company (other
than a Non-Recourse Subsidiary) or (iii) foreclosure proceedings, litigation, arbitration or
other disputes with Persons;




     (i) any Investment in securities or other assets not constituting cash, Cash
Equivalents, Investment Grade Securities or the foreign equivalents thereof and received in
connection with (A) an Asset Sale consummated in compliance with Section 4.10 hereof or
(B) any disposition of property not constituting an Asset Sale;




     (j) any Investment acquired solely in exchange for the issuance of Capital Stock (other
than Redeemable Stock and Exchangeable Stock) of the Company or any direct or indirect
parent of the Company;




     (k) Investments existing on the Issue Date;




     (l) any Hedging Obligation;




     (m) guarantees of Debt permitted under Section 4.09 hereof and performance guarantees
in the ordinary course of business;




     (n) Investments consisting of purchases and acquisitions of inventory, supplies,
material or equipment or the licensing or contribution of intellectual property pursuant to
joint marketing, joint development or similar arrangements with other persons;



22









 






     (o) Investments in joint ventures engaged or to be engaged in a Permitted Business or
in other Permitted Businesses made for Fair Market Value (measured on the date each such
Investment was made and without giving effect to subsequent changes in value) that do not
exceed the greater of (i) $50.0 million and (y) 6.0% of Consolidated Total Assets in the
aggregate outstanding at any one time;




     (p) Investments relating to a Receivables Facility; provided that in the case
of Receivables Facilities established after the Issue Date, such Investments are necessary
or advisable (in the good faith determination of the Company) to effect such Receivables
Facility;




     (q) advances, loans, promotions and extensions of credit to suppliers, customers and
vendors in the ordinary course of business;




     (r) Investments resulting from the acquisition of a Person that at the time of such
acquisition held instruments constituting Investments that were not acquired in
contemplation of the acquisition of such Person;




     (s) Investments in prepaid expenses, negotiable instruments held for collection and
lease and utility and worker’s compensation deposits provided to third parties in the
ordinary course of business; and




     (t) other Investments made for Fair Market Value (measured on the date each such
Investment was made and without giving effect to subsequent changes in value) that do not
exceed the greater of (i) $75.0 million and (ii) 8.5% of Consolidated Total Assets in the
aggregate outstanding at any one time;


in the case of each of the foregoing clauses (a) through (t) net of, with respect to the applicable
Permitted Investment in any particular Person, the cash return received after the Issue Date as a
result of any sale for cash, repayment, redemption, liquidation, distribution or other cash
realization (not included in Consolidated Net Income), not to exceed the amount of such Permitted
Investment made after the Issue Date.



“Permitted OID” means original issue discount which does not exceed 5% of the aggregate principal
amount of the Debt Issued.



“Permitted Transactions” means (i) any transaction or series of similar transactions (including the
purchase, sale, lease or exchange of any property or the rendering of any service) between the
Company or any Subsidiary of the Company, on the one hand, and any Affiliate of the Company, on the
other hand, existing on, or pursuant to an agreement in effect on, the Issue Date and any amendment
thereto or replacement thereof (so long as any such amendment or replacement is not materially more
disadvantageous to the holders of the Notes when taken as a whole as compared to the applicable
agreement as in effect on the Issue Date as reasonably determined in good faith by the Company) and
(ii) any Tax Sharing Agreement.



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



“Preferred Stock,” as applied to the Capital Stock of any corporation, means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of dividends, or as to
the distribution of






23









 







assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation.



“principal” of a Note as of any date means the principal of the Note as of such date.



“Private Placement Legend” means the legend set forth in Section 2.06(g)(1) hereof to be placed on
all Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture.



“Pro Forma” means with respect to any calculation, a calculation made in good faith by the
principal financial or principal accounting officer of the Company, which calculation to be made in
connection with an Investment, an acquisition, a disposition, a merger, a consolidation, a
disposition or discontinuation of a business or operations or a reduction in force or furlough may
take into account any reduction in net costs and related adjustments that such officer reasonably
determines to relate to or arise from such Investment, acquisition, disposition, merger,
consolidation, disposition or discontinuation of a business or operations or reduction in force or
furlough and is based on identified actions to be taken or initiated within 12 months of the date
of Investment, acquisition, disposition, merger, consolidation, disposition or discontinuation of a
business or operations or a reduction in force or furlough, as if such reductions and adjustments
had been effected as of the beginning of the relevant period; provided, however that if
such calculation results in the Issuance of $50.0 million or greater of Debt, such calculation
shall be approved in good faith by the Board of Directors; provided, further, however, that
in making any such determination the Board of Directors shall be entitled to rely on the advice it
receives from the chief accounting officer and chief financial officer of the Company, and shall
not be required to consult with any independent third party or have such determination approved by
an independent third party.



“Pro Forma EBITDA” means, for any consecutive four fiscal quarter period, the aggregate amount of
EBITDA for such period, calculated on a Pro Forma basis, giving effect, without duplication and
where applicable, to the events and transactions for which Pro Forma adjustments are to be made in
the calculation of the Consolidated EBITDA Coverage Ratio.



“Put Amount” as of any date means, with respect to each $1,000 principal amount of Notes, 101% of
the outstanding principal amount thereof as of the date of repurchase.



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



“Qualified Affiliate Debt” means unsecured Debt that is subordinated in right of payment to the
Notes and is issued by the Company to a Parent or an Affiliate of a Parent in an aggregate
principal amount at any time outstanding not to exceed $75.0 million.



“Qualified Joint Venture” means a Person (other than a Subsidiary of the Company) controlled (as
defined in the definition of an “Affiliate”) by the Company, in which no Affiliate of the Company
(other than (x) a Wholly Owned Recourse Subsidiary of the Company, (y) a Permitted Affiliate and
(z) another Qualified Joint Venture) has an Investment.



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



“Receivables Facility” means one or more receivables financing facilities, as amended,
supplemented, modified, extended, renewed, restated, refunded, replaced or refinanced from time to
time, the Debt of which is non-recourse (except for representations, warranties, covenants and
indemnities made in connection with such facilities that the Company has determined in good faith
to be customary in






24









 







financings similar to a Receivables Facility, including those relating to servicing of the assets
of a Receivables Subsidiary and those relating to any obligation of the Company or any Subsidiary
of the Company (other than a Non-Recourse Subsidiary) to repurchase the assets it sold thereunder
as a result of a breach of a representation, warranty or covenant or otherwise) to the Company and
its Subsidiaries (other than Non-Recourse Subsidiaries) pursuant to which Company or any Subsidiary
of the Company (other than a Non-Recourse Subsidiary) sells or transfers its accounts receivable,
payment intangibles and related assets to either (x) a Person that is not a Subsidiary (other than
a Non-Recourse Subsidiary) or (y) a Receivables Subsidiary that in turn sells or transfers its
accounts receivable, payment intangibles and related assets to a Person that is not a Subsidiary
(other than a Non-Recourse Subsidiary).



“Receivables Fees” means distributions or payments made directly or by means of discounts with
respect to any participation interest issued or sold in connection with, and other fees paid to a
Person that is not a Subsidiary of the Company (other than a Non-Recourse Subsidiary) in connection
with, any Receivables Facility.



“Receivables Subsidiary” means any subsidiary formed solely for the purpose of engaging, and that
engages only, in one or more Receivables Facilities and any Subsidiary of another Receivables
Subsidiary.



“Redeemable Stock” means any Capital Stock that by its terms or otherwise is required to be
redeemed on or prior to the date that is 91 days after the Stated Maturity of the Notes or is
redeemable at the option of the holder thereof at any time on or prior to the date that is 91 days
after the Stated Maturity of the Notes; provided, however, that only the portion of the
Capital Stock which so matures or is so mandatorily redeemable or is so redeemable at the option of
the holder thereof prior to such date, shall be deemed to be Redeemable Stock; provided,
further, however, that any Capital Stock that would constitute Redeemable Stock solely because
the holders thereof have the right to require the Company or a Subsidiary of the Company (other
than a Non-Recourse Subsidiary) to repurchase such Capital Stock upon the occurrence of a change of
control or asset sale (each defined in a substantially similar manner to the corresponding
definitions in this Indenture) shall not constitute Redeemable Stock if the terms of such Capital
Stock provide that the Company and the Subsidiaries (other than Non-Recourse Subsidiaries) may not
repurchase or redeem any such Capital Stock (and all such securities into which it is convertible
or for which it is exchangeable) pursuant to such provision prior to compliance by the Company with
the provisions of this Indenture described in Sections 4.10 and 4.13 hereof and such repurchase or
redemption complies with Section 4.07 hereof.



“Refinance” means, in respect of any Debt, to refinance, extend, renew, refund, repay, prepay,
redeem, defease or retire, or to issue Debt in exchange or replacement for, such Debt.
“Refinanced” and “Refinancing” shall have correlative meanings.



“Refinancing Costs” means, with respect to any Debt being Refinanced, any premium actually paid
thereon and reasonable costs and expenses, including underwriting discounts, in connection with
such Refinancing.



“Registered Exchange Offer” has the meaning ascribed thereto in the Registration Agreement.



“Registration Agreement” means the Registration Agreement dated as of November 23, 2009 by and
among the Company and the Initial Purchasers.



“Regulation S” means Regulation S promulgated under the Securities Act.







25









 







“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent
Global Note, as appropriate.



“Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit A1 hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the
Restricted Period.



“Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A2 hereto
deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued
in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance
on Rule 903 of Regulation S.



“Representative” means each of the Term Loan Administrative Agent, the Multi-Currency
Administrative Agent and the Trustee.



“Required Holders” means, at any time, holders of a majority in principal amount of the Notes then
outstanding except that under the circumstances described in Section 9.03(a) hereof, “Required
Holders” means holders of 75% in principal amount of the Notes then outstanding.



“Required Secured Parties” means, collectively, (a) in the case of Section 2 of the Intercreditor
Agreement, the Required Lenders (as defined in the Multi-Currency Credit Agreement) and the
Required Lenders (as defined in the Term Loan Agreement) or, after the payment in full of all
Multi-Currency Claims and all Term Loan Claims, the Trustee or the Required Holders and (b) in all
other sections of the Intercreditor Agreement, the Required Lenders (as defined in the
Multi-Currency Credit Agreement), the Required Lenders (as defined in the Term Loan Agreement) and
the Trustee or the Required Holders.



“Responsible Officer” means the chief executive officer, the president, the chief financial
officer, the chief operating officer, any vice president or any other financial officer of the
Company and any other officer or similar official thereof responsible for the administration of the
obligations of the Company in respect of the Notes.



“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.



“Restricted Global Note” means a Global Note bearing the Private Placement Legend.



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



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



“Revolving Credit Facility” means the revolving loan portion of the credit facilities evidenced by
the Credit Agreements, as such portion of the Credit Agreements may be amended, extended, renewed,
restated, supplemented or otherwise modified (in whole or in part, and without limitation as to
amount, terms, conditions, covenants and other provisions) from time to time, and any other
revolving credit facilities, and any agreement (and related document) governing Debt Issued to
Refinance, in whole or in part, the borrowings and commitments then outstanding or permitted to be
outstanding under such portion of the Credit Agreements or successor Credit Agreements, whether by
the same or any other lender or group of lenders and whether Issued simultaneously with or at any
time after the discharge of such Debt.



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







26









 







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



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



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



“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any successor to
its rating agency business.



“Secured Claims” means, collectively, the Multi-Currency Claims, the Term Loan Claims and the
Noteholder Claims.



“Secured Parties” means, collectively, the Multi-Currency Secured Parties, the Term Loan Secured
Parties and the Noteholder Secured Parties.



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



“Securities Act” means the Securities Act of 1933, as amended.



“Security Agreement” means the Second Amended and Restated Pledge and Security Agreement, dated as
of the Issue Date, among the Collateral Agent, the Parent Guarantor, the Company and each other
Guarantor, as it may be amended, restated, supplemented or otherwise modified from time to time.



“Security Documents” means the Security Agreement and the other security agreements, pledge
agreements, mortgages, collateral assignments and related agreements, as amended, supplemented,
restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from
time to time, creating the security interests in the Collateral to secure the Notes, the Guarantees
and related Note Obligations, as contemplated by this Indenture.



“Senior Claims” means:





     (a) in the case of any Multi-Currency Collateral, (i) with respect to all Term Loan
Claims, all Multi-Currency Claims and (ii) with respect to all Noteholder Claims,
collectively, all Multi-Currency Claims and all Term Loan Claims; and




     (b) in the case of any Term Loan Collateral, with respect to all Multi-Currency Claims
and all Noteholder Claims, all Term Loan Claims.


The term “Senior Claims” shall include all interest accrued or accruing (or which would, absent the
commencement of an Insolvency Proceeding, accrue) after the commencement of an Insolvency
Proceeding in accordance with and at the rate specified in the Senior Documents whether or not the
claim for such interest is allowed as a claim in such Insolvency Proceeding. To the extent any
payment with respect to the Senior Claims (whether by or on behalf of any Loan Party, as proceeds
of security, enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential in any respect, set aside or required to be paid to a debtor in possession, trustee,
receiver or similar Person, then the obligation or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment had not occurred.



“Senior Documents” means, collectively, with respect to any Senior Claim, any provision pertaining
to such Senior Claim in any Financing Document or any other document, instrument or certificate
evidencing or delivered in connection with such Senior Claim.







27









 







“Senior Liens” means:





     (a) in the case of any Multi-Currency Collateral, (i) with respect to all Liens
securing the Term Loan Claims, all Liens securing the Multi-Currency Claims and (ii) with
respect to all Liens securing the Noteholder Claims, collectively, all Liens securing the
Multi-Currency Claims and all Liens securing the Term Loan Claims; and




     (b) in the case of any Term Loan Collateral, with respect to all Liens securing the
Multi- Currency Claims and all Liens securing the Noteholder Claims, all Liens securing the
Term Loan Claims.


“Shelf Registration Statement” has the meaning ascribed thereto in the Registration Agreement.



“Significant Subsidiary” means (i) any Subsidiary (other than a Non-Recourse Subsidiary) of the
Company which at the time of determination either (A) had assets which, as of the date of the
Company’s most recent quarterly consolidated balance sheet, constituted at least 5% of the
Company’s total assets on a consolidated basis as of such date, in each case determined in
accordance with GAAP, or (B) had revenues for the 12-month period ending on the date of the
Company’s most recent quarterly consolidated statement of income which constituted at least 5% of
the Company’s total revenues on a consolidated basis for such period, or (ii) any Subsidiary of the
Company (other than a Non-Recourse Subsidiary) which, if merged with all Defaulting Subsidiaries
(as defined below) of the Company, would at the time of determination either (A) have had assets
which, as of the date of the Company’s most recent quarterly consolidated balance sheet, would have
constituted at least 10% of the Company’s total assets on a consolidated basis as of such date or
(B) have had revenues for the 12-month period ending on the date of the Company’s most recent
quarterly consolidated statement of income which would have constituted at least 10% of the
Company’s total revenues on a consolidated basis for such period (each such determination being
made in accordance with GAAP).



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



“Subordinated Obligation” means any Debt of the Company or a Subsidiary Guarantor (whether
outstanding on the date hereof or hereafter Issued) which is subordinate or junior in right of
payment to the Notes or the applicable Subsidiary Guarantee.



“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of shares of Capital Stock or
other interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of
such Person or (iii) one or more Subsidiaries of such Person.



“Subsidiary Guarantee” means a guarantee on the terms set forth in this Indenture by a Subsidiary
Guarantor of the Company’s obligations with respect to the Notes.



“Subsidiary Guarantors” means, collectively, any Subsidiary that issues a Subsidiary Guarantee on
the Issue Date or, subsequent to the Issue Date, executes a Subsidiary Supplemental Indenture in
the form attached to this Indenture.







28









 







“Tax Sharing Agreement” means (i) that certain Tax Sharing Agreement entered into as of March 26,
2004, among the Company, its Subsidiaries and Revlon, Inc., with respect to consolidated or
combined tax returns including the Company or any of its Subsidiaries, but only to the extent that
the amounts payable from time to time by the Company or any such Subsidiary do not exceed the
corresponding tax payments the Company or such Subsidiary would have been required to make to any
relevant taxing authority had the Company or such Subsidiary not joined in such consolidated or
combined returns, but instead had filed returns including only the Company or its Subsidiaries,
(ii) that certain agreement dated June 24, 1992, as amended, among the Company, certain of its
Subsidiaries, Revlon Holdings LLC, Revlon, Inc. and MacAndrews & Forbes Holdings, and (iii) any
other tax allocation agreement between the Company or any of its Subsidiaries with any direct or
indirect shareholder of the Company with respect to consolidated or combined tax returns including
the Company or any of its Subsidiaries but only to the extent that amounts payable from time to
time by the Company or any such Subsidiary under any such agreement do not exceed the corresponding
tax payments that the Company or such Subsidiary would have been required to make to any relevant
taxing authority had the Company or such Subsidiary not joined in such consolidated or combined
returns, but instead had filed returns including only the Company or its Subsidiaries (provided
that any such agreement may provide that, if the Company or any such Subsidiary ceases to be a
member of the affiliated group of corporations of which MacAndrews & Forbes Holdings or any other
Person is the common parent for purposes of filing a consolidated Federal income tax return (such
cessation, a “Deconsolidation Event”), then the Company or such Subsidiary shall indemnify such
direct or indirect shareholder with respect to any Federal, state or local income, franchise or
other tax liability (including any related interest, additions or penalties) imposed on such
shareholder as the result of an audit or other adjustment with respect to any period prior to such
Deconsolidation Event that is attributable to the Company, such Subsidiary or any predecessor
business thereof (computed as if the Company, such Subsidiary or such predecessor business, as the
case may be, were a stand-alone entity that filed separate tax returns as an independent
corporation), but only to the extent that any such tax liability exceeds any liability for taxes
recorded on the books of the Company or such Subsidiary with respect to any such period).



“Term Loan Administrative Agent” means (a) Citicorp USA, Inc., in its capacity as administrative
agent under the Term Loan Agreement, (b) any successors and assigns thereto or any acting
administrative agent, in each case, as permitted under the Term Loan Agreement, and (c) if there is
no acting Term Loan Administrative Agent, the Required Lenders (as defined in the Term Loan
Agreement).



“Term Loan Agreement” means the Term Loan Agreement dated as of December 20, 2006 among the
Company, Citicorp USA, Inc., as administrative agent and collateral agent, JPMorgan Chase Bank,
N.A., as syndication agent and the Lenders named therein, as amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or otherwise modified from time to
time, and any other Credit Agreement, to the extent that the Company designates any of the
foregoing as a “Term Loan Credit Agreement.”



“Term Loan Claims” means all Term Loan Secured Obligations and all extensions of credit under any
financing, or any arrangement for use of cash collateral, under any Bankruptcy Law extended or
provided to any Loan Party by the Term Loan Lenders.



“Term Loan Collateral” has the meaning set forth in the Intercreditor Agreement; provided,
however, that “Term Loan Collateral” shall not include any Excluded Property; and provided,
further, that if any Excluded Property would have otherwise constituted Term Loan Collateral,
when such property shall cease to be Excluded Property, such property shall be deemed to constitute
Term Loan Collateral.



“Term Loan Lenders” means the Lenders (as defined in the Term Loan Agreement).







29









 







“Term Loan Secured Obligations” means, collectively, (a) the “Payment Obligations” (as defined in
the Term Loan Agreement), (b) the obligations of the Company and the Guarantors under the other
“Loan Documents” (as defined in the Term Loan Agreement), (c) the Term Loan Eligible Obligations
(as defined in the Intercreditor Agreement) and (d) any other obligations that the Company
designates as “Term Loan Secured Obligations” as permitted by this Indenture.



“Term Loan Secured Party” means the Term Loan Administrative Agent and each holder of any Term Loan
Secured Obligations.



“TIA” means the Trust Indenture Act of 1939, as amended, or any successor statute.



“Transactions” means the issuance of the Notes, the amendment of existing Credit Agreements by the
Company in connection therewith, the retirement of the Company’s outstanding 9 1/2% Senior Notes due
2011 and all transactions contemplated by, incident to or related to any of the foregoing.



“Treasury Rate” means the yield to maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) which has become publicly available at least two Business Days prior
to the date fixed for repayment or, in the case of defeasance, prior to the date of deposit (or, if
such Statistical Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the then remaining average life to November 15, 2012; provided,
however, that if the average life to November 15, 2012 is not equal to the constant maturity of
a United States Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from
the weekly yields of United States Treasury securities for which such yields are given, except that
if the average life to November 15, 2012 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year shall
be used.



“Trust Officer” means any officer within the corporate trust department of the Trustee including
any vice president, assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs functions similar to those
performed by the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Indenture.



“Trustee” means U.S. Bank National Association until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor serving hereunder.



“Uniform Commercial Code” means the Uniform Commercial Code as from time to time in effect in the
State of New York; provided, however, that, in the event that, by reason of mandatory
provisions of law, any of the attachment, perfection or priority of the security interests in any
Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the
State of New York, the term “Uniform Commercial Code” shall mean the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions related to such provisions.



“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to
bear the Private Placement Legend.



“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the
Private Placement Legend.







30









 







“U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than
U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two
Business Days prior to such determination. Except as described in Section 4.09 hereof whenever it
is necessary to determine whether the Company has complied with any covenant in this Indenture or a
Default 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 determined as of the date such amount is initially
determined in such currency.



“U.S. Government Obligations” means direct obligations (or certificates representing an ownership
interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable at the issuer’s option.



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



“Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and
normally entitled to vote in the election of directors, managers or trustees thereof.



“Wholly Owned Recourse Subsidiary” means a Subsidiary of the Company (other than a Non-Recourse
Subsidiary) all the Capital Stock of which (other than directors’ qualifying shares) is owned by
(i) the Company, (ii) the Company and one or more Wholly Owned Recourse Subsidiaries or (iii) one
or more Wholly Owned Recourse Subsidiaries.



Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined	 
	 	 	in	 
	Term	 	Section	 
	“Allocable Excess Proceeds”
	 	 	4.10	 
	“Annual Certificate”
	 	 	4.04	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Notice”.
	 	 	4.13	 
	“Covenant Defeasance”
	 	 	8.02	 
	“DTC”
	 	 	2.03	 
	“Default Notice”
	 	 	6.01	 
	“Definitive Note Legend”
	 	 	2.06	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“Funds in Trust”
	 	 	8.03	 
	“Inventory Transaction”
	 	 	4.11	 
	“Legal Defeasance”
	 	 	8.02	 
	“OID Legend”
	 	 	2.06	 
	“Offer Period”
	 	 	4.10	 
	“Paying Agent”
	 	 	2.03	 
	“Permitted Liens”
	 	 	4.12	 
	“Prepayment Offer”
	 	 	4.10	 
	“Repurchase Date”
	 	 	4.10	 
	“Refunding Capital Stock”
	 	 	4.07	 
	“Registrar”
	 	 	2.03	 






31









 






	 	 	 	 	 
	 	 	Defined	 
	 	 	in	 
	Term	 	Section	 
	“Restricted Contribution”
	 	 	4.07	 
	“Restricted Payment”
	 	 	4.07	 
	“Suspended Covenants ”
	 	 	4.19	 





Section 1.03 Incorporation by Reference of Trust Indenture Act.




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



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



     “indenture securities” means the Notes;



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



     “indenture to be qualified” means this Indenture;



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



     “obligor” on the Notes and the Guarantees means the Company and the Guarantors, respectively,
and any successor obligor upon the Notes and the Guarantees, respectively.



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


Section 1.04 Rules of Construction.




