Exhibit 4.1


 


SHERIDAN ACQUISITION CORP.


 


(as Issuer)


 


$105,000,000


101⁄4% Senior Secured Notes due
2011


 


 


INDENTURE


 


Dated as of August 21, 2003


 


 


THE BANK OF NEW YORK


 


(as Trustee and Notes Collateral
Agent)


 












 








 


TABLE
OF CONTENTS


 


	
  ARTICLE
  I DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
  SECTION 1.1

  	
   

  	
  DEFINITIONS

  
	
  SECTION 1.2

  	
   

  	
  OTHER
  DEFINITIONS

  
	
  SECTION 1.3

  	
   

  	
  INCORPORATION
  BY REFERENCE OF TRUST INDENTURE ACT

  
	
  SECTION 1.4

  	
   

  	
  RULES
  OF CONSTRUCTION

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II THE NOTES

  
	
  SECTION 2.1

  	
   

  	
  FORM
  AND DATING

  
	
  SECTION 2.2

  	
   

  	
  EXECUTION
  AND AUTHENTICATION

  
	
  SECTION 2.3

  	
   

  	
  REGISTRAR,
  PAYING AGENT AND DEPOSITARY

  
	
  SECTION 2.4

  	
   

  	
  PAYING
  AGENT TO HOLD MONEY IN TRUST

  
	
  SECTION 2.5

  	
   

  	
  HOLDER
  LISTS

  
	
  SECTION 2.6

  	
   

  	
  TRANSFER
  AND EXCHANGE

  
	
  SECTION 2.7

  	
   

  	
  REPLACEMENT
  NOTES

  
	
  SECTION 2.8

  	
   

  	
  OUTSTANDING
  NOTES

  
	
  SECTION 2.9

  	
   

  	
  TREASURY
  NOTES

  
	
  SECTION 2.10

  	
   

  	
  TEMPORARY
  NOTES

  
	
  SECTION 2.11

  	
   

  	
  CANCELLATION

  
	
  SECTION 2.12

  	
   

  	
  DEFAULTED
  INTEREST

  
	
  SECTION 2.13

  	
   

  	
  CUSIP
  NUMBERS

  
	
  SECTION 2.14

  	
   

  	
  ISSUANCE
  OF ADDITIONAL NOTES

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III REDEMPTION

  
	
  SECTION 3.1

  	
   

  	
  NOTICES
  TO TRUSTEE

  
	
  SECTION 3.2

  	
   

  	
  SELECTION
  OF NOTES TO BE REDEEMED

  
	
  SECTION 3.3

  	
   

  	
  NOTICE
  OF REDEMPTION

  
	
  SECTION 3.4

  	
   

  	
  EFFECT
  OF NOTICE OF REDEMPTION

  
	
  SECTION 3.5

  	
   

  	
  DEPOSIT
  OF REDEMPTION PRICE

  
	
  SECTION 3.6

  	
   

  	
  NOTES
  REDEEMED IN PART

  
	
  SECTION 3.7

  	
   

  	
  OPTIONAL
  REDEMPTION PRIOR TO AUGUST 15, 2007

  
	
  SECTION 3.8

  	
   

  	
  OPTIONAL
  REDEMPTION ON OR AFTER AUGUST 15, 2007

  
	
  SECTION 3.9

  	
   

  	
  NO
  MANDATORY REDEMPTION

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV COVENANTS

  
	
  SECTION 4.1

  	
   

  	
  PAYMENT
  OF NOTES

  
	
  SECTION 4.2

  	
   

  	
  MAINTENANCE
  OF OFFICE OR AGENCY

  
	
  SECTION 4.3

  	
   

  	
  SEC
  REPORTS AND REPORTS TO HOLDERS

  
	
  SECTION 4.4

  	
   

  	
  COMPLIANCE
  CERTIFICATE

  
	
  SECTION 4.5

  	
   

  	
  TAXES

  
	
  SECTION 4.6

  	
   

  	
  STAY,
  EXTENSION AND USURY LAWS

  
	
  SECTION 4.7

  	
   

  	
  LIMITATION
  ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND DISQUALIFIED CAPITAL STOCK

  



 

















 


	
  SECTION 4.8

  	
   

  	
  LIMITATION
  ON LIENS

  
	
  SECTION 4.9

  	
   

  	
  LIMITATION
  ON RESTRICTED PAYMENTS

  
	
  SECTION 4.10

  	
   

  	
  LIMITATION
  ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES

  
	
  SECTION 4.11

  	
   

  	
  LIMITATION
  ON IMPAIRMENT OF SECURITY INTERESTS

  
	
  SECTION 4.12

  	
   

  	
  LIMITATION
  ON TRANSACTIONS WITH AFFILIATES

  
	
  SECTION 4.13

  	
   

  	
  LIMITATION
  ON SALE OF ASSETS AND SUBSIDIARY STOCK

  
	
  SECTION 4.14

  	
   

  	
  REPURCHASE
  OF NOTES AT THE OPTION OF THE HOLDER UPON A CHANGE OF CONTROL

  
	
  SECTION 4.15

  	
   

  	
  SUBSIDIARY
  GUARANTORS

  
	
  SECTION 4.16

  	
   

  	
  LIMITATION
  ON STATUS AS INVESTMENT ISSUER

  
	
  SECTION 4.17

  	
   

  	
  MAINTENANCE
  OF INSURANCE

  
	
  SECTION 4.18

  	
   

  	
  CORPORATE
  EXISTENCE

  
	
  SECTION 4.19

  	
   

  	
  LIMITATION
  ON LINES OF BUSINESS

  
	
  SECTION 4.20

  	
   

  	
  RULE
  144A INFORMATION

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V SUCCESSORS

  
	
  SECTION 5.1

  	
   

  	
  LIMITATION
  ON MERGER, SALE OR CONSOLIDATION

  
	
  SECTION 5.2

  	
   

  	
  SUCCESSOR
  CORPORATION SUBSTITUTED

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI DEFAULTS AND REMEDIES

  
	
  SECTION 6.1

  	
   

  	
  EVENTS
  OF DEFAULT

  
	
  SECTION 6.2

  	
   

  	
  ACCELERATION

  
	
  SECTION 6.3

  	
   

  	
  OTHER
  REMEDIES

  
	
  SECTION 6.4

  	
   

  	
  WAIVER
  OF DEFAULTS

  
	
  SECTION 6.5

  	
   

  	
  CONTROL
  BY MAJORITY

  
	
  SECTION 6.6

  	
   

  	
  LIMITATION
  ON SUITS

  
	
  SECTION 6.7

  	
   

  	
  RIGHTS
  OF HOLDERS OF NOTES TO RECEIVE PAYMENT

  
	
  SECTION 6.8

  	
   

  	
  COLLECTION
  SUIT BY TRUSTEE

  
	
  SECTION 6.9

  	
   

  	
  TRUSTEE
  MAY FILE PROOFS OF CLAIM

  
	
  SECTION 6.10

  	
   

  	
  PRIORITIES

  
	
  SECTION 6.11

  	
   

  	
  UNDERTAKING
  FOR COSTS

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII TRUSTEE

  
	
  SECTION 7.1

  	
   

  	
  DUTIES
  OF TRUSTEE

  
	
  SECTION 7.2

  	
   

  	
  RIGHTS
  OF TRUSTEE

  
	
  SECTION 7.3

  	
   

  	
  INDIVIDUAL
  RIGHTS OF TRUSTEE

  
	
  SECTION 7.4

  	
   

  	
  TRUSTEE’S
  DISCLAIMER

  
	
  SECTION 7.5

  	
   

  	
  NOTICE
  OF DEFAULTS

  
	
  SECTION 7.6

  	
   

  	
  REPORTS
  BY TRUSTEE TO HOLDERS OF THE NOTES

  
	
  SECTION 7.7

  	
   

  	
  COMPENSATION
  AND INDEMNITY

  
	
  SECTION 7.8

  	
   

  	
  REPLACEMENT
  OF TRUSTEE

  
	
  SECTION 7.9

  	
   

  	
  SUCCESSOR
  TRUSTEE BY MERGER, ETC.

  
	
  SECTION 7.10

  	
   

  	
  ELIGIBILITY;
  DISQUALIFICATION

  
	
  SECTION 7.11

  	
   

  	
  PREFERENTIAL
  COLLECTION OF CLAIMS AGAINST ISSUER

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  



 


ii

















 


	
  SECTION 8.1

  	
   

  	
  OPTION
  TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE

  
	
  SECTION 8.2

  	
   

  	
  LEGAL
  DEFEASANCE AND DISCHARGE

  
	
  SECTION 8.3

  	
   

  	
  COVENANT
  DEFEASANCE

  
	
  SECTION 8.4

  	
   

  	
  CONDITIONS
  TO LEGAL OR COVENANT DEFEASANCE

  
	
  SECTION 8.5

  	
   

  	
  DEPOSITED
  MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS

  
	
  SECTION 8.6

  	
   

  	
  REPAYMENT
  TO ISSUER

  
	
  SECTION 8.7

  	
   

  	
  REINSTATEMENT

  
	
  SECTION 8.8

  	
   

  	
  SATISFACTION
  AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX AMENDMENT, SUPPLEMENT AND WAIVER

  
	
  SECTION 9.1

  	
   

  	
  WITH
  CONSENT OF HOLDERS OF A MAJORITY

  
	
  SECTION 9.2

  	
   

  	
  WITH
  CONSENT OF ALL AFFECTED HOLDERS OF NOTES

  
	
  SECTION 9.3

  	
   

  	
  WITHOUT
  CONSENT OF HOLDERS OF NOTES

  
	
  SECTION 9.4

  	
   

  	
  CONSENT
  PAYMENT; SUPPLEMENTAL INDENTURES

  
	
  SECTION 9.5

  	
   

  	
  REVOCATION
  AND EFFECT OF CONSENTS

  
	
  SECTION 9.6

  	
   

  	
  NOTATION
  ON OR EXCHANGE OF NOTES

  
	
  SECTION 9.7

  	
   

  	
  TRUSTEE
  TO SIGN AMENDMENTS, ETC.

  
	
  SECTION 9.8

  	
   

  	
  COMPLIANCE
  WITH TRUST INDENTURE ACT

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X COLLATERAL AND SECURITY

  
	
  SECTION 10.1

  	
   

  	
  COLLATERAL
  AGREEMENTS; SECURITY INTERESTS

  
	
  SECTION 10.2

  	
   

  	
  FURTHER
  ASSURANCES AND SECURITY

  
	
  SECTION 10.3

  	
   

  	
  OPINIONS

  
	
  SECTION 10.4

  	
   

  	
  RELEASE
  OF COLLATERAL

  
	
  SECTION 10.5

  	
   

  	
  CERTIFICATES
  OF THE ISSUER

  
	
  SECTION 10.6

  	
   

  	
  AUTHORIZATION
  OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE COLLATERAL AGREEMENTS

  
	
  SECTION 10.7

  	
   

  	
  AUTHORIZATION
  OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE COLLATERAL AGREEMENTS

  
	
  SECTION 10.8

  	
   

  	
  PURCHASER
  PROTECTED

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI GUARANTEES

  
	
  SECTION 11.1

  	
   

  	
  GUARANTEES

  
	
  SECTION 11.2

  	
   

  	
  EXECUTION
  AND DELIVERY OF GUARANTEES

  
	
  SECTION 11.3

  	
   

  	
  GUARANTORS
  MAY CONSOLIDATE, ETC., ON CERTAIN TERMS

  
	
  SECTION 11.4

  	
   

  	
  GUARANTEE
  BY FUTURE SUBSIDIARIES

  
	
  SECTION 11.5

  	
   

  	
  RELEASE
  OF GUARANTORS

  
	
  SECTION 11.6

  	
   

  	
  LIMITATION
  OF GUARANTOR’S LIABILITY; CERTAIN BANKRUPTCY 
  EVENTS

  
	
  SECTION 11.7

  	
   

  	
  APPLICATION
  OF CERTAIN TERMS AND PROVISIONS TO THE 
  GUARANTORS

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII MISCELLANEOUS

  
	
  SECTION 12.1

  	
   

  	
  TRUST
  INDENTURE ACT CONTROLS

  



 


iii

















 


	
  SECTION 12.2

  	
   

  	
  NOTICES

  
	
  SECTION 12.3

  	
   

  	
  COMMUNICATION
  BY HOLDERS OF NOTES WITH OTHER HOLDERS OF 
  NOTES

  
	
  SECTION 12.4

  	
   

  	
  CERTIFICATE
  AND OPINION AS TO CONDITIONS PRECEDENT

  
	
  SECTION 12.5

  	
   

  	
  STATEMENTS
  REQUIRED IN CERTIFICATE OR OPINION

  
	
  SECTION 12.6

  	
   

  	
  RULES
  BY TRUSTEE AND AGENTS

  
	
  SECTION 12.7

  	
   

  	
  NO
  PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS

  
	
  SECTION 12.8

  	
   

  	
  GOVERNING
  LAW

  
	
  SECTION 12.9

  	
   

  	
  NO
  ADVERSE INTERPRETATION OF OTHER AGREEMENTS

  
	
  SECTION 12.10

  	
   

  	
  SUCCESSORS

  
	
  SECTION 12.11

  	
   

  	
  SEVERABILITY

  
	
  SECTION 12.12

  	
   

  	
  COUNTERPART
  ORIGINALS

  
	
  SECTION 12.13

  	
   

  	
  TABLE
  OF CONTENTS, HEADINGS, ETC.

  
	
  SECTION 12.14

  	
   

  	
  INTERCREDITOR
  AGREEMENT

  
	
  SECTION 12.15

  	
   

  	
  WAIVER
  OF JURY TRIAL.

  
	
  SECTION 12.16

  	
   

  	
  FORCE
  MAJEURE

  
	
  SECTION 12.17

  	
   

  	
  LIMITATION
  ON DUTY OF TRUSTEE IN RESPECT OF COLLATERAL

  



 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
   

  	
  FORM OF NOTE

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B

  	
   

  	
  FORM OF CERTIFICATE OF TRANSFER

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C

  	
   

  	
  FORM OF CERTIFICATE OF EXCHANGE

  
	
   

  	
   

  	
   

  
	
  EXHIBIT D

  	
   

  	
  FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  
	
   

  	
   

  	
   

  
	
  EXHIBIT E

  	
   

  	
  FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT
  GUARANTORS

  
	
   

  	
   

  	
   

  
	
  EXHIBIT F

  	
   

  	
  FORM OF INTERCREDITOR AGREEMENT

  



 


iv

















 


CROSS-REFERENCE
TABLE*


 


	
  TIA Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.8; 7.10

  
	
  (b)

  	
   

  	
  7.8; 7.10; 12.2

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
  12.3

  
	
  (c)

  	
   

  	
  12.3

  
	
  313(a)

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.6, 7.7

  
	
  (c)

  	
   

  	
  7.5, 7.6; 12.2

  
	
  (d)

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
  4.3; 4.4; 12.2

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  12.4

  
	
  (c)(2)

  	
   

  	
  12.4

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  10.5

  
	
  (e)

  	
   

  	
  12.5

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.1(b)

  
	
  (b)

  	
   

  	
  7.5; 12.2

  
	
  (c)

  	
   

  	
  7.1(a)

  
	
  (d)

  	
   

  	
  7.1(c)

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a)(last sentence)

  	
   

  	
  2.9

  
	
  (a)(1)(A)

  	
   

  	
  6.5

  
	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
  6.3

  
	
  317(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
  2.4

  
	
  318(a)

  	
   

  	
  12.1

  
	
  (c)

  	
   

  	
  12.1

  



 












N.A. means not applicable


 


*                                         This
Cross-Reference table shall not, for any purpose, be deemed to be part of this
Indenture.


 


v

















 


INDENTURE, dated as of August 21, 2003, among Sheridan Acquisition
Corp., a Delaware corporation (the “Issuer”), the Guarantors (as defined
herein), and The Bank of New York, as trustee (the “Trustee”).


 


Effective as of the date hereof, the Issuer will be merged with and
into The Sheridan Group, Inc., a Maryland corporation (the “Company”),
with the Company as the surviving corporation (the “Merger”).  Effective upon effectiveness of the Merger,
the Company will assume the Issuer’s obligations under this Indenture and will
cause its subsidiaries to become Guarantors to the extent required by this
Indenture.  Effective upon effectiveness
of the Merger, all references in this Indenture to the “Issuer” shall refer to
the Company.


 


Each party agrees as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the 101⁄4% Series A Senior Secured
Notes due 2011 (the “Series A Notes”) and the 101⁄4% Series B
Senior Secured Notes due 2011 (the “Series B Notes,” and together with the
Series A Notes, the “Notes”):


 


ARTICLE
I

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.1                                      DEFINITIONS


 


“144A
Global Note” means one or more Global Notes bearing the Private
Placement Legend that will be issued in an aggregate amount of denominations
equal in total to the outstanding principal amount of the Notes sold in
reliance on Rule 144A.


 


“501
Global Note” means one or more Global Notes bearing the Private
Placement Legend that will be issued in an aggregate amount of denominations
equal in total to the outstanding principal amount of the Notes sold to
institutional “accredited investors” within the meaning of Rule 501(a)(1), (2),
(3), or (7) of the Securities Act.


 


“Accrued
Bankruptcy Interest” means, with respect to any Indebtedness, all
interest accruing thereon after the filing of a petition by or against the
Issuer or any of the Subsidiaries or any parent under any Bankruptcy Law, in
accordance with and at the rate (including any rate applicable upon any default
or event of default, to the extent lawful) specified in the documents
evidencing or governing such Indebtedness, whether or not the claim for such
interest is allowed as a claim after such filing in any proceeding under such
Bankruptcy Law.


 


“Acquired
Indebtedness” means Indebtedness of any Person existing at the time
such Person becomes a Subsidiary of the  Issuer, including by designation, or is
merged or consolidated into or with the Issuer or one of the Subsidiaries;  provided that, for the avoidance
of doubt, if such Indebtedness is repurchased, redeemed, retired or otherwise
repaid at the time, or immediately upon consummation, of the transaction by
which such Person is merged with or into or became a Subsidiary of the Issuer,
then such Indebtedness shall not constitute Acquired Indebtedness. Acquired
Indebtedness shall be


 

















 


deemed to be incurred on the
date of the related acquisition of assets from a Person or the date the
acquired Person becomes a Subsidiary.


 


“Acquisition”
means the purchase or other acquisition of any Person or all or substantially
all the assets of any Person by any other Person, whether by purchase, merger,
consolidation, or other transfer, and whether or not for consideration.


 


“Additional
Notes” means additional Notes which may be issued after the Issue
Date pursuant to this Indenture (other than pursuant to an Exchange Offer or
otherwise in exchange for or in replacement of outstanding Notes).  All references herein to “Notes” shall be
deemed to include Additional Notes.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person.  For purposes of
this definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled
by” and “under common control with”), as used with
respect to any Person, will mean (a) the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise or (b) beneficial ownership of 10% or more of the voting securities
of such Person.  Notwithstanding the
foregoing, “Affiliate” shall not include Wholly Owned Subsidiaries.


 


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


 


“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
at the relevant time.


 


“Applicable
Value” means the greatest of the aggregate principal amount, par
value, book value as carried by the Issuer or market value, as applicable, of
Capital Stock, securities or other payment rights of a Subsidiary.


 


“Asset Sale” means:


 


(a)                                  the
conveyance, sale, transfer, assignment or other disposition of, directly or
indirectly, any of the property, business or assets of the Issuer or the
Subsidiaries, including by merger or consolidation (in the case of a Guarantor
or one of the Subsidiaries);


 


(b)                                 the
sale or other transfer or issuance of any Equity Interests of any of the Subsidiaries,
whether by the Issuer or by any of the Subsidiaries or through the issuance,
sale or transfer of Equity Interests by any of the Subsidiaries (in each case,
other than (i) directors’ qualifying shares; and (ii) Equity Interests of
Foreign Subsidiaries issued, sold or transferred to foreign shareholders if
ownership of such Equity Interests by such foreign shareholders is required by
applicable laws in the jurisdiction where such Foreign Subsidiary is organized
or conducts its business.)


 


2

















 


(c)                                  any
sale-leaseback transaction.


 


“Average
Life” means, as of the date of determination, with respect to any
security or instrument, the quotient obtained by dividing (1) the sum of the
products (a) of the number of years from the date of determination to the date
or dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (2) the sum of all such principal (or redemption)
payments.


 


“Bank
Collateral Agent” means either the collateral agent, if any, or the
lender under the Credit Agreement.


 


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


 


“Bankruptcy
Code” means the United States Bankruptcy Code, codified at 11 U.S.C.
§101-1330, as amended.


 


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


 


 “Beneficial Owner” or “beneficial
owner” has the meaning attributed to it in Rules 13d-3 and 13d-5
under the Exchange Act, whether or not otherwise applicable.