     (a) Unless the context otherwise requires:




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




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




     (3) “or” is not exclusive;




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




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




     (6) references to “interest” shall also be deemed to be references to Additional
Interest, unless the context otherwise requires;




     (7) references to laws and statutes shall be deemed to refer to successor laws and
statutes thereto; and



32









 






     (8) references to forms, sections of or rules under the TIA, the Securities Act or the
Exchange Act will be deemed to include substitute, replacement of successor forms, sections
or rules adopted by the Commission from time to time.



     (b) Any subsequent restatement of financial statements shall have no retroactive effect for
purposes of calculations previously made pursuant to the covenants contained in this Indenture.



ARTICLE 2

THE NOTES



Section 2.01 Form and Dating.




     (a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A1 or A2 hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note will be dated the date of its
authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof.



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.



     Initial Notes will be initially sold to (i) QIBs in reliance on Rule 144A and (ii) Non-U.S.
Persons in reliance on Regulation S. Initial Notes may thereafter be transferred to QIBs, IAIs and
other purchasers in reliance on Regulation S, subject to restrictions on transfer set forth herein.



     (b) Global Notes. Subject to Section 2.01(c) hereof, Notes issued in global form will be
substantially in the form of Exhibit A1 hereto (including the Global Note Legend thereon and the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in
definitive form will be substantially in the form of Exhibit A1 hereto (but without the Global Note
Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached
thereto). Each Global Note will represent such of the outstanding Notes as will be specified
therein and each shall provide that it represents the aggregate principal amount of outstanding
Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made
by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.



     (c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S that are
issued in global form will be issued initially in the form of Regulation S Temporary Global Notes
substantially in the form of Exhibit A2, which will be deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of designated agents
holding on behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The Restricted Period with respect to a Regulation S
Temporary Global Note will be terminated upon the receipt by the Trustee of:



33









 






     (1) a written certificate from the Depositary, together with copies of certificates
from Euroclear and Clearstream certifying that they have received certification of
non-United States beneficial ownership of 100% of the aggregate principal amount of such
Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof
who acquired an interest therein during the Restricted Period pursuant to another exemption
from registration under the Securities Act and who will take delivery of a beneficial
ownership interest in a Rule 144A Global Note or an IAI Global Note of the same series
bearing a Private Placement Legend, all as contemplated by Section 2.06(b) hereof); and




     (2) an Officers’ Certificate from the Company.



     Following the termination of the Restricted Period, beneficial interests in the Regulation S
Temporary Global Note will be exchanged for beneficial interests in the Regulation S Permanent
Global Note of the same series pursuant to the Applicable Procedures. Simultaneously with the
authentication of a Regulation S Permanent Global Note, the Trustee will cancel the Regulation S
Temporary Global Note of the same series. The aggregate principal amount of a Regulation S
Temporary Global Note and a Regulation S Permanent Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee,
as the case may be, in connection with transfers of interest as hereinafter provided.



     (d) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will
be applicable to transfers of beneficial interests in the Regulation S Temporary Global Notes and
the Regulation S Permanent Global Notes that are held by Participants through Euroclear or
Clearstream.


Section 2.02 Execution and Authentication.




     One Officer of the Company must sign the Notes by manual or facsimile signature.



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



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



     The Trustee will, upon receipt of a written order of the Company signed by an Officer of the
Company (an “Authentication Order”), authenticate and deliver for original issue Notes that may be
validly issued under this Indenture, including any Additional Notes and at any time from time to
time thereafter as provided for in this Indenture. The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except as provided in
Section 2.07 hereof.



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Indenture Agent to deal with Holders or an
Affiliate of the Company.



34









 




Section 2.03 Registrar and Paying Agent.




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



     The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes. The Company may change any Paying Agent or Registrar without notice
to any Holder.



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


Section 2.04 Paying Agent to Hold Money in Trust.




     The Company will require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest on
the Notes, and will notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay all money held by
it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating
to the Company, the Trustee will serve as Paying Agent for the Notes.


Section 2.05 Holder Lists.




     The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at least
seven Business Days before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA
§ 312(a).


Section 2.06 Transfer and Exchange.




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



35









 






     (1) the Depositary notifies the Company or the Trustee (which notice shall be forwarded
promptly to the other party by the party receiving such notice) (a) that it is unwilling or
unable to continue to act as Depositary for the Global Notes or (b) that it has ceased to be
a clearing agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after such notification;




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; provided that in no event shall the Regulation S Temporary Global
Note be exchanged by the Company for Definitive Notes prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant
to Rule 903(b)(3)(ii)(B) under the Securities Act; or




     (3) there has occurred and is continuing an Event of Default with respect to the Notes.



     Upon the occurrence of either of the preceding events in (1), (2) or (3) above, Definitive
Notes shall be issued in such names as the Depositary shall instruct the Trustee, which Definitive
Notes shall be Restricted Definitive Notes and bear the Private Placement Legend to the extent such
Definitive Notes were issued in respect of beneficial interests in a Restricted Global Note.
Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or
(f) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or
(2) below, as applicable, as well as one or more of the other following subparagraphs, as
applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of beneficial interests in
the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account
or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) hereof, the transferor of such beneficial interest must deliver to the
Registrar either:



36









 






     (A) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and




     (ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or




     (B) both:




     (iii) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged; and




     (iv) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in Section
2.06(b)(1) hereof;




provided that in no event shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the Regulation S Temporary Global
Note prior to (A) the expiration of the Restricted Period and (B) the
receipt by the Registrar of any certificates required pursuant to Rule 903
under the Securities Act.


Upon consummation of a Registered Exchange Offer by the Company in accordance with Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
Notwithstanding anything to the contrary, beneficial interests in a Regulation S Temporary Global
Note may not be exchanged for beneficial interests in any Global Note other than a Regulation S
Temporary Global Note prior to the expiration of the Restricted Period.





     (3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) hereof and the Registrar
receives the following:




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




     (B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Temporary Global Note or the Regulation S Permanent Global Note,



37









 







then the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and




     (C) if the transferee will take delivery in the form of a beneficial interest
in the IAI Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any Holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) hereof and:




     (A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




     (i) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or




     (ii) if the Holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;




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



38









 





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



     Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.



     (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.




     (1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any Holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:




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




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




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




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




     (E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through
(D) above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable;




     (F) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or




     (G) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall






39









 







authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the Holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.





     (2) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred
to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.




     (3) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A Holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Agreement and the Holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




     (i) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or




     (ii) if the Holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;



40









 




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





     (4) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any Holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate
and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) will be registered in such name or names and in
such authorized denomination or denominations as the Holder of such beneficial interest
requests through instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(4) will not bear the Private
Placement Legend.



     (d) Transfer and Exchange of Definitive Notes for Beneficial Interests.




     (1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:




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




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




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




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




     (E) if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through
(D) above, a



41









 







certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable;




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




     (G) if such Restricted Definitive Note is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,




the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased
the aggregate principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case
of clause (C) above, the Regulation S Global Note, and in all other cases, the IAI Global
Note.




     (2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




     (i) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or




     (ii) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the



42









 







Private Placement Legend are no longer required in order to maintain compliance with
the Securities Act and that the Private Placement Legend may be removed from the
Note.




     Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note.




     (3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.




     If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an
Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder must provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this
Section 2.06(e).




     (1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:




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




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




     (C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.




     (2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or



43









 







transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




     (i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or




     (ii) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;




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




     (3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such
a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.



     (f) Registered Exchange Offer. Upon the occurrence of the Registered Exchange Offer in
accordance with the Registration Agreement, the Company will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate:




     (1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Registered Exchange Offer by Persons that certify in the applicable Letters
of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and



44









 






     (2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Registered
Exchange Offer by Persons that certify in the applicable Letters of Transmittal that
(A) they are not Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.



     Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will
execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.



     (g) Legends. The following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions
of this Indenture.




     (1) Private Placement Legend.




     (A) Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:


“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE ONE
YEAR ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER
THAT WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY; (2) SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF
THIS SECURITY); (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY); (4) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN
RULE (501)(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS
ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH
MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND
THE TRUSTEE; (5) PURSUANT TO ANY EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT; OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY
AGREES THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND






45









 







OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER BY IT OF THIS
SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) PURCHASING FROM A PERSON NOT PARTICIPATING IN THE INITIAL
DISTRIBUTION OF THIS SECURITY (OR ANY PREDECESSOR SECURITY), THAT IT IS AN INSTITUTION THAT IS AN
“ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(l), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER
THE SECURITIES ACT.”





Each Definitive Note shall also bear the following additional legend (the
“Definitive Note Legend”):


“IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.”





     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of
this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.




     (2) Global Note Legend. Each Global Note will bear a legend in substantially the
following form:


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS






46









 







MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”





     (3) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note
will bear a legend in substantially the following form:


“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.”





     (4) OID Legend. To the extent required by Section 1275(c)(1)(A) of the Internal
Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1275-3(b)(1), each Note
issued at a discount to its stated redemption price at maturity shall bear a legend (the
“OID Legend”) in substantially the following form (with any necessary amendments thereto to
reflect any amendments occurring after the Issue Date to the applicable sections):


“FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE ISSUER AT 237 PARK
AVENUE, NEW YORK, NEW YORK, 10017, ATTENTION: CHIEF LEGAL OFFICER, AND THE ISSUER WILL PROVIDE YOU
WITH THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO
MATURITY OF THIS NOTE.”




     (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be
returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.



     (i) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.




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



47









 







similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 3.09, 4.10, 4.13 and 9.06 hereof).




     (3) The Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.




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




     (5) Neither the Registrar nor the Company will be required:




     (A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;




     (B) to register the transfer of or to exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or




     (C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.




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




     (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.




     (8) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.




     (9) To the extent that any Notes are issued at a discount to their stated redemption
price at maturity and bear the legend required by Section 2.06(g)(4) hereof, each group of
Notes bearing a given amount of original issue discount shall be treated as a separate
series only for purposes of the transfer and exchange provisions of this Section 2.06.


Section 2.07 Replacement Notes.




     If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue
and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note of
the same series if the Trustee’s requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee
and the Company to



48









 




protect the Company, the Trustee, any Indenture Agent and any authenticating agent from any
loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in
replacing a Note.




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


Section 2.08 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company holds the Note;
however, Notes held by the Company or a Subsidiary of the Company and not cancelled shall not be
deemed to be outstanding for purposes of Section 3.07 hereof.



     If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.



     If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to
be outstanding and interest on it ceases to accrue.



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


Section 2.09 Treasury Notes.




     In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any such direction,
waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned
will be so disregarded.


Section 2.10 Temporary Notes.




     Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary
Notes will be substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate
definitive Notes of the same series in exchange for temporary Notes.



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


Section 2.11 Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer,



49









 




exchange or payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will dispose of such
canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of
the disposal of all canceled Notes will be delivered to the Company upon its request. The Company
may not issue new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.



Section 2.12 Defaulted Interest.




     If the Company defaults in a payment of interest on any series of the Notes, it will pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special record date, in each
case at the rate provided in such Notes and in Section 4.01 hereof. The Company will notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on each such Note and
the date of the proposed payment. The Company will fix or cause to be fixed each such special
record date and payment date; provided that no such special record date may be less than 10 days
prior to the related payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the Trustee in the name and
at the expense of the Company) will mail or cause to be mailed to Holders of such Notes a notice
that states the special record date, the related payment date and the amount of such interest to be
paid.


Section 2.13 CUSIP Numbers.




     The Company in issuing the Notes may use “CUSIP” numbers, “ISIN” or “Common Code” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Notes or as contained in any notice
of a redemption and that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP”
numbers, “ISIN” or “Common Code” numbers.



ARTICLE 3

REDEMPTION AND PREPAYMENT



Section 3.01 Notices to Trustee.




     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days
before a redemption date, an Officers’ Certificate of the Company (except that such Officers’
Certificate may be furnished more than 60 days prior to a redemption date if it is issued in
connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture
pursuant to Article 8 or 11 hereof) setting forth:




     (1) the clause of this Indenture pursuant to which the redemption shall occur;




     (2) the redemption date;




     (3) the principal amount of Notes to be redeemed; and




     (4) the redemption price.



50









 




Section 3.02 Selection of Notes to Be Redeemed or Purchased.




     If less than all of the Notes of a series are to be redeemed at any time, the Trustee will
select such Notes for redemption pro rata or by such other method as is applied by the Depositary
to the extent practicable unless otherwise required by law or applicable stock exchange
requirements.



     In the event of partial redemption or purchase by lot, the particular Notes of the series to
be redeemed or purchased will be selected, unless otherwise provided herein, not less than 30 nor
more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding
Notes not previously called for redemption or purchase.



     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in
minimum amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the
Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of such Notes held
by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as
provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for redemption or purchase.


Section 3.03 Notice of Redemption.




     Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days
before a redemption date, the Company will mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 11 hereof.



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




     (1) the redemption date;




     (2) the redemption price;




     (3) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes of the same series in principal amount equal to the unredeemed portion will be
issued upon cancellation of the original Note;




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




     (5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;




     (6) that, unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;




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



51









 






     (8) the “CUSIP” number, “ISIN” or “Common Code” number, if any, listed on such notice
or printed on such Notes; and




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



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company has delivered to the Trustee, at
least 45 days (or such shorter period as may be agreed by the Trustee) prior to the redemption
date, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.


Section 3.04 Effect of Notice of Redemption.




     Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.


Section 3.05 Deposit of Redemption or Purchase Price.




     Prior to 12:00 p.m. Central Standard Time on the redemption or purchase date or prior to the
redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption or purchase price of and accrued interest on all Notes to be
redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to
be redeemed or purchased.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is not so paid upon
surrender for redemption or purchase because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase date until such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.


Section 3.06 Notes Redeemed or Purchased in Part.




     Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and,
upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company a new Note of the same series equal in principal amount to the unredeemed or
unpurchased portion of the Note surrendered.


Section 3.07 Optional Redemption.




     (a) At any time prior to November 15, 2012, the Company may, from time to time, redeem up to
35% of the aggregate principal amount of the Notes and any Additional Notes with, and to the extent
the Company actually receives, the net proceeds of one or more Equity Offerings from time to time,
at 109.750% of the principal amount thereof, plus accrued interest to the date of redemption;



52









 







provided, however, that at least 65% of the aggregate principal amount of the Notes
must remain outstanding after each such redemption.



     (b) Except pursuant to Section 3.07(a) hereof and Section 3.07(e) hereof, the Notes will not
be redeemable at the Company’s option prior to November 15, 2012.



     (c) On and after November 15, 2012, the Notes may be redeemed at the option of the Company, at
any time as a whole, or from time to time in part, at the following redemption prices (expressed as
percentages of principal amount), plus accrued interest to the date of redemption, if redeemed
during the 12-month period beginning on November 15 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	104.875	%
	2013
	 	 	102.438	%
	2014
	 	 	100.000	%






     (d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.




     (e) At any time or from time to time prior to November 15, 2012, the Company may, at any time
or from time to time, redeem the Notes as a whole or in part, at a redemption price per Note equal
to the sum of (1) the then outstanding principal amount thereof, plus (2) accrued and unpaid
interest (if any) to the date of redemption, plus (3) the Applicable Premium.


Section 3.08 Mandatory Redemption.

     The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.



ARTICLE 4

COVENANTS



Section 4.01 Payment of Notes.




     The Company will pay or cause to be paid the principal of, premium, if any, and interest on,
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest will be considered paid on the date due if the Paying Agent, if other than the Company or
a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due.



     The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the
Notes to the extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.



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Section 4.02 Maintenance of Office or Agency.




     The Company will maintain an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Company fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.



     The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03 hereof.


Section 4.03 Commission Reports.




     (a) Whether or not required by the rules and regulations of the Commission, so long as any
Notes are outstanding, the Company will furnish to the Trustee within the time periods specified in
the Commission’s rules and regulations:




     (1) all quarterly and annual reports that would be required to be filed or furnished
with the Commission on Forms 10-Q and 10-K if the Company were required to file or furnish
such reports; and




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



     All such reports will be prepared in all material respects in accordance with all of the rules
and regulations applicable to such reports. Each annual report on Form 10-K will include a report
on the Company’s consolidated financial statements by the Company’s certified independent
accountants. In addition, following the consummation of the Registered Exchange Offer, the Company
will file or furnish, as applicable, a copy of each of the reports referred to in clauses (1) and
(2) above with the Commission for public availability within the time periods specified in the
rules and regulations (including Rules 12b-25 and 12h-5 under the Exchange Act) applicable to such
reports (unless the Commission will not accept such a filing). If, at any time after consummation
of the Registered Exchange Offer, the Company is no longer subject to the periodic reporting
requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the
reports specified in the preceding paragraphs of this Section 4.03(a) with the Commission within
the time periods specified above unless the Commission will not accept such a filing (in which case
the Company shall post such reports on a publicly available portion of its website). The Company
will not take any action for the purpose of causing the Commission not to accept any such filings.



     (b) For so long as any Notes remain outstanding, if at any time the Company is not required to
file with the Commission the reports required by Section 4.03(a) hereof, it will furnish to the
Holders of Notes and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.



54









 





     (c) If at any time the Notes are guaranteed by a direct or indirect parent of the Company, and
such company has complied with the reporting requirements of Section 13 or 15(d) of the Exchange
Act, if applicable, and has filed with the Commission, the reports described herein with respect to
such company, as applicable (including any financial information required by Regulation S-X under
the Securities Act), the Company shall be deemed to be in compliance with the provisions of this
Section 4.03.



     (d) Any information filed with, or furnished to, the Commission shall be deemed to have been
made available to the Trustee in accordance with this Section 4.03. The subsequent filing or
making available of any report required by this Section 4.03 shall be deemed automatically to cure
any Default or Event of Default resulting from the failure to file or make available such report
within the required time frame.



     (e) Notwithstanding the foregoing, the requirements set forth in this Section 4.03 shall be
deemed satisfied prior to the commencement of the Registered Exchange Offer or the effectiveness of
the shelf registration statement contemplated by the Registration Agreement by the filing with the
Commission of the registration statement for such Registered Exchange Offer or the shelf
registration statement contemplated by the Registration Agreement, and any amendments thereto, with
such financial information that satisfies Regulation S-X of the Securities Act.


Section 4.04 Compliance Certificate.




     (a) The Company shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Company an Officers’ Certificate (the “Annual Certificate”), stating that in the course of
the performance by the signers of their duties as Officers of the Company they would normally have
knowledge of any Default by the Company and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the Default, its status
and what action the Company is taking or proposes to take with respect thereto.



     (b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
within 30 days of any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.


Section 4.05 Taxes.




     The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment would not reasonably be
expected to result in a material adverse effect on the business, assets, operations or financial
condition of the Company and its Subsidiaries taken as a whole or the ability of the Company and
the Guarantors (taken as a whole) to perform their obligations under this Indenture or the rights
of, or remedies available to the Trustee or the Holders under, this Indenture.


Section 4.06 Stay, Extension and Usury Laws.




     The Company and each of the Guarantors covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of



55









 




any such law, and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.



Section 4.07 Limitation on Restricted Payments.




     (a) The Company shall not, and shall not permit any Subsidiary of the Company (other than a
Non-Recourse Subsidiary) to, directly or indirectly, (i) declare or pay any dividend or make any
distribution on or in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) or to the holders of its Capital Stock (except
dividends or distributions payable solely in its Non-Convertible Capital Stock or in options,
warrants or other rights to purchase its Non-Convertible Capital Stock and except dividends or
distributions payable to the Company or a Subsidiary of the Company and, if a Subsidiary of the
Company is not wholly owned, to its equity holders as a whole, in accordance with their holdings),
(ii) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company,
(iii) purchase, repurchase, redeem, defease or otherwise acquire or retire for value prior to any
scheduled maturity, scheduled repayment or scheduled sinking fund payment, the principal amount of
any Subordinated Obligations, other than (x) Subordinated Obligations with respect to Debt
permitted under Section 4.09(b)(3) hereof or (y) the purchase, repurchase, redemption, defeasance,
other acquisition or redemption for value of the principal amount of any Subordinated Obligations
(other than Non-Contributed Existing Subordinated Loans) in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due within one year of the
date of purchase, repurchase, redemption or acquisition, (iv) purchase, repurchase, redeem, defease
or otherwise acquire or retire for value at any time (including at scheduled maturity) the
principal amount of any Non-Contributed Existing Subordinated Loan, or (v) make any Investment,
other than a Permitted Investment (any such dividend, distribution, purchase, redemption,
repurchase, defeasance, other acquisition, retirement or Investment being herein referred to as a
“Restricted Payment”), if at the time the Company or such Subsidiary makes such Restricted Payment
and after giving effect thereto (the Fair Market Value of any such Restricted Payment, if other
than in cash, shall be determined in accordance with the provisions herein):




     (1) a Default shall have occurred and be continuing (after giving effect to such
Restricted Payment);


     (2) the Company is not able to incur $1.00 of additional Debt in accordance with the
provisions of Section 4.09(a) hereof; or


     (3)
the aggregate amount of such Restricted Payment and all other Restricted Payments,
without duplication, after the Issue Date would exceed the sum of:


          (A) 50% of the Consolidated Net Income of the Company accrued during the period
(treated as one accounting period) from October 1, 2009, to the end of the most recent
fiscal quarter for which financial statements are available (or, in case such Consolidated
Net Income shall be a deficit, minus 100% of such deficit);


          (B) the aggregate Net Cash Proceeds and the Fair Market Value of marketable securities
or other property received by the Company from the Issue or sale of its Capital Stock (other
than Redeemable Stock, Exchangeable Stock or Designated Preferred Stock) subsequent to the
Issue Date (other than an Issuance or sale to a Subsidiary of the Company or an employee
stock ownership plan or other trust established by the Company or any Subsidiary for the
benefit of their employees);



56








 





          (C) the aggregate Net Cash Proceeds and the Fair Market Value of marketable securities
or other property received by the Company from the Issue or sale of its Capital Stock (other
than Redeemable Stock, Exchangeable Stock or Designated Preferred Stock) to an employee
stock ownership plan subsequent to the Issue Date; provided, however, that if such
employee stock ownership plan Issues any Debt, such aggregate amount shall be limited to an
amount equal to any increase in the Consolidated Net Worth of the Company resulting from
principal repayments made by such employee stock ownership plan with respect to Debt
incurred by it to finance the purchase of such Capital Stock;




          (D) the amount by which Debt of the Company is reduced on the Company’s balance sheet
upon the conversion or exchange (other than by a Subsidiary) subsequent to the Issue Date of
any Debt of the Company convertible or exchangeable for Capital Stock (other than Redeemable
Stock or Exchangeable Stock) of the Company (less the amount of any cash, or other property,
distributed by the Company upon such conversion or exchange);




          (E) the aggregate net cash proceeds and the Fair Market Value of marketable securities
or other property received by the Company subsequent to the Issue Date as capital
contributions (which shall not be deemed to include any net cash proceeds received in
connection with (i) the issuance of any Qualified Affiliate Debt, and (ii) any contribution
designated at the time it is made as a restricted contribution (a “Restricted
Contribution”));




          (F) to the extent that an Investment made by the Company or a Subsidiary subsequent to
the Issue Date has theretofore been included in the calculation of the amount of Restricted
Payments, the aggregate cash proceeds and the Fair Market Value of marketable securities or
other property received by means of (A) the sale or other disposition (other than to the
Company or a Subsidiary of the Company that is not a Non-Recourse Subsidiary) of such
Investments, or any repayments, repurchases or redemptions of such Investments or (B) the
sale (other than to the Company or a Subsidiary of the Company that is not a Non-Recourse
Subsidiary) of the Capital Stock of a Non-Recourse Subsidiary or a distribution from a
Non-Recourse Subsidiary (other than in each case to the extent the Investment in such
Non-Recourse Subsidiary was made by the Company or a Subsidiary of the Company that is not a
Non-Recourse Subsidiary) of the Capital Stock of a Non-Recourse Subsidiary or a distribution
from a Non-Recourse Subsidiary (other than in each case to the extent the Investment in such
Non-Recourse Subsidiary was made by the Company or a Subsidiary of the Company that is not a
Non-Recourse Subsidiary pursuant to Section 4.07(b)(xi) hereof or to the extent such
Investment constituted a Permitted Investment) or a dividend from a Non-Recourse Subsidiary;
and




          (G) in the case a Subsidiary of the Company ceases to be a Non-Recourse Subsidiary (but
remains a Subsidiary) after the Issue Date, the Fair Market Value of the Investment in such
Non-Recourse Subsidiary, to the extent the Investment in such Non-Recourse Subsidiary was
made by the Company or a Subsidiary (other than a Non-Recourse Subsidiary) pursuant to
Section 4.07(b)(xi) hereof or to the extent such Investment constituted a Permitted
Investment.



     Notwithstanding the foregoing, the Company may take actions to make a Restricted Payment in
anticipation of the occurrence of any of the events described in Section 4.07(a) hereof or Section
4.07(b) hereof; provided, however, that the making of such Restricted Payment shall be
conditional upon the occurrence of such event. For the purposes of this Section 4.07, an
Investment shall be measured as of the date it is made and without giving effect to subsequent
changes in value.



57









 





     (b) Section 4.07(a) hereof will not prohibit the following:




     (i) any Restricted Payment made by exchange for, or in an amount equal to the proceeds
of an Issue or sale of, Capital Stock of the Company (other than Redeemable Stock or
Exchangeable Stock and other than Capital Stock issued or sold to a Subsidiary or an
employee stock ownership plan) (“Refunding Capital Stock”) or of a cash capital contribution
to the Company, in each case, occurring within 60 days of such Restricted Payment,
provided, however, that (x) such Restricted Payment shall be excluded in the
calculation of the amount of Restricted Payments and (y) the Net Cash Proceeds from such
sale shall be excluded from clauses (3)(B), (3)(C) and 3(E) of Section 4.07(a) hereof;




     (ii) any purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value of (A) Subordinated Obligations of the Company or a Subsidiary
Guarantor made by exchange for, or out of the proceeds of a sale of, Debt Issued pursuant to
Section 4.09(b)(5) hereof or other Subordinated Obligations or (B) Existing Subordinated
Loans by exchange for or out of the proceeds of Refinancing Debt permitted to be incurred
under Section 4.09(b)(18) hereof, in each case, occurring within 60 days of such purchase,
redemption, defeasance or other acquisition or retirement for value; provided,
however, that any such purchase, repurchase, redemption, defeasance or other acquisition
or retirement for value shall be excluded in the calculation of the amount of Restricted
Payments;




     (iii) dividends, distributions or the consummation of any irrevocable redemption paid
within 60 days after the date of declaration of the dividend, distribution or the giving of
the redemption notice, or Restricted Payments made within 60 days after the making of a
binding commitment in respect thereof, if at such date of declaration or of such commitment
such dividend, distribution, redemption notice or other Restricted Payment would have
complied with paragraph (a); provided, however, that at the time of payment of such
dividend or the making of such Restricted Payment, no Event of Default shall have occurred
and be continuing after giving effect to such payment; provided, further, however,
that such dividend or other Restricted Payment shall be included in the calculation of the
amount of Restricted Payments;




     (iv) so long as no Default has occurred and is continuing after giving effect to such
transactions: (A) amounts paid or property transferred pursuant to the Permitted
Transactions and (B) dividends or distributions, redemptions of Capital Stock and other
Restricted Payments in an aggregate amount not to exceed the sum of all Restricted
Contributions; provided, however, that such amounts paid, property transferred,
dividends, distributions, redemptions and Restricted Payments shall be excluded in the
calculation of the amount of Restricted Payments;




     (v) Restricted Payments in an aggregate amount not to exceed $5.0 million per annum
from the Issue Date (net of any applicable cash exercise price actually received by the
Company) made from time to time to purchase, redeem, acquire or retire for value any Capital
Stock of the Company or Parent held by, or any Restricted Payments made to, any future,
current or former director, officer, manager, consultant or employee of the Company or
Parent or any Subsidiary of the Company (other than a Non-Recourse Subsidiary) or their
estates or the beneficiaries of their estates; provided, however, that amounts
available pursuant to this clause (v) to be utilized for Restricted Payments during any such
year may be carried forward and utilized in any succeeding year; provided, further,
however, that such amounts paid under this clause (v) shall be excluded in the
calculation of the amount of Restricted Payments;




     (vi) any purchase, repurchase, redemption, defeasance or other acquisition by any
Non-Recourse Subsidiary of Non-Recourse Debt of such Non-Recourse Subsidiary; provided,



58









 







however, that the amount of such purchase, repurchase, redemption, defeasance
or other acquisition shall be excluded in the calculation of the amount of Restricted
Payments;




     (vii) any purchase of any other Subordinated Obligations pursuant to an option given to
a holder of such Subordinated Obligations pursuant to a “Change of Control” or “Limitation
on Asset Sales” covenant which is not materially more favorable taken as a whole to the
holders of such Subordinated Obligations than the provisions of Sections 4.10 or 4.13
hereof, respectively, are to holders as determined in good faith by an Officer of the
Company, the determination of which shall be evidenced by an Officers’ Certificate;
provided, however, that no such purchases shall be permitted prior to the time when
the Company shall have purchased all Notes tendered for purchase and not withdrawn by
holders electing to have their Notes purchased pursuant to the provisions of Sections 4.10
or 4.13 hereof; provided, further, however, that such purchases shall be excluded
from the calculation of Restricted Payments;




     (viii) the declaration and payment of dividends by the Company to, or the making of
loans by the Company to, its Parent in amounts required for the Parent to pay:




     (A) actual expenses, other than those paid to Affiliates of the Company,
incidental to being a publicly reporting company;




     (B) (without duplication for amounts paid pursuant to Section 4.07(b)(iv)(A)
hereof) so long as the Company is a member of a consolidated, combined, unitary or
similar group with the Parent for U.S. federal, state or local income tax purposes,
(1) federal, state and local income taxes incurred by such parent companies, but
only to the extent such income taxes are attributable to the income of the Company
and the Subsidiaries (other than Non-Recourse Subsidiaries), provided that
in each case the amount of such payments with respect to any fiscal year does not
exceed the amount that the Company and the Subsidiaries (other than Non-Recourse
Subsidiaries) would have been required to pay in respect of such income taxes for
such fiscal year were the Company and its Subsidiaries (other than Non-Recourse
Subsidiaries) a consolidated or combined group of which the Company was the common
parent, and (2) amounts required to pay federal, state and local income taxes to the
extent attributable to the income of the Non-Recourse Subsidiaries, if any, but only
to the extent of the amount actually received by the Company from such Non-Recourse
Subsidiaries; and




     (C) reasonable fees and expenses incurred in connection with any successful or
unsuccessful debt or equity offering or any successful or unsuccessful acquisition
or strategic transaction by the Parent;




provided, however, that such amounts paid shall be excluded in the calculation of
the amount of Restricted Payments;




     (ix) so long as no Default shall have occurred and be continuing (after giving effect
thereto), other Restricted Payments in an amount which, when taken together with all other
Restricted Payments made pursuant to this clause (ix) and then outstanding, does not exceed
$20.0 million; provided, however, that such amounts shall be excluded in the
calculation of the amount of Restricted Payments;




     (x) repurchases of Capital Stock deemed to occur upon the exercise of stock options or
warrants if such Capital Stock represents a portion of the exercise price of such options or



59









 







warrants; provided, however, that such amounts shall be excluded in the
calculation of the amount of Restricted Payments;




     (xi) Investments in Non-Recourse Subsidiaries, having an aggregate Fair Market Value,
taken together with all other Investments made pursuant to this clause (xi) that are at the
time outstanding, without giving effect to the sale of a Non-Recourse Subsidiary to the
extent the proceeds of such sale do not consist of cash or marketable securities, not to
exceed the greater of (x) $20.0 million and (y) 2.0% of Consolidated Total Assets at the
time of such Investment, net of the cash return received after the Issue Date as a result of
any sale for cash, repayment, redemption, liquidation, distribution or other cash
realization (not included in Consolidated Net Income), not to exceed the amount of such
Investments after the Issue Date; provided, however, that such amounts shall be
excluded in the calculation of the amount of Restricted Payments;




     (xii) payments of Receivables Fees other than to a Parent; provided, however,
that such amounts shall be excluded in the calculation of the amount of Restricted Payments;




     (xiii) the distribution, as a dividend or otherwise (and the declaration of such
dividend) of shares of Capital Stock of, or Debt owed to the Company or any Subsidiary
(other than a Non-Recourse Subsidiary) by a Non-Recourse Subsidiary; provided,
however, that such amounts shall be excluded in the calculation of the amount of
Restricted Payments;




     (xiv) so long as no Default has occurred and is continuing (after giving effect
thereto), additional Restricted Payments to a Parent or any Affiliate of the Company,
whether in respect of management fees or otherwise, in an aggregate amount not to exceed
$5.0 million in any fiscal year; provided, that the Company may carry over and pay
in any subsequent fiscal year, in addition to the amounts permitted for such fiscal year,
any portion of the amounts otherwise permitted for prior fiscal years to be paid pursuant to
this clause (xiv) that were not in fact paid; provided, further, however, that such
amounts shall be excluded in the calculation of the amount of Restricted Payments;




     (xv) so long as no Default has occurred and is continuing (after giving effect to such
transaction), dividends paid on the Company’s common Capital Stock (or the payment of
dividends to any direct or indirect parent of the Company to fund the payment by such Parent
of the Company of dividends on such entity’s common Capital Stock) of up to 6.0% per annum
of the Net Cash Proceeds received by or contributed to the Company from any public offering
of Capital Stock after the Issue Date, other than public offerings with respect to Capital
Stock of the Company or any Parent registered on Form S-4 or Form S-8 and other than any
public sale constituting a Restricted Contribution; provided, however, that such
dividend or other Restricted Payment shall be included in the calculation of the amount of
Restricted Payments;




     (xvi) any “deemed dividend” for accounting purposes resulting from, or in connection
with the filing of a consolidated or combined federal income tax return by any Parent or any
direct or indirect parent or Subsidiary of any Parent (and not involving any cash
distribution from the Company except as permitted by a Tax Sharing Agreement); provided,
however, that such amounts shall be excluded in the calculation of the amount of
Restricted Payments;




     (xvii) (A) the declaration and payment of dividends to holders of any class or series
of Designated Preferred Stock (other than Redeemable Stock or Exchangeable Stock) issued by
the Company after the Issue Date; (B) the declaration and payment of dividends to a Parent,
the proceeds of which will be used to fund the payment of dividends to holders of any class
or series of Designated Preferred Stock (other than Redeemable Stock or Exchangeable Stock)
of such



60









 







parent company issued after the Issue Date; provided that the aggregate amount
of dividends paid pursuant to clauses (A) and (B) shall not exceed the aggregate amount of
cash actually contributed to the Company from the sale of such Designated Preferred Stock;
provided, however, in the case of each of (A) and (B) of this clause (xvii), that
for the most recently ended four full fiscal quarters for which financial statements are
available immediately preceding the date of issuance of such Designated Preferred Stock,
after giving effect to such issuance on a Pro Forma basis, the Company would have had a
Consolidated EBITDA Coverage Ratio of at least 2.00 to 1.00; provided, however, that
such amounts specified in (A) and (B) above shall be excluded in the calculation of the
amount of Restricted Payments;




     (xviii) (A) the declaration and payment of dividends to holders of any class or series
of Redeemable Stock or Exchangeable Stock of the Company or any Subsidiary or Preferred
Stock of any Subsidiary issued in accordance with Section 4.09 hereof to the extent such
dividends are included in the definition of Consolidated Interest Expense and (B) payment of
any redemption price or liquidation value of any such Redeemable Stock, Exchangeable Stock
or Preferred Stock when due in accordance with its terms; provided, however, that
such amounts shall be excluded in the calculation of the amount of Restricted Payments; and




     (xix) any purchase, repurchase, redemption, other acquisition, payment or prepayment in
respect of the Contributed Existing Subordinated Loans; provided, however, that such
amounts shall be excluded in the calculation of the amount of Restricted Payments.



     (c) For purposes of determining compliance with this Section 4.07, in the event that a
proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the
categories of Restricted Payments described in Section 4.07(b)(i) through (b)(xix) hereof, or is
entitled to be incurred pursuant to Section 4.07(a) hereof, the Company will be entitled to
classify or re-classify such Restricted Payment (or portion thereof) based on circumstances
existing on the date of such reclassification in any manner that complies with this Section 4.07
and such Restricted Payment will be treated as having been made pursuant to only such clause or
clauses in Section 4.07(b) hereof or Section 4.07(a) hereof.



Section 4.08 Limitation on Restrictions on Distributions from Subsidiaries




     (a) The Company shall not, and shall not permit any Subsidiary of the Company that is not a
Subsidiary Guarantor to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Subsidiary of the Company that is not a
Subsidiary Guarantor to (i) pay dividends or make any other distributions on its Capital Stock to
the Company (it being understood that the priority of any Preferred Stock in receiving dividends or
liquidating distributions prior to dividends or liquidating distributions being paid on common
stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(ii) pay any Debt owed to the Company or to a Subsidiary Guarantor or (iii) transfer any of its
property or assets to the Company.



     (b) Section 4.08(a) hereof will not prohibit the following:




     (1) any encumbrance or restriction in effect at or entered into on the Issue Date,
including pursuant to the Credit Agreements, the Indenture Documents, the Security
Documents, the Intercreditor Agreement, any agreement entered into pursuant thereto, any
Hedging Obligation or any other agreement;




     (2) any encumbrance or restriction with respect to a Subsidiary of the Company pursuant
to an agreement relating to any Debt Issued by such Subsidiary or pursuant to an agreement
or instrument governing the Capital Stock of such Subsidiary on or prior to the date on



61









 







which such Subsidiary was acquired by the Company (other than Debt Issued as
consideration in, or to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions pursuant to which such
Subsidiary became a Subsidiary of the Company or was acquired by the Company) and
outstanding on such date;




     (3) any encumbrance or restriction pursuant to an agreement effecting an Issuance of
Debt; provided, however, that any such encumbrance or restriction with respect to
any Subsidiary is no less favorable to the holders of Notes than the least favorable of the
encumbrances and restrictions with respect to such Subsidiary contained in the agreements
referred to in clause (1) or (2) above, as determined in good faith by an Officer of the
Company, the determination of which shall be evidenced by an Officers’ Certificate;




     (4) any such encumbrance or restriction consisting of customary nonassignment
provisions in leases, contracts and licenses;




     (5) encumbrances or restrictions contained in (i) agreements governing Liens permitted
to be incurred under the provisions of Section 4.12 hereof, and (ii) provisions limiting the
disposition or distribution of assets or property in joint venture agreements, asset sale
agreements, stock sale agreements and other similar agreements, which limitation is in each
case applicable only to the assets or interests that are the subject of such agreements but
which may include customary restrictions with respect to a Subsidiary pursuant to an
agreement that has been entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of such Subsidiary;




     (6) any encumbrance or restriction binding on a Foreign Subsidiary contained in an
agreement pursuant to which such Foreign Subsidiary has Issued Debt permitted under Section
4.09 hereof;




     (7) any encumbrance or restriction relating to a Non-Recourse Subsidiary;




     (8) purchase money obligations for property acquired in the ordinary course of business
and Capital Lease Obligations that impose restrictions of the nature discussed in Section
4.08(a)(iii) hereof on the property so acquired;




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




     (10) restrictions created in connection with any Receivables Facility; provided
that in the case of Receivables Facilities established after the Issue Date, such
restrictions are necessary or advisable, in the good faith determination of the Company, to
effect such Receivables Facility;




     (11) restrictions or conditions contained in any trading, netting, operating,
construction, service, supply, purchase or other agreement to which the Company or any of
its Subsidiaries (other than a Non-Recourse Subsidiary) is a party entered into in the
ordinary course of business; provided that such agreement prohibits the encumbrance
of solely the property or assets of the Company or such Subsidiary that are the subject of
such agreement, the payment rights arising thereunder or the proceeds thereof and does not
extend to any other asset or property of the Company or such Subsidiary or the assets or
property of any other Subsidiary of the Company (other than a Non-Recourse Subsidiary);



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     (12) any instrument governing any Debt or Capital Stock of a Person that is a
Non-Recourse Subsidiary as in effect on the date that such Person becomes a Subsidiary that
is not a Non-Recourse Subsidiary, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person who became a
Subsidiary that is not a Non-Recourse Subsidiary, or the property or assets of the Person
who became a Subsidiary that is not a Non-Recourse Subsidiary; provided that, in the
case of Debt, the incurrence of such Debt as a result of such Person becoming a Subsidiary
that is not a Non-Recourse Subsidiary was permitted by the terms of this Indenture; and




     (13) any encumbrances or restrictions of the type referred to in Sections 4.08(a)(i),
(ii) and (iii) hereof imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (12) above; provided
that such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of the Company, not
materially more restrictive, taken as a whole, with respect to such encumbrance and other
restrictions than those prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing; provided, further, that
with respect to contracts, instruments or obligations existing on the Issue Date, any
amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are in the good faith judgment of the Company not materially
more restrictive, taken as a whole, with respect to such encumbrances and other restrictions
than those contained in such contracts, instruments or obligations as in effect on the Issue
Date.


Section 4.09 Limitation on Debt.




     (a) The Company shall not, and shall not permit any Subsidiary of the Company to, Issue,
directly or indirectly, any Debt; provided, however, that the Company and any Subsidiary of
the Company shall be permitted to Issue Debt if, at the time of such Issuance, the Consolidated
EBITDA Coverage Ratio for the period of the most recently completed four consecutive fiscal
quarters for which financial statements are available exceeds the ratio of 2.0 to 1.0;
provided, further, that the amount of Debt that may be Issued pursuant to the foregoing by
Subsidiaries (other than Non-Recourse Subsidiaries) that are not Subsidiary Guarantors shall not
exceed $125.0 million at any one time outstanding.



     (b) Notwithstanding the foregoing, the Company and its Subsidiaries may Issue the following
Debt:




     (1) Debt, including Refinancing Debt, Issued pursuant to the Credit Agreements or
otherwise in an aggregate principal amount, measured on the date of such issuance, which,
when taken together with all other Debt Issued pursuant to this clause (1) and then
outstanding, does not exceed the greater of (A) $1,100.0 million plus any Refinancing Costs
less the sum of all principal payments with respect to such Debt (other than the Revolving
Credit Facility) that are made pursuant to the proviso to Section 4.10(b)(i) hereof and
(B) 3.5 times Pro Forma EBITDA for the period of the most recently completed four
consecutive fiscal quarters for which financial statements are available;




     (2) Debt (other than Debt described in Section 4.09(b)(1) hereof), including
Refinancing Debt, in respect of the undrawn portion of the face amount of or unpaid
reimbursement obligations in respect of letters of credit for the account of the Company or
any of the Subsidiaries in an aggregate amount at any time outstanding not to exceed the
excess of



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(i) $150.0 million over (ii) the undrawn portion of the face amount of or unpaid
reimbursement obligations in respect of letters of credit Issued under the Credit Agreements
or any Refinancing thereof or any other credit agreement, indenture or other agreement
pursuant to clause (1) above;




     (3) Debt of the Company Issued to and held by a Subsidiary of the Company (other than a
Non-Recourse Subsidiary) and Debt of a Subsidiary of the Company Issued to and held by the
Company or a Subsidiary of the Company (other than a Non-Recourse Subsidiary); provided,
however, that (i) any subsequent Issuance or transfer of any Capital Stock that results
in any such Subsidiary ceasing to be a Subsidiary of the Company or any subsequent transfer
of such Debt (other than to the Company or a Subsidiary of the Company ((other than a
Non-Recourse Subsidiary)) will be deemed, in each case, to constitute the Issuance of such
Debt by the Company or of such Debt by such Subsidiary, and (ii) in the case of such Debt
issued by the Company or a Subsidiary Guarantor to a Subsidiary of the Company (other than a
Non-Recourse Subsidiary) that is not a Subsidiary Guarantor, such Debt is subordinated to
the Subsidiary Guarantee of such Subsidiary Guarantor;




     (4) the Notes (other than Additional Notes), the Exchange Notes and Debt of the Company
Issued to Refinance any Debt permitted by this clause (4); provided, however, that,
in the case of a Refinancing, the proceeds of any such Refinancing Debt, net of any
underwriting discounts or Permitted OID, do not exceed the principal amount of the Debt so
Refinanced plus any Refinancing Costs thereof;




     (5) Subordinated Obligations not to exceed $110.0 million at any one time outstanding;




     (6) Debt (other than Debt described in clause (1), (4), (5) or (18) of this Section
4.09(b)) of the Company or any of its Subsidiaries outstanding on the Issue Date and Debt
Issued to Refinance any Debt permitted by this clause (6), or Section 4.09(a) hereof;




     (7) Debt (including Capital Lease Obligations) Issued to finance or reimburse the cost
of the acquisition, development, construction, purchase, lease, repair, addition or
improvement of property (real or personal), equipment or other fixed or capital assets used
or useful in a Permitted Business, whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets (which Debt may be Issued at any time within
365 days of such acquisition, development, construction, purchase, lease, repair, addition
or improvement), and Debt Issued to Refinance such Debt, in an amount, measured on the date
of such Issuance which, when taken together with all other Debt Issued pursuant to this
clause (7) and then outstanding, does not exceed the sum of (A) the greater of (x) 10% of
Consolidated Total Assets at the time of such Issuance and (y) 10% of Consolidated Total
Assets as of the Issue Date, plus (B) as of December 31, 2009, $7.5 million, plus for each
period of twelve consecutive months ending on any December 31 thereafter, $7.5 million, plus
any Refinancing Costs; provided, however, that any such amounts which are available
to be utilized during any such twelve month period and are not so utilized may be utilized
during any succeeding period;




     (8) Debt of a Subsidiary of the Company Issued and outstanding on or prior to the date
on which such Subsidiary was acquired by the Company (other than Debt Issued as
consideration in, or to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions pursuant to which such
Subsidiary became a Subsidiary of the Company or was acquired by the Company), and Debt
Issued to Refinance such Debt; provided, however, that on the date of such
acquisition and after giving Pro Forma effect thereto, the Consolidated EBITDA Coverage
Ratio for the period of the most



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recently completed four consecutive fiscal quarters for which financial statements are
available shall be equal to or greater than the Consolidated EBITDA Coverage Ratio for such
period without giving Pro Forma effect to such acquisition;




     (9) Non-Recourse Debt of a Non-Recourse Subsidiary; provided, however, that if
any such Debt thereafter ceases to be Non-Recourse Debt of a Non-Recourse Subsidiary, then
such event will be deemed for the purposes of this Section 4.09 hereof to constitute the
Issuance of such Debt by the issuer thereof;




     (10) Qualified Affiliate Debt;




     (11) Debt of Foreign Subsidiaries in an aggregate principal amount at the time of
Issuance which, when taken together with all other Debt issued by Foreign Subsidiaries
pursuant to this clause (11) and then outstanding, does not exceed the greater of
(x) $60.0 million or (y) 7.5% of Consolidated Total Assets;




     (12) Debt incurred by the Company or any Subsidiary constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of business,
including letters of credit in respect of workers’ compensation claims, or other Debt with
respect to reimbursement type obligations regarding workers’ compensation claims,
self-insurance obligations and bankers’ acceptances in the ordinary course of business;
provided that upon the drawing of such letters of credit or the incurrence of such
Debt, such obligations are reimbursed within 30 days following such drawing or incurrence;




     (13) Debt arising from agreements of the Company or a Subsidiary of the Company
providing for indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the acquisition or disposition of any business,
assets or a Subsidiary of the Company, other than guarantees of Debt incurred by any Person
acquiring all or any portion of such business, assets or Subsidiary for the purpose of
financing such acquisition; provided that (1) such Debt is not reflected on the
balance sheet of the Company or any Subsidiary of the Company (contingent obligations
referred to in a footnote to financial statements and not otherwise reflected on the balance
sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause
(1)), and (2) in the case of a disposition, the maximum assumable liability in respect of
all such Debt (other than liability for those indemnification obligations that are not
customarily subject to a cap) shall at no time exceed the gross proceeds including noncash
proceeds (the fair market value of such noncash proceeds being measured at the time received
and without giving effect to any subsequent changes in value) actually received by the
Company and the Subsidiaries of the Company in connection with such disposition;




     (14) obligations in respect of performance, bid, appeal and surety bonds and completion
guarantees and similar obligations provided by the Company or any Subsidiary of the Company
in the ordinary course of business;




     (15) Debt (A) arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business; provided that such Debt is extinguished within two Business Days after
its incurrence, or (B) supported by a letter of credit, in a principal amount not in excess
of the stated amount of such letter of credit;



65









 






     (16) Debt in an aggregate principal amount outstanding at any time not to exceed
$200.0 million plus any Refinancing Costs; provided, however, that the aggregate
principal amount of Debt Issued pursuant to this clause (16) by any Subsidiary other than a
Subsidiary Guarantor and Debt Issued pursuant to this clause (16) by the Company or any
Subsidiary Guarantor that is secured by a Lien permitted by Section 4.12(5)(ii) hereof shall
not exceed $100.0 million at any time outstanding plus any Refinancing Costs;




     (17) Debt in an aggregate principal amount outstanding at any time not to exceed 100%
of the net cash proceeds received by the Company after the Issue Date from the issue or sale
of Capital Stock of the Company or cash contributed to the capital of the Company (in each
case, other than proceeds of Redeemable Stock or sales of Capital Stock to the Company or
any of its Subsidiaries) to the extent such net cash proceeds or cash have not been applied
to make Restricted Payments or to make other Investments, payments or exchanges pursuant to
Section 4.07(b) hereof or to make Permitted Investments (other than Permitted Investments
specified in clauses (a) and (d) of the definition thereof);




     (18) Debt outstanding on the Issue Date under the Existing Subordinated Loans,
including Refinancing Debt in respect thereof, provided that (A) the proceeds of any such
Refinancing Debt, net of any underwriting discounts or Permitted OID, do not exceed the
principal amount of the Debt so Refinanced plus any Refinancing Costs thereof, (B) such
Refinancing Debt shall be unsecured obligations, (C) such Refinancing Debt shall be
subordinated in right of payment to the Notes and the Guarantees to the same extent as the
Debt so Refinanced was subordinated in right of payment to the Notes and the Guarantees,
unless such Refinancing is a Permitted Existing Subordinated Loans Refinancing, and (D) the
Stated Maturity of each installment of principal of such Refinancing Debt shall not be,
(x) in the case of a Permitted Existing Subordinated Loans Refinancing, earlier than the
Stated Maturity of the Notes and (y) in all other cases, earlier than the Stated Maturity of
the Debt so Refinanced; and




     (19) Guarantees by (x) any Subsidiary Guarantors of any Debt of the Company or a
Subsidiary Guarantor or (y) the Company of any Debt of a Subsidiary Guarantor, in each case
permitted by Section 4.09(a) hereof or clauses (1) through (18) of this Section 4.09(b).