 


“Board
of Directors” means, with respect to any Person, the board of
directors of such Person (or if such Person is not a corporation, the
equivalent board of managers or members or body performing similar functions
for such Person) or any committee of the board of directors of such Person (or
if such Person is not a corporation, any committee of the equivalent board of
managers or members or body performing similar functions for such Person)
authorized, with respect to any particular matter, to exercise the power of the
board of directors of such Person (or if such Person is not a corporation, the
equivalent board of managers or members or body performing similar functions
for such Person).


 


“Broker-Dealer”
means any broker-dealer that receives Exchange Notes for its own account in the
Exchange Offer in exchange for Notes that were acquired by such broker-dealer
as a result of market-making or other trading activities.


 


“BRS
Group” means (i) Bruckmann, Rosser, Sherrill & Co.,
LLC and Bruckmann, Rosser, Sherrill & Co. II, L.P. and their
respective Affiliates and (ii) any investment vehicle that is managed
(whether through ownership of securities having a majority of the voting power
or through management of investments) by any of the Persons listed in
clause (i), but excluding any portfolio companies of any Person listed in
clause (i) or (ii).


 


“Business
Day” means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or other government action to close.


 


3

















 


“Capitalized
Lease Obligation” means, as to any Person, the obligations of such
Person under a lease that are required to be classified and accounted for as
capital lease obligations under GAAP and, for purposes of this definition, the
amount of such obligations at any date shall be the capitalized amount of such
obligations at such date, determined in accordance with GAAP.


 


“Capital
Stock” means, (i) with respect to any Person that is a
corporation, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock issued by such Person,
(ii) with respect to a Person that is a limited liability company, any and
all membership interests in such Person, and (iii) with respect to any
other Person, any and all partnership, joint venture or other equity interests
of such Person.


 


“Cash
Equivalent” means:


 


(1)                                  United
States dollars, Canadian dollars, Japanese Yen, Euros or British Pounds
Sterling,


 


(2)                                  securities
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided, that the full
faith and credit of the United States of America is pledged in support
thereof),


 


(3)                                  securities
issued or directly and fully guaranteed or insured by any state of the United
States of America or any agency or instrumentality thereof and that are rated
within one of the two highest ratings for such securities by
Standard & Poor’s Corporation or Moody’s Investors Service, Inc.,


 


(4)                                  demand
and time deposits, certificates of deposit, bankers’ acceptances and commercial
paper issued by the parent corporation of any domestic commercial bank of
recognized standing having capital and surplus in excess of
$500.0 million,


 


(5)                                  commercial
paper issued by others rated at least A-2 or the equivalent thereof by
Standard & Poor’s Corporation or at least P-2 or the equivalent
thereof by Moody’s Investors Service, Inc.,


 


(6)                                  repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in (2) through (4) above entered into with any
financial institution meeting the qualifications specified in (4) above,
or


 


(7)                                  money
market funds, substantially all of the assets of which constitute Cash
Equivalents of the kinds described in (1) through (6) of this
definition,


 


and in the case of each of (2), (3), (4) and (5) maturing within one
year after the date of acquisition.


 


4

















 


“Change
of Control” means:


 


(1)                                  (A)                              prior
to the first public offering of common stock of the Issuer, one or more
Permitted Holders, in the aggregate, cease to be entitled, by “beneficial
ownership” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act and
as described in the proviso below) of the Issuer’s Voting Equity Interests,
contract or otherwise, to elect or designate for election a majority of the
Issuer’s Board of Directors, or cease to beneficially own a majority of the
aggregate voting power of the Issuer’s Voting Equity Interests, whether as a
result of issuance of securities of the Issuer, any merger, consolidation,
liquidation or dissolution of the Issuer, any direct or indirect transfer of
securities by the Permitted Holders or otherwise, provided that for purposes
of this clause (A) and clause (B) below, the Permitted Holders shall
be deemed to beneficially own any Voting Equity Interests of any entity held by
any other entity (the “parent entity”) so long as the Permitted Holders
beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, in the aggregate a majority of the voting power
of the Voting Equity Interests of such parent entity, or


 


(B)                                after
the first public offering of common stock of the Issuer after the Issue Date,
(i) any Person, 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 for purposes of this clause (B) such Person
shall 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 35% of
the aggregate voting power of the Issuer’s Voting Equity Interests, and
(ii) one or more Permitted Holders “beneficially own” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act and as described in the
proviso to clause (A) above), directly or indirectly, in the aggregate a
lesser percentage of the aggregate voting power of the Issuer’s Voting Equity
Interests than such other Person and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Issuer’s Board of Directors,


 


(2)                                  the
Continuing Directors cease for any reason to constitute a majority of the
Issuer’s Board of Directors then in office,


 


(3)                                  the
Issuer adopts a plan of liquidation, or


 


(4)                                  any
merger or consolidation of the Issuer with or into another Person or the merger
of another Person with or into the Issuer, or the sale of all or substantially
all of the Issuer’s assets (determined on a consolidated basis) to another
Person (other than, in all such cases, one or more Permitted Holders) other
than:


 


(A)                              in
the case of a merger or consolidation transaction, holders of securities that
represented 100% of the aggregate voting power of the Issuer’s Voting Equity
Interests immediately prior to such transaction (together with holders of
nonvoting securities that were convertible into the Issuer’s Voting Equity
Interests immediately prior to such transaction) own directly or indirectly at
least a majority of the aggregate voting power of the Voting Equity Interests
of the surviving Person in such merger or 


 


5

















 


consolidation transaction
immediately after such transaction or have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Issuer’s Board of Directors, or


 


(B)                                in
the case of a sale of assets transaction, each transferee is Holdco (provided,
that immediately after such transaction, Holdco is controlled by one or more
Permitted Holders) or a Permitted Holder.


 


“Clearstream”
means Clearstream Banking Luxembourg, Société Anonyme, or any successor
securities clearing agency.


 


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


 


“Collateral”
means all assets and other property, whether now owned or hereafter acquired,
upon which a Lien securing the Obligations is granted or purported to be
granted under any Collateral Agreement.


 


“Collateral
Agreements” means, collectively, all mortgages, deeds of trust,
security agreements, pledge agreements, control agreements, collateral
assignment agreements and other agreements, instruments, financing statements
and other documents evidencing, creating, setting forth or limiting any Lien on
Collateral in favor of the Notes Collateral Agent (or, in the case of
mortgages, deeds of trust or similar agreements, in favor of the Notes
Collateral Agent or another trustee thereunder), for the benefit of the
Holders.


 


“Comparable
Treasury Issue” means the United States Treasury security selected
by a Reference Treasury Dealer appointed by the Issuer as having a maturity
comparable to the remaining term of the Notes (as if the final maturity of the
Notes was August 15, 2007) that would be utilized at the time of the selection
and in accordance with customary financial practice in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Notes (as if the final maturity of the Notes was August 15, 2007).


 


“Comparable
Treasury Price” means, with respect to any redemption date, (1) the
average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated “Composite 3:30 p.m. Quotations for U.S.
Government Securities” or (2) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the reference Treasury Dealer Quotations (as defined below) for such
redemption date, after excluding the highest and lowest such Reference Treasury
Dealer Quotation or (B) if the Issuer obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations.


 


“consolidated”
means, with respect to the Issuer, the consolidation of the accounts of the
Subsidiaries with those of the Issuer, all in accordance with GAAP;


 


6

















 


provided, that
“consolidated” will not include consolidation of the accounts of any
Unrestricted Subsidiary with the accounts of the Issuer.


 


“Consolidated
Coverage Ratio”  of any Person on any date of
determination (the “Transaction Date”) means the ratio of (a)
the aggregate amount of Consolidated EBITDA of such Person (before deducting
Management Fees either paid in cash or deferred during the applicable Reference
Period) attributable to continuing operations and businesses (exclusive of
amounts attributable to operations and businesses permanently discontinued or
disposed of) for the Reference Period to (b) the aggregate Consolidated Fixed
Charges of such Person (exclusive of amounts attributable to operations and
businesses permanently discontinued or disposed of, but only to the extent that
the obligations giving rise to such Consolidated Fixed Charges would no longer
be obligations contributing to such Person’s Consolidated Fixed Charges
subsequent to the Transaction Date) during the Reference Period; provided,
that for purposes of such calculation:


 


(1)                                  Acquisitions
which occurred during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date will be given pro forma
effect as if they had occurred on the first day of the Reference Period without
giving effect to clause (c) of the definition of “Consolidated Net
Income,”


 


(2)                                  the
incurrence, assumption, guarantee, repayment, repurchase or redemption of any
Indebtedness (including the issuance, repurchase or redemption of any
Disqualified Capital Stock) and the use of proceeds therefrom, occurring during
the Reference Period or subsequent to the Reference Period and on or prior to
the Transaction Date (including any such transaction giving rise to the need to
calculate the Consolidated Coverage Ratio), other than Indebtedness incurred
under any revolving credit agreement or similar facility, shall be given effect
as if it had occurred on the first day of the Reference Period, and


 


(3)                                  the
Consolidated Fixed Charges of such Person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed as if the average monthly rate in
effect from the beginning of the Reference Period to the Transaction Date had
been the applicable rate for the entire period, provided, that if such
Person or any of the Subsidiaries is a party to an Interest Swap or Hedging
Obligation (which shall remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect of fixing the interest rate
on the date of computation, then such rate (whether higher or lower) shall be
used.


 


“Consolidated
EBITDA” means, with respect to any Person, for any period, the
Consolidated Net Income of such Person for such period adjusted to add thereto
(to the extent deducted for purposes of determining Consolidated Net Income),
without duplication, the sum of:


 


(1)                                  consolidated
income tax expense,


 


7

















 


(2)                                  the
amount of Permitted Tax Payments to Holdco,


 


(3)                                  consolidated
depreciation and amortization expense (including amortization expense
associated with the purchase accounting write-up of tangible and intangible
assets),


 


(4)                                  Consolidated
Fixed Charges,


 


(5)                                  restructuring
charges (as determined in accordance with GAAP) relating to the consolidation
of operations or reduction in head-count,


 


(6)                                  all
other non-cash charges reducing Consolidated Net Income for such period
(A) including, but not limited to, (i) non-cash charges attributable
to the grant, exercise or repurchase of options for or shares of Qualified
Capital Stock to or from employees of such Person and its Consolidated
Subsidiaries determined in accordance with GAAP, (ii) unrealized losses
resulting solely from the marking to market of derivative securities or
securities held in deferred compensation plans, (iii) non-cash charges
associated with the amortization or write-off of deferred financing costs and
debt issuance costs of such Person and its Consolidated Subsidiaries during
such period, and (iv) non-cash charges associated with the purchase
accounting write-up of inventory, but (B) excluding non-cash charges that
require an accrual of or a reserve for cash charges for any future periods and
normally occurring accruals such as reserves for accounts receivable, and


 


(7)                                  any
premium or penalty paid in connection with redeeming or retiring Indebtedness
of such Person and its Consolidated Subsidiaries prior to the stated maturity
thereof pursuant to the agreements governing such Indebtedness, and


 


less


 


(1)                                  all
non-cash items increasing Consolidated Net Income for such period (including
unrealized gains resulting solely from the marking to market of derivative
securities or securities held in deferred compensation plans), and


 


(2)                                  the
amount of all cash payments made by such Person or any of the Subsidiaries
during such period to the extent such payments relate to non-cash charges that
were added back in determining Consolidated EBITDA for such period or any prior
period;


 


provided,
that consolidated income tax expense and depreciation and amortization of a
Subsidiary that is a less than Wholly Owned Subsidiary shall only be added to
the extent of such Person’s equity interest in such Subsidiary.


 


“Consolidated
Fixed Charges” of any Person means, for any period, the aggregate
amount (without duplication and determined in each case in accordance with
GAAP) of:


 


(a)                                  interest
expensed or capitalized, paid, accrued, or scheduled to be paid or accrued
(including, in accordance with the following paragraph, interest


 


8

















 


attributable to Capitalized
Lease Obligations) of such Person and its Consolidated Subsidiaries during such
period:


 


(i)                                     (A)
including (1) original issue discount and non-cash interest payments or
accruals on any Indebtedness, (2) the interest portion of all deferred
payment obligations, and (3) all commissions, discounts and other fees and
charges owed with respect to bankers’ acceptances and letters of credit
financings, and (4) net cash costs paid to unwind Interest Swap and Hedging
Obligations existing on and prior to the Issue Date, and (B) net of the
effect of all payments made or received pursuant to Interest Swap and Hedging
Obligations, in each case to the extent attributable to such period, but


 


(ii)                                  excluding
amortization or write-off of deferred financing costs and debt issuance costs
of such Person and the Subsidiaries during such period and any premium or
penalty paid in connection with redeeming or retiring Indebtedness of such
Person and the Subsidiaries prior to the stated maturity thereof pursuant to
the agreements governing such Indebtedness, plus


 


(b)                                 the
product of (x) the amount of all cash dividends (other than dividends paid
by the Subsidiaries to the Issuer or to the Issuer’s Wholly Owned Subsidiaries)
paid by such Person or any of its Consolidated Subsidiaries in respect of
Preferred Stock times (y) a fraction, the numerator of which is one and
the denominator of which is one minus the then current effective consolidated
federal, state and local tax rate of such Person, expressed as a decimal.


 


For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined in reasonable good faith by the Issuer to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP and
(y) interest expense attributable to any Indebtedness represented by the
guarantee by such Person or a Subsidiary of such Person of an obligation of
another Person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed.


 


“Consolidated
Net Income” means, with respect to any specified Person for any
period, the net income (or loss) of such specified Person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication):


 


(a)                                  all
gains or losses which are either extraordinary (as determined in accordance
with GAAP) or are unusual and nonrecurring (including any gain or loss from the
sale or other disposition of assets outside the ordinary course of business or
from the issuance or sale of any Capital Stock),


 


(b)                                 the
net income of any specified Person, other than a Consolidated Subsidiary, in
which such specified Person or any of its Consolidated Subsidiaries has an
interest, except to the extent of the amount of any dividends or distributions
actually paid in cash to such specified Person or a Consolidated Subsidiary of
such specified Person during


 


9

















 


such period, but in any case
not in excess of such specified Person’s pro rata share of such specified Person’s
net income for such period,


 


(c)                                  the
net income or loss of any Person acquired in a pooling of interests transaction
for any period prior to the date of such acquisition,


 


(d)                                 the
net income of any of such specified Person’s Consolidated Subsidiaries to the
extent that the declaration or payment of dividends or similar distributions is
not at the time permitted by operation of the terms of its charter or bylaws or
any other agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Consolidated Subsidiary, provided
that, for the avoidance of doubt, (i) such Person’s equity in the net
income of any such Consolidated Subsidiary for such period shall be included in
determining Consolidated Net Income up to the aggregate amount of cash that
could have been distributed by such Consolidated Subsidiary consistent with
such restrictions during such period to the Issuer or another Consolidated
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or distribution paid to another Consolidated Subsidiary, to the
limitations set forth in this clause (d)) and (ii) the Issuer’s
equity in a net loss of any such Consolidated Subsidiary for such period shall
be included in determining Consolidated Net Income, and


 


(e)                                  the
net income of any Unrestricted Subsidiary.


 


“Consolidated
Net Worth” of any Person at any date means the aggregate
consolidated stockholders’ equity of such Person (including in all cases
Preferred Stock) and its Consolidated Subsidiaries, as would be shown on the
consolidated balance sheet of such Person prepared in accordance with GAAP,
adjusted to exclude (to the extent included in calculating such equity), the
amount of any such stockholders’ equity attributable to Disqualified Capital
Stock or treasury stock of such Person and its Consolidated Subsidiaries.


 


“Consolidated
Subsidiary” means, for any Person, each Subsidiary of such Person
(whether now existing or hereafter created or acquired) the financial
statements of which are consolidated for financial statement reporting purposes
with the financial statements of such Person in accordance with GAAP.


 


“Continuing
Director” means during any period of 24 consecutive months after the
Issue Date, individuals who at the beginning of any such 24-month period
constituted the Issuer’s Board of Directors (together with any new directors
whose election by the Issuer’s Board of Directors or whose nomination for
election by the Issuer’s stockholders was approved by a vote of a majority of
the directors 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, including new directors designated in or provided for in an agreement
regarding the merger, consolidation or sale, transfer or other conveyance, of
all or substantially all of the Issuer’s assets, if such agreement was approved
by a vote of such majority of directors).


 


10

















 


“contractually subordinate” means subordinated
in right of payment by its terms or the terms of any document or instrument or
instrument relating thereto.


 


“Corporate
Trust Office” means the principal office of the Trustee at which at
any time its corporate trust business shall be principally administered, which
office at the dated hereof is located at 101 Barclay Street, Floor 8 West, New
York, New York 10286, Attention: 
Corporate Trust Administration, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Issuer, or the
principal corporate trust office of any successor Trustee (or such other
address as such successor Trustee may designate from time to time by notice to
the Holders and the Issuer).


 


“Credit
Agreement” means the Revolving Credit Agreement, dated as of the
Issue Date, among Sheridan Acquisition Corp., 
The Sheridan Group, Inc. and Fleet National Bank, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such credit agreement and/or related documents may be
amended, restated, supplemented, renewed, replaced or otherwise modified from
time to time whether or not with the same agent, trustee, representative
lenders or holders, and, subject to the proviso to the next succeeding
sentence, irrespective of any changes in the terms and conditions thereof.
Without limiting the generality of the foregoing, the term “Credit Agreement”
shall include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any Credit Agreement and all
refundings, refinancings and replacements of any Credit Agreement, including
any credit agreement:


 


(1)                                  extending
the maturity of any Indebtedness incurred thereunder or contemplated thereby,


 


(2)                                  adding
or deleting borrowers or guarantors thereunder, so long as borrowers and
issuers include one or more of the Issuer and the Subsidiaries and their
respective successors and assigns,


 


(3)                                  increasing
the amount of Indebtedness incurred thereunder or available to be borrowed
thereunder; provided,
that on the date such Indebtedness is incurred it would not be prohibited by
the covenant under Section 4.7; or


 


(4)                                  otherwise
altering the terms and conditions thereof in a manner not prohibited by the
terms of this Indenture.


 


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


 


“Definitive
Note” means one or more certificated Notes registered in the name of
the Holder thereof and issued in accordance with Section 2.6 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
include the information called for by footnotes 3 and 4 thereof.


 


11

















 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.3 hereof as the Depositary with
respect to the Notes, until a successor will have been appointed and become
such pursuant to the applicable provisions of this Indenture, and thereafter
“Depositary” will mean or include such successor.


 


“Disqualified
Capital Stock” means with respect to any Person, Equity Interests of
such Person that, by its terms or by the terms of any security into which it is
convertible, exercisable or exchangeable, is, or upon the happening of an event
or the passage of time or both would be, required to be redeemed or repurchased
by such Person or any of the Subsidiaries, in whole or in part, on or prior to
91 days following the Stated Maturity of the Notes; provided, however, only the
portion of Capital Stock which is so redeemable or repurchasable prior to such
date will be deemed to be Disqualified Capital Stock. Notwithstanding the
foregoing, any Equity Interests that would constitute Disqualified Capital
Stock solely because the holders thereof have the right to require the Issuer
to repurchase such Equity Interests upon the occurrence of a change of control
or an asset sale shall not constitute Disqualified Capital Stock if the terms
of such Equity Interests provide that the Issuer may not repurchase or redeem
any such Equity Interests pursuant to such provisions prior to the Issuer’s
purchase of the Notes as are required to be purchased pursuant to the
provisions of this Indenture as described under Sections 4.13 and 4.14.


 


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


 


“DTC”
means the Depository Trust Company and any successor thereto.


 


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


 


“Euroclear”
means Euroclear Bank S.A./N.V., as operator of the Euroclear system, or any
successor securities clearing agency.


 


“Event
of Loss” means, with respect to any property or asset, (1) any
loss, destruction or damage of such property or asset, (2) any
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, or confiscation or requisition of the use
of such property or asset or (3) any settlement in lieu of clause (2)
above, in each case, having a fair market value or resulting in gross proceeds
in excess of $1.0 million.


 


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


 


“Exchange
Notes” means the Series B Notes, issued pursuant to an Exchange
Offer and identical in all respects to the Series A Notes (including with
respect to the Guarantees), except (i) that such securities shall have been
registered pursuant to an effective registration statement under the Securities
Act, (ii) that such securities shall not contain a restrictive legend thereon,
(iii) that such securities shall not contain


 


12

















 


provisions relating to the
accrual or payment of Liquidated Damages and (iv) Interest on each Exchange
Note shall accrue from the last Interest Payment Date on which Interest was
paid on the Notes surrendered in exchange therefor or, if no Interest has been
paid on the Notes, from the date of original issue of the Notes.


 


“Exchange
Offer” means an offer that may be made by the Issuer pursuant to the
Registration Rights Agreement to exchange Exchange Notes for Series A Notes.


 


“Exchange
Offer Registration Statement “ shall have the meaning set forth in
the Registration Rights Agreement.