     (c) To the extent the Company or any Subsidiary of the Company guarantees any Debt of the
Company or of a Subsidiary of the Company, such guarantee and such Debt will be deemed to be the
same indebtedness and only the amount of the Debt will be deemed to be outstanding. If the Company
or a Subsidiary of the Company guarantees any Debt of a Person that, subsequent to the Issuance of
such guarantee, becomes a Subsidiary, such guarantee and the Debt so guaranteed will be deemed to
be the same indebtedness, which will be deemed to have been Issued when the guarantee was Issued
and will be deemed to be permitted to the extent the guarantee was permitted when Issued.



     (d) For purposes of determining the compliance of any Debt Issued pursuant to any of the
clauses of Section 4.09(b) hereof to Refinance other Debt, to the extent that the principal amount
of such Refinancing Debt, when taken together with the principal amount of any other Debt Issued
pursuant to the same clause of Section 4.09(b) hereof and then outstanding, exceeds the maximum
principal amount of Debt permitted at such time by such clause, such Debt shall nevertheless be
deemed to be Issued in compliance with such clause and this Section 4.09 hereof if the aggregate
principal amount of Debt outstanding pursuant to such clause, after giving effect to such Issuance,
does not exceed the sum of the principal amount of the Debt to be Refinanced, plus any Refinancing
Costs associated therewith, plus the principal amount of any other Debt Issued pursuant to such
clause and then outstanding.



66









 





     (e) For purposes of determining compliance with any U.S. dollar denominated restriction on the
Issuance of Debt where the Debt Issued is denominated in a different currency, the amount of such
Debt will be the U.S. Dollar Equivalent determined on the date of the Issuance of such Debt,
provided, however, that if any such Debt denominated in a different currency is subject to
a Hedging Obligation with respect to U.S. dollars covering all principal, premium, if any, and
interest payable on such Debt, the amount of such Debt expressed in U.S. dollars will be as
provided in such Hedging Obligation. The principal amount of any Refinancing Debt Issued in the
same currency as the Debt being Refinanced will be the U.S. Dollar Equivalent of the Debt
Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was determined based on a
Hedging Obligation, in which case the Refinancing Debt will be determined in accordance with the
preceding sentence, and (2) the principal amount of the Refinancing Debt exceeds the principal
amount of the Debt being Refinanced, in which case the U.S. Dollar Equivalent of such excess will
be determined on the date such Refinancing Debt is Issued.



     (f) For purposes of determining compliance with this Section 4.09, in the event that an item
of proposed Debt meets the criteria (or would meet the criteria at the time of application of this
clause (f) as if such item of Debt were Issued at such time) of more than one of the categories of
permitted Debt described in clauses (1) through (19) of Section 4.09(b) hereof or is (or would at
such time be) entitled to be Issued pursuant to Section 4.09(a) hereof, the Company, in its sole
discretion and at its option, will be permitted to classify or divide such item of Debt on the date
of its incurrence, or later redivide, classify or reclassify (based on circumstances existing at
the time of such reclassification or redivision) all or a portion of such item of Debt, in each
case to any category of permitted Debt described in such clauses (1) through (19) of Section
4.09(b) hereof or Section 4.09(a) hereof in a manner that complies with this Section 4.09,
including by allocation to more than one other type of Debt, and such item of Debt (or portion
thereof, as applicable) will be treated as having been Issued pursuant to only such clause or
clauses or Section 4.09(a) hereof (and in the case of a subsequent division, classification or
reclassification, such item of Debt shall cease to be divided or classified as it was prior to such
subsequent division, classification or reclassification).



     (g) Any Debt Issued under a Credit Agreement pursuant to Section 4.09(b)(1) hereof shall be
deemed for purposes of this Section 4.09 to have been incurred on the date such Debt was first
Issued until such Debt is actually repaid, other than pursuant to “cash sweep” provisions or any
similar provisions under any Credit Agreement that provide that such Debt is deemed to be repaid
daily (or otherwise periodically), but only to the extent such Debt is promptly reborrowed.



     (h) The accrual of interest, the accretion or amortization of original issue discount, the
payment or accretion of interest on any Debt in the form of additional Debt with the same terms,
the reclassification of Preferred Stock as Debt due to a change in accounting principles, and the
payment of dividends on Preferred Stock in the form of additional shares of the same class of
Preferred Stock will not be deemed to be an Issuance of Debt. Notwithstanding any other provision
of this Section 4.09, the maximum amount of Debt that the Company or any Subsidiary of the Company
may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of
fluctuations in exchange rates or currency values.



     (i) The amount of any Debt outstanding as of any date will be:




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




     (2) the principal amount of the Debt, in the case of any other Debt; and



67









 






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




     (x) the Fair Market Value of such assets at the date of determination; and




     (y) the amount of the Debt of the other Person.



 Section 4.10 Limitation on Asset Sales.

     (a) The Company shall not, and shall not permit any Subsidiary of the Company (other than a
Non-Recourse Subsidiary) to consummate any Asset Sale unless:




     (i) the Company or such Subsidiary receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the assets subject to such Asset Sale; and




     (ii) at least 75% of the consideration paid to the Company or such Subsidiary in
connection with such Asset Sale is in the form of cash or Cash Equivalents (or the foreign
equivalent of Cash Equivalents) or the assumption by the purchaser of liabilities (including
in the case of the sale of the Capital Stock of a Subsidiary of the Company, liabilities of
the Company or such Subsidiary) of the Company or any Subsidiary (other than a Non-Recourse
Subsidiary) (other than liabilities that are by their terms subordinated to the Notes or any
guarantee related thereto) as a result of which the Company and the Subsidiaries (other than
Non-Recourse Subsidiaries) are no longer obligated with respect to such liabilities.




     For purposes of the foregoing clause (ii), each of the following shall be
deemed to be cash:




     (1) any securities, notes, other obligations or assets received by the Company
or the Subsidiary of the Company (other than a Non-Recourse Subsidiary) from a
transferee that are converted by the Company or such Subsidiary into cash or Cash
Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days
following the closing of such Asset Sale;




     (2) any Designated Noncash Consideration received by the Company or the
Subsidiary (other than Non-Recourse Subsidiaries) in such Asset Sale having an
aggregate Fair Market Value (measured at the time received and without giving effect
to subsequent changes in value), taken together with all other Designated Noncash
Consideration received pursuant to this clause (2) then outstanding, not to exceed
the greater of (i) 5% of Consolidated Total Assets and (ii) $50.0 million; and




     (3) any readily marketable securities which the Company intends, in good faith,
to liquidate promptly after such Asset Sale.



     (b) The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the
Company or a Subsidiary (other than a Non-Recourse Subsidiary), to the extent the Company or such
Subsidiary elects (or is required by the terms of any Debt):




     (i) to prepay, repay, purchase or defease Pari Passu Debt of the Company or a
Subsidiary Guarantor or any Debt of any other Subsidiary (other than a Non-Recourse
Subsidiary) (excluding, in any such case, any Debt owed to the Company or a Subsidiary of
the Company that is not a Non-Recourse Subsidiary); provided that (A) in connection
with any such



68









 







prepayment, repayment or purchase of any Debt (other than the Revolving Credit
Facility) Issued pursuant to Section 4.09(b)(1) hereof, the Company or such Subsidiary shall
be required to retire permanently such Debt in an amount equal to the principal so prepaid,
repaid or purchased and (B) in the case of an Asset Sale of Collateral by the Company or a
Subsidiary Guarantor, the Pari Passu Debt being prepaid, repaid or purchased shall be Debt
that is secured by a Lien on Collateral; or




     (ii) to reinvest in Additional Assets (including by means of an Investment in
Additional Assets by a Subsidiary (other than a Non-Recourse Subsidiary) with Net Available
Cash received by the Company or Subsidiary); provided that (A) in the case of an
Asset Sale of Collateral (other than Capital Stock of a Subsidiary that is not a Subsidiary
Guarantor) by the Company or a Subsidiary Guarantor, any such Additional Assets (including
the assets of a Person whose Capital Stock is acquired and becomes a Subsidiary of the
Company) shall be held by the Company or a Subsidiary Guarantor and pledged as Collateral in
accordance with the Security Documents and the Intercreditor Agreement, to the extent such
Additional Assets are not Excluded Property and (B) in the case of an Asset Sale by the
Company or a Subsidiary Guarantor of Capital Stock of a Subsidiary that is not a Subsidiary
Guarantor, the acquired Additional Assets may be held in a Subsidiary that is not a
Subsidiary Guarantor, provided that the Capital Stock of such Subsidiary, to the
extent it does not constitute Excluded Property, is pledged to the extent required by the
Security Documents and the Intercreditor Agreement.



     (c) Any Net Available Cash from an Asset Sale not applied in accordance with paragraph (b) of
this Section 4.10 within 365 days from the date of the receipt of such Net Available Cash or
reasonably necessary for investment in identified Additional Assets in respect of a project that
shall have been commenced, and for which binding contractual commitments have been entered into,
prior to the end of such 365-day period and that shall not have been completed or abandoned shall
constitute “Excess Proceeds”; provided, however, that the amount of any Net Available Cash
that becomes reasonably necessary as contemplated above and any Net Available Cash that had been
reasonably necessary in respect of a project that is abandoned or completed shall also constitute
“Excess Proceeds” at the time any such Net Available Cash ceases to be reasonably necessary or at
the time the relevant project is so abandoned or completed, as applicable; provided, further,
however, that the amount of any Net Available Cash that continues to be reasonably necessary
for investment in identified Additional Assets and that is not actually so invested within twelve
months from the date such Net Available Cash was determined to be reasonably necessary for
investment in identified Additional Assets in respect of a project that shall have been commenced
shall also constitute “Excess Proceeds.” Pending application of Net Available Cash pursuant to this
Section 4.10, such Net Available Cash shall be invested in Cash Equivalents (or the foreign
equivalent of Cash Equivalents), applied to temporarily reduce revolving credit indebtedness or
used for any other purpose permitted by this Indenture (other than to make any Restricted
Payments).



     (d) When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be
required to make an offer to repurchase (the “Prepayment Offer”) the Notes, which offer shall be in
the amount of the Allocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata basis
according to principal amount, at a purchase price equal to 100% of the principal amount thereof,
plus accrued and unpaid interest, to the repurchase date (subject to the right of holders of record
on the relevant record date to receive interest due on the relevant interest payment date), in
accordance with the procedures (including prorating in the event of oversubscription) set forth in
this Indenture. To the extent that any portion of the amount of such Excess Proceeds remains after
compliance with the preceding sentence and provided that all holders of Notes have been given the
opportunity to tender their Notes for repurchase in accordance with this Indenture, the Company or
such Subsidiary may use such remaining amount for any other purpose permitted by this Indenture,
and the amount of Excess Proceeds will be reset to zero. The term “Allocable Excess Proceeds”
shall mean the product of:



69









 






     (x) the Excess Proceeds and




     (y) a fraction,




     (1) the numerator of which is the aggregate principal amount of the Notes
outstanding on the date of the Prepayment Offer, and




     (2) the denominator of which is the sum of the aggregate principal amount of
the Notes outstanding on the date of the Prepayment Offer and the aggregate
principal amount of other Debt of the Company or a Subsidiary Guarantor outstanding
on the date of the Prepayment Offer that is Pari Passu Debt and subject to terms and
conditions in respect of Asset Sales that require the Company or such Subsidiary
Guarantor to make an offer to repurchase such Debt out of the proceeds of the Asset
Sale which shall have caused the Company to make the Prepayment Offer.



     (e) Within five business days after the Company is obligated to make a Prepayment Offer as
described in Section 4.10(d) hereof, the Company shall send a written notice, by first-class mail,
to the Holders of Notes, accompanied by such information regarding the Company and its Subsidiaries
as the Company in good faith believes will enable such holders to make an informed decision with
respect to such Prepayment Offer. Such notice shall state, among other things, the purchase price
and the repurchase date (the “Repurchase Date”), which shall be, subject to any contrary
requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed.



     (f) Not later than the date upon which written notice of a Prepayment Offer is delivered to
the Holders as provided in Section 4.10(d) hereof, the Company shall deliver to the Trustee an
Officers’ Certificate as to the amount of the Allocable Excess Proceeds. Within 10 days after such
date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent in this regard, segregate and hold in trust) in
immediately available funds an amount equal to the Allocable Excess Proceeds to be held for payment
in accordance with the provisions of this Section 4.10(f). The amount so deposited, at the option
of, or pursuant to the specific written direction of, the Company, as applicable, may be invested
in Cash Equivalents the maturity date of which is not later than the Repurchase Date. The Company
shall be entitled to any interest or dividends accrued, earned or paid on such Cash Equivalents.
Upon the expiration of the period for which the Offer remains open (the “Offer Period”), the
Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been
properly tendered to and are to be accepted by the Company. The Trustee, other Paying Agent or the
Company, as applicable, shall, on the Repurchase Date, deliver payment to each tendering Holder in
the amount of the purchase price for such Notes specified in Section 4.10(d) hereof. In the event
that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than
the Allocable Excess Proceeds, the excess shall be immediately returned to the Company (if held by
the Trustee or another Paying Agent), and shall be permitted to be used by the Company for any
other purpose permitted by this Indenture.



     (g) Holders of Notes electing to have a Note purchased will be required to surrender the Note,
with an appropriate form duly completed, to the Company at the address specified in the notice at
least ten Business Days prior to the Repurchase Date. Holders will be entitled to withdraw their
election if the Trustee or the Company receives not later than three Business Days prior to the
Repurchase Date, a facsimile transmission or letter setting forth the name of the Holder, the
Principal amount of the Note which was delivered for purchase by the Holder and a statement that
such Holder is withdrawing its election to have such Note purchased. If at the expiration of the
Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Allocable
Excess Proceeds, the Company shall



70









 







select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of
$1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part will
be Issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.



     (h) The Company will comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of notes pursuant to this Section 4.10. To the extent that the provisions of any securities laws
or regulations conflict with provisions of this Section 4.10, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have breached its obligations
under this Section 4.10 by virtue thereof.


Section 4.11 Limitation on Transactions with Affiliates.




     (a) The Company shall not, and shall not permit any of its Subsidiaries (other than any
Non-Recourse Subsidiary) to, conduct any business or enter into any transaction or series of
similar transactions (including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of the Company involving aggregate payments or
consideration in excess of $10.0 million, unless:




     (i) the terms of such business, transaction or series of transactions are not
materially less favorable when taken as a whole to the Company or such Subsidiary as terms
that would be obtainable at the time for a comparable transaction or series of similar
transactions in arm’s-length dealings with an unrelated third Person and




     (ii) to the extent that such business, transaction or series of transactions (other
than Debt Issued by the Company which is permitted under Section 4.09 hereof) is known by
the Board of Directors of the Company to involve an Affiliate of the Company, other than any
purchase or sale of inventory in the ordinary course of business (an “Inventory
Transaction”), involving aggregate payments or other consideration in excess of
$20.0 million, such transaction or series of related transactions has been approved (and the
value of any noncash consideration has been determined) by all of the independent members of
the Board of Directors of the Company and the Company delivers to the Trustee an Officers’
Certificate evidencing such approval (provided that if no member of the Board of Directors
of the Company is independent, the Company may deliver to the Trustee a letter from a
nationally recognized investment banking firm stating that the financial terms of such
transaction are fair to the Company from a financial point of view or meets the requirements
of Section 4.11(a)(i) hereof).



     (b) Section 4.11(a) hereof shall not prohibit the following:




     (i) any Restricted Payment permitted to be paid pursuant to Section 4.07 hereof or the
definition of “Permitted Investment”;




     (ii) any transaction between the Company and any of its Subsidiaries;




     (iii) any transaction between Subsidiaries of the Company;




     (iv) any transaction between the Company or a Subsidiary of the Company and its own
employee stock ownership plan and the issuance or transfer of Capital Stock (other than
Redeemable Stock) of the Company to any Permitted Holder or to any director, manager,
officer,



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employee or consultant of the Company, its Subsidiaries or any direct or indirect
parent company thereof (or their estates, spouses or former spouses);




     (v) any transaction with an officer, director, manager, employee or consultant of the
Company, of Parent or of any Subsidiary of the Company (including compensation or employee
benefit arrangements with any such officer, director, manager, employee or consultant);




     (vi) any business or transaction with a Qualified Joint Venture;




     (vii) any transaction which is a Permitted Transaction;




     (viii) any transaction pursuant to which a Parent or any Affiliate of the Company will
provide the Company and its Subsidiaries at their request and at the cost to such Parent or
Affiliate with certain allocated services, including services to be purchased from third
party providers, such as legal and accounting services, tax, consulting, financial advisory,
corporate governance, insurance coverage and other services;




     (ix) payments by the Company or a Subsidiary of the Company to a Parent or any
Affiliate of the Company for any financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by a majority of the members of
the Board of Directors of the Company in good faith;




     (x) any merger, consolidation or reorganization of the Company with an Affiliate of
Company solely for the purpose of (a) reorganizing to facilitate an initial public offering
of securities of Company or a direct or indirect parent of Company, (b) forming or
collapsing a holding company structure or (c) reincorporating Company in a new jurisdiction;




     (xi) transactions in which the Company or any Subsidiary of the Company (other than a
Non-Recourse Subsidiary), as the case may be, delivers to the Trustee a letter from a
nationally recognized investment banking firm stating that such transaction is fair to the
Company or such Subsidiary from a financial point of view or meets the requirements of
Section 4.11(a)(i) hereof;




     (xii) transactions with customers, clients, suppliers, or purchasers or sellers of
goods or services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture that are fair to the Company and the
Subsidiaries of the Company (other than Non-Recourse Subsidiaries), in the good faith
determination of the Board of Directors or the senior management of the Company, or are on
terms at least as favorable as might reasonably have been obtained at such time from an
unaffiliated party;




     (xiii) the Transactions and the payment of all premiums, fees, expenses and other
amounts related to the Transactions;




     (xiv) investments by a Parent or any Affiliate of the Company in securities of the
Company or any of its Subsidiaries (other than Non-Recourse Subsidiaries) so long as (i) the
investment is being offered generally to other investors on the same or more favorable terms
and (ii) the investment to be held by such Parent or Affiliate constitutes less than 5.0% of
the proposed or outstanding issue amount of such class of securities;



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     (xv) sales or repurchases of accounts receivable, payment intangibles and related
assets or participations therein, in connection with, or any other transactions relating to,
any Receivables Facility;




     (xvi) any transaction with an Affiliate in which the consideration paid by the Company
or any Subsidiary of the Company (other than a Non-Recourse Subsidiary) consists only of
Capital Stock of the Company (other than Redeemable Stock or Exchangeable Stock); and




     (xvii) any transaction contemplated by Section 4.07(b)(viii) hereof or Section
4.07(b)(xiv) hereof.


Section 4.12 Limitation on Liens.




     The Company shall not, and shall not permit any Subsidiary Guarantor to, create or suffer to
exist any Lien upon any of its property or assets (including Capital Stock or Debt of any
Subsidiary of the Company) now owned or hereafter acquired by it, securing any obligation under any
Debt unless contemporaneously therewith effective provision is made to secure the Notes and
Subsidiary Guarantees equally and ratably with such obligation with a Lien on the same assets
securing such obligation for so long as such obligation is secured by such Lien. The preceding
sentence shall not require the Company or any Subsidiary Guarantor to equally and ratably secure
the Notes or the Subsidiary Guarantees if the Lien consists of the following (collectively,
“Permitted Liens”):




     (1) Liens existing as of the Issue Date;




     (2) any Lien arising by reason of (i) any judgment, decree or order of any court or
arbitrator, so long as such judgment, decree or order is being contested in good faith and
any appropriate legal proceedings which may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the period within which
such proceedings may be initiated shall not have expired, (ii) taxes, assessments or other
governmental charges or claims not delinquent or which are being contested in good faith,
for which adequate reserves (as determined by the Company) have been established,
(iii) security for payment of workers’ compensation or other insurance, (iv) security for
the performance of tenders, contracts (other than contracts for the payment of borrowed
money) or leases in the ordinary course of business, (v) deposits to secure public or
statutory obligations, or in lieu of surety or appeal bonds entered into in the ordinary
course of business, (vi) operation of law in favor of carriers, warehousemen, landlords,
mechanics, materialmen, laborers, employees, suppliers or similar Persons, incurred in the
ordinary course of business for sums which are not delinquent for a period of more than
30 days or are being contested in good faith by negotiations or by appropriate proceedings
which suspend the collection thereof, (vii) security for surety, appeal, reclamation,
performance or other similar bonds or with respect to other regulatory requirements or
letters of credit issued pursuant to the request of and for the account of such Person,
(viii) security for Hedging Obligations, (ix) Liens arising from financing statement filings
under the Uniform Commercial Code or similar state laws regarding operating leases entered
into by the Company and its Subsidiaries in the ordinary course of business, (x) Liens in
favor of the Company or any Subsidiary Guarantor, (xi) Liens on inventory or equipment of
the Company or any Subsidiary granted in the ordinary course of business to the Company’s
client or customer at which such inventory or equipment is located, (xii) Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods in the ordinary course of business and
(xiii) security for rent payments;



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     (3) Liens to secure the payment of all or a part of the purchase price (or financing or
reimbursement thereof) of, or Capital Lease Obligations with respect to, assets (including
Capital Stock) or property or business acquired, developed, constructed purchased, leased,
repaired, added or improved; provided, however, that (i) the Debt secured by such
Liens shall have otherwise been permitted to be Issued under this Indenture, (ii) such Liens
shall not encumber any assets or property of the Company or any of its Subsidiaries (other
than Non-Recourse Subsidiaries) other than the assets or property (including Capital Stock
and any assets or property owned by the issuer of such Capital Stock) leased, in the case of
a Capital Lease Obligation, or the cost of which is financed or reimbursed by such Debt, or
which secure any such Debt that is assumed in connection therewith, and the proceeds and
products thereof and any improvements thereto or as otherwise permitted under this Section
4.12, and (iii) to the extent such Debt is incurred pursuant to Section 4.09(b)(7) hereof,
such Liens shall attach to such assets or property within 365 days of such acquisition,
development, construction, purchase, lease, repair, addition or improvement;




     (4) Liens (A) on the assets or property (including shares of Capital Stock) of a
Subsidiary of the Company existing (or required pursuant to agreements existing) at the time
such Subsidiary became a Subsidiary of the Company or (B) on property at the time the
Company or a Subsidiary of the Company acquired the property (including any acquisition by
means of a merger or consolidation with or into the Company or any Subsidiary of the
Company), in each case not incurred or created in connection with or in anticipation of)
such Subsidiary becoming a Subsidiary of the Company or such acquisition; provided,
however, that such Liens do not extend to or cover any other property or assets of the
Company or any of its Subsidiaries (other than Non-Recourse Subsidiaries) other than the
proceeds and products thereof and any improvements thereto or as otherwise permitted under
this Section 4.12;




     (5) Liens on any assets of the Company or any Subsidiary of the Company securing
obligations in respect of (i) any Debt originally Issued under Section 4.09(b)(1) hereof,
(ii) any Debt originally Issued under the proviso to Section 4.09(b)(16) hereof, which Liens
in the case of assets of the Company or any Guarantor (except Other Excluded Assets) shall
be no higher in priority under the Intercreditor Agreement than the Liens securing the Notes
and the Guarantees, (iii) any Debt originally Issued under Section 4.09(b)(11) hereof and
(iv) any other Debt originally Issued under Section 4.09(a) hereof if at the time of
Issuance of such Debt under this clause (iv) and after giving Pro Forma effect thereto the
Consolidated Secured Debt Ratio would be no greater than 5.0 to 1.0, so long as, in the case
of clauses (i), (ii) and (iv), with respect to any Lien on any assets of the Company or any
Guarantor (other than any Other Excluded Assets), the Holders have a lien on such assets
with a relative priority in accordance with the priorities set forth in the Intercreditor
Agreement as the same may be amended or supplemented as provided in Article 9 hereof;




     (6) leases, licenses, subleases and sublicenses of property granted by the Company and
its Subsidiaries in the ordinary conduct of the business of the Company or any of its
Subsidiaries and which do not secure any Debt;




     (7) Liens securing Debt Issued to Refinance Debt which has been secured by a Lien
permitted under this Indenture and is permitted to be Refinanced under this Indenture;
provided, however, that (A) such Liens do not extend to or cover any property or
assets of the Company or any of its Subsidiaries not securing (or required to secure) the
Debt so Refinanced, other than the proceeds and products thereof and any improvements
thereto or as otherwise permitted pursuant to this Section 4.12 and (B) any refinancing Lien
incurred pursuant to this clause (7) in respect of a Lien incurred pursuant to clause
(5)(i), (ii) or (iii) or clause (24) of this Section 4.12 shall be



74









 







deemed to have been incurred pursuant to such clause 5(i), (ii) or (iii) or clause (24)
of this Section 4.12 (as applicable) until the refinancing Lien incurred pursuant to this
clause (7) (and any refinancing Lien incurred in respect thereof) is discharged;




     (8) easements, reservations, licenses, rights-of-way, zoning restrictions and
covenants, conditions and restrictions and other similar encumbrances or title defects or
other restrictions as to the use of real properties or Liens incidental to the conduct of
the business of such Person or to the ownership of its properties which, in the aggregate,
do not materially detract from the use of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Company or any of its
Subsidiaries;




     (9) Liens on assets of a Non-Recourse Subsidiary to secure obligations of a
Non-Recourse Subsidiary;




     (10) Liens on assets located outside the United States of America to secure Debt Issued
by Foreign Subsidiaries permitted under Section 4.09 hereof;




     (11) Liens in favor of the United States of America for amounts paid by the Company or
any of its Subsidiaries as progress payments under government contracts entered into by
them;




     (12) other Liens incidental to the conduct of the business of the Company and its
Subsidiaries or the ownership of any of their assets not incurred in connection with Debt,
which Liens do not in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Company or any of its
Subsidiaries;




     (13) Liens granted in favor of issuers of documentary or trade letters of credit for
the account of the Company or such Subsidiary or bankers’ acceptances, which Liens secure
the reimbursement obligations of the Company or such Subsidiary on account of such letters
of credit or bankers’ acceptances; provided that each such Lien is limited to
(i) the assets acquired or shipped with the support of such letter of credit or bankers’
acceptances and (ii) any assets of the Company or such Subsidiary which are in the care,
custody or control of such issuer;




     (14) Liens on (i) the net proceeds of the Issuance of Debt to secure any redemption,
repurchase or defeasance obligations in respect of such Debt or any other Debt being
Refinanced with the proceeds of such Debt and (ii) any additional cash to secure such
redemption, repurchase or defeasance obligations in an amount which, when added to such net
proceeds, is necessary to effect such redemption, repurchase or defeasance;




     (15) Liens securing Debt of a Subsidiary Guarantor owing to the Company or another
Subsidiary Guarantor permitted by Section 4.09(b) hereof;




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




     (17) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity brokerage accounts incurred in the ordinary course of business
and (iii) in favor of banking institutions arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general parameters customary in
the banking industry;



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




     (19) Liens encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage accounts incurred
in the ordinary course of business and not for speculative purposes;




     (20) Liens on accounts receivable, payment intangibles and related assets incurred in
connection with a Receivables Facility and limited recourse Liens on the Capital Stock of
any Receivables Subsidiary;




     (21) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 4.09 hereof; provided that such Liens do not extend to any
assets other than those assets that are the subject of such repurchase agreement;




     (22) Liens securing secured Cash Management Obligations;




     (23) Liens securing the Notes (other than Additional Notes), the Exchange Notes and
Guarantees of any of the foregoing; and




     (24) Liens securing obligations which, together with all other obligations secured by
Liens (excluding Liens permitted by clauses (1) through (23) above) at the time of
determination do not exceed the greater of (x) $15.0 million and (y) 1.5% of Consolidated
Total Assets at the time of such determination.



     For purposes of determining compliance with this Section 4.12, (A) Liens securing Debt
obligations need not be incurred solely by reference to one category of Permitted Liens described
in clauses (1) through (24) of this Section 4.12 (or subparts thereof) but are permitted to be
incurred in part under any combination thereof, and (B) in the event that a Lien meets the criteria
of one or more of the categories of Permitted Liens described in clauses (1) through (24) of this
Section 4.12 (or subparts thereof), the Company shall, in its sole discretion, classify, divide or
later reclassify or redivide (based on circumstances existing at the time of such reclassification
or redivision) such Liens (or any portions thereof) in any manner that complies with the definition
of Permitted Liens, including by allocation to more than one other clause or subpart of the
definition of Permitted Liens, and such Liens (or portions thereof, as applicable) will be treated
as having been incurred pursuant to only such clause, clauses or subparts of this Section 4.12 (and
in the case of a subsequent division, classification or reclassification, such Liens shall cease to
be divided or classified as it was prior to such subsequent division, classification or
reclassification). Notwithstanding the foregoing, Permitted Liens incurred pursuant to Section
4.12(5)(i) hereof, which shall include Liens outstanding thereunder on the Issue Date, shall not be
permitted to be reclassified or redivided after the date of the incurrence thereof.



     Permitted Liens may be of any priority relative to the Liens securing the Note Obligations,
except where otherwise specified.



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Section 4.13 Change of Control.




     (a) Upon the occurrence of the Change of Control, each Holder of Notes will have the right to
require the Company to repurchase all or any part of such Holder’s Notes at a repurchase price in
cash equal to their Put Amount as of the date of repurchase plus accrued and unpaid interest to the
date of repurchase; provided that, prior to the mailing of the Change of Control Notice,
but in any event within 30 days following any Change of Control, the Company covenants to (i) repay
in full all Bank Debt or to offer to repay in full all Bank Debt and to repay the Bank Debt of each
lender who has accepted such offer or (ii) obtain the requisite consent under the Bank Debt to
permit the repurchase of the Notes as provided for below. The Company must first comply with the
covenant in the preceding sentence before it will be required to purchase Notes in connection with
a Change of Control.



     (b) Within 45 days following any Change of Control, the Company will mail a notice (a “Change
of Control Notice”) to each Holder with a copy to the Trustee stating (i) that a Change of Control
has occurred and that such Holder has the right to require the Company to repurchase all or any
part of such Holder’s Notes at a repurchase price in cash equal to their Put Amount as of the date
of repurchase plus accrued and unpaid interest to the date of repurchase; (ii) the circumstances
and relevant facts regarding such Change of Control; (iii) the repurchase date (which will be no
earlier than 30 days nor later than 60 days from the date such notice is mailed); and (iv) the
instructions, determined by the Company consistent with this provision, that a Holder must follow
in order to have its Notes repurchased.



     (c) Holders electing to have a Note repurchased will be required to surrender the Note, with
an appropriate form duly completed, to the Company at the address specified in the notice at least
10 Business Days prior to the repurchase date. Holders will be entitled to withdraw their election
if the Trustee or the Company receives not later than three Business Days prior to the repurchase
date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount
of the Note which was delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Note repurchased. On the repurchase date, all Notes
repurchased by the Company shall be delivered to the Trustee for cancellation, and the Company
shall pay the repurchase price plus accrued and unpaid interest to the holders entitled thereto.
Upon surrender of a Note that is repurchased under this provision in part, the Company shall
execute and the Trustee shall authenticate for the Holder thereof (at the Company’s expense) a new
Note having a principal amount equal to the principal amount of the Note surrendered less the
portion of the principal amount of the Note repurchased.



     (d) The Company will not be required to make a Change of Control offer upon a Change of
Control if (1) a third party makes the Change of Control offer in the manner, at or prior to the
times and otherwise in compliance with the requirements set forth in this Indenture applicable to a
Change of Control offer made by the Company and purchases all Notes properly tendered and not
withdrawn under the Change of Control offer (it being understood that such third-party may make a
Change of Control offer that is conditioned on and prior to the occurrence of a Change of Control
pursuant to this clause (1)) or (2) notice of redemption has been given pursuant to Article 3
hereof, unless and until there is a default in payment of the applicable redemption price.



     (e) A Change of Control offer may be made in advance of a Change of Control, conditional upon
such Change of Control, if a definitive agreement is in place for the Change of Control at the time
of making of the Change of Control offer.



     (f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control. To
the



77









 







extent that the provisions of any securities laws or regulations conflict with this Section
4.13 or the related provisions of Article 3 hereof, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under this
Section 4.13 or the related provisions of Article 3 hereof by virtue of such compliance.


Section 4.14 Future Subsidiary Guarantors.




     The Company will not permit any of its Wholly-Owned Recourse Subsidiaries that is a Domestic
Subsidiary (or Partially-Owned Recourse Subsidiary if such Partially-Owned Recourse Subsidiary is a
Domestic Subsidiary and guarantees other capital markets debt securities of the Company or any
Subsidiary Guarantor), other than a Subsidiary Guarantor or an Immaterial Subsidiary, to guarantee
the payment of any Debt of the Company or any other Subsidiary Guarantor unless:




     (1) such Subsidiary within 30 days (or such later date as the Trustee may agree)
executes and delivers a supplemental indenture to this Indenture providing for a Subsidiary
Guarantee by such Subsidiary, except that with respect to a guarantee of Debt of the Company
or any Subsidiary Guarantor that is by its express terms subordinated in right of payment to
the Notes or such Subsidiary Guarantor’s Subsidiary Guarantee, any such guarantee by such
Subsidiary with respect to such Debt shall be subordinated in right of payment to such
Subsidiary Guarantee substantially to the same extent as such Debt is subordinated to the
Notes; and




     (2) such Subsidiary waives and will not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any other Subsidiary of the Company (other than a Non-Recourse
Subsidiary) as a result of any payment by such Subsidiary under its Subsidiary Guarantee
prior to payment in full of the Notes;


provided that this Section 4.14 will not be applicable to (x) any guarantee of any
Subsidiary of the Company that existed at the time such Person became a Subsidiary of the Company
and was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary
of the Company or (y) any guarantee of any Subsidiary of the Company that was incurred at the time
such Person became a Subsidiary of the Company in connection with (A) Debt (other than Debt of the
Company or any Subsidiary Guarantor) that existed at such time or the proceeds of which were used
to make such acquisition or (B) Debt (other than Debt of the Company or a Subsidiary Guarantor)
that is permitted to be secured by clauses (3) or (4) of the definition of Permitted Liens or
clause (7) of the definition of Permitted Liens (but only to the extent relating to the
refinancing, refunding, extension, renewal or replacement of the Liens permitted under any of the
foregoing clauses).



Section 4.15 Impairment of Collateral.




     Subject to the rights of holders of Permitted Liens, the Company shall not, and shall not
permit any of its Subsidiaries (other than any Non-Recourse Subsidiary) to, take or omit to take
any action which action or omission which would or could reasonably be expected to have the result
of materially impairing the Lien with respect to the Collateral in favor of the Collateral Agent
for the benefit of the Trustee and the Holders, except as otherwise permitted by this Indenture,
the Intercreditor Agreement and the Security Documents.


Section 4.16 After-Acquired Property.




     Promptly following the acquisition by the Company or any Subsidiary Guarantor of any
After-Acquired Property (but subject to the limitations, if applicable, set forth in the Security
Documents and



78









 




the Intercreditor Agreement), the Company or such Subsidiary Guarantor shall execute and
deliver such mortgages, deeds of trust, security instruments, financing statements and certificates
and opinions of counsel as the Collateral Agent shall reasonably request and shall be reasonably
necessary to vest in the Collateral Agent a perfected security interest in such After-Acquired
Property and to have such After-Acquired Property added to the Term Loan Collateral or the
Multi-Currency Collateral, as applicable, and thereupon all provisions of this Indenture relating
to the Term Loan Collateral or the Multi-Currency Collateral, as applicable, shall be deemed to
relate to such After-Acquired Property to the same extent and with the same force and effect.
Notwithstanding anything in this Indenture to the contrary, (i) neither the Company nor any
Guarantor shall have any obligation to perfect a Lien in any assets under the laws of any
jurisdiction except to the extent that such perfection is obtained in such assets for the benefit
of the Multi-Currency Secured Obligations and the Term Loan Secured Obligations, and (ii) the
provisions of Section 3.4(a) of the Intercreditor Agreement shall not apply to any Other Excluded
Assets or to any assets of any Subsidiary that is not required to be a Subsidiary Guarantor
hereunder.



Section 4.17 Information Regarding Collateral.




     The Company will furnish to the Collateral Agent, with respect to the Company or any
Guarantor, prompt written notice of any change in such Person’s (i) corporate name, (ii)
jurisdiction of organization or formation or (iii) Federal Taxpayer Identification Number. The
Company will give the notice of any change referred to in the preceding sentence to the Collateral
Agent in a manner sufficient to permit the Collateral Agent to promptly make all filings under the
Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to
continue at all times following such change to have a valid, legal and perfected security interest
in all the Collateral except to the extent that any failure to have such a perfected security
interest would not cause an Event of Default under clause (viii) of Section 6.01 hereof.


Section 4.18 Further Assurances.




     The Company and the Guarantors shall execute any and all further documents, financing
statements, agreements and instruments, and take all further action that may be required to their
knowledge under applicable law to be taken by the Company or the Guarantors to grant or perfect, or
that the Collateral Agent may reasonably request in order to grant, preserve, protect and perfect,
the validity and priority of the security interests created or intended to be created by the
Security Documents in the Collateral except to the extent any failure to perfect such security
interest would not cause an Event of Default under Section 6.01(viii) hereof and subject to the
provisions of the last sentence of Section 4.16 hereof.


Section 4.19 Covenant Suspension.




     During any period of time that:



     (a) the Notes have Investment Grade Ratings from the Rating Agencies and



     (b) no Default or Event of Default has occurred and is continuing under this Indenture,


the Company and the Subsidiaries of the Company (other than the Non-Recourse Subsidiaries) will not
be subject to Section 4.07, 4.08, 4.09, 4.10 and 5.01(a)(iii) hereof (collectively, the “Suspended
Covenants”). In the event that the Company and the Subsidiaries of the Company (other than the
Non-Recourse Subsidiaries) are not subject to the Suspended Covenants for any period of time as a
result of the preceding sentence and, subsequently, one or both of the Rating Agencies withdraws
its ratings or downgrades the ratings assigned to the Notes below the required Investment Grade
Ratings or a Default






79









 







or Event of Default occurs and is continuing, then the Company and the Subsidiaries of the Company
(other than the Non-Recourse Subsidiaries) will thereafter again be subject to the Suspended
Covenants for all periods after that withdrawal, downgrade, Default or Event of Default and,
furthermore, compliance with Section 4.07 hereof with respect to Restricted Payments made after the
time of withdrawal, downgrade, Default or Event of Default will be calculated in accordance with
the terms of Section 4.07 hereof as though Section 4.07 hereof had been in effect during the entire
period of time from the Issue Date, provided, however, that there will not be deemed to
have occurred a Default or Event of Default with respect to Section 4.07 hereof or any other
Suspended Covenants during the time that the Company and the Subsidiaries of the Company (other
than the Non-Recourse Subsidiaries) were not subject to the Suspended Covenants (or after that time
based solely on the events that occurred during that time).




ARTICLE 5

SUCCESSOR COMPANY



Section 5.01 Merger, Consolidation, or Sale of Assets.




     (a) The Company may not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless: (i) the resulting, surviving or
transferee Person (if not the Company) is organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and such Person expressly assumes
by a supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under this Indenture and the Notes; (ii) immediately
after giving Pro Forma effect to such transaction and other related transactions (and treating any
Debt which becomes an obligation of the resulting, surviving or transferee Person or any of its
Subsidiaries as a result of such transaction as having been issued by such Person or such
Subsidiary at the time of such transaction), no Default has occurred and is continuing;
(iii) immediately after giving Pro Forma effect to such transaction and other related transactions,
the resulting, surviving or transferee Person would either (A) be able to incur at least $1.00 of
Debt pursuant to Section 4.09(a) hereof or (B) have a Consolidated EBITDA Coverage Ratio for the
most recently ended four full fiscal quarters for which financial statements are available that is
greater than or equal to that of the Company immediately prior to giving effect to such
transaction; and (iv) the Company delivers to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture; provided that, without complying with this
clause (a), (A) a Subsidiary Guarantor may consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, the Company or another Subsidiary
Guarantor, and (B) any Subsidiary that is not a Subsidiary Guarantor or a Non-Recourse Subsidiary
may consolidate with or merge with or into, or convey, transfer or lease all or substantially all
its assets to, the Company or another Subsidiary (other than a Non-Recourse Subsidiary), and
(C) any Non-Recourse Subsidiary may consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to any Person.



     (b) The resulting, surviving or transferee Person will be the successor Company and shall
succeed to, and be substituted for, and may exercise every right and power of, the predecessor
Company under this Indenture and thereafter, except in the case of a lease, the predecessor Company
will be discharged from all obligations and covenants under the Indenture Documents, the Security
Documents and the Intercreditor Agreement.



     (c) Unless the Subsidiary Guarantee of a Subsidiary Guarantor is being released as permitted
by Section 10.04 hereof in connection with a merger, conveyance, transfer or lease, the Company
will not permit such Subsidiary Guarantor to consolidate with or merge with or into, or convey,
transfer or



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lease all or substantially all of its assets to, any Person (other than the Company or a
Subsidiary Guarantor) unless either:




     (i) (A) the resulting, surviving or transferee Person (if not such Subsidiary
Guarantor) is organized and existing under the laws of the jurisdiction under which such
Subsidiary Guarantor was organized or under the laws of the United States of America, any
State thereof or the District of Columbia and such Person expressly assumes by a
supplemental guarantee agreement, executed and delivered to the Trustee, all the obligations
of such Subsidiary Guarantor under its Subsidiary Guarantee; (B) immediately after giving
effect to such transaction (and treating any Debt which becomes an obligation of the
resulting, surviving or transferee Person or any of its Subsidiaries as a result of such
transaction as having been issued by such Person or such Subsidiary at the time of the
transaction), no Default has occurred and is continuing; and (C) the Company delivers to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental guarantee agreement (if any) comply
with this Indenture; or




     (ii) such transaction is an Asset Sale (and is permitted by Section 4.10 hereof) or is
a transaction that is excluded from the definition thereof.



ARTICLE 6

DEFAULTS AND REMEDIES



Section 6.01 Events of Default.




     Each of the following is an “Event of Default”:




     (i) a default in the payment of interest on the Notes when due, continued for 30 days,




     (ii) a default in the payment of principal of any Note when due at its Stated Maturity,
upon redemption, upon required purchase, upon declaration or otherwise,




     (iii) the failure by the Company to comply for 60 days after a Default Notice is given
with the other agreements applicable to it contained in this Indenture or the Notes (other
than those referred to in clauses (i) and (ii) of this paragraph),




     (iv) the principal amount of Debt of the Company or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or is accelerated by the
holders thereof because of a default and the total principal amount of the portion of such
Debt that is unpaid or accelerated exceeds $25.0 million or its foreign currency equivalent
and such default continues for 10 days after a Default Notice is given,




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




     (1) commences a voluntary case;




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



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




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




     (b) a court of competent jurisdiction enters an order or decree (which order or
decree remains unstayed and in effect for 60 days) under any Bankruptcy Law that:




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




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




     (3) orders the winding up or liquidation of the Company or any
Significant Subsidiary; or any similar relief is granted under any foreign
laws and the provisions of this clause (v),




     (vi) any judgment or decree that is not covered by insurance and is for the payment of
money in excess of $25.0 million or its foreign currency equivalent is entered against the
Company or a Significant Subsidiary and is not discharged and either (A) an enforcement
proceeding has been commenced by any creditor upon such judgment or decree and is unstayed
or (B) there is a period of 60 days following the entry of such judgment or decree during
which such judgment or decree is not discharged, waived or the execution thereof stayed and,
in the case of (B), such default continues for 10 days after a Default Notice is given,




     (vii) a Subsidiary Guarantee of a Significant Subsidiary ceases to be in full force and
effect (other than in accordance with the terms of this Indenture) and such default
continues for 10 days after a Default Notice is given, or a Responsible Officer of a
Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms its obligations
under its Subsidiary Guarantee,




     (viii) any security interest purported to be created by any Security Document with
respect to any Collateral, individually or in the aggregate, having a Fair Market Value in
excess of $25.0 million, shall cease to be, or shall be asserted by the Company or any
Subsidiary Guarantor not to be, for a period of 60 days after a Default Notice is given a
valid, perfected security interest in the securities, assets or properties covered thereby,
except as otherwise contemplated by the Security Documents or permitted by this Indenture or
the Intercreditor Agreement and except to the extent that any such loss of perfection or
priority results from the failure of the Trustee or the Collateral Agent to make any
filings, renewals or continuations (or other equivalent filings) which the Company has
indicated in the perfection certificate or other written communications to the Trustee are
required to be made or the failure of the Trustee or the Collateral Agent to maintain
possession of certificates, instruments or other documents actually delivered to it
representing securities or other possessory collateral pledged under the Security
Documents, or




     (ix) the failure by the Company or any Subsidiary Guarantor to comply for 60 days after
a Default Notice is given with its other agreements contained in the Security Documents or
Intercreditor Agreement except for a failure that would not be material to the holders of
the Notes and would not materially affect the value of the Collateral taken as a whole
(together with the defaults described in Sections 6.01 (vii) and (viii) hereof).