 


“Excluded
Assets” means:


 


(1)                                  any
Capital Stock, securities or other payment rights of a Subsidiary, except to
the extent described in the three paragraphs immediately following this definition;


 


(2)                                  assets
securing Purchase Money Indebtedness permitted to be incurred under this
Indenture;


 


(3)                                  leasehold
estates in real property existing on the Issue Date and any additional
leasehold estates in real property acquired by the Issuer or the Subsidiaries
after the Issue Date, unless the Notes Collateral Agent (upon request of the
Holders of a majority of the outstanding Notes) in its reasonable discretion
requests that the Issuer provide the Notes Collateral Agent with a lien upon
and security interest in such leasehold estate so that such leasehold estate
shall become additional Collateral (and the Issuer in the Collateral Agreements
will agree to notify the Notes Collateral Agent of the acquisition by it or any
of the Subsidiaries of any leasehold estate in real property);


 


(4)                                  any
leases, permits, licenses or other contracts or agreements or other assets or
property to the extent that a grant of a Lien thereon under the Collateral
Agreements (i) is prohibited by law or would constitute or result in the
abandonment, invalidation or unenforceability of any right, title or interest
of the grantor therein pursuant to applicable law, or (ii) would require
the consent of third parties and such consent has not been obtained after the
Issuer has used commercially reasonable efforts to try to obtain such consent,
or (iii) other than as a result of requiring a consent of third parties
that has not been obtained, would result in a breach of the provisions thereof,
or constitute a default under or result in a termination of, such lease,
permit, license, contract or agreement (other than to the extent that any such
provisions thereof would be rendered ineffective pursuant to
Section 9-406, 9-407 or 9-408 of the Uniform Commercial Code (or any
successor provision or provisions) of any relevant jurisdiction or any other
applicable law (the “UCC”)); provided that, immediately
upon the ineffectiveness, lapse or termination of such prohibition, the
provisions that would be so breached or such breach, default or termination or
immediately upon the obtaining of any such consent, the Excluded Assets shall
not include, and the Issuer or applicable Guarantor, as the case may be, shall
be deemed to have granted a security interest in, all such leases, permits,
licenses, other contracts and agreements and such other assets and


 


13

















 


property as if such
prohibition, the provisions that would be so breached or such breach, default
or termination had never been in effect and as if such consent had not been
required; and


 


(5)           cash and Cash
Equivalents to the extent that a Lien thereon may not be perfected through the
filing of a UCC financing statement or that, after the Issuer has used
commercially reasonable efforts, the Issuer are unable to cause the Trustee to
obtain “control” (as defined in the UCC) for the benefit of the Holders.


 


The Capital Stock, securities and other payment rights of the
Subsidiaries will constitute Collateral only to the extent that such Capital
Stock, securities and other payment rights can secure the Notes without Rule
3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law,
rule or regulation) requiring separate financial statements of such Subsidiary
to be filed with the SEC (or any other governmental agency). In the event that
Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or
is amended, modified or interpreted by the SEC to require (or is replaced with
another rule or regulation, or any other law, rule or regulation is adopted,
which would require) the filing with the SEC (or any other governmental agency)
of separate financial statements of any Subsidiary due to the fact that such
Subsidiary’s Capital Stock, securities or other payment rights secure the
Notes, then the Capital Stock, securities or other payment rights of such
Subsidiary shall automatically be deemed not to be part of the Collateral but
only to the extent necessary to not be subject to such requirement. In such
event, the Collateral Agreements may be amended or modified, without the
consent of any Holder of Notes, to the extent necessary to release the Liens on
the shares of Capital Stock, securities or other payment rights that are so
deemed to no longer constitute part of the Collateral. In the event that Rule
3-10 and Rule 3-16 of Regulation S-X under the Securities Act is amended,
modified or interpreted by the SEC to permit (or are replaced with another rule
or regulation, or any other law, rule or regulation is adopted, which would
permit) such Subsidiary’s Capital Stock, securities and other payment rights to
secure the Notes in excess of the amount then pledged without the filing with
the SEC (or any other governmental agency) of separate financial statements of
such Subsidiary, then the Capital Stock, securities and other payment rights of
such Subsidiary shall automatically be deemed to be a part of the Collateral
but only to the extent necessary to not be subject to any such financial
statement requirement. In such event, the Collateral Agreements may be amended
or modified, without the consent of any Holder of Notes, to the extent
necessary to subject to the Liens under the Collateral Agreements such
additional Capital Stock, securities and other payment rights.


 


In accordance with the foregoing limitations, as of the Issue Date, the
Collateral will include shares of Capital Stock of the Guarantors only to the
extent that the Applicable Value of such Capital Stock (on a
Subsidiary-by-Subsidiary basis) is less than 20% of the aggregate principal
amount of the Notes outstanding. 
Following the Issue Date, however, the portion of the Capital Stock of
such Subsidiaries constituting Collateral may decrease or increase as described
above.


 


In the case of Foreign Subsidiaries, if any, the Collateral will be
limited to a pledge of 65% of the Voting Equity Interests of such Foreign
Subsidiary held directly


 


14

















 


by the Issuer or any domestic
Subsidiary, 100% of the nonvoting Equity Interests of such Foreign Subsidiary
held directly by the Issuer or any domestic Subsidiary and 100% of any
intercompany Indebtedness owed by such Foreign Subsidiary to the Issuer or any
of the Guarantors.


 


“Exempted
Affiliate Transaction” means:


 


(1)           customary compensation
(including directors’ fees), benefits or indemnity arrangements provided to
officers, directors or employees of Holdco, the Issuer or any Subsidiary
(including employment agreements) approved by a majority of disinterested (as
to such transactions) members of the Issuer’s Board of Directors;


 


(2)                                  Restricted
Payments permitted Section 4.9


 


(3)                                  transactions
solely between or among the Issuer and any Subsidiary or solely among the
Subsidiaries;


 


(4)                                  issuances
or sales of Equity Interests (other than Disqualified Capital Stock) to
Affiliates, employees, officers and directors of Holdco, the Issuer or any of
the Subsidiaries;


 


(5)                                  the
Management Agreement and payment of Management Fees pursuant thereto;


 


(6)                                  loans
or advances to employees, directors, officers or consultants of Holdco, the
Issuer or any Subsidiary of the types consistent with past practice in an
aggregate amount not to exceed $500,000 outstanding at any one time; and


 


(7)                                  any
agreement (other than the Management Agreement) as in effect on the Issue Date
among the Issuer and/or one or more Subsidiaries, on the one hand, and one or
more Affiliates, on the other hand (including any amendments thereof so long as
any such amendment is not more disadvantageous to the Issuer or the relevant
Subsidiary or the Holders of the Notes in any material respect than the
original agreement as in effect on the Issue Date).


 


“Existing
Indebtedness” means the Indebtedness of the Issuer and the
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the Issue Date (after giving effect to the transactions contemplated
hereby), reduced to the extent such amounts are repaid, refinanced or retired.


 


“Foreign
Subsidiary”  means any Subsidiary of the Issuer which
(i) is not organized under the laws of the United States, any state
thereof or the District of Columbia and (ii) conducts substantially all of
its business operations outside of the United States of America.


 


“GAAP”
means United States generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of 


 


15

















 


the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession in the United States as in
effect on the Issue Date.


 


“Global
Notes” means one or more Notes in the form of Exhibit A hereto that
includes the information referred to in footnotes 3 and 4 to the form of Note,
attached hereto as Exhibit A, issued under this Indenture, that is deposited
with or on behalf of and registered in the name of the Depositary or its
nominee.


 


“Global
Note Legend” means the legend set forth in Section 2.6(g)(ii)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.


 


“guarantee”
means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any
manner (including, without limitation, letters of credit and reimbursement
agreements in respect thereof), of all or any part of any Indebtedness.  When used with respect to the Notes, a
“Guarantee” means a guarantee by the Guarantors of all or any part of the
Notes, in accordance with Article XI hereof.


 


“Guarantor”
means each of the Issuer’s present and future Subsidiaries that at the time are
guarantors of the Notes in accordance with this Indenture.


 


“Holdco”
means TSG Holdings Corp., a Delaware corporation.


 


“Holder”
means the Person in whose name a Note is registered in the register of the
Notes.


 


“Indebtedness”
of any specified Person means, without duplication,


 


(a)                                  all
liabilities and obligations, contingent or otherwise, of such specified Person,
to the extent such liabilities and obligations would appear as a liability upon
the consolidated balance sheet of such specified Person in accordance with
GAAP, (1) in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such specified Person or only to a
portion thereof), (2) evidenced by bonds, notes, debentures or similar
instruments, or (3) representing the balance deferred and unpaid of the
purchase price of any property or services, except (other than accounts payable
or other obligations to trade creditors which have remained unpaid for greater
than 90 days past their original due date unless such accounts payable or
other obligations to trade creditors are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Issuer in accordance with GAAP) those incurred
in the ordinary course of its business that would constitute ordinarily a trade
payable to trade creditors;


 


(b)                                 all
liabilities and obligations, contingent or otherwise, of such specified Person
(1) evidenced by bankers’ acceptances or similar instruments issued or
accepted by banks, (2) relating to any Capitalized Lease Obligation, or
(3) evidenced by a letter of credit or a reimbursement obligation of such
specified Person with respect to any letter of credit;


 


16

















 


(c)                                  all
net obligations of such specified Person under Interest Swap and Hedging
Obligations;


 


(d)           all liabilities and
obligations of others of the kind described in any of the preceding clauses
(a), (b) and (c) that such specified Person has guaranteed or
provided credit support or that are otherwise its legal liability or that are
secured by any assets or property of such specified Person;


 


(e)                                  any
and all deferrals, renewals, extensions, refinancing and refundings (whether
direct or indirect) of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (a), (b),
(c) or (d), or this clause (e), whether or not between or among the
same parties; and


 


(f)                                    all
Disqualified Capital Stock of such specified Person (measured at the greater of
its voluntary or involuntary maximum fixed repurchase price plus accrued and
unpaid dividends).


 


For purposes
hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified
Capital Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such price is
based upon, or measured by, the fair market value of such Disqualified Capital
Stock, such fair market value shall be determined in reasonable good faith by
the Board of Directors of the issuer of such Disqualified Capital Stock.


 


The amount of
any Indebtedness outstanding as of any date shall be (1) the accreted
value thereof, in the case of any Indebtedness issued with original issue
discount, and (2) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness. The accretion of original issue discount in accordance with the
original terms of Indebtedness issued with an original issue discount, the
accrual of interest on Indebtedness, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, the
payment of dividends on Disqualified Capital Stock or Preferred Stock in the
form of additional shares of the same class of Disqualified Capital Stock or
Preferred Stock, respectively, in each case in accordance with the original
terms of such Indebtedness, Disqualified Capital Stock or Preferred Stock, will
not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Capital Stock or Preferred Stock.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time in
accordance with the terms hereof.


 


“Indirect
Participant” means an entity that, with respect to DTC, clears
through or maintains a direct or indirect, custodial relationship with a
Participant.


 


“Initial
Purchaser” mean the initial purchaser of the Series A Notes under
the Purchase Agreement, dated August 14, 2003, with respect to the Series A
Notes.


 


17

















 


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


 


“Intercreditor
Agreement” means that certain Intercreditor Agreement among the
Trustee and Fleet National Bank, dated as of the date hereof, attached hereto
as Exhibit F, including any amended or supplemented agreement or any
replacement or substitute agreement in accordance with this Indenture, in each
case substantially in the form of Exhibit F attached hereto.


 


“Interest”
means the interest payable on the Notes.


 


“Interest
Payment Date” means the stated due date of an installment of
Interest on the Notes.


 


“Interest
Record Date” means a Interest Record Date specified in the Notes,
whether or not such date is a Business Day.


 


“Interest
Swap and Hedging Obligation” means any obligation of any Person
pursuant to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement, currency
exchange agreement or any other agreement or arrangement designed to protect
against fluctuations in interest rates or currency values, including, without
limitation, any arrangement whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying
either a fixed or floating rate of interest on a stated notional amount in
exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.


 


“Investment”
by any specified Person in any other Person (including an Affiliate) means
(without duplication):


 


(g)                                 the
acquisition (whether by purchase, merger, consolidation or otherwise) by such
specified Person (whether for cash, property, services, securities or
otherwise) of Equity Interests, Capital Stock, bonds, notes, debentures,
partnership or other ownership interests or other securities, including any
options or warrants, of such other Person or any agreement to make any such
acquisition;


 


(h)                                 the
making by such specified Person of any deposit with, or advance, loan or other
extension of credit to, such other Person (including the purchase of property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such property to such other Person) or any commitment to make
any such advance, loan or extension (but excluding advances to officers
and employees made in the ordinary course of business and accounts receivable,
trade credit, endorsements for collection or deposits arising in the ordinary
course of business);


 


(i)                                     other
than guarantees of Indebtedness of the Issuer or any Guarantor to the extent
permitted by Section 4.7, the entering into by such specified Person of any


 


18

















 


guarantee of, or other credit
support or contingent obligation with respect to, Indebtedness or other
liability of such other Person;


 


(j)                                     the
making of any capital contribution by such specified Person to such other
Person; and


 


(k)                                  the
designation by the Issuer’s Board of Directors of any Person to be an
Unrestricted Subsidiary.


 


The Issuer shall be deemed to make an Investment in an amount equal to
the fair market value of the net assets of any subsidiary (or, if neither the
Issuer nor any of the Subsidiaries has theretofore made an Investment in such
subsidiary, in an amount equal to the Investments being made), at the time that
such subsidiary is designated an Unrestricted Subsidiary, and any property
transferred to an Unrestricted Subsidiary from the Issuer or a Subsidiary shall
be deemed an Investment valued at its fair market value at the time of such
transfer. The Issuer or any of the Subsidiaries shall be deemed to have made an
Investment in a Person that is or was a Subsidiary or a Guarantor if, upon the
issuance, sale or other disposition of any portion of the Issuer’s or any of
the Subsidiary’s ownership in the Capital Stock of such Person, such Person
ceases to be a Subsidiary or Guarantor, as applicable. The fair market value of
each Investment shall be measured at the time made or returned, as applicable.


 


“Issue
Date” means the date of first issuance of the Notes under this
Indenture.


 


“JCP
Group” means (i) ING Furman Selz Investors III L.P., ING
Barings Global Leveraged Equity Plan Ltd., ING Barings U.S. Leveraged
Equity Plan LLC and FS Private Investments III LLC and any of their respective
Affiliates and (ii) any investment vehicle that is managed (whether
through ownership of securities having a majority of the voting power or
through management of investments) by any of the Persons listed in
clause (i), but excluding any portfolio companies of any Person listed in
clause (i) or (ii).


 


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


 


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


 


“Liquidated
Damages” means all liquidated damages then owing pursuant to the
Registration Rights Agreement.


 


19

















 


“Management
Agreement” means the Management Agreement, dated as of the Issue
Date, by and among Bruckmann, Rosser, Sherrill & Co., LLC, FS Private
Investments III LLC (d/b/a Jefferies Capital Partners) and the Issuer, as in
effect on the Issue Date, without giving effect to any amendment or supplement
thereto or modification thereof.


 


“Management
Fees” shall mean the Interim Period Fee, the Annual Fee and the
Out-of-Pocket Expenses, as such terms are defined in the Management Agreement.


 


“Moody’s”
means Moody’s Investors Service, Inc. and its successors.


 


“Net
Cash Proceeds” means the aggregate amount of cash or Cash
Equivalents received (a) by the Issuer in the case of a sale of Qualified
Capital Stock of the Issuer, (b) by Holdco in the case of a sale of
Qualified Capital Stock of Holdco, to the extent such cash and Cash Equivalents
have been contributed by Holdco to the Issuer, and (c) by the Issuer and the
Subsidiaries in respect of an Asset Sale or an Event of Loss (including, in the
case of an Event of Loss, the insurance proceeds, but excluding any liability
insurance proceeds payable to the Trustee for any loss, liability or expense
incurred by it),


 


(a)                                  plus,
in the case of an issuance of Qualified Capital Stock upon any exercise,
exchange or conversion of securities (including options, warrants, rights and
convertible or exchangeable debt) of the Issuer that were issued for cash after
the Issue Date, the amount of cash originally received by the Issuer upon the
issuance of such securities (including options, warrants, rights and
convertible or exchangeable debt),


 


(b)                                 less,
in each case, the sum of all payments, fees and commissions and reasonable and
customary expenses (including, without limitation, the fees and expenses of
legal counsel and investment banking fees and expenses) incurred in connection
with such Asset Sale or sale of Qualified Capital Stock or Event of Loss, and


 


(c)                                  less,
in the case of an Asset Sale or Event of Loss only:


 


(A)                              the amount (estimated
reasonably and in good faith by the Issuer) of income, franchise, sales and
other applicable taxes required to be paid by the Issuer or any of the Issuer’s
respective Subsidiaries in connection with such Asset Sale or Event of Loss in
the taxable year that such sale is consummated or in the immediately succeeding
taxable year, the computation of which shall take into account the reduction in
tax liability resulting from any available operating losses and net operating
loss carryovers, tax credits and tax credit carryforwards, and similar tax
attributes;


 


(B)                                repayment of
Indebtedness (including Purchase Money Indebtedness but not including
Subordinated Indebtedness, unless such Subordinated Indebtedness is required to
be repaid in connection with such Asset Sale (including to obtain a necessary
consent to such Asset Sale or required by applicable law)) secured by a Lien
(permitted under this Indenture) on the asset disposed of in such Asset Sale or
Event of Loss;


 


20

















 


(C)                                all distributions and
other payments required to be made as a result of such Asset Sale or Event of
Loss to minority interest holders in Subsidiaries or joint ventures having a
beneficial interest in the assets subject to such Asset Sale or Event of Loss;


 


(D)                               any reserve, established
in accordance with GAAP, for adjustment in respect of the sale price of the
property or other assets disposed in such Asset Sale, in accordance with the
terms of the agreement governing such Asset Sale, and


 


(E)                                 appropriate amounts
provided by the seller of the asset as a reserve, in accordance with GAAP,
against any liabilities associated with the property or other assets disposed
in such Asset Sale and retained by the Issuer or any Subsidiary after such
Asset Sale, including without limitation liabilities under any indemnification
obligations associated with such Asset Sale.


 


“Non-U.S.
Person” means any Person other than a U.S. Person.


 


“Notes
Collateral Agent” means the Trustee acting as collateral agent for
the benefit of the Holders of the Notes, under the Collateral Agreements.


 


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


 


“Obligation”
means any principal, premium or interest payment, monetary penalty or damages
due by the Issuer or any Guarantor under the terms of the Notes, this Indenture
or the Collateral Agreements, including any Liquidated Damages due pursuant to
the terms of the Registration Rights Agreement.


 


“Offering”
means the offering of the Notes by the Issuer.


 


“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary,
any Assistant Secretary or any Vice President of such Person or any other
Person designated by the Board of Directors of such Person and serving in a
similar capacity.


 


“Officers’ Certificate”
means the officers’ certificate to be delivered upon the occurrence of certain
events as set forth in this Indenture, and to be executed by two Officers of
the Issuer, one of whom shall be the principal executive officer, the principal
financial officer, the Treasurer or a Vice President.


 


“Opinion
of Counsel” means the opinion of counsel (subject to certain
customary exceptions and assumptions) to be delivered upon the occurrence of
certain events set forth in this Indenture (which Opinion of Counsel shall be
reasonably acceptable to the Trustee).


 


21

















 


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


 


“Permitted
Holders” means the BRS Group, the JCP Group and their respective
Affiliates, excluding any portfolio companies of any such Person.