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     However, a default under Section 6.01(iii), (iv), (vi)(B), (vii), (viii) or (ix) hereof will
not constitute an Event of Default until the Trustee or the holders of at least 30% in principal
amount of the outstanding Notes notify the Company of the default (a “Default Notice”) and the
Company does not cure such default within the time specified after receipt of such Default Notice.


Section 6.02 Acceleration.




     If an Event of Default occurs and is continuing, the Trustee or the holders of at least 30% in
principal amount of the outstanding Notes by notice to the Company and the Trustee may declare the
principal of and accrued but unpaid interest on all the Notes to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately. If an Event of
Default under Section 6.01(v) hereof with respect to the Company occurs and is continuing, the
principal of and interest on all the Notes will by that very fact alone become and be immediately
due and payable without any declaration or other act on the part of the Trustee or any Holders of
the Notes. The Holders of a majority in aggregate principal amount of the then outstanding Notes
by written notice to the Trustee may, on behalf of all of the Holders, rescind an acceleration and
its consequences, if the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal or interest that has become due solely
because of the acceleration) have been cured or waived.


Section 6.03 Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of and interest on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.



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


Section 6.04 Waiver of Past Defaults.




     (a) Holders of a majority in aggregate principal amount of the then outstanding Notes by
notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or
Event of Default and its consequences hereunder, or compliance with any provision of this Indenture
except a continuing Default or Event of Default in the payment of the principal of or interest on,
the Notes (including in connection with an offer to purchase); provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.



     (b) In the event of any Event of Default specified in Section 6.01(iv) hereof, such Event of
Default and all consequences thereof (excluding any resulting Event of Default under Section
6.01(i) or (ii) hereof) shall be annulled, waived and rescinded automatically and without any
action by the Trustee or the Holders if, within 20 days after such Event of Default arose,




     (x) the Debt that is the basis for such Event of Default has been discharged,



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     (y) the Holders thereof have rescinded or waived the acceleration, notice or action (as
the case may be) giving rise to such Event of Default or




     (z) the Default that is the basis for such Event of Default has been cured.


Section 6.05 Control by Majority.




     Holders of a majority in principal amount of the outstanding Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee or of exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Notes or that may involve the Trustee in personal liability.


Section 6.06 Limitation on Suits.




     Except to enforce the right to receive payment of principal or interest when due, no Holder of
a Note may pursue any remedy with respect to this Indenture or the Notes unless:




     (1) such Holder has previously given to the Trustee written notice that an Event of
Default is continuing;




     (2) Holders of at least 30% in aggregate principal amount of the outstanding Notes have
requested the Trustee in writing to pursue the remedy;




     (3) such Holders have offered the Trustee reasonable security or indemnity against any
loss, liability or expense which might be incurred in compliance with such request;




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




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



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


Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.


Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(i) or (ii) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of and interest remaining unpaid on, the
Notes and interest on overdue principal and, to the extent lawful, interest and such further amount
as shall be sufficient to cover



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the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.



Section 6.09 Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.


Section 6.10 Priorities.




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




     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expenses, indemnity amounts and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of collection;




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




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct in a final, non-appealable order.



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


Section 6.11 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by



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the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes.




ARTICLE 7

TRUSTEE



Section 7.01 Duties of Trustee.




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



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




     (1) the duties of the Trustee will be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of certificates or opinions specifically required by any
provision hereof to be furnished to it, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the form required by this Indenture
(but need not confirm or investigate the accuracy of mathematical calculations stated
therein).



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




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




     (2) the Trustee will not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was grossly negligent in
ascertaining the pertinent facts; and




     (3) the Trustee will not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.



     (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.



     (e) No provision of this Indenture will require the Trustee to expend or risk its own funds or
incur any liability. The Trustee will be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder has offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or expense.



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     (f) The Trustee will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.


Section 7.02 Rights of Trustee.




     (a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel of it selection and the advice of such counsel or any Opinion of Counsel
will be full and complete authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon.



     (c) The Trustee may act through its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.



     (d) The Trustee will not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it by this Indenture.



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



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



     (g) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.



     (h) Except with respect to Section 4.01 hereof, the Trustee shall have no duty to inquire as
to the performance of the Company’s covenants in Article 4 hereof. In addition, the Trustee shall
not be deemed to have knowledge of any Default or Event of Default except (i) any Default or Event
of Default occurring pursuant to Section 6.01(i) hereof or Section 6.01(ii) hereof or (ii) any
Default or Event of Default of which a Responsible Officer of the Trustee shall have received
written notification at the Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture.



     (i) Delivery of reports, information and documents to the Trustee under Section 4.03 hereof is
for informational purposes only, and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).



     (j) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of



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whether the Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.


Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission for permission to
continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Indenture
Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11 hereof.


Section 7.04 Trustee’s Disclaimer.




     The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.


Section 7.05 Notice of Defaults; Notice of Actionable Default.




     (a) If a Default occurs and is continuing and is known to the Trustee, the Trustee must mail
to each Holder of the Notes notice of the Default within 90 days after it occurs. Except in the
case of a Default in the payment of principal of or interest on any Note, the Trustee may withhold
notice if and so long as a committee of its Trust Officers in good faith determines that
withholding notice is in the interests of the Holders of the Notes.



     (b) The Trustee will not deliver any Notice of Actionable Default to the Collateral Agent
unless (i) an Event of Default under Section 6.01 hereof has occurred and is continuing, (ii) any
Default Notice thereof has been given and any grace periods provided for in Section 6.01 hereof
have expired and (iii) Holders of at least 30% in principal amount of the outstanding Notes have
requested the Trustee in writing to deliver such Notice of Actionable Default.


Section 7.06 Reports by Trustee to Holders of the Notes.




     (a) Within 60 days after each November 15 beginning with the November 15 following the date of
this Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders
of the Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if
no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The
Trustee will also transmit by mail all reports as required by TIA § 313(c).



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



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Section 7.07 Compensation and Indemnity.




     (a) The Company will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation will not be
limited by any law on compensation of a trustee of an express trust. The Company will reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses will include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.



     (b) The Company and the Guarantors, jointly and severally, will indemnify the Trustee and its
officers, directors, employees and agents and hold them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the costs and expenses
of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder
or any other Person) or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss, liability or expense is determined
by a court of competent jurisdiction to have been caused by its own negligence or willful
misconduct. The Trustee will notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of
the Guarantors of their obligations hereunder. The Company or such Guarantor will defend the claim
and the Trustee will cooperate in the defense. To the extent there exists a conflict or a
potential conflict of interest, as determined in good faith by the Trustee, the Trustee may have
separate counsel and the Company will pay the reasonable fees and expenses of such counsel.
Neither the Company nor any Guarantor need pay for any settlement made without its consent, which
consent will not be unreasonably withheld.



     (c) The obligations of the Company and the Guarantors under this Section 7.07 will survive the
satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.



     (d) To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the
Trustee will have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien
will survive the satisfaction and discharge of this Indenture.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(6) or (7) hereof occurs, the expenses and the compensation for the services
(including the reasonable fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.



     (f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.



     Section 7.08 Replacement of Trustee.



     (a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this
Section 7.08.



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



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




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




     (3) a custodian or public officer takes charge of the Trustee or its property; or




     (4) the Trustee becomes incapable of acting.



     (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.



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



     (e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     (f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.


Section 7.09 Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act will be the successor Trustee.


Section 7.10 Eligibility; Disqualification.




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.



     This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).



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Section 7.11 Preferential Collection of Claims Against Company.




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



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE



Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may at any time, at its option evidenced by a resolution of its Board of Directors
set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied
to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.


Section 8.02 Legal Defeasance, Covenant Defeasance and Discharge.




     (a) Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02(a), all of the Company’s and the Guarantors’ obligations under the Indenture Documents
and the Security Documents will be terminated, except for obligations under Sections 2.02, 2.03,
2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and 8.06 hereof (“Legal Defeasance”). For this
purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes (including the Guarantees)
and cured all existing Events of Default, which shall thereafter be deemed to be “outstanding” only
for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in
clauses (1) and (2) of this Section 8.02(a) below, and to have satisfied all their other
obligations under such Notes, the Guarantees and this Indenture (and the Trustee, on demand of and
at the expense of the Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or discharged hereunder:




     (1) the rights of Holders of outstanding Notes of any particular series to receive
payments in respect of the principal of, or interest or premium and Additional Interest, if
any, on, such Notes when such payments are due from the Funds in Trust referred to in
Section 8.04 hereof;




     (2) the Company’s obligations with respect any series of Notes under Article 2 hereof
and Section 4.02 hereof;




     (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s and the Guarantors’ obligations in connection therewith; and




     (4) this Article 8.



     Subject to compliance with this Article 8, the Company may exercise its option under this Section
8.02(a) notwithstanding the prior exercise of its option under Section 8.02(b) hereof.



     (b) Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02(b), the Guarantors’ obligations under Article 10 hereof and the Company’s obligations
under (1) Sections 4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17 and
4.18 hereof and Article 10 hereof and (2) clauses (ii), (iii) and (iv) of Section 5.01(a) hereof
and Section 5.01(c) hereof (“Covenant Defeasance”), any existing failure by the Company or the
Guarantors to



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comply with any such obligations shall no longer constitute an Event of Default, and such
Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder. For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Guarantees,
the Company and the Guarantors may omit to comply with and will have no liability in respect of any
term, condition or limitation set forth in any such covenant listed in the preceding sentence,
whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or in any other
document and such omission to comply will not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes
and Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section
8.01 hereof of the option applicable to this Section 8.02(b), subject to the satisfaction of the
conditions set forth in Section 8.03 hereof, clauses (iii) (other than with respect to compliance
with Section 5.01(a)(i) hereof), (iv), (v) (with respect to Significant Subsidiaries only), (vi),
(vii), (viii) and (ix) of Section 6.01 hereof will not constitute Events of Default. In addition
the Guarantees will be terminated and released and the Guarantors discharged with respect to their
Guarantees and such Notes upon a Covenant Defeasance.


Section 8.03 Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance:




     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes being defeased, cash in U.S. dollars, non-callable U.S. Government
Obligations, or a combination of cash in U.S. dollars and non-callable U.S. Government
Obligations (“Funds in Trust”), in amounts as will be sufficient to pay the principal of, or
interest and premium on, the outstanding Notes on the stated date for payment thereof or on
the applicable redemption date, as the case may be, and the Company must specify whether
such Notes are being defeased to such stated date for payment or to a particular redemption
date;




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




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




     (4) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to the Funds in Trust);



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     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries (other than
Non-Recourse Subsidiaries) is a party or by which Company or any of its Subsidiaries (other
than Non-Recourse Subsidiaries) is bound;




     (6) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of the Notes
being defeased over the other creditors of the Company with the intent of defeating,
hindering, delaying or defrauding any creditors of the Company or others; and




     (7) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance, as applicable, have been satisfied.



Section 8.04 Deposited Money and U.S. Government Securities to be Held in Trust; Other
Miscellaneous Provisions.



     Subject to Section 8.06 hereof, all money and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.04, the “Trustee”) pursuant to Section 8.03 hereof in
respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect of principal,
premium, and interest, but such money need not be segregated from other funds except to the extent
required by law.



     The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Securities deposited pursuant to
Section 8.03 hereof or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.



     Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.03 hereof, which are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.


Section 8.05 Repayment to Company.




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



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from the date of such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.



Section 8.06 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any cash or non-callable U.S. Government
Securities in accordance with Section 8.02 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s and the Guarantors’ obligations under this Indenture and such
Notes and the Guarantees will be revived and reinstated as though no deposit had occurred pursuant
to Section 8.02 hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 hereof, as the case may be; provided, however,
that, if the Company makes any payment of principal of, premium or Additional Interest, if any, or
interest on, any Note following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.



ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.01 Without Consent of Holders of Notes.




     Without the consent of or notice to any Holder of the Notes, the Company and the Trustee may
amend the Indenture Documents, and the Company and the Collateral Agent, the Trustee or Bank
Agents, as applicable, may amend the Security Documents or the Intercreditor Agreement, (i) to cure
any ambiguity, omission, defect or inconsistency, (ii) to provide for the assumption by a successor
Person of the obligations of the Company under this Indenture or obligations of a Guarantor under
its Guarantee if in compliance with Article 5 hereof, (iii) to provide for uncertificated Notes in
addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code), (iv) to add guarantees or
additional obligors with respect to the Notes (or to remove such guarantees or additional obligors,
subject, in the case of the Subsidiary Guarantees, to Section 9.02 hereof), (v) to add additional
assets as Collateral or to release Collateral from the Lien or any Guarantor from its Guarantee, in
each case pursuant to this Indenture, the Security Documents and the Intercreditor Agreement when
permitted or required by this Indenture, the Security Documents or the Intercreditor Agreement,
(vi) to add to the covenants of the Company or a Subsidiary for the benefit of the Holders of the
Notes or to surrender any right or power conferred upon the Company or a Subsidiary, (vii) to
provide for issuance of the Exchange Notes under this Indenture (including to provide for treatment
of the Exchange Notes and the Notes as a single class of securities) in connection with the
Registered Exchange Offer, (viii) to comply with any requirement of the Commission in connection
with the qualification of this Indenture under the TIA or to otherwise comply with the TIA, (ix) to
make any change that would provide any additional rights or benefits to the Holders of the Notes or
that does not adversely affect the rights of any Holder of the Notes, (x) to conform the text of
the Indenture Documents, the Security Documents or the Intercreditor Agreement to any provision of
the “Description of the Notes” Section of the Offering Memorandum to the extent that such provision
in such “Description of the Notes” Section of the Offering Memorandum was intended to be a verbatim
recitation of a provision of the Indenture Documents, the Security Documents or the Intercreditor
Agreement, (xi) to provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture as of the Issue Date, (xii) to make any amendment to the provisions of
this Indenture relating to the transfer and legending of Notes provided, however, that
(a) compliance with this Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any applicable securities law and (b) such amendment does not
materially and adversely affect the rights of Holders to transfer Notes,



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(xiii) to evidence and provide the acceptance of the appointment of a successor trustee under
this Indenture, or (xiv) to comply with the rules of any applicable securities depositary. Without
limiting the generality of the foregoing, no signature, consent or other action of the Trustee or
the Holders of the Notes will be required for any amendment, supplement or waiver to the
Intercreditor Agreement or any Security Document (i) that is permitted by the preceding provisions
of this Section 9.01 (including without limitation any amendment, supplement or waiver that does
not adversely affect the rights of any Holder of the Notes) or (ii) that is otherwise permitted by
this Indenture without any such action.



Section 9.02 With Consent of Holders of Notes.




     (a) The Indenture Documents, the Security Documents or the Intercreditor Agreement may be
amended or supplemented with the consent of the Holders of a majority in principal amount of the
Notes then outstanding and any past default or noncompliance with any provisions may be waived with
the consent of the Holders of a majority in principal amount of the Notes then outstanding, and any
existing Default or Event of Default or compliance with any provision of the Indenture Documents,
the Security Documents or the Intercreditor Agreement may be waived with the consent of the Holders
of a majority in aggregate principal amount of the then outstanding Notes; provided,
however, that (a) without the consent of each Holder of an outstanding Note affected, no
amendment, supplement or waiver may (with respect to any Notes held by a non-consenting Holder)
(i) reduce the principal amount of Notes whose Holders must consent to an amendment, (ii) reduce
the rate of or extend the time for payment of interest on any Note, (iii) reduce the principal of
or extend the Stated Maturity of any Note, (iv) reduce the premium payable upon the redemption of
any Note or change the time at which any Note may be redeemed pursuant to Section 3.07 hereof,
(v) make any Note payable in money other than that stated in the Note, (vi) make any change to the
provision which protects the right of any Holder of the Notes to receive payment of principal of
and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Notes, or (vii) make any change in
the amendment provisions which require each Holder’s consent or in the waiver provisions; and (b)
except as described in Section 10.04 hereof without the consent of Holders of at least a majority
in principal amount of the Notes then outstanding, no amendment may release any Subsidiary
Guarantor from its obligation under its Subsidiary Guarantee or change any Subsidiary Guarantee in
any manner that materially adversely affects the rights of any Holder of Notes under such
Subsidiary Guarantee.



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



     (b) The consent of the Holders of the Notes is not necessary under this Indenture to approve
the particular form of any proposed amendment. It is sufficient if such consent approves the
substance of the proposed amendment.



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



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     (d) A consent to any amendment or waiver under this Indenture by any Holder of Notes given in
connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.



Section 9.03 Amendment of Certain Provisions of the Intercreditor Agreement and the Security
Documents.


     (a) Notwithstanding Section 9.01 and 9.02 hereof, an amendment, supplement or waiver may not
(with respect to any Notes held by a non-consenting Holder) make any change in Section 5.1 of the
Intercreditor Agreement, Section 5.1 of the Security Agreement or similar provisions in the other
Security Documents, in each case, relating to the application of proceeds of the Collateral that
would adversely affect the Holders of the Notes without the consent of Holders representing at
least 75% of the aggregate principal amount of Notes affected.



     (b) Any amendment, waiver, or consent to any of the collateral documents securing the
obligations under the Senior Documents, to the extent applicable to any Collateral, will also apply
automatically to the comparable Security Documents with respect to the Holders of the Notes’
interest in such Collateral. In addition, the Intercreditor Agreement and the Security Documents
may be amended or supplemented from time to time at the sole request and expense of the Company,
and without the consent or signature of the Trustee or any Holder of Notes to do any of the
following (which shall be deemed to not adversely affect the Holders of the Notes for any purpose
under the Indenture Documents, the Security Documents or the Intercreditor Agreement):




     (1) (A) to add other parties (or any authorized agent thereof or trustee therefor)
holding Other Pari Passu Lien Obligations that are incurred in compliance with this
Indenture, (B) to establish that the Liens on any Term Loan Collateral securing such Other
Pari Passu Lien Obligations shall be pari passu in priority under the Intercreditor
Agreement with the Liens on such Term Loan Collateral securing the Note Obligations and the
Liens on such Term Loan Collateral securing the Multi-Currency Secured Obligations, and
junior and subordinated to any other Liens on such Term Loan Collateral that are higher in
priority than the Liens securing the Note Obligations, in each case, on the terms provided
for in the Intercreditor Agreement in effect immediately prior to such amendment, (C) to
establish that the Liens on any Multi-Currency Collateral securing such Other Pari Passu
Lien Obligations shall be pari passu in priority under the Intercreditor Agreement with the
Liens on such Multi-Currency Collateral securing the Note Obligations on the terms provided
for in the Intercreditor Agreement, as in effect immediately prior to such amendment, and
junior and subordinated to any other Liens on such Multi-Currency Collateral that are higher
in priority than the Liens securing the Note Obligations, in each case, on the terms
provided for in the Intercreditor Agreement in effect immediately prior to such amendment
and (D) to establish the relative priority (other than relative priority with respect to
Liens whose priority is specified in clauses (B) and (C)) of outstanding Liens (other than
Liens whose priority is specified in clauses (B) and (C)) that are subject to the
Intercreditor Agreement;




     (2) to add other parties (or any authorized agent thereof or trustee therefor) holding
Other Senior Lien Obligations that are incurred in compliance with this Indenture, (B) to
establish that the Liens on any Term Loan Collateral securing such Other Senior Lien
Obligations shall be higher in priority under the Intercreditor Agreement than the Liens on
such Term Loan Collateral securing the Note Obligations, the Liens on such Term Loan
Collateral securing the Other Pari Passu Lien Obligations and the Liens on such Term Loan
Collateral securing the Multi-Currency Secured Obligations, in each case, on the terms
provided for in the Intercreditor Agreement in effect immediately prior to such amendment,
(C) to establish that the Liens on any Multi-Currency Collateral securing such Other Senior
Lien Obligations shall be higher in priority under the Intercreditor Agreement than the
Liens on such Multi-Currency Collateral securing the Note



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Obligations and the Liens on such Multi-Currency Collateral securing the Other Pari
Passu Lien Obligations, in each case, on the terms provided for in the Intercreditor
Agreement in effect immediately prior to such amendment, and (D) to establish the relative
priority (other than relative priority with respect to Liens whose priority is specified in
clauses (B) and (C)) of outstanding Liens (other than Liens whose priority is specified in
clauses (B) and (C)) that are subject to the Intercreditor Agreement;




     (3) (A) to add other parties (or any authorized agent thereof or trustee therefor)
holding Other Junior Lien Obligations that are incurred in compliance with this Indenture,
(B) to establish that the Liens on any Collateral securing such Other Junior Lien
Obligations shall be lower in priority under the Intercreditor Agreement than the Liens on
such Collateral securing the Note Obligations, the Other Pari Passu Lien Obligations, Term
Loan Secured Obligations and the Multi-Currency Secured Obligations, and (C) to establish
the relative priority of the Liens on the Collateral securing the Other Junior Lien
Obligations with respect to Liens (other than those whose priority is specified in clause
(B)) that are subject to the Intercreditor Agreement; and




     (4) (A) to modify the definition of “Controlling Agent” to add references to any
authorized agent or trustee for other parties holding Other Senior Lien Obligations, Other
Pari Passu Obligations and Other Junior Lien Obligations that are permitted to be added as
parties to the Intercreditor Agreement as described in paragraphs (1), (2) and (3) above and
(B) to permit any such authorized agent or trustee for other parties holding such Other
Senior Lien Obligations or Other Pari Passu Obligations to be the “Controlling Agent” prior
to the Trustee;


provided that a single tranche of obligations that is secured by Liens on the Collateral
may have a different relative priority with respect to the Liens securing the Note Obligations with
regard to the Multi-Currency Collateral, on one hand, and the Term Loan Collateral, on the other
hand.




     (c) Notwithstanding anything in Section 9.03(b) hereof to the contrary, the terms and
provisions of the Intercreditor Agreement applicable to the Liens securing Other Pari Passu Lien
Obligations, Other Senior Lien Obligations and Other Junior Lien Obligations contained in any such
amendment, modification or waiver other than relative Lien priority (including rights as to
enforcement, procedural provisions and other similar provisions under the Intercreditor Agreement)
may differ from those applicable to the Liens securing the Notes, the Multi-Currency Secured
Obligations and the Term Loan Secured Obligations; provided that any such terms and
provisions applicable to the Liens securing Other Pari Passu Obligations and Other Senior Lien
Obligations shall be deemed to not adversely affect the Holders of the Notes for any purpose under
the Indenture Documents, the Security Documents or the Intercreditor Agreement to the extent that
such terms and provisions are no more favorable to the Holders of the obligations secured by such
Liens relative to the Liens securing the Note Obligations than those terms and provisions
applicable to the Multi-Currency Secured Obligations or the Term Loan Secured Obligations, as
applicable (except to the extent otherwise provided in Section 9.03(b)(4) hereof with respect to
the definition of “Controlling Agent”).