 


“Permitted
Indebtedness” means:


 


(a)                                  Existing
Indebtedness;


 


(b)                                 Indebtedness
evidenced by the Notes and the Guarantees issued pursuant to this Indenture
(including the Exchange Notes and the related Guarantees) up to the amounts
being issued on the original Issue Date less any amounts repaid or retired;


 


(c)                                  Refinancing
Indebtedness with respect to (i) any Existing Indebtedness, (ii) any
Indebtedness described in clause (b) or (iii) any Indebtedness
incurred pursuant to the Debt Incurrence Ratio test pursuant to Section 4.7 or
(iv) any Indebtedness which was refinanced pursuant to this
clause (c);


 


(d)                                 Indebtedness
solely in respect of bankers’ acceptances, letters of credit, security for
worker’s compensation claims, appeals bonds, surety bonds, insurance
obligations or bonds and performance bonds and similar bonds and obligations,
all in the ordinary course of business (including, without limitation, to
maintain any licenses or permits) in accordance with customary industry
practices, in amounts and for the purposes customary in the Issuer’s industry,
in each case, to the extent that such incurrence does not result in the
incurrence of any obligation to repay any obligation relating to borrowed money
or other Indebtedness;


 


(e)                                  reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business; provided
that upon drawing of such letters of credit, such obligations are reimbursed
within 30 days following such drawing;


 


(f)                                    (i)                                     Indebtedness
incurred by the Issuer that is owed to (borrowed from) any Guarantor, provided,
that such Indebtedness shall be unsecured and contractually subordinated in all
respects to the Issuer’s obligations pursuant to the Notes and any event that
causes such Guarantor no longer to be a Guarantor (including by designation as
an Unrestricted Subsidiary) shall be deemed to be a new incurrence by the
Issuer of such Indebtedness and any guarantor thereof subject to Section 4.7


 


(ii)                                  Indebtedness
incurred by any Guarantor that is owed to (borrowed from) any other Guarantor
or the Issuer, provided, that such Indebtedness shall be unsecured and
contractually subordinated in all respects to such Guarantor’s obligations
pursuant to such Guarantor’s Guarantee and any event that causes the Guarantor
lender no longer to be a Guarantor (including a designation as an Unrestricted
Subsidiary) shall be deemed to be a new incurrence by such Guarantor borrower
of such Indebtedness and any guarantor thereof subject to Section 4.7, and


 


22

















 


(iii)                               Indebtedness
incurred by any Subsidiary and owed to (borrowed from) the Issuer or any
Guarantor; provided,
that the Investment in the form of the loan is a “Permitted Investment” (other
than pursuant to clause (c) of the definition thereof) or is otherwise not
prohibited at the time of incurrence under Section 4.9;


 


(g)                                 Interest
Swap and Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate or currency risk with respect to any fixed or floating
rate Indebtedness that is permitted by this Indenture to be outstanding or any
receivable or liability the payment of which is determined by reference to a
foreign currency; provided, that the notional amount of any such Interest Swap
and Hedging Obligation does not exceed the principal amount of Indebtedness to
which such Interest Swap and Hedging Obligation relates;


 


(h)                                 Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn overnight against insufficient
funds in the ordinary course of business;


 


(i)                                     Indebtedness
represented by Purchase Money Indebtedness in an aggregate principal amount,
including all Refinancing Indebtedness incurred to repay, redeem, discharge,
retire, defease, refund, refinance or replace any Indebtedness incurred
pursuant to this clause (i), not to exceed $5,000,000 at any one time
outstanding;


 


(j)                                     Indebtedness
arising from agreements of the Issuer or any Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, or
contingent earn-out payments, in each case, which agreements for
indemnification, adjustment of purchase price or similar obligations, or
contingent earn-out payments, were entered into in connection with the
acquisition or disposition of any business or assets, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business or assets for the purpose of financing such acquisition, provided
that (in the case of any such disposition) the maximum aggregate liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Issuer or the applicable Guarantor or Subsidiary in
connection with such disposition;


 


(k)                                  the
obligation of the Issuer to reimburse Out-of-Pocket Expenses, as defined in and
pursuant to the Management Agreement; and


 


(l)                                     if
no Event of Default shall have occurred and be continuing, the Issuer’s
incurrence or the incurrence by any Guarantor of Indebtedness in an aggregate
amount incurred and outstanding at any time pursuant to this clause (l)
(plus any Refinancing Indebtedness incurred to retire, defease, refinance,
replace or refund such Indebtedness) of up to $5,000,000.


 


“Permitted
Investment” means:


 


(a)                                  any
Investment in any of the Notes or the Guarantees;


 


23

















 


(b)                                 any
Investment in cash or Cash Equivalents;


 


(c)                                  intercompany
notes to the extent permitted under clause (f) of the definition of “Permitted
Indebtedness;”


 


(d)                                 any
Investment by the Issuer or any Subsidiary in a Person in a Related Business if
as a result of such Investment such Person becomes a Subsidiary and a Guarantor
or such Person is merged with or into the Issuer or a Subsidiary that is a
Guarantor;


 


(e)                                  Investments
by Foreign Subsidiaries in other Foreign Subsidiaries;


 


(f)                                    any
Investment by any Foreign Subsidiary in a Person in a Related Business if as a
result of such Investment such Person becomes a Foreign Subsidiary or a
Guarantor or such Person is merged with or into the Issuer, a Foreign
Subsidiary or a Guarantor;


 


(g)                                 Investments
in any Person or Persons, including any Foreign Subsidiary or Foreign
Subsidiaries, provided, that after giving pro forma effect to each
such Investment, the aggregate amount of all such Investments made on and after
the Issue Date pursuant to this clause (g) that are outstanding (after
giving effect to any such Investments or any portions thereof that are returned
to the Issuer or the Guarantor that made such prior Investment, without
restriction, in cash on or prior to the date of any such calculation, but only
up to the amount of the Investment made under this clause (g)) in such
Person or Persons at any time does not in the aggregate exceed $5,000,000
(measured by the value attributed to the Investment at the time made or
returned, as applicable);


 


(h)                                 any
Investment in any Person (including the acquisition of Indebtedness) in
exchange for the Issuer’s Qualified Capital Stock or the Net Cash Proceeds of
any substantially concurrent sale of the Issuer’s Qualified Capital Stock or
Holdco’s Qualified Capital Stock (to the extent that such Net Cash Proceeds
have been contributed by Holdco to the Issuer);


 


(i)                                     any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.13;


 


(j)                                     any
Investment in the Issuer or in a Wholly Owned Subsidiary of the Issuer which is
a Guarantor, provided, however, that any Indebtedness evidencing such
Investment is unsecured and subordinated to the Issuer’s obligations under the
Notes;


 


(k)                                  Investments
in existence on the Issue Date;


 


(l)                                     Interest
Swap and Hedging Obligations of the types permitted under this Indenture;


 


24

















 


(m)                               Investments
in securities of trade creditors, customers or any debtor of the Issuer or the
Subsidiaries received in compromise of obligations incurred in the ordinary
course of business, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors,
customers or debtors and any Investments received in satisfaction of judgments;


 


(n)                                 loans
or advances to employees, directors, officers or consultants of Holdco, the
Issuer or any Subsidiary of the types consistent with past practice in an
aggregate amount not to exceed $500,000 outstanding at any one time;


 


(o)                                 receivables
owing to the Issuer or any Subsidiary if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with past practice and
customary trade terms; provided, however, that such trade
terms may include the concessionaire trade terms as the Issuer or the
Subsidiary deems reasonable under the circumstances;


 


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


 


(q)                                 Investments
in any Person to the extent such Investments consist of prepaid expenses,
negotiable instruments held for collection and lease, utility and workers’
compensation, performance and other similar deposits made in the ordinary course
of business and consistent with past practice.


 


“Permitted
Liens” means:


 


(a)                                  Liens
existing on the Issue Date;


 


(b)                                 Liens
imposed by governmental authorities for taxes, assessments or other charges not
yet subject to penalty or which are being contested in good faith and by
appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Issuer in accordance with GAAP;


 


(c)                                  statutory
liens of carriers, warehousemen, mechanics, materialmen, landlords, repairmen
or other like Liens arising by operation of law in the ordinary course of
business provided that such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Issuer in accordance with GAAP;


 


(d)                                 easements,
rights-of-way, zoning and similar restrictions and other similar encumbrances
or title defects incurred in the ordinary course of business consistent with
industry practices which, singly or in the aggregate, do not in any case
materially detract from the value of the property subject thereto (as such
property is used by the Issuer or any of the Subsidiaries) or materially
interfere with the ordinary conduct of the business of the Issuer or any of the
Subsidiaries;


 


25

















 


(e)                                  Liens
incurred or deposits made in the ordinary course of business to secure the
obligations of the Issuer and the Subsidiaries under workers’ compensation,
unemployment insurance and other types of social security legislation or
otherwise to secure statutory or regulatory obligations or for the payment of
rent of the Issuer or any of the Subsidiaries in the ordinary course of
business consistent with past practice, including to secure the performance of
tenders, surety and appeal bonds, performance bonds, performance of bids,
leases, trade contracts, governmental contracts, operating leases, performance
and return-of-money bonds and other similar obligations (exclusive in each case
of obligations for the payment of borrowed money); provided, that the
obligations in connection with which such Liens were incurred or deposits made
shall have been incurred in the ordinary course of business and shall otherwise
be permitted by this Indenture;


 


(f)                                    Liens
securing the Notes and the Guarantees;


 


(g)                                 Liens
securing Acquired Indebtedness or other Indebtedness, or Liens on shares of
Capital Stock, of a Person existing at the time such Person becomes a
Subsidiary or is merged with or into the Issuer or a Subsidiary or any Lien
securing Indebtedness incurred in connection with an Acquisition, provided,
that such Liens were in existence prior to the date of such acquisition, merger
or consolidation, were not incurred in anticipation thereof, and do not extend
to any other assets;


 


(h)                                 Liens
arising from Purchase Money Indebtedness permitted to be incurred pursuant to
clause (i) of the definition of “Permitted Indebtedness;” provided
such Liens relate solely to the property which is subject to such Purchase
Money Indebtedness;


 


(i)                                     licenses,
leases or subleases granted to other Persons in the ordinary course of business
not materially interfering with the conduct of the business of the Issuer or
any of the Subsidiaries or materially detracting from the value of the relative
assets of the Issuer or any Subsidiary;


 


(j)                                     Liens
arising from precautionary Uniform Commercial Code financing statement filings
regarding operating leases entered into by the Issuer or any of the
Subsidiaries in the ordinary course of business;


 


(k)                                  Liens
securing Refinancing Indebtedness incurred to refinance any Indebtedness that
was previously so secured in compliance with this Indenture;


 


(l)                                     Liens
securing Indebtedness incurred under the Credit Agreement pursuant to Section
4.7(b);


 


(m)                               Liens
in favor of the Issuer or any Guarantor, which are assigned to the Notes
Collateral Agent for the Notes or a Guarantee, as applicable;


 


(n)                                 Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit
and products and proceeds thereof;


 


26

















 


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


 


(p)                                 Liens
incurred in the ordinary course of business securing Interest Swap and Hedging
Obligations that are otherwise permitted under this Indenture;


 


(q)                                 Liens
on a pledge of the Equity Interests of any Unrestricted Subsidiary securing
Indebtedness of such Unrestricted Subsidiary;


 


(r)                                    judgment
Liens not giving rise to an Event of Default so long as any such Lien is
adequately bonded and any appropriate legal proceedings which may have been
duly initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired;


 


(s)                                  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;
and


 


(t)                                    Liens
securing Indebtedness of the Issuer or any Subsidiary (other than Indebtedness
incurred under the Credit Agreement and other than Purchase Money Indebtedness)
in addition to the Liens described in clauses (a) through (s) above,
so long as the aggregate principal amount of Indebtedness secured by Liens
incurred pursuant to this clause (t) does not exceed $5,000,000 at any one
time outstanding.


 


“Permitted
Tax Payments to Holdco” means payments made to Holdco to enable
Holdco to pay current Federal, state, local and foreign tax liabilities imposed
directly upon Holdco (including, without limitation, in Holdco’s capacity as a
withholding agent to the extent that Holdco has direct liability for any
failure to withhold) (“Tax Payments”); provided, however, that
(i) notwithstanding the foregoing, (A) in the case of any Tax Payment
that is permitted to be made to Holdco in respect of its Federal income tax
liability for any taxable period during which Holdco is the parent company of
an affiliated group that includes the Issuer and each of the Issuer’s United
States subsidiaries as members that are part of such affiliated group and files
a consolidated Federal income tax return, such payment shall be determined on
the basis of assuming that the Issuer is the parent company of an affiliated
group (the “Issuer
Affiliated Group”) filing a consolidated Federal income tax return
and that Holdco and each such United States subsidiary is a member of the
Issuer Affiliated Group and (B) the amount of such payment shall be
reduced to the extent of the portion of Holdco’s tax liabilities arising from
or attributable to the taxable income generated by any Unrestricted Subsidiary
and (ii) any Tax Payment made to Holdco shall either be used by Holdco to
pay such Holdco tax liabilities to the applicable taxing authority within
10 days of Holdco’s receipt of such payment or shall be refunded to the
Issuer.


 


27

















 


“Person”
or “person”
means any individual corporation, limited liability company, joint stock
company, joint venture, partnership, limited liability partnership,
association, unincorporated organization, trust, governmental regulatory
entity, country, state, agency or political subdivision thereof, municipality,
county, parish or other entity.


 


“Preferred
Stock” means any Equity Interest of any class or classes of a Person
(however designated) which is preferred as to payments of dividends, or as to
distributions upon any liquidation or dissolution, over Equity Interests of any
other class of such Person.


 


“Private
Placement Legend” means the legend set forth in Section 2.6(g)(i)(A)
hereof to be placed on all Notes issued under this Indenture except where
specifically stated otherwise by the provisions of this Indenture.


 


“Purchase
Money Indebtedness” of any Person means any Indebtedness of such
Person to any seller or other Person incurred solely to finance the acquisition
(including in the case of a Capitalized Lease Obligation, the lease),
construction, installation or improvement of any after acquired real or
personal tangible property which is incurred concurrently with such
acquisition, construction, installation or improvement and is secured only by
the assets so financed.


 


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


 


“Qualified
Capital Stock” means, with respect to any Person, any Capital Stock
of such Person that is not Disqualified Capital Stock.


 


“Qualified
Equity Offering” means an underwritten public offering for cash
pursuant to a registration statement filed with the SEC in accordance with the
Securities Act of Qualified Capital Stock of Holdco (to the extent that the Net
Cash Proceeds thereof have been contributed by Holdco to the Issuer) or
Qualified Capital Stock of the Issuer.


 


“Qualified
Exchange” means:


 


(1)                                  any
legal defeasance, redemption, retirement, repurchase or other acquisition of
Capital Stock of the Issuer, or Indebtedness of the Issuer, with the Net Cash
Proceeds received by the Issuer from the substantially concurrent sale of the
Issuer’s Qualified Capital Stock (other than to a Subsidiary) or from the Net
Cash Proceeds of the substantially concurrent sale by Holdco of Holdco’s
Qualified Capital Stock (to the extent that the Net Cash Proceeds thereof are
contributed by Holdco to the Issuer) or substantially concurrent capital
contribution by Holdco to the Issuer; and


 


(2)                                  any
issuance of Qualified Capital Stock of the Issuer in exchange for any Capital
Stock or Indebtedness of the Issuer.


 


“Recourse
Indebtedness” means Indebtedness (a) as to which the Issuer or
one of the Subsidiaries (1) provides credit support of any kind (including
any undertaking, guarantee, agreement or instrument that would constitute
Indebtedness), (2) is directly or indirectly liable (as a guarantor or
otherwise), or (3) constitutes the lender, or (b) a default


 


28

















 


with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) a holder of any other Indebtedness of the Issuer or any of the
Subsidiaries (other than the Notes and Guarantees) to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity.


 


“Reference
Period” with regard to any Person means the four full fiscal
quarters (or such lesser period during which such Person has been in existence)
ended immediately preceding any date upon which any determination is to be made
pursuant to the terms of the Notes or this Indenture.


 


“Reference
Treasury Dealer Quotation” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Issuer, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Issuer by such Reference Treasury Dealer at 5:00 p.m. on the
third business date preceding such redemption date.


 


“Reference
Treasury Dealer” means any primary U.S. government securities dealer
in the City of New York (a “Primary Treasury Dealer”) selected by the
Issuer.


 


“Refinancing
Indebtedness” means Indebtedness (including Disqualified Capital
Stock):


 


(a)                                  issued
in exchange for, or the proceeds from the issuance and sale of which are used
substantially concurrently to repay, redeem, defease, refund, refinance,
discharge or otherwise retire for value, in whole or in part, any Indebtedness
(including Disqualified Capital Stock), or


 


(b)                                 constituting
an amendment, modification or supplement to, or a deferral or renewal of any
Indebtedness (including Disqualified Capital Stock),


 


in the case of each of clause (a) and (b) (either of
(a) and (b) above, a “Refinancing”) in a principal amount or, in
the case of Disqualified Capital Stock, liquidation preference, not to exceed
(after deduction of reasonable and customary fees and expenses incurred in
connection with the Refinancing plus the amount of any premium paid in
connection with such Refinancing) the lesser of (1) the principal amount
or, in the case of Disqualified Capital Stock, liquidation preference, of the
Indebtedness (including Disqualified Capital Stock) so refinanced and
(2) if such Indebtedness being refinanced was issued with an original
issue discount, the accreted value thereof (as determined in accordance with
GAAP) at the time of such Refinancing;


 


provided,
in each case, that:


 


(A)                              (x) Refinancing
Indebtedness issued by the Issuer shall only be used to refinance outstanding
Indebtedness (including Disqualified Capital Stock)


 


29

















 


of the Issuer
or a Guarantor or a Subsidiary to the extent that the Investment by the Issuer
in such Subsidiary resulting from such Refinancing is a “Permitted Investment”
or is otherwise not prohibited at the time of such Refinancing by Section 4.9
(y) Refinancing Indebtedness issued by a Guarantor shall only be used to
refinance outstanding Indebtedness (including Disqualified Capital Stock) of a
Guarantor or a Subsidiary to the extent that the Investment by such Guarantor
in such Subsidiary resulting from such Refinancing is a “Permitted Investment”
or is otherwise not prohibited at the time of such Refinancing by Section 4.9
and (z) Refinancing Indebtedness issued by a Subsidiary shall only be used
to refinance outstanding Indebtedness of such Subsidiary or any other
Subsidiary that is not a Guarantor,


 


(B)                                such
Refinancing Indebtedness shall (x) not have an Average Life shorter than
the Indebtedness (including Disqualified Capital Stock) to be so refinanced at
the time of such Refinancing and (y) in all respects, be no less
contractually subordinated or junior, if applicable, to the rights of Holders
of the Notes and the Guarantees than was the Indebtedness (including
Disqualified Capital Stock) to be refinanced,


 


(C)                                such
Refinancing Indebtedness shall have a final stated maturity or redemption date,
as applicable, no earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness (including Disqualified Capital Stock) to be so
refinanced or, if sooner, 91 days after the Stated Maturity of the Notes,
and


 


(D)                               such
Refinancing Indebtedness shall be secured (if secured) in a manner no more
adverse to the Holders of the Notes than the terms of the Liens (if any)
securing such refinanced Indebtedness, including, without limitation, the
amount of Indebtedness secured shall not be increased.


 


“Reg
S Permanent Global Note” means one or more permanent Global Notes
bearing the Private Placement Legend, that will be issued in an aggregate
amount of denominations equal in total to the outstanding principal amount of
the Reg S Temporary Global Note upon expiration of the Distribution Compliance
Period.


 


“Reg
S Temporary Global Note” means one or more temporary Global Notes
bearing the Private Placement Legend and the Reg S Temporary Global Note
Legend, issued in an aggregate amount of denominations equal in total to the
outstanding principal amount of the Notes initially sold in reliance on Rule
903 of Regulation S.


 


“Reg
S Temporary Global Note Legend” means the legend set forth in
Section 2.6(g)(iii) hereof, which is required to be placed on all Reg S
Temporary Global Notes issued under this Indenture.


 


“Registration
Rights Agreement”  means the Registration Rights Agreement,
dated as of the Issue Date, by and among the Issuer and the other parties


 


30

















 


named on the signature pages
thereof, as such agreement may be amended, modified or supplemented from time
to time.


 


“Regulation
S” means Regulation S promulgated under the Securities Act, as it
may be amended from time to time, and any successor provision thereto.


 


“Regulation
S Global Note” means a Reg S Temporary Global Note or a Reg S
Permanent Global Note, as the case may be.


 


“Related
Business” means the business conducted (or proposed to be conducted)
by the Issuer and the Subsidiaries as of the Issue Date and any and all
businesses that in the reasonable good faith judgment of the Issuer’s Board of
Directors are related, complementary or ancillary businesses.


 


“Related
Business Assets” means assets that the Issuer determines will be
used in a Related Business.


 


“Responsible
Officer” shall mean, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, 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.


 


“Restricted
Definitive Note” means one or more Definitive Notes bearing the
Private Placement Legend, issued under this Indenture.


 


“Restricted
Global Note” means one or more Global Notes bearing the Private
Placement Legend, issued under this Indenture; provided, that in no case
shall an Exchange Note issued in accordance with this Indenture and the terms
of the Registration Rights Agreement be a Restricted Global Note.


 


“Restricted
Investment” means, in one or a series of related transactions, any
Investment, other than a Permitted Investment.


 


“Restricted
Payment” means, with respect to any Person:


 


(a)                                  the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such Person,


 


(b)                                 any
payment (except to the extent with Qualified Capital Stock) on account of the
purchase, redemption or other acquisition or retirement for value of Equity Interests
of such Person,


 


(c)                                  other
than with the proceeds from the substantially concurrent sale of, or in
exchange for, Refinancing Indebtedness, any purchase, redemption or other
acquisition or retirement for value of, any payment in respect of or any defeasance
of any


 


31

















 


Subordinated Indebtedness,
directly or indirectly, by such Person or any Subsidiary of such Person prior
to the scheduled maturity, any scheduled repayment of principal or scheduled
sinking fund payment, as the case may be, of such Subordinated Indebtedness,
and


 


(d)                                 any
Restricted Investment by such Person;


 


provided, however,
that the term “Restricted Payment” does not include (1) any dividend,
distribution or other payment on or with respect to Equity Interests of an
issuer to the extent payable solely in shares of Qualified Capital Stock of
such issuer, (2) any dividend, distribution or other payment to the Issuer
or to any of the Guarantors by the Issuer or any of the Subsidiaries, or
(3) any Investment in any Guarantor by the Issuer or any Subsidiary.


 


“Rule
144” means Rule 144 promulgated under the Securities Act, as it may
be amended from time to time, and any successor provision thereto.


 


“Rule
144A” means Rule 144A promulgated under the Securities Act, as it
may be amended from time to time, and any successor provision thereto.


 


“SEC”
means the Securities and Exchange Commission.


 


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


 


“Security
Agreement” means that certain Security Agreement among the Issuer,
the Company and the Guarantors, dated as of the date hereof, including any
amended or supplemented agreement or any replacement or substitute agreement in
accordance with this Indenture.


 


“Shelf
Registration” shall have the meaning set forth in the Registration
Rights Agreement.


 


“Significant
Subsidiary” shall have the meaning provided under Regulation S-X of
the Securities Act, as in effect on the Issue Date.


 


“Special
Record Date” means, for payment of any Defaulted Interest, a date
fixed by the Paying Agent pursuant to Section 2.12 hereof.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, and its successors.


 


“Stated
Maturity,” when used with respect to any Note, means August 15,
2011.


 


“Subordinated
Indebtedness” means Indebtedness of the Issuer or a Guarantor that
is contractually subordinated to the Notes or such Guarantee, as applicable, in
any respect.


 


32

















 


“subsidiary,”
with respect to any Person, means (1) a corporation a majority of whose
Equity Interests with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by such Person, by such
Person and one or more subsidiaries of such Person or by one or more
subsidiaries of such Person, (2) any other Person (other than a
corporation) in which such Person, one or more subsidiaries of such Person, or
such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof has a majority ownership
interest, or (3) a partnership in which such Person or a subsidiary of
such Person is, at the time, a general partner and in which such Person,
directly or indirectly, at the date of determination thereof has a majority
ownership interest. Unless the context requires otherwise, “subsidiary,”
with respect to any Person, means each direct and indirect subsidiary of such
Person.


 


“Subsidiary”
means any subsidiary of the Issuer that is not an Unrestricted Subsidiary.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date on which this Indenture is qualified under the TIA.


 


“Transfer
Restricted Notes” means Global Notes and Definitive Notes that bear
or are required to bear the Private Placement Legend, issued under this
Indenture.


 


“Treasury
Rate” means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the comparable Treasury Price
for such redemption period.


 


“Trustee”
means the party named as such above, until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter
means such successor serving hereunder.


 


“Unrestricted
Definitive Note” means one or more Definitive Notes that do not bear
and are not required to bear the Private Placement Legend, issued under this
Indenture.


 


“Unrestricted
Global Note” means one or more permanent Global Notes representing a
series of Notes that does not bear and is not required to bear the Private
Placement Legend, issued under this Indenture.


 


“Unrestricted
Subsidiary” means:


 


(a)                                  any
subsidiary of the Issuer that, at or prior to the time of determination, shall
have been designated by the Issuer’s Board of Directors as an Unrestricted
Subsidiary; provided,
that such subsidiary at the time of such designation (a) has no Recourse
Indebtedness; (b) is not party to any agreement, contract, arrangement or
understanding with the Issuer or any Subsidiary unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Issuer or such Subsidiary than those that might be obtained at the time from
Persons who


 


33

















 


are not Affiliates of the
Issuer; (c) is a Person with respect to which neither the Issuer nor any
of the Subsidiaries has any direct or indirect obligation (x) to subscribe
for additional Equity Interests or (y) to maintain or preserve such
Person’s financial condition or to cause such Person to achieve any specified
levels of operating results; and (d) does not directly, indirectly or
beneficially own any Equity Interests of, or Subordinated Indebtedness of, or
own or hold any Lien on any property of, the Issuer or any other Subsidiary,
and


 


(b)                                 any
subsidiary of an Unrestricted Subsidiary.


 


The Issuer’s
Board of Directors may designate any Unrestricted Subsidiary to be a
Subsidiary, provided,
that (1) no Default or Event of Default is existing or will occur as a
consequence thereof and (2) immediately after giving effect to such
designation, on a pro forma basis, the Issuer could incur at least $1.00 of
Indebtedness pursuant to the Debt Incurrence Ratio under Section 4.7. Each such
designation shall be evidenced by filing with the Trustee a certified copy of
the resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing conditions.


 


“U.S.
Government Obligations” means direct noncallable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.


 


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


 


“Voting
Equity Interests” means Equity Interests which at the time are
entitled to vote in the election of, as applicable, directors, members or
partners generally.


 


“Wholly
Owned Subsidiary” means a Subsidiary all the Equity Interests of
which (other than directors’ qualifying shares) are owned by the Issuer or one
or more Wholly Owned Subsidiaries or a combination thereof.


 


Section 1.2                                      OTHER
DEFINITIONS


 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “360-Day Period”

  	
   

  	
  4.13

  
	
  “Acceleration Notice”

  	
   

  	
  6.1

  
	
  “Affiliate Transaction”

  	
   

  	
  4.12

  
	
  “Asset Sale Amount”

  	
   

  	
  4.13

  
	
  “Asset Sale Notice”

  	
   

  	
  4.13

  
	
  “Asset Sale Offer”

  	
   

  	
  4.13

  
	
  “Asset Sale Offer Amount”

  	
   

  	
  4.13

  
	
  “Asset Sale Offer Price”

  	
   

  	
  4.13

  
	
  “Asset Sale Purchase Date”

  	
   

  	
  4.13

  
	
  “Authentication Order”

  	
   

  	
  2.2

  
	
  “Benefited Party”

  	
   

  	
  11.1

  



 


34

















 


	
  “Change of Control Notice”

  	
   

  	
  4.14

  
	
  “Change of Control Offer”

  	
   

  	
  4.14

  
	
  “Change of Control Purchase Date”

  	
   

  	
  4.14

  
	
  “Change of Control Purchase Price”

  	
   

  	
  4.14

  
	
  “Covenant Defeasance”

  	
   

  	
  8.3

  
	
  “Debt Incurrence Ratio”

  	
   

  	
  4.7

  
	
  “Defaulted Interest”

  	
   

  	
  2.12

  
	
  “DTC”

  	
   

  	
  2.3

  
	
  “Event of Default”

  	
   

  	
  6.1

  
	
  “Excess Proceeds”

  	
   

  	
  4.13

  
	
  “Guarantee Obligations”

  	
   

  	
  11.1

  
	
  “incur” or “incurrence”

  	
   

  	
  4.7

  
	
  “Incurrence Date”

  	
   

  	
  4.7

  
	
  “Investment Company Act”

  	
   

  	
  4.16

  
	
  “Issuer”

  	
   

  	
  Preamble

  
	
  “Issuer Affiliated Group”

  	
   

  	
  Definition of Permitted Tax

  
	
   

  	
   

  	
  Payments to Holdco

  
	
  “Legal Defeasance”

  	
   

  	
  8.2

  
	
  “Notes”

  	
   

  	
  Preamble

  
	
  “Paying Agent”

  	
   

  	
  2.3

  
	
  “Primary Treasury Dealer”

  	
   

  	
  Definition of Reference

  
	
   

  	
   

  	
  Treasury Dealer

  
	
  “Refinancing”

  	
   

  	
  Definition of Permitted Refinancing
  Indebtedness

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Redemption Date”

  	
   

  	
  3.8

  
	
  “Series A Notes”

  	
   

  	
  Preamble

  
	
  “Series B Notes”

  	
   

  	
  Preamble

  
	
  “Tax Payments”

  	
   

  	
  Definition of Permitted Tax Payments to
  Holdco

  
	
  “Transaction Date”

  	
   

  	
  Definition of Consolidated Coverage Ratio

  



 


Section 1.3                                      INCORPORATION
BY REFERENCE OF TRUST INDENTURE ACT


 


Whenever this Indenture refers to a provision of the TIA, such
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:


 


“Commission”
means the SEC;


 


“obligor”
on the Notes means the Issuer, each Guarantor and any successor obligor upon
the Notes.


 


35

















 


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


 


Section 1.4                                      RULES
OF CONSTRUCTION


 


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)                                  provisions
apply to successive events and transactions;


 


(6)                                  “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision;


 


(7)                                  references
to sections of or rules under the Securities Act and the Exchange Act shall be
deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time; and


 


(8)                                  references
to the “Intercreditor Agreement” shall mean if the Intercreditor Agreement is
then in effect.


 


ARTICLE
II

THE NOTES


 


Section 2.1                                      FORM
AND DATING


 


(a)                                  General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A hereto; provided,
that the form of the Exchange Notes shall include such variations as are
permitted or required by the Registration Rights Agreement.


 


The Notes may have notations, legends or endorsements required by law,
stock exchange rule, depository rule or usage. 
Each Note shall be dated the date of its issuance and shall show the
date of its authentication. The Notes shall be in denominations of $1,000 and
integral multiples thereof.


 


The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Issuer, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms


 


36

















 


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.


 


(b)                                 Global Notes.  Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the “Schedule of Exchanges of Interests in the Global
Note” attached thereto).  Notes issued
in definitive form shall be substantially in the form of Exhibit A attached
hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto).  Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Notes Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof.


 


(c)                                  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 Luxembourg” and “Customer Handbook”
of Clearstream Banking Luxembourg in effect at the relevant time shall be
applicable to transfers of beneficial interests in the Regulation S Global
Notes that are held by Participants through Euroclear or Clearstream Banking
Luxembourg.


 


Section 2.2                                      EXECUTION
AND AUTHENTICATION


 


Two Officers shall sign the Notes for the Issuer by manual or facsimile
signature.  In the case of Definitive
Notes, such signatures may be imprinted or otherwise reproduced on such Notes.  If an Officer whose signature is on a Note
no longer holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.  A Note shall not
be valid until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.  The Trustee shall, upon a written order of
the Issuer signed by an Officer (an “Authentication Order”), authenticate Notes
for issuance up to the aggregate principal amount stated in such Authentication
Order; provided
that Notes authenticated for issuance on the Issue Date shall not exceed
$105,000,000 in aggregate principal amount. 
The Trustee may appoint an authenticating agent acceptable to the Issuer
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so.  Each reference
in this Indenture to authentication by the Trustee includes authentication by
such agent.  An authenticating agent has
the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.


 


37

















 


Section 2.3                                      REGISTRAR,
PAYING AGENT AND DEPOSITARY


 


The Issuer shall maintain an office or agency in the Borough of
Manhattan, The City of New York, which shall initially be The Bank of New York,
where (i) Notes may be presented for registration of transfer or for exchange
(“Registrar”)
and (ii) Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register of the
Notes and of their transfer and exchange. 
The Issuer 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 Issuer may change any
Paying Agent or Registrar without notice to any Holder.  The Issuer shall notify the Trustee in
writing of the name and address of any Agent not a party to this
Indenture.  If the Issuer fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall
act as such.  The Issuer or any of the
Issuer’s subsidiaries may act as Paying Agent or Registrar.  The Issuer initially appoints The Depository
Trust Company (“DTC”) to act as Depositary with respect to the Global
Notes.  The Issuer initially appoints
the Trustee to act as the Registrar and Paying Agent and to act as Notes
Custodian with respect to the Global Notes.


 


Section 2.4                                      PAYING
AGENT TO HOLD MONEY IN TRUST


 


The Issuer shall 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 Liquidated Damages, if any, or Interest on the Notes, and
will notify the Trustee of any default by the Issuer 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 Issuer 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 Issuer or one of the Issuer’s subsidiaries) shall have
no further liability for the money.  If
the Issuer or one of the Issuer’s subsidiaries acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent.  Upon
any bankruptcy or reorganization proceedings relating to the Issuer, the
Trustee shall serve as Paying Agent for the Notes.


 


Section 2.5                                      HOLDER
LISTS


 


The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA § 312(a).  If the Trustee is not the Registrar, the
Issuer shall furnish, or shall cause the Registrar (if other than the Issuer or
one of the Issuer’s subsidiaries) to 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 Issuer shall otherwise comply with TIA § 312(a).


 


38

















 


Section 2.6                                      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.  An entire Global Note may be exchanged by
the Issuer for Definitive Notes if (i) the Issuer delivers to the Trustee
notice from the Depositary that (x) the Depositary is unwilling or unable to
continue to act as Depositary for the Global Notes, or (y) the Depositary is no
longer a clearing agency registered under the Exchange Act, and in either case,
the Issuer fails to appoint a successor Depositary within 90 days of such
notice from the Depositary, (ii) the Issuer, in the Issuer’s 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 or (iii) there shall have occurred and be continuing a Default or Event
of Default with respect to the Notes; provided, that in no event shall the Reg S
Temporary Global Note be exchanged by the Issuer for Definitive Notes prior to
(x) the expiration of the Distribution Compliance Period and (y) the receipt by
the Registrar of any certificate identified by the Issuer and the Issuer’s
counsel to be required pursuant to Rule 903 or Rule 904 under the Securities
Act.  Upon the occurrence of any of the
preceding events in (i), (ii) or (iii) above, Definitive Notes shall be issued
in such names as the Depositary shall instruct the Trustee.  Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.7 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 2.6 or Section 2.7 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 2.6(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.6(b), (c) or (f) hereof.


 


(b)                                 Transfer and
Exchange of Beneficial Interests in the Global Notes. The transfer
and exchange of beneficial interests in the Global Notes shall be effected
through the Depositary, in accordance with the provisions of this Indenture and
the Applicable Procedures.  Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act.  Transfers of beneficial
interests in the Global Notes also shall require compliance with either
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 Distribution Compliance Period,
transfers of beneficial interests in the Reg 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


 


39

















 


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 2.6(b)(1), but the Issuer or the
Trustee may request an Opinion of Counsel.


 


(2)                                  All Other
Transfers and Exchanges of Beneficial Interests in Global Notes (including for
Definitive Notes).  In
connection with all transfers and exchanges of beneficial interests that are
not subject to Section 2.6(b)(1) above, the transferor of such beneficial
interest must deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant, in each case, given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to credit
or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant, in
each case, given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered to
effect the transfer or exchange referred to in (B)(1) above; provided,
that in no event shall Definitive Notes be issued upon the transfer or exchange
of beneficial interests in the Reg S Temporary Global Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by the
Registrar of any certificates identified by the Issuer or the Issuer’s counsel
to be required pursuant to Rule 903 and Rule 904 under the Securities Act.  Upon consummation of an Exchange Offer by
the Issuer in accordance with Section 2.6(f) hereof, the requirements of this
Section 2.6(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 2.6(h) hereof.


 


(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 2.6(b)(2) above and the Registrar
receives the following:


 


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


 


(B)                                if the transferee will
take delivery in the form of a beneficial interest in the 501 Global Note, then
the transferor must deliver a


 


40

















 


certificate in the form of
Exhibit B hereto, including the certifications in item (3)(d) thereof; or


 


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


 


(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 2.6(b)(2) above and:


 


(A)                              such exchange or transfer
is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and Section 2.6(f) hereof, and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a Broker-Dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Issuer;


 


(B)                                such transfer is
effected pursuant to the Shelf Registration in accordance with the Registration
Rights Agreement and a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, is delivered by the
transferor;


 


(C)                                such transfer is
effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement and a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor; or


 


(D)                               the Registrar receives
the following: (1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item (1)(a) thereof;
or (2) if the holder of such beneficial interest in a Restricted Global Note
proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof; and, in each such case set forth in
this subparagraph (D), an Opinion of Counsel in form, and from legal counsel,
reasonably acceptable to the Registrar and the Issuer 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


 


41

















 


Legend are no
longer required in order to maintain compliance with the Securities Act.


 


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
Issuer shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.2 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 and
Exchange of Beneficial Interests for Definitive Notes. Transfer and
exchange of beneficial interests in the Global Notes for Definitive Notes shall
be made subject to compliance with this Section 2.6(c), and the requesting
Holder shall provide any certifications, documents and information, as applicable,
required pursuant to the following provisions of this Section 2.6(c).  Upon receipt of such applicable
documentation, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Note or Unrestricted Global Note, as applicable,
to be reduced accordingly pursuant to Section 2.6(h) hereof, and the Issuer
shall execute and, upon receipt of an Authentication Order pursuant to Section
2.2, the Trustee shall authenticate and deliver to the Person designated in the
instructions a Restricted Definitive Note or an Unrestricted Definitive Note,
as applicable, in the appropriate principal amount.  Any Definitive Note issued in exchange for a beneficial interest
in a Global Note pursuant to this Section 2.6(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 Definitive Notes are so registered.


 


(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;


 


42

















 


(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 under the Securities Act, 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 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) and (C) above, a certificate
to the effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof, if
applicable; or


 


(E)                                 if such beneficial
interest is being transferred to the Issuer or any of the Issuer’s
subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof.


 


Any Restricted Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.6(c)(1) shall
bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.


 


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


 


(A)                              such exchange or transfer
is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and Section 2.6(f) hereof, and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1)
a Broker-Dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;


 


(B)                                such transfer is
effected pursuant to the Shelf Registration in accordance with the Registration
Rights Agreement and a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, is delivered by the transferor;


 


(C)                                such transfer is
effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement and a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor; or


 


(D)                               the Registrar receives
the following: (1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for an
Unrestricted  Definitive Note, a
certificate


 


43

















 


from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or (2) if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof; and, in
each such case set forth in this subparagraph (D), an Opinion of Counsel in
form, and from legal counsel, reasonably acceptable to the Registrar and the
Issuer 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.


 


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


 


(3)                                  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 an
Unrestricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note, then such holder shall satisfy the applicable conditions set forth in
Section 2.6(b)(2) hereof.  Any
Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.6(c)(3) shall not bear the Private Placement Legend.


 


(4)                                  Transfer or
Exchange of Reg S Temporary Global Notes.  Notwithstanding the other provisions of this Section 2.6, a
beneficial interest in the Reg S Temporary Global Note may not be (A) exchanged
for a Definitive Note prior to (x) the expiration of the Distribution Compliance
Period (unless such exchange is approved by the Issuer, does not require an
investment decision on the part of the Holder thereof and does not violate the
provisions of Regulation S) and (y) the receipt by the Registrar of any
certificates identified by the Issuer or their counsel to be required pursuant
to Rule 903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a
Person who takes delivery thereof in the form of a Definitive Note prior to the
events set forth in clause (A) above or unless the transfer is pursuant to an
exemption from the registration requirements of the Securities Act other than
Rule 903 or Rule 904.


 


(d)                                 Transfer and
Exchange of Definitive Notes for Beneficial Interests.  Transfer and exchange of Definitive Notes
for beneficial interests in the Global Notes shall be made subject to
compliance with this Section 2.6(d), and the requesting Holder shall provide
any certifications, documents and information, as applicable, required pursuant
to the following provisions of this Section 2.6(d).  Upon receipt from such Holder of such applicable documentation
and the surrender to the Registrar of 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, the Registrar shall register the transfer or exchange of the
Definitive Notes.  The Trustee shall
cancel such Definitive Notes so surrendered and


 


44

















 


cause the aggregate principal amount
of the applicable Restricted Global Note or Unrestricted Global Note, as
applicable, to be increased accordingly pursuant to Section 2.6(h) hereof.


 


(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 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof; or


 


(D)                               if such Restricted
Definitive Note is being transferred to an Institutional Accredited Investor in
accordance with Regulation D under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(d) thereof;


 


the Trustee shall cancel the Restricted Definitive Note and 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 the case of clause (D) above, the 501 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
Rights Agreement and Section 2.6(f) hereof, and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of


 


45

















 


the Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Issuer;


 


(B)                                such transfer is
effected pursuant to the Shelf Registration in accordance with the Registration
Rights Agreement and a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, is delivered by the
transferor;


 


(C)                                such transfer is
effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement and a certificate
to the effect set forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof, is delivered by the transferor; or


 


(D)                               the Registrar receives
the following: (1) if the Holder of such Restricted Definitive Notes proposes
to exchange such Notes for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof; or (2) if the Holder of such
Restricted 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), an Opinion of Counsel in form, and
from legal counsel, reasonably acceptable to the Registrar and the Issuer 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 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.


 


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) of this
Section 2.6(d) at a time when an Unrestricted Global Note has not yet been
issued, the Issuer shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.


 


(e)                                  Transfer and
Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 2.6(e), the
Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or


 


46

















 


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.  The Trustee shall cancel any such Definitive
Notes so surrendered, and the Issuer shall execute and, upon receipt of an
Authentication Order pursuant to Section 2.2, the Trustee shall authenticate
and deliver to the Person designated in the instructions a Restricted
Definitive Note or an Unrestricted Definitive Note, as applicable, in the
appropriate principal amount.  Any
Definitive Note issued pursuant to this Section 2.6(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 Definitive Notes are
so registered.  In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.6(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 to a QIB 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;


 


(C)                                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 (A) and (B) above, then the transferor
must deliver a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3)(d) thereof, if applicable; or


 


(D)                               if such beneficial
interest is being transferred to the Issuer or any of the Issuer’s
subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof, must be delivered by the
transferor.