     (d) Any such additional party or parties, the Multi-Currency Administrative Agent, the Term
Loan Administrative Agent, the Trustee and the Collateral Agent shall be entitled to rely upon a
certificate delivered by a Responsible Officer certifying that such Debt was Issued, and any such
amendment, modification or waiver to the Intercreditor Agreement or Security Documents was entered
into, in compliance with this Indenture. Any amendment of the Intercreditor Agreement that is
proposed to be effected without the consent of the Trustee or the Collateral Agent will be
submitted to such Person for its review at least five Business Days (or such shorter period as such
Person may agree) prior to the proposed effectiveness of such amendment.



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Section 9.04 Compliance with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Notes will be set forth in an amended
or supplemental indenture that complies with the TIA as then in effect.


Section 9.05 Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.


Section 9.06 Notation on or Exchange of Notes.




     The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



     Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.


Section 9.07 Trustee to Sign Amendments, etc.




     The Trustee will sign any amendment or supplement to the Indenture Documents, the Security
Documents or the Intercreditor Agreement that is authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of
the Trustee. The Company may not sign any such amendment or supplement until the Board of
Directors of the Company approves it. In executing any such amendment or supplement, the Trustee
will be provided with and (subject to Section 7.01 hereof) will be fully protected in relying upon,
in addition to the documents required by Section 13.04 hereof, an Officers’ Certificate and an
Opinion of Counsel stating that the execution of such amendment or supplement is authorized or
permitted by this Indenture.



ARTICLE 10

GUARANTEES



Section 10.01 Guarantee.




     (a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:




     (1) the principal of, premium, if any, and interest on, the Notes will be promptly paid
in full when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or thereunder will
be promptly paid in full or performed, all in accordance with the terms hereof and thereof;
and



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     (2) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.



     (b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance (other than complete performance) which might
otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor
hereby waives diligence, presentment, demand of payment, filing of 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, notice and all demands whatsoever and covenant that this Guarantee will not be
discharged except by complete performance of the obligations contained in the Notes and this
Indenture.



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



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Guarantee.


Section 10.02 Limitation on Guarantor Liability.




     Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in
the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or
conveyance.



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Section 10.03 Execution and Delivery of Guarantee.




     To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that
a notation of such Guarantee substantially in the form attached as Exhibit E, as applicable, hereto
will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the
Trustee after the time such Guarantor becomes a Guarantor and that this Indenture will be executed
on behalf of such Guarantor by one of its Officers.



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



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



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


Section 10.04. Releases.




     Any Subsidiary Guarantee of a Subsidiary Guarantor provided under this Indenture shall be
released:




     (1) automatically and without any action required on the part of the Trustee or any
Holder of the Notes, if all of the Capital Stock or all or substantially all of the assets
of such Subsidiary is sold or otherwise disposed of (including by way of merger or
consolidation) to a Person other than the Company or a Subsidiary of the Company (other than
a Non-Recourse Subsidiary) and such sale or disposition does not violate the provisions of
Section 4.10 hereof;




     (2) upon request of the Company without consent unless, within 20 Business Days after
written notice of the proposed release of such Subsidiary Guarantee is mailed to the Trustee
and the Holders, Holders of 25% of the outstanding principal amount of Notes deliver to the
Company a written objection to such release;




     (3) automatically and without any action required on the part of the Trustee or any
Holder of the Notes, if the Company designates such Subsidiary Guarantor to be a
Non-Recourse Subsidiary in accordance with the applicable provisions of this Indenture;




     (4) automatically and without any action required on the part of the Trustee or any
Holder of the Notes, upon Legal Defeasance or satisfaction and discharge of this Indenture
as provided in Article 8 or 11 hereof;




     (5) automatically and without any action required on the part of the Trustee or any
Holder of the Notes, upon a sale of Capital Stock which causes such Subsidiary Guarantor to
cease to be a Subsidiary if such sale does not violate any of the provisions of this
Indenture;




     (6) automatically and without any action required on the part of the Trustee or any
Holder of the Notes, if the Company has satisfied the conditions to Covenant Defeasance as
provided in Article 8 hereof;



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     (7) automatically and without any action required on the part of the Trustee or any
Holder of the Notes, if such Subsidiary Guarantor no longer has any obligations under any
Debt that would require it to become a guarantor pursuant to Section 4.14 hereof;




     (8) with the consent of Holders of a majority in principal amount of the Notes then
outstanding (provided, that if such Subsidiary Guarantor is a Significant Subsidiary, the
consent of Holders of 66.67% of the aggregate principal amount of Notes then outstanding
shall be required for such release); or




     (9) automatically and without any action required on the part of the Trustee or any
Holder of the Notes, upon request of the Company without consent if the Fair Market Value of
the assets of the related Subsidiary Guarantor, together with the Fair Market Value of the
assets of other Subsidiary Guarantors whose Subsidiary Guarantee was released under this
clause (9) in the same calendar year, do not exceed $10.0 million (subject to a cumulative
carryover for amounts not used in any prior calendar year).



     At the request of the Company, the Trustee will execute and deliver an instrument evidencing
such release and any other document or instrument necessary for such release.



ARTICLE 11

SATISFACTION AND DISCHARGE



Section 11.01 Satisfaction and Discharge.




     (a) The Indenture Documents and the Security Documents will be discharged and will cease to be
of further effect, when:




     (1) either:




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




     (B) all Notes that have not been delivered to the Trustee for cancellation
(i) have become due and payable by reason of the mailing of a notice of redemption
or otherwise or (ii) will become due and payable within one year, and the Company or
any Subsidiary Guarantor have irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust solely for the benefit of such Holders, cash in
U.S. dollars, non-callable U.S. Government Obligations, or a combination of cash in
U.S. dollars and non-callable U.S. Government Obligations, in amounts as will be
sufficient, without consideration of any reinvestment of interest, to pay and
discharge the entire Debt on such Notes not delivered to the Trustee for
cancellation, including principal, premium and accrued interest to the date of
maturity or redemption;




     (2) no Default or Event of Default with respect to such Notes has occurred and is
continuing on the date of the deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit) and the deposit will not result
in a breach or violation of, or constitute a default under, any other instrument (other than
this Indenture) to which the Company or any Subsidiary Guarantor is a party or by which the
Company or any Subsidiary Guarantor is bound;



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     (3) The Company has paid or caused to be paid all sums payable by the Company under
this Indenture with respect to the Notes; and




     (4) The Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of such Notes at maturity or on
the redemption date, as the case may be.



     (b) The Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section 11.01, the provisions of
Sections 11.02 and 8.05 hereof will survive. In addition, nothing in this Section 11.01 will be
deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.


Section 11.02 Application of Trust Money.




     Subject to the provisions of Section 8.05 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.



     If the Trustee or Paying Agent is unable to apply any cash in U.S. dollars or non-callable
U.S. Government Securities in accordance with Section 11.01 hereof by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of
principal of, premium or interest on, any such Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the cash in U.S. dollars or non-callable U.S. Government Securities held by the
Trustee or Paying Agent.



ARTICLE 12

COLLATERAL




Section 12.01 Security Documents.



          (a) The payment of the Notes and the Guarantees when due (whether on an interest payment date,
at Stated Maturity, upon repurchase, upon acceleration, redemption or otherwise) shall be secured
as provided in the Security Documents which the Company and the Guarantors have entered into
simultaneously with the execution of this Indenture and shall be secured as provided by all
Security Documents hereafter delivered as required by this Indenture, in each case subject to the
terms of the Intercreditor Agreement. Notwithstanding anything to the contrary in this Indenture
and for the avoidance of doubt, no security interest or Lien is granted by the provisions of this
Indenture, the Notes or the Guarantees.




          (b) Each Holder of Notes, by its acceptance of a Note, consents and agrees to the terms of
each Security Document and the Intercreditor Agreement, hereby appoints Citicorp USA Inc. as
Collateral Agent on the Issue Date, authorizes and directs the Trustee to enter into the
Intercreditor


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 Agreement and the Collateral Agent to enter into the Security Documents and the Intercreditor
Agreement, and authorizes and empowers each of the Trustee and the Collateral Agent to bind the
Holders of Notes as set forth in the Security Documents and the Intercreditor Agreement and to
perform its respective obligations and exercise its respective rights and powers thereunder.




          (c) As among the Holders, the Collateral shall be held for the equal and ratable benefit of
the Holders without preference, priority or distinction of any thereof over any other.




Section 12.02 Opinions of Counsel.



     The Company shall furnish to the Trustee and the Collateral Agent (i) promptly following the
Issue Date and (ii) on November 15 of each year, beginning November 15, 2010, an Opinion or
Opinions of Counsel, dated as of such date, either stating that, in the opinion of such counsel,
all action has been taken to maintain the effectiveness of the Liens of the Security Documents and
reciting the details of such action or referring to prior opinions of counsel in which such details
are given, or stating that, in the opinion of such counsel, no such action is necessary to maintain
such Liens.



Section 12.03 Suits to Protect the Collateral.



     Subject to the terms of the Intercreditor Agreement and the Security Documents, the Trustee
shall have power, but without the obligation to exercise such power, to institute in its name and
to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts which may be unlawful or in violation of this Indenture or any of the
Security Documents, and such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interests and the interests of the Holders of the Notes in the Collateral and in the
principal, interest, issues, profits, rents, revenues and other income arising therefrom, including
power to institute and maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid, if the enforcement of, or compliance with, such enactment, rule or order would
impair the security under any of the Collateral Documents, or be prejudicial to the interests of
the Holders of the Notes or the Trustee.



Section 12.04 Release of Collateral.



          (a) Liens on the Collateral securing the Note Obligations created under the Security Documents
shall be released automatically and without the need for any further action by any Person:





(1) in whole, as to all property subject to such Liens, upon:




     (i) payment in full of the principal of, together with accrued
and unpaid interest on, the Notes and all other obligations under
this Indenture, the Guarantees and the Security Documents that are
due and payable at or prior to the time such principal, together with
accrued and unpaid interest, are paid; or




     (ii) satisfaction and discharge of this Indenture as set forth
under Article 11 hereof; or




     (iii) Legal Defeasance or Covenant Defeasance of this Indenture
as set forth under Article 8 hereof;



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(2) in part, as to any property that (A) is sold, transferred or otherwise disposed
of by the Company or any of its Subsidiaries (other than any such sale to the
Company or any Guarantor) in a transaction not prohibited by Section 4.10 hereof at
the time of such sale, transfer or disposition, to the extent of the interest sold,
transferred or disposed of, (B) is sold, transferred or otherwise disposed of in
connection with the foreclosure of, or other exercise of remedies with respect to
such Collateral by the Collateral Agent (except with respect to any proceeds of such
sale, transfer or disposition that remain after the Multi-Currency Secured
Obligations and the Term Loan Secured Obligations have been paid in full),
notwithstanding the existence of an Event of Default or (C) is owned or at any time
acquired by a Subsidiary Guarantor that has been released from its Subsidiary
Guarantee, concurrently with the release of such Subsidiary Guarantee;




(3) in part, as to any property or other assets that is or becomes Excluded Property
or Other Excluded Assets;




(4) with the consent of the Holders of at least the aggregate principal amount of
the Notes then outstanding required by Article 9 hereof (including, without
limitation, consents obtained in connection with a tender offer or exchange offer
for, purchase of, the Notes); and




(5) on any or all of the Collateral, upon any release of the Liens thereon securing
the Multi-Currency Secured Obligations and Term Loan Secured Obligations unless at
the time of such release, an Event of Default shall have occurred and be continuing
(except in the case of a release described in clause (2)(A) or (B) above), in which
case such release shall be effected when such Event of Default and all other Events
of Default shall cease to be continuing.



          (b) At the request of the Company or the applicable Guarantor, as the case may be, (i) Liens
in any part of the Collateral securing the Note Obligations that is subject to any Permitted Lien
described in clauses (1), (2)(iii), (2)(iv), (2)(v), (2)(vii), (2)(viii), (2)(xii), (2)(xiii), (4),
(13), (14), (16), (20) or (21) of Section 4.12 hereof shall be released or subordinated as required
by law or by the holder of such Permitted Lien to the extent documents relating to such Permitted
Lien would not permit such asset to be subject to the Liens created under the Security Documents;
provided, however, that immediately upon the ineffectiveness, lapse or termination of any
such restriction, the Company or the applicable Guarantor, as the case may be, will take all
necessary actions in order to secure the Collateral subject to such Permitted Lien in the same
manner upon which it was secured prior to the imposition of the Permitted Lien; and (ii) the Liens
in Patents or Trademarks (as each such term is defined in the Security Documents) that are licensed
to third parties in a transaction that does not violate this Indenture shall be subordinated to
such license agreement.




          (c) At the request of the Company or the applicable Guarantor, as the case may be, Liens on
any item of Collateral securing the Note Obligations shall be subordinated if the Liens on such
item of Collateral securing the Multi-Currency Secured Obligations and the Term Loan Secured
Obligations are subordinated unless at the time of such subordination, an Event of Default shall
have occurred and be continuing, in which case such subordination shall be effected when such Event
of Default and all other Events of Default shall cease to be continuing.




          (d) At the request of the Company (which request shall be set forth in an Officers’
Certificate) for a release of Collateral or subordination of Lien in accordance with this Section
12.04, at the Company’s and Guarantors’ expense, the Trustee and the Collateral Agent shall
promptly take all






104









 







necessary actions to cause the relevant Collateral to be released or the Lien in the relevant
Collateral to be subordinated. Any such documents shall be without recourse to or warranty by the
Trustee.




          (e) Notwithstanding anything to the contrary herein, the Company and the Guarantors will not
be required to comply with all or any portion of TIA § 314(d) if they determine, in good faith
based on advice of counsel, that under the terms of that section and/or any interpretation or
guidance as to the meaning thereof of the Commission and its staff, including “no action” letters
or exemptive orders, all or any portion of TIA § 314(d) is inapplicable to the released Collateral.




          (f) The release of any Collateral from the Lien granted under the Collateral Documents or the
release or subordination of, in whole or in part, the Liens granted by any of the Collateral
Documents, shall not be deemed to impair the security interests in contravention of the provisions
of this Indenture if and to the extent the Collateral or Liens are released in accordance with the
terms of this Indenture or the Security Documents and the Intercreditor Agreement.




          (g) The Company and its Subsidiaries may, among other things, without any release or consent
by the Trustee or the Collateral Agent, but otherwise in compliance with the covenants of this
Indenture and the Security Documents, conduct ordinary course activities with respect to the
Collateral, including:





(i) selling or otherwise disposing of, in any transaction or series of related
transactions, any property subject to the Lien of the Security Documents which has
become worn out, defective or obsolete or not used or useful in the business;




(ii) abandoning, terminating, canceling, releasing or making alterations in or
substitutions of any leases or contracts subject to the Lien of this Indenture or
any of the Security Documents;




(iii) surrendering or modifying any franchise, license or permit subject to the Lien
of this Indenture or any of the Security Documents which it may own or under which
it may be operating; altering, repairing, replacing, changing the location or
position of and adding to its structures, machinery, systems, equipment, fixtures
and appurtenances;




(iv) granting a license of any intellectual property;




(v) selling, transferring or otherwise disposing of inventory in the ordinary course
of business;




(vi) collecting accounts receivable in the ordinary course of business or selling,
liquidating, factoring or otherwise disposing of accounts receivable in the ordinary
course of business;




(vii) making cash payments (including for the repayment of Debt or interest) from
cash that is at any time part of the Collateral in the ordinary course of business
that are not otherwise prohibited by this Indenture and the Security Documents; and




(viii) abandoning, selling or otherwise disposing of any intellectual property which
is no longer used or useful in the Company’s business.



        (h) The Company shall deliver to the Trustee, within 30 calendar days following the end of
each fiscal year of the Company (or such later date as the Trustee shall agree), an Officers’






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Certificate substantially in the form of Exhibit G to the effect that all releases and
withdrawals during the preceding fiscal year (or since the Issue Date, in the case of the first
such certificate) in which no release or consent of the Collateral Agent was obtained in the
ordinary course of the Company’s and its Subsidiaries’ business were not prohibited by this
Indenture.




ARTICLE 13

MISCELLANEOUS



Section 13.01 Trust Indenture Act Controls.




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


Section 13.02 Notices.




     Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in Person or by first class mail (registered or certified, return
receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery,
to the others’ address:


If to the Company and/or any Guarantor:



Revlon Consumer Products Corporation

237 Park Avenue

New York, NY 10017

Facsimile No.: (212) 527-5693

Attention: Chief Legal Officer



With a copy to:



Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

Facsimile No.: (212) 492-0052

Attention: Lawrence G. Wee



If to the Trustee:



U.S. Bank National Association

60 Livingston Avenue

EP-MN-WS3C

St. Paul, Minnesota 55107-2292

Facsimile No.: (651) 495-8097

Attention: The Revlon Trust Administrator




     The Company, any Guarantor or the Trustee, by notice to the others, may designate additional
or different addresses for subsequent notices or communications.



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile;



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and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.




     Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.



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



     If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Indenture Agent at the same time.


Section 13.03 Communication by Holders of Notes with Other Holders of Notes.




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


Section 13.04 Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 13.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 13.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied;
provided that no such Opinion of Counsel shall be required in connection with the issuance
of the Initial Notes on the Issue Date.


Section 13.05 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply
with the provisions of TIA § 314(e) and must include:




     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;



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     (3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




     (4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



     Any Opinion of Counsel may be subject to customary limitations, assumptions and
qualifications.


Section 13.06 Rules by Trustee and Indenture Agents.




     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.


Section 13.07 No Personal Liability of Directors, Officers, Employees, Stockholders or Controlling
Persons.




     No director, officer, employee, incorporator, stockholder or controlling person of the Company
or any Guarantor or any of their parent companies, as such, will have any liability for any
obligations of the Company or the Guarantors under the Notes, this Indenture, the Guarantees, the
Registration Agreement or for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes. The
waiver may not be effective to waive liabilities under the federal securities laws.


Section 13.08 Governing Law.




     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE,
THE NOTES AND THE GUARANTEES.


Section 13.09 No Adverse Interpretation of Other Agreements.




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


Section 13.10 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture and the Notes, as applicable, will bind its successors, except as
otherwise provided in Section 10.04 hereof.


Section 13.11 Severability.




     In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.



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Section 13.12 Counterpart Originals.




     The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.


Section 13.13 Table of Contents, Headings, etc.




     The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and will in no way modify or restrict any of the terms or provisions hereof.


Section 13.14 Force Majeure.




     In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.


Section 13.15 Intercreditor Agreement and Security Documents.




     In the event of any conflict between (a) this Indenture, the Notes or a Guarantee (on the one
hand) and (b) the Intercreditor Agreement or the Security Documents (on the other hand), the
provisions of the Intercreditor Agreement and the Security Documents shall control unless such
compliance would violate the TIA. The Trustee and the Holders shall be subject to the limitations
set forth in the Intercreditor Agreement in the exercise of their remedies and application of the
proceeds of any enforcement actions under this Indenture, the Notes and the Guarantees.


Section 13.16 Waiver of Jury Trial.




     EACH OF THE COMPANY, THE TRUSTEE AND THE GUARANTORS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTION
CONTEMPLATED HEREBY.



[Signatures on following page]





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SIGNATURES




     IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the day
and year first written above.



	 	 	 	 	 
	 	Revlon Consumer Products Corporation

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Senior Vice President, Deputy
General Counsel and Secretary 	 
	 
	 	Revlon, Inc.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Senior Vice President, Deputy
General Counsel and Secretary 	 
	 
	 	Almay, Inc.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Charles of the Ritz Group Ltd.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Charles Revson Inc.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



[Signature Page to Indenture]






 









 








	 	 	 	 	 
	 	Cosmetics & More Inc.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	North America Revsale Inc.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	PPI Two Corporation

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Revlon Consumer Corp.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Revlon Development Corp.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



[Signature Page to Indenture]








 









 








	 	 	 	 	 
	 	Revlon Government Sales, Inc.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Revlon International Corporation

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Revlon Products Corp.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Revlon Real Estate Corporation

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Riros Corporation

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	Riros Group Inc.

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	 	Name:  	Michael T. Sheehan 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



[Signature Page to Indenture]







 









 








	 	 	 	 	 
	 	U.S. Bank National Association, as Trustee

 	 
	 	By:  	/s/ Richard Prokosch
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Indenture]






 









 








EXHIBIT A1




[Face of Note]




CUSIP/CINS                     




93/4% Senior Secured Notes due 2015




			
	 	 	 
	No. ___
	 	$                    






Revlon Consumer Products Corporation



promises to pay to                      or registered assigns,



the principal sum of                                                                     
             DOLLARS on November
15, 2015.



Interest Payment Dates: May 15 and November 15



Record Dates: May 1 and November 1




Dated:                     , 20__





A1-1









 








	 	 	 	 	 
	 	Revlon Consumer Products Corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A1-2









 





	 	 	 	 	 
	This is one of the Notes referred to


in the within-mentioned Indenture:	 	 
	 
	 	 	 	 
	U.S. Bank National Association,

   as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






Dated: ___________, 20__




A1-3









 





[Back of Note]

93/4% Senior Secured Notes due 2015



[Insert the Definitive Note Legend, if applicable pursuant to the provisions of the Indenture]



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



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



[Insert the OID Legend, if applicable pursuant to the provisions of the Indenture]




     Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated. References to “interest” shall also be deemed to be references
to Additional Interest unless the context otherwise requires.




     (1) Interest. Revlon Consumer Products Corporation, a Delaware
corporation (the “Company”), promises to pay interest on the principal amount of this Note
at the rate of 93/4% from                     , 20___ until maturity (but not including the
maturity date). The Company will pay interest semiannually in arrears on May 15 and
November 15 of each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next succeeding
Interest Payment Date; provided further that the first Interest Payment Date shall be
                    , 20___. The Company will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from
time to time on demand at a rate that is the rate then in effect to the extent lawful; it
will pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest, if any, (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.




     (2) Method of Payment. The Company will pay interest on the Notes
(except defaulted interest), to the Persons who are registered Holders of Notes at the close
of business on the May 1 and November 1 immediately preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, and interest at the office or
agency of the Paying Agent and Registrar (which initially will be the office of the
Trustee), or, at the option of the Company, payment of interest, may be made by check mailed
to the Holders at their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds will be required with respect to
principal of and interest, premium, on, all Global Notes and all other Notes the Holders of
which will have provided wire transfer instructions to the Company or the Paying Agent.
Such payment will be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.




     (3) Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.



A1-4









 






     (4) Indenture, Security Documents and Intercreditor Agreement. The
Company issued the Notes under an Indenture dated as of November 23, 2009 (the “Indenture”)
among the Company, the Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the TIA. The
Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA
for a statement of such terms. The Indenture does not limit the aggregate principal amount
of Notes that may be issued thereunder. The Notes and Guarantees are unsubordinated
obligations of the Company and the Guarantors, respectively, which obligations are secured
pursuant to the Security Documents, subject to the Intercreditor Agreement. Each Holder of
Notes, by its acceptance of a Note, consents and agrees to the terms of each Security
Document and the Intercreditor Agreement, hereby appoints Citicorp USA, Inc. as Collateral
Agent on the Issue Date, authorizes and directs the Trustee to enter into the Intercreditor
Agreement and the Collateral Agent to enter into the Security Documents and the
Intercreditor Agreement, and authorizes and empowers each of the Trustee and the Collateral
Agent to bind the Holders of Notes as set forth in the Security Documents and the
Intercreditor Agreement and to perform its respective obligations and exercise its
respective rights and powers thereunder. Notwithstanding anything to the contrary in this
Note or in the Indenture and for the avoidance of doubt, no security interest or Lien is
granted by the provisions of the Indenture, this Note or the Guarantees. To the extent any
provision of this Note conflicts with the express provisions of the Indenture, the Security
Documents or the Intercreditor Agreement, the provisions of the Indenture, the Security
Documents or the Intercreditor Agreement shall govern and be controlling, unless such
provisions violate the TIA.