 


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


 


(A)                              such exchange or transfer
is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and


 


47

















 


Section 2.6(f) hereof, and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Issuer;


 


(B)                                any such transfer is
effected pursuant to the Shelf Registration in accordance with the Registration
Rights Agreement and a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, is delivered by the transferor;


 


(C)                                any such transfer is
effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement and a
certificate to the effect set forth in Exhibit B hereto, including the certifications
in item (3)(c) thereof, is delivered by the transferor; or


 


(D)                               the Registrar receives
the following: (1) if the Holder of such Restricted Definitive Notes proposes
to exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit D hereto, including the certifications in
item (1)(d) thereof; or (2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion of
Counsel in form, and from legal counsel, reasonably acceptable to the Registrar
and the Issuer 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)                                    Exchange
Offer.  Upon the occurrence
of the Exchange Offer in accordance with the Registration Rights Agreement, the
Issuer shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.2 and an Opinion of Counsel delivered to the Trustee as to
matters customarily covered in connection with an exchange offer, the Trustee
shall authenticate (i) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the sum of (A) the principal amount of the beneficial
interests in the Restricted Global Notes exchanged or transferred for beneficial
interests in Unrestricted Global Notes in connection with the Exchange Offer
pursuant to Section 2.6(b)(4) and (B) the principal amount of Restricted
Definitive Notes exchanged or transferred for beneficial interests in
Unrestricted Global Notes in connection with the


 


48

















 


Exchange Offer pursuant to
Section 2.6(d)(2), in each case tendered for acceptance by Persons that certify
in the applicable Letters of Transmittal that (x) they are not Broker-Dealers,
(y) they are not participating in a distribution of the Exchange Notes and (z)
they are not affiliates (as defined in Rule 144) of the Issuer, and accepted
for exchange in the Exchange Offer, and (ii) Unrestricted Definitive Notes in
an aggregate principal amount equal to the sum of (A) the principal amount of
the Restricted Definitive Notes exchanged or transferred for Unrestricted
Definitive Notes in connection with the Exchange Offer pursuant to Section
2.6(e)(2) and (B) Restricted Global Notes exchanged or transferred for
Unrestricted Definitive Notes in connection with the Exchange Offer pursuant to
Section 2.6(c)(2), in each case tendered for acceptance by Persons that certify
in the applicable Letters of Transmittal that (x) they are not Broker-Dealers,
(y) they are not participating in a distribution of the Exchange Notes and (z)
they are not affiliates (as defined in Rule 144) of the Issuer, and accepted
for exchange in the Exchange Offer. 
Concurrently with the issuance of such Notes, the Trustee shall cancel
any Definitive Notes so surrendered and shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Issuer shall execute and, upon receipt of an Authentication Order pursuant to
Section 2.2, the Trustee shall authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted Definitive Notes in
the appropriate principal amount.


 


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


 


(i)                                     Private
Placement Legend.


 


(A)                              Except as permitted by
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”), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE
WHICH IS TWO YEARS (OR SUCH OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER
RULE 144(k) UNDER THE SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED
SECURITIES BY NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF


 


49

















 


AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
“RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO THE ISSUER, (B) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION.


 


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


 


(ii)                                  Global Note
Legend.  To the extent
required by the Depositary, each Global Note shall bear legends in
substantially the following forms:


 


50

















 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE ISSUER.”


 


“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 ISSUER OR THEIR 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.”


 


(i)                                     Reg S
Temporary Global Note Legend. 
To the extent required by the Depositary, each Reg S Temporary Global
Note shall 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 DEFINITIVE 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 CASH PAYMENTS OF INTEREST
DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE.  NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM
ACCRUING ON THIS NOTE.”


 


51

















 


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


 


(i)                                     To
permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon receipt
of an Authentication Order.


 


(ii)                                  No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.6, 4.13 and 4.14 hereof).


 


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


 


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


 


(v)                                 The
Issuer shall not 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 3.2
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between an
Interest Record Date and the next succeeding Interest Payment Date.


 


52

















 


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


 


(vii)                           The
Trustee shall authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.2 hereof.


 


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


 


Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Registrar pursuant to this
Section 2.6, the Registrar’s duties shall be limited to confirming that any
such certifications and certificates delivered to it are in the form of
Exhibits A, B, C, D and E attached hereto. 
The Registrar shall not be responsible for confirming the truth or
accuracy of representations made in any such certifications or certificates.


 


Section 2.7                                                              REPLACEMENT
NOTES


 


If any mutilated Note is surrendered to the Trustee or the Issuer or if
the Trustee or the Issuer receives evidence (which evidence may be from the
Trustee) to their satisfaction of the destruction, loss or theft of any Note,
the Issuer shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee’s requirements are
met.  If required by the Trustee or the
Issuer, an affidavit of lost certificate and/or an indemnity bond or other
indemnity must be supplied by the requesting Holder that is sufficient in the
judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced.  The Issuer may
charge for its expenses in replacing a Note, including reasonable fees and
expenses of their counsel and of the Trustee and its counsel.  Every replacement Note is an additional obligation
of the Issuer and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.  The provisions of this Section 2.7 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated, lost, destroyed or
wrongfully taken Notes.


 


Section 2.8                                                              OUTSTANDING
NOTES


 


The Notes outstanding at any time are all the Notes authenticated by
the Trustee (including any Note represented by a Global Note) except for those
cancelled by it or at the Issuer’s direction, 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 2.8 as not outstanding.  Except
for purposes of Section 2.9 hereof, a Note does not cease to be outstanding
because the Issuer or an


 


53

















 


Affiliate of the Issuer holds the Note.  If a Note is replaced pursuant to Section 2.7 hereof, such Note,
together with the Guarantee of that particular Note endorsed thereon, ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.  If the principal amount of any Note is
considered paid under Section 4.1 hereof, it ceases to be outstanding and
Interest on it ceases to accrue.  If the
Paying Agent (other than the Issuer, a subsidiary or an Affiliate of any
thereof) holds, on a redemption date or the maturity date, money sufficient to
pay Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue Interest.


 


Section 2.9                                                              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
Issuer, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee actually knows are so owned shall be so
disregarded.


 


Section 2.10                                                        TEMPORARY
NOTES


 


Until certificates representing Notes are ready for delivery, the
Issuer may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. 
Temporary Notes shall be substantially in the form of Definitive Notes
but may have variations that the Issuer considers appropriate for temporary
Notes and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Issuer shall
prepare and the Trustee shall authenticate Definitive Notes in exchange for
temporary Notes.  Until such exchange,
holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.


 


Section 2.11                                                        CANCELLATION


 


The Issuer at any time may deliver Notes to the Trustee for
cancellation.  The Registrar and Paying
Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
The Trustee, or at the direction of the Trustee, the Registrar or the
Paying Agent (other than the Issuer, a subsidiary or an Affiliate any thereof),
and no one else, shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
such cancelled Notes in accordance with its customary procedures (subject to
the record retention requirement of the Exchange Act) or shall return all
cancelled Notes to the Issuer upon its request.  Subject to Section 2.7, the Issuer 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


 


Any Interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date plus, to the extent lawful,
any interest


 


54

















 


payable on the defaulted Interest at the rate and in the manner
provided in Section 4.1 hereof and in the Note (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered
Holder on the relevant Interest Record Date, and such Defaulted Interest may be
paid by the Issuer, at their election in each case, as provided in clause (1)
or (2) below:


 


(1)                                     The Issuer may
elect to make payment of any Defaulted Interest to the Persons in whose names the
Notes are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner.  The Issuer shall notify the
Trustee and the Paying Agent in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment, and at
the same time the Issuer shall deposit with the Paying Agent an amount of cash
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably satisfactory to the Paying Agent
for such deposit prior to the date of the proposed payment, such cash when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this clause (1).  Thereupon the Paying Agent shall fix a “Special Record Date” for
the payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Paying Agent of the notice of the
proposed payment.  The Paying Agent
shall promptly notify the Issuer and the Trustee of such Special Record Date
and, in the name and at the expense of the Issuer, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at its
address as it appears in the Note register maintained by the Registrar not less
than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the persons in whose names the Notes (or their
respective predecessor Notes) are registered on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).


 


(2)                                     The Issuer may
make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Issuer to the Trustee and the Paying Agent of the
proposed payment pursuant to this clause, such manner shall be deemed practicable
by the Trustee and the Paying Agent.


 


Subject to the foregoing provisions of this Section 2.12, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to Interest accrued and
unpaid, and to accrue, which were carried by such other Note.


 


Section 2.13                                                        CUSIP
NUMBERS


 


The Issuer in issuing the Notes may use “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of


 


55

















 


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 Issuer will promptly notify the Trustee of any change in the “CUSIP”
numbers.


 


Section 2.14                                                        ISSUANCE
OF ADDITIONAL NOTES


 


The Issuer may, subject to Section 4.7 hereof and applicable law, issue
Additional Notes in an unlimited amount under this Indenture.  The Notes issued on the Issue Date and any
Additional Notes subsequently issued shall be treated as a single class for all
purposes under this Indenture.


 


ARTICLE
III

REDEMPTION


 


Section 3.1                                                              NOTICES
TO TRUSTEE


 


If the Issuer elects to redeem Notes pursuant to the optional
redemption provisions of Sections 3.7 or 3.8 hereof, it shall furnish to the
Trustee, at least 30 days (unless a shorter period is acceptable to the
Trustee) but not more than 60 days (unless a longer period is acceptable to the
Trustee) before a Redemption Date, an Officers’ Certificate stating the section
of this Indenture pursuant to which such redemption is being made and setting
forth (i) the Redemption Date, (ii) the principal amount of Notes to be
redeemed and (iii) the redemption price.


 


Section 3.2                                                              SELECTION
OF NOTES TO BE REDEEMED


 


If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes or portions thereof to be redeemed among the
Holders of the Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not so listed, on a pro rata basis, by lot or in accordance
with any other method the Trustee considers fair and appropriate.  In the event of partial redemption by lot,
the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the Redemption
Date by the Trustee from the outstanding Notes not previously called for
redemption.


 


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


 


56

















 


Section 3.3                                                              NOTICE
OF REDEMPTION


 


At least 30 days but not more than 60 days before a Redemption Date,
the Holder’s shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.


 


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


 


(a)                                           the
Redemption Date;


 


(b)                                          the
redemption price;


 


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


 


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


 


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


 


(f)                                             that,
unless the Issuer defaults in making such redemption payment, Interest (and
Liquidated Damages, if any) on Notes or portions thereof called for redemption
ceases to accrue on and after the Redemption Date;


 


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


 


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


 


At the Issuer’s request, the Trustee shall give the notice of
redemption in the Issuer’s name and at the Issuer’s expense; provided,
however, that the Issuer shall have delivered to the Trustee, at
least 45 days prior to the Redemption Date (unless a shorter period shall be
acceptable to the Trustee), 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 3.4                                                              EFFECT
OF NOTICE OF REDEMPTION


 


Once notice of redemption is mailed in accordance with Section 3.3
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.


 


57

















 


Section 3.5                                                              DEPOSIT
OF REDEMPTION PRICE


 


On the Business Day immediately prior to the Redemption Date, the
Issuer shall deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption price of and accrued and
unpaid Interest (and Liquidated Damages, if any) on all Notes to be redeemed on
that date.  The Trustee or the Paying
Agent shall promptly return to the Issuer any money deposited with the Trustee
or the Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid Interest (and Liquidated Damages,
if any) on, all Notes to be redeemed.


 


If the Issuer complies with the provisions of the preceding paragraph,
on and after the Redemption Date, Interest shall cease to accrue on the Notes
or the portions of Notes called for redemption.  If a Note is redeemed on or after an Interest Record Date but on
or prior to the related Interest Payment Date, then any accrued and unpaid
Interest (and Liquidated Damages, if any) shall be paid to the Person in whose
name such Note was registered at the close of business on such Interest Record
Date.  If any Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of
the Issuer to comply with the preceding paragraph, Interest shall be paid on
the unpaid principal, from the redemption date until such principal is paid,
and to the extent lawful on any Interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in Section 4.1 hereof.


 


Section 3.6                                                              NOTES
REDEEMED IN PART


 


Upon surrender of a Note that is redeemed in part, the Issuer shall
issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.


 


Section 3.7                                                              OPTIONAL
REDEMPTION PRIOR TO AUGUST 15, 2007


 


(a)                                            At any time
prior to August 15, 2007, the Issuer may redeem the Notes for cash at the
Issuer’s option, in whole or in part, at any time or from time to time, upon
not less than 30 days nor more than 60 days notice to each Holder of the Notes,
at a redemption price equal to the greater of (1) 100% of the principal amount
of the Notes being redeemed and (2) the sum of the present values of 105.125%
of principal amount of the Notes being redeemed and scheduled payments of
Interest on such Notes to and including August 15, 2007 discounted to the date
of redemption on semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 50 basis points, together in
either case with accrued and unpaid Interest, if any, to the date of
redemption.


 


(b)                                           Any redemption
pursuant to this Section 3.7 shall be made pursuant to the provisions of
Sections 3.1 through 3.6 hereof.


 


58

















 


Section 3.8                                                              OPTIONAL
REDEMPTION ON OR AFTER AUGUST 15, 2007


 


(a)                                            At any time
on or after August 15, 2007, the Issuer may redeem the Notes for cash at the
Issuer’s option, in whole or in part, at any time and from time to time, upon
not less than 30 days nor more than 60 days notice to each Holder of Notes, at
the following redemption prices (expressed as percentages of the principal
amount) if redeemed during the 12-month period commencing August 15 of the
years indicated below, in each case together with accrued and unpaid Interest
(and Liquidated Damages, if any) thereon to the date of redemption of the Notes
(the “Redemption
Date”):


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2007

  	
   

  	
  105.125

  	
  %

  
	
  2008

  	
   

  	
  102.563

  	
  %

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


(b)                                           Notwithstanding
the provisions of clause (a) of this Section 3.8, at any time on or prior to
August 15, 2006, upon a Qualified Equity Offering, up to 35% of the aggregate
principal amount of the Notes originally issued pursuant to this Indenture may
be redeemed at the Issuer’s option within 90 days of such Qualified Equity
Offering, with cash received by the Issuer from the Net Cash Proceeds of such
Qualified Equity Offering, on not less than 30 days, but not more than 60 days,
notice to each Holder of Notes to be redeemed, at a redemption price equal to
110.250% of the principal amount thereof, together with accrued and unpaid
interest (and Liquidated Damages, if any) thereon to the Redemption Date; provided,
however,
that immediately following such redemption not less than 65% of the aggregate
principal amount of the Notes originally issued pursuant to this Indenture on
the Issue Date remain outstanding.


 


If the Redemption Date is on or after an Interest Record Date, and on
or before the associated Interest Payment Date, any accrued and unpaid Interest
(and Liquidated Damages, if any) due on such Interest Payment Date will be paid
to the Person in whose name a Note is registered at the close of business on
such Interest Record Date.


 


(c)                                            Any
redemption pursuant to this Section 3.8 shall be made pursuant to the
provisions of Sections 3.1 through 3.6 hereof.


 


Section 3.9                                                              NO
MANDATORY REDEMPTION


 


The Issuer shall not be required to make mandatory redemption payments
with respect to the Notes (except for any offer to repurchase Notes that the
Issuer is required to make in accordance with the provisions of Sections 4.13
and 4.14 below).  The Notes shall not
have the benefit of any sinking fund.


 


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ARTICLE
IV

COVENANTS


 


Section 4.1                                                              PAYMENT
OF NOTES


 


The Issuer shall pay or cause to be paid the principal of, premium, if
any, and Interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and Interest shall be considered paid on the
date due if the Paying Agent, if other than the Issuer or a subsidiary thereof,
holds as of 11:00 a.m. Eastern time on the due date money deposited by the
Issuer in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and Interest then due and if the Paying Agent
is not prohibited from paying such money to the Holders by this Indenture.  The Issuer shall pay all Liquidated Damages,
if any, in the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.


 


The Issuer shall pay interest (including Accrued Bankruptcy Interest in
any proceeding under any Bankruptcy Law) on overdue principal at the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of Interest and Liquidated Damages, if
any, (without regard to any applicable grace period) at the same rate to the
extent lawful.


 


Section 4.2                                                              MAINTENANCE
OF OFFICE OR AGENCY


 


The Issuer shall maintain in the Borough of Manhattan, The City of New
York, 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 Issuer in respect of the Notes and this Indenture may be
served.  The Issuer shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency.  If at any
time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office.


 


The Issuer 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 additional
designations; provided, that no such designation or rescission shall in
any manner relieve the Issuer of the Issuer’s obligation to maintain an office
or agency in the Borough of Manhattan, The City of New York.  The Issuer shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


The Issuer hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Issuer in accordance with Section 2.3
hereof.


 


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Section 4.3                                                              SEC
REPORTS AND REPORTS TO HOLDERS


 


Whether or not the Issuer is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding,
the Issuer shall deliver to the Trustee and, to each Holder, within 5 days
after the Issuer is or would have been (if the Issuer was subject to such
reporting obligations) required to file such with the SEC, (i) annual and
quarterly financial statements substantially equivalent to financial statements
that would have been required to be contained in a filing with the SEC on Forms
10-K and 10-Q if the Issuer was required to file such Forms, in each case,
together with a Management’s Discussion and Analysis of Financial Condition and
Results of Operations which would be so required, and including, with respect to
annual information only, a report thereon by the Issuer’s certified independent
public accountants as would be so required, and (ii) all information that would
be required to be contained in a filing with the SEC on Form 8-K if the Issuer
was required to file such reports. From and after the time the Issuer files a
registration statement with the SEC with respect to the Notes, the Issuer shall
file with the SEC the annual, quarterly and other reports which the Issuer is
required to file with the SEC at such time as they are required to be filed.
The Issuer’s reporting obligations with respect to clauses (i) and (ii) shall
be satisfied in the event the Issuer files such reports with the SEC on EDGAR
and delivers a copy of such reports to the Trustee, unless the SEC will not
accept such filings.


 


Section 4.4                                                              COMPLIANCE
CERTIFICATE


 


(a)                                            The Issuer
shall deliver to the Trustee, within 120 days after the end of each fiscal
year, an Officers’ Certificate stating that a review of the activities of the
Issuer and the Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining
whether the Issuer and the Subsidiaries have kept, observed, performed and
fulfilled their obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to his or her knowledge the
Issuer and the Subsidiaries are not in default in the performance or observance
of any of the terms, provisions and conditions of this Indenture (or, if a
Default or Event of Default shall have occurred and be continuing, describing
all such Defaults or Events of Default of which he or she may have knowledge
and what action the Issuer is taking or proposes to take with respect thereto)
and that to his or her knowledge no event has occurred and remains in existence
by reason of which payments on account of the principal of or Interest, if any,
on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Issuer is taking or proposes to take with respect
thereto.  The Issuer shall provide the
Trustee with timely written notice of any change in the Issuer’s fiscal year
end, which is currently December 31.


 


(b)                                           The Issuer
shall, so long as any of the Notes are outstanding, deliver to the Trustee,
within five Business 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 Issuer is taking or propose to take with respect
thereto.


 


61

















 


Section 4.5                                                              TAXES


 


The Issuer shall pay, and shall cause each of the 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 have a material adverse
effect on the ability of the Issuer and the Guarantors to satisfy their
obligations under the Notes, the Guarantees and this Indenture.


 


Section 4.6                                                              STAY,
EXTENSION AND USURY LAWS


 


The Issuer covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.


 


Section 4.7                                      LIMITATION
ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND DISQUALIFIED CAPITAL STOCK


 


(a)                                            Except as
set forth in this Section 4.7, the Issuer shall not, and the Guarantors shall
not, and neither the Issuer nor the Guarantors shall permit any of the
Subsidiaries to, directly or indirectly, create, issue, assume, guarantee,
incur, become directly or indirectly liable with respect to (including as a
result of an Acquisition), or otherwise become responsible for, contingently or
otherwise (individually and collectively, to “incur” or, as appropriate,
an “incurrence”),
any Indebtedness (including Disqualified Capital Stock and Acquired
Indebtedness), other than Permitted Indebtedness.


 


Notwithstanding the limitations of the immediately preceding paragraph
of this subsection (a), if:


 


(1)                                            no Default
or Event of Default shall have occurred and be continuing at the time of, or
would occur after giving effect on a pro forma basis to, such incurrence of
such Indebtedness, and


 


(2)                                            on the date
of such incurrence (the “Incurrence Date”), the Issuer’s
Consolidated Coverage Ratio for the Reference Period immediately preceding the
Incurrence Date, after giving effect on a pro forma basis to such incurrence of such
Indebtedness and, to the extent set forth in the definition of Consolidated
Coverage Ratio, the use of proceeds thereof, would be at least 2.25 to 1.0 (the
“Debt
Incurrence Ratio”),


 


then the Issuer and the Subsidiaries may incur such Indebtedness
(including Disqualified Capital Stock and Acquired Indebtedness).


 


62

















 


(b)                                 In
addition, the foregoing limitations of subsection (a)  of this Section 4.7 shall not prohibit the incurrence by the
Issuer or any Guarantor of Indebtedness pursuant to the Credit Agreement in an
aggregate amount incurred and outstanding at any time pursuant to this
subsection (b) (plus any Refinancing Indebtedness incurred to retire, defease,
refinance, replace or refund such Indebtedness) of up to the greater of (i)
$20,000,000, minus the amount of any such Indebtedness retired with the Net
Cash Proceeds from any Asset Sale or Event of Loss applied to permanently
reduce the outstanding amounts or the commitments with respect to such
Indebtedness pursuant to Section 4.13 hereof and (ii) the sum of (x) 85% of the
net book value of accounts receivable of the Issuer and the Subsidiaries, and
(y) 50% of the net book value of inventory of the Issuer and the Subsidiaries,
in the case of each of clauses (ii)(x) and (y), determined in accordance with
GAAP, and including accounts receivable and inventory acquired with the
proceeds of the substantially concurrent incurrence of Indebtedness under the
Credit Agreement.


 


(c)                                  Indebtedness
of any Person which is outstanding at the time such Person becomes one of the
Subsidiaries (including upon designation of any Person as a Subsidiary) or is
merged with or into or consolidated with the Issuer or one of the Subsidiaries
shall be deemed to have been incurred at the time such Person becomes or is
designated one of the Subsidiaries or is merged with or into or consolidated
with the Issuer or one of the Subsidiaries as applicable.


 


(d)                                 Notwithstanding
any other provision of this Section 4.7, but only to avoid duplication, a
guarantee by the Issuer or a Guarantor of the Issuer’s Indebtedness or of the
Indebtedness of another Guarantor incurred in accordance with the terms of this
Indenture issued at the time such Indebtedness was incurred or if later at the
time the guarantor thereof became a Guarantor shall not constitute a separate
incurrence, or amount outstanding, of Indebtedness.


 


(e)                                  Upon
each incurrence of Indebtedness, (i) the Issuer may designate pursuant to which
provision of this Section 4.7 such Indebtedness is being incurred (and the
Issuer may later redesignate such Indebtedness), (ii) the Issuer may subdivide
an amount of Indebtedness and designate more than one provision pursuant to
which such amount of Indebtedness is being incurred and (iii) such Indebtedness
shall not be deemed to have been incurred or outstanding under any other
provision of this Section 4.7, except that all Indebtedness initially
outstanding under the Notes, the Guarantees and this Indenture shall be deemed
to have been incurred pursuant to clause (b) of the definition of Permitted
Indebtedness.


 


Section 4.8                                                              LIMITATION
ON LIENS


 


The Issuer shall not and the Guarantors shall not, and neither the
Issuer nor the Guarantors shall permit any of the Subsidiaries to, directly or
indirectly, incur or suffer to exist any Lien, other than Permitted Liens, upon
any of the Issuer’s or the Guarantor’s respective assets (including, without
limitation, all real, tangible or intangible property but excluding the
Excluded Assets) now owned or acquired on or


 


63

















 


after the date of this Indenture, or upon any income or profits
therefrom, or convey any right to receive income or profits therefrom.


 


Section 4.9                                                              LIMITATION
ON RESTRICTED PAYMENTS


 


(a)                                  The
Issuer shall not and the Guarantors shall not, and neither the Issuer nor the
Guarantors shall permit any of the Subsidiaries to, directly or indirectly,
make any Restricted Payment if, after giving effect on a pro forma basis to
such Restricted Payment:


 


(1)                                  a
Default or an Event of Default shall have occurred and be continuing,


 


(2)                                  The
Issuer is not permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio in Section 4.7 hereof, or


 


(3)                                  the
aggregate amount of all Restricted Payments made by the Issuer and the Subsidiaries,
including after giving effect to such proposed Restricted Payment, on and after
the Issue Date, would exceed, without duplication, the sum of:


 


(A)                              50% of the Issuer’s
aggregate Consolidated Net Income for the period (taken as one accounting period),
commencing on the first day of the fiscal quarter in which the Issue Date
occurs, to and including the last day of the fiscal quarter ended immediately
prior to the date of each such calculation for which the Issuer’s consolidated
financial statements are required to be delivered to the Trustee or, if sooner,
filed with the SEC (or, in the event Consolidated Net Income for such period is
a deficit, then minus 100% of such deficit), plus


 


(B)                                the aggregate Net Cash
Proceeds received by the Issuer from the sale of the Issuer’s Qualified Capital
Stock after the Issue Date (other than (i) to one of the Subsidiaries, (ii) to
the extent applied in connection with a Qualified Exchange or, to avoid
duplication, otherwise given credit for in any provision of this or the
following paragraphs, (iii) used as consideration to make a Permitted
Investment pursuant to clause (h) of the definition thereof or (iv) issued upon
the conversion or exchange of any Indebtedness of the Issuer or the
Subsidiaries convertible or exchangeable for the Issuer’s Qualified Capital
Stock as described in clause (C) below), plus


 


(C)                                the amount by which
Indebtedness of the Issuer or the Subsidiaries is reduced on the Issuer’s
balance sheet upon the conversion or exchange (other than by one of the
Subsidiaries) subsequent to the Issue Date of any Indebtedness of the Issuer or
the Subsidiaries convertible or exchangeable for the Issuer’s Qualified Capital
Stock (less the amount of any cash, or the fair market value of any other
property, distributed by the Issuer or any of the Subsidiaries upon such
conversion or exchange), plus


 


(D)                               except in each case to
the extent any such payments or proceeds have been included in the calculation
of Consolidated Net Income, an amount


 


64

















 


equal to the net reduction of Investments made (and that were treated
as Restricted Payments) in any Person (including an Unrestricted Subsidiary)
resulting from:


 


(i)                                     cash
distributions on or cash repayments or redemptions of any Investment in such
Person, including payments of interest on Indebtedness, dividends, repayments
of loans or advances, or other distributions or other transfers of assets, in
each case to the Issuer or any Subsidiary, and including, if such Person is an
Unrestricted Subsidiary, cash dividends received by the Issuer or any of the
Subsidiaries from such Unrestricted Subsidiary,


 


(ii)                                  the
Net Cash Proceeds from the sale of any Investment in such Person, or


 


(iii)                               if
such Person is an Unrestricted Subsidiary, the redesignation of such Person as
a Subsidiary


 


valued in each case as provided in the definition of “Investments,” and
not to exceed, in each case, the aggregate amount of Investments previously
made (and that were treated as Restricted Payments) by the Issuer or any
Subsidiary in such Person, including, if applicable, such Unrestricted
Subsidiary, less the cost of disposition.


 


(b)                                 The
foregoing clauses (1), (2) and (3) of Section 4.9(a), however, shall not
prohibit:


 


(1)                                  the
payment of reasonable and customary directors fees payable to, and indemnity
provided on behalf of, the Issuer’s Board of Directors and the Boards of
Directors of the Subsidiaries, indemnity provided on behalf of officers and
employees of the Issuer and the Subsidiaries, and customary reimbursement of
travel and similar expenses incurred in the ordinary course of business, and
consulting or similar fees to the Issuer’s Board of Directors, officers or
employees pursuant to, and in accordance with, agreements in effect on the Issue
Date (without giving effect to any amendment or supplement thereto or
modification thereof),


 


(2)                                  any
dividend, distribution or other payments by any of the Subsidiaries on the
Issuer’s Equity Interests that is paid pro rata to all holders of such Equity
Interests,


 


(3)                                  a
Qualified Exchange,


 


(4)                                  the
payment of any dividend on Capital Stock incurred in accordance with this
Indenture, in each case, within 60 days after the date of the Issuer’s
declaration if such dividend could have been made on the date of such
declaration in compliance with the foregoing provisions,


 


(5)                                  so
long as clause (1) of Section 4.9(a) above is satisfied, the payment of
Management Fees,


 


65

















 


(6)                                  so
long as clause (1) of Section 4.9(a) above is satisfied, the payment of cash
dividends to Holdco to the extent applied by Holdco to repurchase, redeem or
otherwise retire or acquire Equity Interests of Holdco from the Issuer’s
employees or directors (or their heirs or estates) or employees or directors
(or their heirs or estates) of Holdco or the Subsidiaries, in each case,
pursuant to the terms of any stockholders agreement, employment agreement,
severance agreement, employee stock option agreement or similar agreement in
accordance with the provisions of any such arrangement as in effect on the
Issue Date, in an aggregate amount pursuant to this clause (6)  to all such employees or directors (or their
heirs or estates) not to exceed $500,000 per fiscal year on and after the Issue
Date, provided, that any amount of such basket not used in a fiscal year may be
carried forward to succeeding fiscal years until used, provided that for any
particular fiscal year, the aggregate of such unused amounts carried forward,
together with the basket available for such fiscal year, shall not exceed
$1,000,000 in the aggregate;


 


(7)                                  the
payment of cash dividends to Holdco (i) to the extent applied by Holdco to pay
reasonable and customary directors fees payable to, and indemnity provided on
behalf of, the Board of Directors of Holdco, indemnity provided on behalf of
officers and employees of Holdco, and customary reimbursement of travel and
similar expenses incurred in the ordinary course of business, and consulting or
similar fees to Holdco’s Board of Directors, officers or employees pursuant to,
and in accordance with, agreements in effect on the Issue Date (without giving
effect to any amendment or supplement thereto or modification thereof), (ii) in
an aggregate not to exceed $250,000 per fiscal year; to the extent applied by
Holdco to pay the Issuer’s general administrative expenses, including, without
limitation, in respect of director fees and expenses, administrative, legal and
accounting services, or (iii) solely to enable Holdco to make payments in cash
to holders of the Issuer’s Capital Stock in lieu of the issuance of fractional
shares of the Issuer’s Capital Stock in an aggregate amount not to exceed
$200,000 on and after the Issue Date;


 


(8)                                  Permitted
Tax Payments to Holdco;


 


(9)                                  if
a Change of Control has occurred and the Issuer shall have consummated the
Change of Control Offer and purchased on the Change of Control Purchase Date
all Notes tendered in response to the Change of Control Offer pursuant to
Section 4.14 hereof, any purchase or redemption (within 60 days after the
Change of Control Purchase Date) of Subordinated Indebtedness required pursuant
to the terms thereof as a result of such Change of Control at a purchase or
redemption price not to exceed the outstanding principal amount thereof, plus
accrued and unpaid interest thereon, if any; provided, however, that (x) at the time
of such purchase or redemption, no Default or Event of Default shall have
occurred and be continuing (or would result therefrom), (y) the Issuer shall be
able to incur at least $1.00 of additional Indebtedness pursuant the Debt
Incurrence Ratio under Section 4.7 after giving pro forma effect to such
Restricted Payment and (z) such purchase or redemption is not made, directly or
indirectly, from the proceeds of (or made in anticipation of) any issuance of
Indebtedness by the Issuer or any of the Subsidiaries;


 


66

















 


(10)                            repurchases
of Capital Stock deemed to occur upon the exercise of stock options to the
extent that such Capital Stock represents a portion of the exercise price of
those stock options; or


 


(11)                            so
long as clause (1) of Section 4.9(a) above is satisfied, Restricted Payments
not otherwise permitted pursuant to this Section 4.9 in an aggregate amount
pursuant to this clause (11) not to exceed $1,000,000 on and after the Issue
Date.


 


(c)                                  For
the purposes of this Section 4.9, the full amount of any Restricted Payment
made pursuant to clauses (4), (9) and (11) (but not pursuant to clause (1),
(2), (3), (5), (6), (7), (8) or (10)) of Section 4.9(b), however, shall be
counted as Restricted Payments made for purposes of the calculation of the
aggregate amount of Restricted Payments available to be made pursuant to clause
(3) of Section 4.9(a).


 


(d)                                 For
purposes of this Section 4.9, the amount of any Restricted Payment made or
returned, if other than in cash, shall be the fair market value thereof, as
determined in the reasonable good faith judgment of the Issuer’s Board of
Directors, unless stated otherwise, at the time made or returned, as
applicable. For purposes of determining compliance with this Section 4.9, in
the event that a Restricted Payment meets the criteria of more than one of the
exceptions described in clauses (1) through (10) of Section 4.9(b) above or is
entitled to be made pursuant to subsection (a), the Issuer shall be permitted,
in the Issuer’s sole discretion, to classify or reclassify such Restricted
Payment in any manner that complies with this Section 4.9.


 


Section 4.10                                                        LIMITATION
ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES


 


The Issuer shall not and the Guarantors shall not, and neither the
Issuer nor the Guarantors shall permit any of the Subsidiaries to, directly or
indirectly, incur or suffer to exist any consensual restriction on the ability
of any of the Subsidiaries (i) to pay dividends or make other distributions to
or on behalf of, (ii) to pay any obligation to or on behalf of, (iii) to
otherwise transfer assets or property to or on behalf of, or (iv) to make or pay
loans or advances to or on behalf of, the Issuer or any of the Subsidiaries,
except:


 


(1)                                  restrictions
imposed by the Notes or this Indenture or by the Issuer’s other Indebtedness
(which may also be guaranteed by the Guarantors) ranking pari passu with the Notes or
the Guarantees, as applicable; provided, that such restrictions are no
more restrictive in any material respect than those imposed by this Indenture
and the Notes,


 


(2)                                  restrictions
imposed by applicable law,


 


(3)                                  existing
restrictions under Existing Indebtedness,


 


(4)                                  restrictions
under (i) any Acquired Indebtedness not incurred in violation of this
Indenture, (ii) any agreement or instrument governing Equity Interests of any
Subsidiary or (iii) any agreement relating to any property, asset, or business
acquired


 


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by the Issuer or any of the Subsidiaries, which restrictions in each
case existed at the time of acquisition, were not put in place in connection
with or in anticipation of such acquisition and are not applicable to any
Person, other than the Person acquired, or to any property, asset or business,
other than the property, assets and business so acquired,


 


(5)                                  restrictions
imposed by Indebtedness incurred under the Credit Agreement in accordance with
this Indenture; provided, that such restrictions are no more restrictive in
any material respect than those imposed by the Credit Agreement as of the Issue
Date,


 


(6)                                  restrictions
with respect solely to any of the Subsidiaries imposed pursuant to a binding
agreement which has been entered into for the sale or disposition of all of the
Equity Interests or assets of such Subsidiary, provided, that such
restrictions apply solely to the Equity Interests or assets of such Subsidiary
which are being sold,


 


(7)                                  restrictions
on transfer contained in Purchase Money Indebtedness not incurred in violation
of this Indenture, provided, that such restrictions relate only to the transfer
of the property acquired with the proceeds of such Purchase Money Indebtedness,


 


(8)                                  limitations
on the disposition or distribution of assets or property in joint venture
agreements and other similar agreements entered into in the ordinary course of
business,


 


(9)                                  restrictions
under any amendment, modification, restatement, renewal, increase, supplement,
refunding or replacement of any of the instruments or agreements referred to in
clauses (1) through (8) above; provided, that such restrictions under any
such amendment, modification, restatement, renewal, increase, supplement,
refunding or replacement are no more restrictive in any material respect as
determined by the Issuer’s Board of Directors in their reasonable good faith
judgment than those contained in the instrument or agreement being so amended,
modified, restated, renewed, increased, supplemented, refunded or replaced, and


 


(10)                            encumbrances
or restrictions arising or existing by reason of applicable law or any
applicable rule, regulation or order.


 


Notwithstanding the foregoing, (a) there may exist customary provisions
restricting subletting, sublicensing or assignment of and net worth provisions
in any contract, lease or license entered into in the ordinary course of
business, consistent with industry practice and (b) any asset subject to a Lien
which is not prohibited to exist with respect to such asset pursuant to the
terms of this Indenture may be subject to customary restrictions on the
transfer or disposition thereof pursuant to such Lien.


 


Section 4.11                                                        LIMITATION
ON IMPAIRMENT OF SECURITY INTERESTS


 


Except as permitted in this Indenture, the Intercreditor Agreement and
the Collateral Agreements, the Issuer shall not and the Guarantors shall not,
and neither the Issuer nor the Guarantors shall permit any of the Subsidiaries
to, take or omit to take any


 


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action that would have the result of materially adversely affecting or
impairing the Lien on the Collateral in favor of the Trustee for the benefit of
the Holders of the Notes.


 


Section 4.12                                                        LIMITATION
ON TRANSACTIONS WITH AFFILIATES


 


The Issuer shall not and the Guarantors shall not, and neither the
Issuer nor the Guarantors shall permit any of the Subsidiaries to, on or after
the Issue Date, directly or indirectly, sell, lease, transfer or otherwise
dispose of any of the Issuer’s or their properties or assets to, or purchase
any property or assets from, or enter into or suffer to exist any contract,
agreement, understanding, loan, advance, guarantee, arrangement or transaction
with, or for the benefit of, any Affiliate (each of the foregoing, an “Affiliate
Transaction”), or any series of related Affiliate Transactions
(other than Exempted Affiliate Transactions):


 


(1)                                  unless
it is determined that the terms of such Affiliate Transaction(s) are fair and
reasonable to the Issuer, and no less favorable to the Issuer than could have
been obtained in an arm’s length transaction with a non-Affiliate,


 


(2)                                  if
involving consideration to either party of $2,500,000 or more, unless such
Affiliate Transaction(s) has been approved by a majority of the members of the
Issuer’s Board of Directors that are disinterested in such transaction (or, if
none of the Issuer’s directors are disinterested in such transaction, a
disinterested representative appointed by the Issuer’s Board of Directors for
such purpose), and


 


(3)                                  if
involving consideration to either party of $10,000,000 or more (or $2,500,000
if no members of the Issuer’s Board of Directors are disinterested in such
transaction and no disinterested representative is appointed by the Issuer’s
Board of Directors as described in clause (2) above) unless the Issuer, prior
to the consummation thereof, obtains a written favorable opinion as to the
fairness of such transaction(s) to the Issuer from a financial point of view
from an independent investment banking firm of national reputation in the
United States or, if pertaining to a matter for which such investment banking
firms do not customarily render such opinions, an appraisal or valuation firm
of national reputation in the United States.


 


Section 4.13                                                        LIMITATION
ON SALE OF ASSETS AND SUBSIDIARY STOCK


 


(a)                                  The
Issuer shall not and the Guarantors shall not, and neither the Issuer nor the
Guarantors shall permit any of the Subsidiaries to, in one or a series of
related transactions, make any Asset Sale unless, with respect to any Asset
Sale or related series of Asset Sales involving securities, property or assets:


 


(1)                                  at least 75% of the
total consideration for such Asset Sale or series of related Asset Sales
consists of cash or Cash Equivalents, and


 


(2)                                  the Issuer’s Board of
Directors determines in reasonable good faith that the Issuer will receive or
such Subsidiary will receive, as applicable, fair market value for such Asset
Sale.


 


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provided, however, that the 75% limitation set forth
in clause (1) above shall not apply to any proposed Asset Sale for which an
independent certified accounting firm shall certify to the Issuer’s Board of
Directors and the Trustee that the after-tax cash portion of the consideration
to be received by the Issuer or such Subsidiary in such proposed Asset Sale is
equal to or greater than what the net after-tax cash proceeds would have been
had such proposed Asset Sale complied with the 75% limitation set forth in
clause (1) above.


 


For purposes of clause (1) of the preceding paragraph, total
consideration received means the total consideration received for such Asset
Sales minus the amount of: (a) any liabilities (other than liabilities that are
by their terms subordinated to the Notes and the Guarantees) of the Issuer or
any Subsidiary that are assumed by a transferee, provided, that the Issuer
and the Subsidiaries are fully released or indemnified from obligations in
connection therewith, and (b) property that within 90 days of such Asset Sale
is converted into cash or Cash Equivalents, provided, that such cash and Cash
Equivalents shall be treated as Net Cash Proceeds attributable to the original
Asset Sale for which such property was received.