     (5) Optional Redemption.




     (a) Except as set forth below in this Paragraph 5, the Company will not have
the option to redeem the Notes prior to November 15, 2012. On or after November 15,
2012, the Company, at its option, may redeem the Notes at any time, as a whole or
from time to time in part, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued interest to the date of redemption,
if redeemed during the 12-month period beginning on November 15 of the years
indicated below:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	104.875	%
	2013
	 	 	102.438	%
	2014
	 	 	100.000	%







     (b) At any time prior to November 15, 2012, the Company may, from time to time,
redeem up to 35% of the aggregate principal amount of the Notes and any Additional
Notes with, and to the extent the Company actually receives, the net proceeds of one
or more Equity Offerings from time to time, at 109.750% of the principal amount
thereof, plus accrued interest to the date of redemption; provided, however,
that at least 65% of the aggregate principal amount of the Notes must remain
outstanding after each such redemption.




     (c) At any time or from time to time prior to November 15, 2012, the Company
may, at any time or from time to time, redeem the Notes as a whole or in part, at a
redemption price per Note equal to the sum of (1) the then outstanding principal
amount thereof, plus (2) accrued and unpaid interest (if any) to the date of
redemption, plus (3) the Applicable Premium.



A1-5









 






     (d) All redemptions of Notes made as described in this Section 5 will be
subject to the provisions of the Indenture governing the method and manner of such
redemptions.




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




     (7) Repurchase at the Option of Holder. Under certain circumstances
specified in the Indenture, including following a Change of Control or an Asset Sale, the
Holders of the Notes may have rights to require the Company to repurchase all or any part of
their Notes.




     (8) Notice of Redemption. Except in connection with a Prepayment
Offer (the procedures for which are specified in Section 4.10 of the Indenture), notice of
redemption will be mailed at least 30 days but not more than 60 days before the redemption
date to each Holder whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the
Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.




     (9) Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in
excess thereof. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.




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




     (11) Amendment, Supplement and Waiver. The Indenture Documents, the
Security Documents and the Intercreditor Agreement may be amended or supplemented only as
provided in the Indenture.




     (12) Defaults and Remedies. The Indenture specifies certain events
the occurrence of which constitutes an Event of Default, including failure to pay principal
or interest on the Notes, breaches of Indenture covenants, acceleration the principal of
certain other Debt of the Company or a Significant Subsidiary, entry of certain unstayed
judgments against the Company or a Significant Subsidiary, certain bankruptcy and insolvency
events, invalidity of certain Subsidiary Guarantees, invalidity of certain security
interests in the Collateral and certain defaults under Security Documents, in each case
which may be subject to specified grace periods. These Events of Default are subject to
certain terms, limitations and conditions specified in the Indenture. If an Event of Default
occurs and is continuing, the Trustee or the holders of at least 30% in principal amount of
the outstanding Notes by notice to the Company and the Trustee may declare the principal of
and accrued but unpaid interest on all the Notes to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately. If an



A1-6









 







Event of Default relating to certain events of bankruptcy, insolvency or reorganization of
the Company occurs and is continuing, the principal of and interest on all the Notes will by
that very fact alone become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders of the Notes. Under certain
circumstances specified in the Indenture, the Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all
of the Holders, rescind an acceleration and its consequences.




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




     (14) No Recourse Against Others. No director, officer, employee,
incorporator, stockholder or controlling person of the Company or any of the Guarantors or
any of their parent companies, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Guarantees, the Indenture or the Registration
Agreement or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the
Notes. The waiver may not be effective to waive liabilities under the federal securities
laws.




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




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




     (17) Additional Rights of Holders. In addition to the rights
provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes will have all the rights set forth in the Registration Agreement
dated as of November 23, 2009, among the Company, the Guarantors and the other parties named
on the signature pages thereof or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Notes will have the rights set forth in one or more
registration rights agreements, if any, among the Company, the Guarantors and the other
parties thereto, relating to rights given by the Company and the Guarantors to the
purchasers of any Additional Notes.




     (18) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed thereon.




     (19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE GUARANTEES.



A1-7









 





     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Agreement. Requests may be made to the Company at:



237 Park Avenue

New York, New York 10017

Attention: Chief Legal Officer

Facsimile: (212) 527-5693




A1-8









 





Assignment Form




     To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)






 



(Insert assignee’s soc. sec. or tax I.D. no.)


 




 


 



 


 




 

 




(Print or type assignee’s name, address and zip code)



and irrevocably appoint   
              
              
              
               
             
              
              
to transfer this Note on the books of the Company. The agent may substitute another to act for
him.



Date:                     




Your Signature:                                                                
                 

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




Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A1-9









 










Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.13 of the Indenture, check the appropriate box below:



ØSection 4.10                    ØSection 4.13




     If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.13 of the Indenture, state the amount you elect to have purchased:



$                    



Date:                     




Your Signature:                                                                
                 

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




Tax Identification No.:                                                             




Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A1-10









 










Schedule of Exchanges of Interests in the Global Note *




     The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	Amount of	 	Principal Amount	 	 
	 	 	decrease in	 	increase in	 	of this Global Note	 	Signature of
	 	 	Principal Amount	 	Principal Amount	 	following such	 	authorized officer
	 	 	of	 	of	 	decrease	 	of Trustee or
	Date of Exchange	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian
	 

	 	 
	 	 	 	 	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.




A1-11









 










EXHIBIT A2




[Face of Regulation S Temporary Global Note]




CUSIP/CINS                     




93/4% Senior Secured Notes due 2015




			
	 	 	 
	No. ___
	 	$                    






Revlon Consumer Products Corporation



promises to pay to                      or registered assigns,



the principal sum of                                                                     
             DOLLARS on November
15, 2015.



Interest Payment Dates: May 15 and November 15



Record Dates: May 1 and November 1



Dated:                     , 20___




A2-1









 





	 	 	 	 	 
	 	Revlon Consumer Products Corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A2-2









 





	 	 	 	 	 
	This is one of the Notes referred to 


in the within-mentioned Indenture:	 	 
	 
	 	 	 	 
	U.S. Bank National Association,

as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






Dated:                     , 20__







A2-3









 








[Back of Regulation S Temporary Global Note]

93/4% Senior Secured Notes due 2015



[Insert the OID Legend, if applicable pursuant to the provisions of the Indenture]



THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.



THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE ONE YEAR
ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY; (2) SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE






A2-4









 







144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY); (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY); (4) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR”
AS DEFINED IN RULE (501)(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF
THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION,
AND A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE
TRANSFEREE TO THE COMPANY AND THE TRUSTEE; (5) PURSUANT TO ANY EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT; OR (6) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED
INVESTOR HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER BY
IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) PURCHASING FROM A PERSON NOT
PARTICIPATING IN THE INITIAL DISTRIBUTION OF THIS SECURITY (OR ANY PREDECESSOR SECURITY), THAT IT
IS AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(l), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES
AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
(OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION S
UNDER THE SECURITIES ACT.



Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below
unless otherwise indicated. References to “interest” shall also be deemed to be references to
Additional Interest unless the context otherwise requires.





     (1) Interest. Revlon Consumer Products Corporation, a Delaware
corporation (the “Company”), promises to pay interest on the principal amount of this Note
at the rate of 93/4% from                     , 20___ (but not including the maturity date). The
Company will pay interest semiannually in arrears on May 15 and November 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each, an
“Interest Payment Date”). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Note
is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided further that the first Interest Payment Date shall be
                    , 20___. The Company will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from
time to time on demand at a rate that is the rate then in effect to the extent lawful; it
will pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest, if any, (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.



A2-5









 






     Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S
Permanent Global Notes, the Holder hereof shall not be entitled to receive payments of
interest hereon; until so exchanged in full, this Regulation S Temporary Global Note shall
in all other respects be entitled to the same benefits as other Notes under the Indenture.




     (2) Method of Payment. The Company will pay interest on the Notes
(except defaulted interest), to the Persons who are registered Holders of Notes at the close
of business on the May 1 and November 1 immediately preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, and interest at the office or
agency of the Paying Agent and Registrar (which initially will be the office of the
Trustee), or, at the option of the Company, payment of interest, may be made by check mailed
to the Holders at their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds will be required with respect to
principal of and interest, premium, on, all Global Notes and all other Notes the Holders of
which will have provided wire transfer instructions to the Company or the Paying Agent.
Such payment will be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.




     (3) Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.




     (4) Indenture, Security Documents and Intercreditor Agreement. The
Company issued the Notes under an Indenture dated as of November 23, 2009 (the “Indenture”)
among the Company, the Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the TIA. The
Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA
for a statement of such terms. The Indenture does not limit the aggregate principal amount
of Notes that may be issued thereunder. The Notes and Guarantees are unsubordinated
obligations of the Company and the Guarantors, respectively, which obligations are secured
pursuant to the Security Documents, subject to the Intercreditor Agreement. Each Holder of
Notes, by its acceptance of a Note, consents and agrees to the terms of each Security
Document and the Intercreditor Agreement, hereby appoints Citicorp USA, Inc. as Collateral
Agent on the Issue Date, authorizes and directs the Trustee to enter into the Intercreditor
Agreement and the Collateral Agent to enter into the Security Documents and the
Intercreditor Agreement, and authorizes and empowers each of the Trustee and the Collateral
Agent to bind the Holders of Notes as set forth in the Security Documents and the
Intercreditor Agreement and to perform its respective obligations and exercise its
respective rights and powers thereunder. Notwithstanding anything to the contrary in this
Note or in the Indenture and for the avoidance of doubt, no security interest or Lien is
granted by the provisions of the Indenture, this Note or the Guarantees. To the extent any
provision of this Note conflicts with the express provisions of the Indenture, the Security
Documents or the Intercreditor Agreement, the provisions of the Indenture, the Security
Documents or the Intercreditor Agreement shall govern and be controlling, unless such
provisions violate the TIA.




     (5) Optional Redemption.




     (a) Except as set forth below in this Paragraph 5, the Company will not have
the option to redeem the Notes prior to November 15, 2012. On or after November 15,
2012, the Company, at its option, may redeem the Notes at any time, as a whole or
from



A2-6









 







time to time in part, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued interest to the date of redemption,
if redeemed during the 12-month period beginning on November 15 of the years
indicated below:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	104.875	%
	2013
	 	 	102.438	%
	2014
	 	 	100.000	%







     (b) At any time prior to November 15, 2012, the Company may, from time to time,
redeem up to 35% of the aggregate principal amount of the Notes and any Additional
Notes with, and to the extent the Company actually receives, the net proceeds of one
or more Equity Offerings from time to time, at 109.750% of the principal amount
thereof, plus accrued interest to the date of redemption; provided, however,
that at least 65% of the aggregate principal amount of the Notes must remain
outstanding after each such redemption.




     (c) At any time or from time to time prior to November 15, 2012, the Company
may, at any time or from time to time, redeem the Notes as a whole or in part, at a
redemption price per Note equal to the sum of (1) the then outstanding principal
amount thereof, plus (2) accrued and unpaid interest (if any) to the date of
redemption, plus (3) the Applicable Premium.




     (d) All redemptions of Notes made as described in this Section 5 will be
subject to the provisions of the Indenture governing the method and manner of such
redemptions.




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




     (7) Repurchase at the Option of Holder. Under certain circumstances
specified in the Indenture, including following a Change of Control or an Asset Sale, the
Holders of the Notes may have rights to require the Company to repurchase all or any part of
their Notes.




     (8) Notice of Redemption. Except in connection with a Prepayment
Offer (the procedures for which are specified in Section 4.10 of the Indenture), notice of
redemption will be mailed at least 30 days but not more than 60 days before the redemption
date to each Holder whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the
Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.




     (9) Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in
excess thereof. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not



A2-7









 







exchange or register the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the corresponding
Interest Payment Date.




     This Regulation S Temporary Global Note is exchangeable in whole or in part for one or
more Global Notes only (i) on or after the termination of the 40-day distribution compliance
period (as defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or more Global Notes, the
Trustee shall cancel this Regulation S Temporary Global Note.




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




     (11) Amendment, Supplement and Waiver. The Indenture Documents, the
Security Documents and the Intercreditor Agreement may be amended or supplemented only as
provided in the Indenture.




     (12) Defaults and Remedies. The Indenture specifies certain events
the occurrence of which constitutes an Event of Default, including failure to pay principal
or interest on the Notes, breaches of Indenture covenants, acceleration the principal of
certain other Debt of the Company or a Significant Subsidiary, entry of certain unstayed
judgments against the Company or a Significant Subsidiary, certain bankruptcy and insolvency
events, invalidity of certain Subsidiary Guarantees, invalidity of certain security
interests in the Collateral and certain defaults under Security Documents, in each case
which may be subject to specified grace periods. These Events of Default are subject to
certain terms, limitations and conditions specified in the Indenture. If an Event of Default
occurs and is continuing, the Trustee or the holders of at least 30% in principal amount of
the outstanding Notes by notice to the Company and the Trustee may declare the principal of
and accrued but unpaid interest on all the Notes to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately. If an Event
of Default relating to certain events of bankruptcy, insolvency or reorganization of the
Company occurs and is continuing, the principal of and interest on all the Notes will by
that very fact alone become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders of the Notes. Under certain
circumstances specified in the Indenture, the Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all
of the Holders, rescind an acceleration and its consequences.




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




     (14) No Recourse Against Others. No director, officer, employee,
incorporator, stockholder or controlling person of the Company or any of the Guarantors or
any of their parent companies, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Guarantees, the Indenture or the Registration
Agreement or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the
Notes. The waiver may not be effective to waive liabilities under the federal securities
laws.



A2-8









 






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




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




     (17) Additional Rights of Holders. In addition to the rights
provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes will have all the rights set forth in the Registration Agreement
dated as of November 23, 2009, among the Company, the Guarantors and the other parties named
on the signature pages thereof or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Notes will have the rights set forth in one or more
registration rights agreements, if any, among the Company, the Guarantors and the other
parties thereto, relating to rights given by the Company and the Guarantors to the
purchasers of any Additional Notes.




     (18) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed thereon.




     (19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE GUARANTEES.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Agreement. Requests may be made to the Company at:



237 Park Avenue

New York, New York 10017

Attention: Chief Legal Officer

Facsimile: (212) 527-5693




A2-9









 





Assignment Form




     To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)







 




(Insert assignee’s soc. sec. or tax I.D. no.)




 



 


 



 


 



 


 




(Print or type assignee’s name, address and zip code)



and irrevocably appoint   
              
             
             
               
              
              
               
to transfer this Note on the books of the Company. The agent may substitute another to act for
him.



Date:     
                




Your Signature:                                                                
                 

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




Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A2-10









 










Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.13 of the Indenture, check the appropriate box below:



ØSection 4.10                    ØSection 4.13




     If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.13 of the Indenture, state the amount you elect to have purchased:



$                    



Date:                     




Your Signature:                                                                
                 

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




Tax Identification No.:                                         




Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A2-11









 










Schedule of Exchanges of Interests in the Regulation S Temporary Global Note




     The following exchanges of a part of this Regulation S Temporary Global Note for an interest
in another Global Note, or exchanges of a part of another other Restricted Global Note for an
interest in this Regulation S Temporary Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	Amount of	 	Principal Amount	 	 
	 	 	decrease in	 	increase in	 	of this Global Note	 	Signature of
	 	 	Principal Amount	 	Principal Amount	 	following such	 	authorized officer
	 	 	of	 	of	 	decrease	 	of Trustee or
	Date of Exchange	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian
	 

	 	 
	 	 
	 	 	 	 





A2-12









 





EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Revlon Consumer Products Corporation

237 Park Avenue

New York, NY 10017




U.S. Bank National Association

[                    ]

[                    ]




     Re: 93/4% Senior Secured Notes due 2015



     Reference is hereby made to the Indenture, dated as of November 23, 2009 (the “Indenture”),
among Revlon Consumer Products Corporation, as issuer (the “Company”), the Guarantors and party
thereto and U.S. Bank National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.



                         , (the “Transferor”) owns and proposes to transfer 93/4% Senior Secured
Note[s] (the “Note[s]”) or interest in such Note[s] specified in Annex A hereto, in the principal
amount of $                     in such Note[s] or interests (the “Transfer”), to
                                         (the “Transferee”), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:



[CHECK ALL THAT APPLY]




     1. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended
(the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.



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



B-1









 




proposed transfer is being made prior to the expiration of the Restricted Period, the transfer
is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S
Permanent Global Note, the Regulation S Temporary Global Note and/or the Restricted Definitive Note
and in the Indenture and the Securities Act.




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




     (a) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;



or





     (b) o such Transfer is being effected to the Company or a subsidiary thereof;



or





     (c) o such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;



or





     (d) o such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the
time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor
or the Transferee (a copy of which the Transferor has attached to this certification), to
the effect that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note and/or the
Restricted Definitive Notes and in the Indenture and the Securities Act.



     4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.



     (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the



B-2









 




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




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



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



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



	 	 	 	 	 
	 
	 	[Insert Name of Transferor]
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         








B-3









 








ANNEX A TO CERTIFICATE OF TRANSFER





     1. The Transferor owns and proposes to transfer the following:



[CHECK ONE OF (a) OR (b)]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP                     ), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or
	 
	 	(iii)	 	o IAI Global Note (CUSIP                     ); or






	 	(b)	 	o a Restricted Definitive Note.





     2. After the Transfer the Transferee will hold:



[CHECK ONE]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP                     ), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or
	 
	 	(iii)	 	o IAI Global Note (CUSIP                     ); or
	 
	 	(iv)	 	o Unrestricted Global Note (CUSIP                     ); or






	 	(b)	 	o a Restricted Definitive Note; or
	 
	 	(c)	 	o an Unrestricted Definitive Note,






in accordance with the terms of the Indenture.



B-4









 





EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Revlon Consumer Products Corporation

237 Park Avenue

New York, NY 10017




U.S. Bank National Association

[                    ]

[                    ]

[                    ]




          Re: 93/4% Senior Secured Notes due 2015




(CUSIP                     )




     Reference is hereby made to the Indenture, dated as of November 23, 2009 (the “Indenture”),
among Revlon Consumer Products Corporation, as issuer (the “Company”), the Guarantors party thereto
and U.S. Bank National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.



                                             , (the “Owner”) owns and proposes to exchange 93/4% Senior Secured
Note[s] (the “Note[s]”) or interest in such Note[s] specified herein, in the principal amount of
$                     in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the
Owner hereby certifies that:



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



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



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



     (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for



C-1









 




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




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



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



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



     (b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global
Note, o IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.



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



	 	 	 	 	 
	 
	 	[Insert Name of Transferor]

 	 



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	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated:                                         





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EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Revlon Consumer Products Corporation

237 Park Avenue

New York, NY 10017




U.S. Bank National Association

[                    ]

[                    ]

[                    ]




     Re: 93/4% Senior Secured Notes due 2015



     Reference is hereby made to the Indenture, dated as of November 23, 2009 (the “Indenture”),
among Revlon Consumer Products Corporation, as issuer (the “Company”), the Guarantors party thereto
and U.S. Bank National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.



     In connection with our proposed purchase of $                     aggregate principal amount of:



     (a) o a beneficial interest in a Global Note, or



     (b) o a Definitive Note,



     we confirm that:



     1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).



     2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein),
(C) to an institutional “accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and, if such transfer is in respect of a
principal amount of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under
the Securities Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we further agree to
provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from
us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.



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     3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.



     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.



     5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 
	 
	 	[Insert Name of Accredited Investor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                        





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EXHIBIT E




FORM OF NOTATION OF GUARANTEE FOR NOTES




     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth, and
subject to the provisions of, the Indenture dated as of November 23, 2009 (the “Indenture”) among
Revlon Consumer Products Corporation (the “Company”), the Guarantors party thereto and U.S. Bank
National Association, as trustee (the “Trustee”), (a) the due and punctual payment of the principal
of, premium and interest on, the Notes, whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal of interest on the Notes,
if any, if lawful, and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of
the Guarantors to the Holders of Notes and to the Trustee pursuant to the Guarantee and the
Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to
the Indenture for the precise terms of the Guarantee. To the extent the provisions of this
Notation of Guarantee conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling.



     Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.



	 	 	 	 	 
	 	[Name of Guarantor(s)]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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EXHIBIT F




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




     Supplemental Indenture (this “Supplemental Indenture”), dated as of                     ,
20___, among                      (the “Guaranteeing Subsidiary”), a subsidiary of Revlon Consumer
Products Corporation (or its permitted successor), a Delaware corporation (the “Company”), the
Company, the other Guarantors (as defined in the Indenture referred to herein) and U.S. Bank
National Association, as trustee under the Indenture referred to below (the “Trustee”).



WITNESSETH




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of November 23, 2009 providing for the issuance of 93/4% Senior Secured Notes
due 2015 (together, the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Note Obligations on
the terms and conditions set forth herein (the “Guarantee”); and



     WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:



     1. Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.



     2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Guarantee and
in the Indenture including but not limited to Article 10 thereof.



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



     4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.



     5. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     6. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



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     7. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.



F-2









 





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


Dated:                     , 20___




	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Revlon Consumer Products Corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Existing Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. Bank National Association,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




F-3









 





EXHIBIT G




FORM OF OFFICERS’ CERTIFICATE

TO BE DELIVERED BY THE COMPANY

PURSUANT TO SECTION 12.04 OF THE INDENTURE




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



     We, the undersigned, as officers of Revlon Consumer Products Corporation (in the capacities
set forth under our respective signatures below), a Delaware corporation (the “Company”), certify
that we are duly authorized to, and do hereby, deliver this certificate to U.S. Bank National
Association, as trustee (the “Trustee”) and as collateral agent (the “Collateral Agent”), under the
Indenture, dated as of November 23, 2009 (the “Indenture”), relating to the Company’s 93/4% Senior
Secured Notes due 2015 (the “Notes”); and




	 	1.	 	All releases and withdrawals of Collateral or Liens as described in
paragraph (a) of Section 12.04 of the Indenture [since the Issue Date (as
defined in the Indenture)](1) [during the preceding twelve-month
period](2) in which no release or consent of the Trustee or the
Collateral Agent was obtained were in the ordinary course of the Company’s
and the Guarantors’ business and were not prohibited by the Indenture, and
all proceeds from such activities were used by the Company or the Guarantors
in the ordinary course of their business or to make cash payments otherwise
as permitted by the Indenture;
	 
	 	2.	 	We are familiar with the Indenture and have read all the conditions
(including all definitions relating thereto) set forth therein relating to
the releases and withdrawals of Collateral and Liens pursuant to Section
12.04;
	 
	 	3.	 	We have examined the documents and records of the Company and the
Guarantors relating to the releases and withdrawals of Collateral and Liens
pursuant to Section 12.04;
	 
	 	4.	 	We have made such examination or investigation as is necessary to
enable us to express an informed opinion as to whether all covenants and
conditions precedent provided in the Indenture for the satisfaction of
Section 12.04 have been complied with; and
	 
	 	5.	 	In our opinion, all covenants and conditions precedent provided for
in the Indenture relating to the releases and withdrawals of Collateral and
Liens have been complied with pursuant to Section 12.04.







 




			
	1	 	Insert if the first such Officers’
Certificate.
	 
	2	 	Insert if not the first such Officers’
Certificate.




G-1









 










          IN WITNESS WHEREOF, we have hereunto signed our names.



Dated:                     , ___




	 	 	 	 	 	 	 
	 	 	Revlon Consumer Products Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






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