 


(b)                                 Within
360 days following such Asset Sale (the “360-Day Period”), Net Cash Proceeds
therefrom (the “Asset Sale Amount”), if used, shall be:


 


(1)                                  (i) used to retire
and permanently reduce Indebtedness incurred under the Credit Agreement (other
than the repayment of Indebtedness incurred under the Credit Agreement to fund
the purchase of an asset which is sold by the Issuer within 90 days of the
Issuer’s purchase pursuant to a sale-leaseback transaction); provided,
that in the case of a revolver or similar arrangement that makes credit
available, such commitment is permanently reduced by such amount, or (ii) to
the extent that such Net Cash Proceeds are from an Asset Sale of assets or
Equity Interests of a Foreign Subsidiary, used to retire Indebtedness (other
than Preferred Stock or any Indebtedness that is subordinate to or junior in
right of payment to any other Indebtedness) of such Foreign Subsidiary;


 


(2)                                  (i) invested in
assets or property (other than notes, bonds, obligations and securities, except
in connection with the acquisition of a Person which immediately following such
acquisition becomes a Subsidiary and a Guarantor in a Related Business) (provided
that any such investments in assets or property of Foreign Subsidiaries may be
made only from Net Cash Proceeds from an Asset Sale of assets or Equity
Interests of a Foreign Subsidiary), or (ii) used to make a Permitted Investment
pursuant to clause (d), (e), (f) or (g) of the definition thereof, in each
case, which in the reasonable good faith judgment of the Issuer’s Board of
Directors will immediately constitute or be a part of a Related Business of the
Issuer or such Guarantor or Subsidiary, as applicable (if it continues to be or
becomes a Guarantor or Subsidiary, as applicable) immediately following such transaction;
or


 


(3)                                  any combination of
the foregoing clauses (1) and (2).


 


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All Net Cash Proceeds from an Event of Loss shall be used as follows:
(i) first, the Issuer shall use such Net Cash Proceeds to the extent necessary
to rebuild, repair, replace or restore the assets subject to such Event of Loss
with comparable assets and (ii) then, to the extent any Net Cash Proceeds from
an Event of Loss are not used as described in the preceding clause (i), all such
remaining Net Cash Proceeds shall be reinvested or used as provided in clause
(1), (2) or (3) of this Section 4.13(b).


 


(c)                                  The
accumulated Net Cash Proceeds from Asset Sales not applied as set forth in
clauses (1), (2) and (3) of Section 4.13(b) and the accumulated Net Cash
Proceeds from any Event of Loss not applied as set forth in clauses (1) and (2)
of Section 4.13(b) shall constitute “Excess Proceeds.” Pending the final
application of any Net Cash Proceeds, the Issuer may temporarily reduce revolving
credit borrowings or otherwise invest or use for general corporate purposes the
Net Cash Proceeds in any manner that is not prohibited by this Indenture; provided,
however,
that the Issuer may not use the Net Cash Proceeds to make Restricted Payments
other than Restricted Payments that are solely Restricted Investments or to
make Permitted Investments pursuant to clause (a) of the definition thereof.


 


(d)                                 When
the Excess Proceeds equal or exceed $5,000,000, the Issuer shall offer to
repurchase the Notes, together with any other Indebtedness ranking on a parity
with the Notes and with similar provisions requiring the Issuer to make an
offer to purchase such Indebtedness with the proceeds from such Asset Sale
pursuant to a cash offer (subject only to conditions required by applicable
law, if any), pro rata in proportion to the respective principal amounts
of such Indebtedness (or accreted values in the case of Indebtedness issued
with an original issue discount) and the Notes (the “Asset Sale Offer”) at a purchase
price of 100% of the principal amount (or accreted value in the case of
Indebtedness issued with an original issue discount) (the “Asset Sale Offer Price”)
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the Asset Sale Purchase Date.


 


(e)                                  In
order to effect the Asset Sale Offer, the Issuer shall, promptly after
expiration of the 360-Day Period following the Asset Sale that produced such
Exceeds Proceeds, mail to each Holder of Notes notice of the Asset Sale Offer
(the “Asset
Sale Notice”), offering to repurchase the Notes on a date (the “Asset Sale
Purchase Date”) that is no earlier than 30 days and no later than 60
days after the date that the Asset Sale Notice is mailed, pursuant to the
procedures required by this Indenture and described in the Asset Sale Notice.


 


On the Asset Sale Purchase Date, the Issuer shall apply an amount equal
to the Excess Proceeds (the “Asset Sale Offer Amount”) plus an amount
equal to accrued and unpaid Interest (and Liquidated Damages, if any) to the
purchase of all Indebtedness properly tendered in accordance with the
provisions of this Section 4.13 (on a pro rata basis if the Asset Sale Offer
Amount is insufficient to purchase all Indebtedness so tendered) at the Asset
Sale Offer Price together with accrued and unpaid Interest (and Liquidated
Damages, if any) to the Asset Sale Purchase Date. To the extent that the
aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant
to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Issuer may
use any 


 


71

















 


remaining Net Cash Proceeds as otherwise permitted by this Indenture.
Following the consummation of each Asset Sale Offer in accordance with the
provisions of this Section 4.13, the Excess Proceeds amount shall be reset to
zero.


 


(f)                                    Notwithstanding,
and without complying with, the provisions of this Section 4.13:


 


(1)                                  the
Issuer and the Subsidiaries may, in the ordinary course of business, (A)
convey, sell, transfer, assign or otherwise dispose of inventory and other
assets acquired and held for resale in the ordinary course of business and (B)
liquidate Cash Equivalents;


 


(2)                                  the
Issuer and the Subsidiaries may convey, sell, transfer, assign or otherwise
dispose of assets pursuant to and in accordance the provisions of this
Indenture described under Section 4.14 and/or the provisions described under
Section 5.1;


 


(3)                                  the
Issuer and the Subsidiaries may sell or dispose of damaged, worn out or other
obsolete personal property in the ordinary course of business so long as such
property is no longer necessary for the proper conduct of the Issuer’s business
or the business of such Subsidiary, as applicable;


 


(4)                                  the
Issuer and the Subsidiaries may convey, sell, transfer, assign or otherwise
dispose of assets with a fair market value (or result in gross proceeds) of
less than $1,000,000, until the aggregate fair market value and gross proceeds
of the transactions excluded from the definition of Asset Sale pursuant to this
clause (4) exceed $5,000,000;


 


(5)                                  the
Issuer and the Subsidiaries may convey, sell, transfer, assign or otherwise
dispose of assets to the Issuer or any Guarantor;


 


(6)                                  Foreign
Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets
to the Issuer or any other Subsidiary;


 


(7)                                  the
Issuer and the Subsidiaries may settle, release or surrender tort or other
litigation claims in the ordinary course of business or grant Liens not
prohibited by this Indenture;


 


(8)                                  the
Issuer and the Subsidiaries may exchange any property or assets for Related
Business Assets;


 


(9)                                  the
Subsidiaries may issue Equity Interests to the Issuer or to any other
Subsidiary; and


 


(10)                            the
Issuer and the Subsidiaries may make Permitted Investments pursuant to clause
(d), (e), (f), (g) or (i) of the definition thereof and Restricted Investments
that are not prohibited by Section 4.9.


 


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(g)                                 Any
Asset Sale Offer shall be made in compliance with all applicable laws, rules,
and regulations, including, if applicable, Regulation 14E of the Exchange Act
and the rules and regulations thereunder and all other applicable Federal and
state securities laws. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 4.13, the Issuer’s
compliance or the compliance of any of the Issuer’s subsidiaries with such laws
and regulations shall not in and of itself cause a breach of the Issuer’s
obligations under this Section 4.13.


 


(h)                                 If
the Asset Sale Purchase Date is on or after an Interest Record Date and on or
before the associated Interest Payment Date, any accrued and unpaid Interest
(and Liquidated Damages, if any) due on such Interest Payment Date shall be
paid to the Person in whose name a Note is registered at the close of business
on such Interest Record Date.


 


(i)                                     The
Trustee shall be entitled to receive in connection with an Asset Sale such
documents, if any, required by the TIA.


 


Section 4.14                                                        REPURCHASE
OF NOTES AT THE OPTION OF THE HOLDER UPON A CHANGE OF CONTROL


 


(a)                                  In
the event that a Change of Control has occurred, each Holder of Notes shall
have the right, at such Holder’s option, pursuant to an offer by the Issuer
(subject only to conditions required by applicable law, if any) (the “Change of
Control Offer”), to require the Issuer to repurchase all or any part
of such Holder’s Notes (provided, that the principal amount of
such Notes must be $1,000 or an integral multiple thereof) at a cash price
equal to 101% of the principal amount thereof (the “Change of Control Purchase Price”),
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the Change of Control Purchase Date.


 


In order to effect the Change of Control Offer, the Issuer shall, not
later than the 30th day after the occurrence of the Change of
Control, mail to each Holder of Notes notice of the Change of Control Offer
(the “Change
of Control Notice”), describing the transaction or transactions that
constitute the Change of Control and offering to repurchase the Notes on a date
(the “Change
of Control Purchase Date”) that is no earlier than 30 days and no
later than 60 days after the date that the Change of Control Notice is mailed,
pursuant to the procedures required by this Indenture and described in the
Change of Control Notice. On the Change of Control Purchase Date, to the extent
lawful, the Issuer promptly shall purchase all Notes properly tendered in
response to the Change of Control Offer.


 


As used in this Section 4.14, “Person” (including any group that is
deemed to be a “Person”) has the meaning given by Section 13(d) of the
Exchange Act, whether or not applicable.


 


(b)                                 On
or before the Change of Control Purchase Date, the Issuer shall:


 


73

















 


(1)                                  accept for payment
Notes or portions thereof properly tendered pursuant to the Change of Control
Offer,


 


(2)                                  deposit with the
Paying Agent cash sufficient to pay the Change of Control Purchase Price
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the Change of Control Purchase Date of all Notes so tendered, and


 


(3)                                  deliver to the
Trustee the Notes so accepted together with an Officers’ Certificate listing
the Notes or portions thereof being purchased by the Issuer.


 


The Paying Agent promptly shall pay the Holders of Notes so accepted an
amount equal to the Change of Control Purchase Price together with accrued and
unpaid Interest (and Liquidated Damages, if any) to the Change of Control
Purchase Date, and the Trustee promptly shall authenticate and deliver to such
Holders a new Note equal in principal amount to any unpurchased portion of the
Note surrendered. Any Notes not so accepted shall be delivered promptly by the
Issuer to the Holder thereof. The Issuer shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Purchase Date.


 


The provisions described above requiring the Issuer to make a Change of
Control Offer following a Change of Control shall be applicable regardless of
whether or not any other provisions of this Indenture are applicable.


 


(c)                                  Any
Change of Control Offer shall be made in compliance with all applicable laws,
rules and regulations, including, if applicable, Regulation 14E under the
Exchange Act and the rules thereunder and all other applicable Federal and
state securities laws. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 4.14, the Issuer’s
compliance with such laws and regulations shall not in and of itself cause a
breach of the Issuer’s obligations under this Section 4.14.


 


(d)                                 If
the Change of Control Purchase Date is on or after an Interest Record Date and
on or before the associated Interest Payment Date, any accrued and unpaid
Interest (and Liquidated Damages, if any) due on such Interest Payment Date
shall be paid to the Person in whose name a Note is registered at the close of
business on such Interest Record Date.


 


(e)                                  The
Issuer shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Issuer and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.


 


Section 4.15                                                        SUBSIDIARY
GUARANTORS


 


All of the Issuer’s present and future Subsidiaries (other than Foreign
Subsidiaries) shall (i)  jointly and
severally guarantee all principal, premium, if any, and


 


74

















 


Interest (and Liquidated Damages, if any) on the Notes on a senior
secured basis, (ii) grant a security interest in and/or pledge the Collateral
owned by such Subsidiary to secure such Obligations on the terms set forth in
the Collateral Agreements and (iii) deliver to the Trustee an Opinion of
Counsel that such Guarantee and the Collateral Agreements have been duly
authorized, executed and delivered and are valid, binding and enforceable in
accordance with their terms.


 


Section 4.16                                                        LIMITATION
ON STATUS AS INVESTMENT ISSUER


 


The Issuer, the Guarantors and the Subsidiaries shall be prohibited
from being required to register as an “investment company” (as that term is
defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”)),
or from otherwise becoming subject to regulation under the Investment Company
Act.


 


Section 4.17                                                        MAINTENANCE
OF INSURANCE


 


The Issuer and Guarantors shall provide, or cause to be provided, for
themselves and each of the Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Board of Directors of the Issuer is adequate and
appropriate for the conduct of the business of the Issuer, the Guarantors and
such Subsidiaries.


 


Section 4.18                                                        CORPORATE
EXISTENCE


 


Subject to Article V hereof, the Issuer shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence and the corporate, partnership or other existence of each
of the Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Issuer or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Issuer and each of the Subsidiaries; provided, however, that the Issuer shall
not be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of the Subsidiaries, if the Issuer’s
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuer and each of the
Subsidiaries, taken as a whole, and that the loss thereof would not have a
material adverse effect on the ability of the Issuer and the Guarantors to
satisfy their obligations under the Notes, the Guarantees and this Indenture.


 


Section 4.19                                                        LIMITATION
ON LINES OF BUSINESS


 


The Issuer and the Guarantors shall not, and neither the Issuer nor the
Guarantors shall permit any of the Subsidiaries to, directly or indirectly,
engage to any substantial extent in any line or lines of business activity
other than that which, in the reasonable good faith judgment of the
Issuer’s  Board of Directors, is a
Related Business.


 


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Section 4.20                                                        RULE
144A INFORMATION


 


At any time the Issuer is not required to file the reports required by
Section 4.3, the Issuer shall, and the Guarantors shall, furnish to the Holders
or beneficial holders of Notes, upon their request, and to prospective
purchasers thereof designated by such Holders or beneficial holders of Notes,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act for so long as is required for an offer or sale of the Notes to
qualify for an exemption under Rule 144A.


 


ARTICLE
V

SUCCESSORS


 


Section 5.1                                                              LIMITATION
ON MERGER, SALE OR CONSOLIDATION


 


The Issuer shall not consolidate with or merge with or into another
Person or, directly or indirectly, sell, lease, convey or transfer all or
substantially all of the Issuer’s assets (such amounts to be computed on a
consolidated basis), whether in a single transaction or a series of related
transactions, to another Person or group of affiliated Persons, unless:


 


(1)                                  either
(a) the Issuer is the surviving Person or (b) the resulting, surviving or
transferee Person is a corporation organized under the laws of the United States,
any state thereof or the District of Columbia and expressly assumes by
supplemental indenture all of the Issuer’s Obligations in connection with the
Notes, this Indenture and the Collateral Agreements;


 


(2)                                  no
Default or Event of Default shall exist or shall occur immediately after giving
effect to such transaction on a pro forma basis;


 


(3)                                  except
in the case of the merger of the Issuer and one of the Subsidiaries solely for
the purpose of reincorporation into another jurisdiction and which transaction
is not for the purpose of evading this provision and not in connection with any
other transaction, immediately after giving effect to such transaction on a pro forma
basis, the Consolidated Net Worth of the resulting, surviving or transferee
Person is at least equal to the Issuer’s Consolidated Net Worth immediately
prior to such transaction;


 


(4)                                  except
in the case of the merger of the Issuer and one of the Subsidiaries solely for
the purpose of reincorporation into another jurisdiction and which transaction
is not for the purpose of evading this provision and not in connection with any
other transaction, immediately after giving effect to such transaction on a pro forma
basis, the resulting, surviving or transferee Person would immediately
thereafter be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio set forth in Section 4.7 hereof;


 


(5)                                  each
Guarantor shall have, if required by the terms of this Indenture or the
Collateral Agreements, confirmed in writing that its Guarantee shall apply to
the Issuer’s Obligations or the Obligations of the resulting, surviving or 


 


76

















 


transferee Person in accordance with the Notes, this Indenture and the
Collateral Agreements; and


 


(6)                                  the
Trustee shall have received an Opinion of Counsel stating that such merger,
sale or consolidation complies with this Article V and that all conditions
precedent thereto, if any, have been complied with.


 


Section 5.2                                                              SUCCESSOR
CORPORATION SUBSTITUTED


 


In the event of any transaction (other than a lease or transfer of less
than all of the Issuer’s assets) in accordance with the foregoing in which the
Issuer is not the surviving Person, the resulting, surviving or transferee
Person shall succeed to and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such
resulting, surviving or transferee Person had been named therein as the Issuer,
and the Trustee may require any such Person to ensure, by executing and
delivering appropriate instruments and Opinions of Counsel, that the Notes
Collateral Agent continues to hold a Lien, having the same relative priority as
was the case immediately prior to such transactions, on all Collateral for the
benefit of the Holders.


 


For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of all or substantially all of the properties and assets of one
or more of the Subsidiaries, the Issuer’s interest in which constitutes all or
substantially all of the Issuer’s properties and assets, shall be deemed to be
the transfer of all or substantially all of the Issuer’s properties and assets.
Notwithstanding the immediately preceding sentence and clauses (2), (3) and (4)
of Section 5.1 above, this Section 5.2 shall not apply to the merger or
consolidation of one or more Subsidiaries with or into the Issuer or any other
Subsidiary, or the transfer by one or more Subsidiaries of all or a part of the
Issuer’s properties and assets to the Issuer or any other Subsidiary, provided
that (i) except in a transaction involving the merger, consolidation or
transfer of assets solely between or among Foreign Subsidiaries, such
transaction complies with clause (1) of Section 5.1  above, and (ii) such transaction otherwise complies with this
Indenture (including, without limitation, the provisions of Section 4.13 and
Article XI hereof.


 


ARTICLE
VI

DEFAULTS AND REMEDIES


 


Section 6.1                                                              EVENTS
OF DEFAULT


 


“Event
of Default,” wherever used herein, means any of the following
events:


 


(1)                                  the
Issuer’s failure to pay any installment of Interest (or Liquidated Damages, if
any) on the Notes as and when the same becomes due and payable and the
continuance of any such failure for 30 days,


 


(2)                                  the
Issuer’s failure to pay all or any part of the principal of or premium, if any,
on the Notes when and as the same becomes due and payable at maturity,
redemption, by acceleration or otherwise, including, without limitation,


 


77

















 


payment of the Change of Control Purchase Price or the Asset Sale Offer
Price, on Notes validly tendered and not properly withdrawn pursuant to a
Change of Control Offer or Asset Sale Offer, as applicable,


 


(3)                                  the
Issuer’s failure or the failure by any of the Subsidiaries to observe or
perform any other covenant or agreement contained in the Notes or this
Indenture and, except for the provisions under Sections 4.9, 4.13 and 4.14 and
Section 5.1, the continuance of such failure for a period of 60 days after
written notice is given to Issuer by the Trustee, or to Issuer and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Notes
outstanding,


 


(4)                                  a
default occurs (after giving effect to any waivers, amendments, applicable
grace periods or any extension of any maturity date) in the Issuer’s
Indebtedness or the Indebtedness of any of the Subsidiaries with an aggregate
amount outstanding in excess of $5,000,000 (a) resulting from the failure to
pay principal of such Indebtedness at maturity, or (b) if as a result of such
default, the maturity of such Indebtedness has been accelerated prior to its
stated maturity,


 


(5)                                  final
unsatisfied judgments not covered by insurance aggregating in excess of
$5,000,000 at any one time rendered against the Issuer or any of the
Subsidiaries and not stayed, bonded or discharged within 60 days after their
entry,


 


(6)                                  any
Guarantee of a Guarantor ceases to be in full force and effect or becomes
unenforceable or invalid or is declared null and void (other than in accordance
with the terms of the Guarantee and this Indenture) or any Guarantor denies or
disaffirms its Obligations under its Guarantee, in each case other than by
reason of the termination of this Indenture or the release of any such Guarantee
in accordance with this Indenture,


 


(7)                                  any
failure to comply with any material agreement or covenant in any of the
Collateral Agreements, and such failure or breach shall continue for a period
of 60 days after written notice is given to the Issuer by the Trustee or the
Notes Collateral Agent, or to the Issuer and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Notes outstanding,


 


(8)                                  any
of the Collateral Agreements at any time for any reason ceases to be in full force
and effect, or is declared null and void, or shall cease to be effective in all
material respects to give the Notes Collateral Agent the Liens with the
priority purported to be created thereby subject to no other Liens (in each
case, other than as expressly permitted by this Indenture and the applicable
Collateral Agreement, by reason of the termination of this Indenture or the
applicable Collateral Agreement in accordance with its terms or which was
caused by a default by the Notes Collateral Agent in respect of the Collateral
Agreements),


 


(9)                                  a
court having jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Issuer, any of the Guarantors, or any Significant
Subsidiary in an involuntary case under any applicable Bankruptcy Law now or
hereafter in effect,


 


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(B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Issuer, any of the Guarantors
or any Significant Subsidiary or for all or substantially all of the property
and assets of the Issuer, any of the Guarantors or any Significant Subsidiary
or (C) the winding up or liquidation of the affairs of the Issuer, any of the
Guarantors or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days,
or


 


(10)                            the
Issuer, any of the Guarantors or any Significant Subsidiary (A) commences a
voluntary case under any applicable Bankruptcy Law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case under
any such law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer, any of the Guarantors or any Significant Subsidiary or for all
or substantially all of the property and assets of the Issuer, any of the
Guarantors or any Significant Subsidiary or (C) effects any general assignment
for the benefit of creditors.


 


If an Event of Default occurs and is continuing (other than an Event of
Default specified in clause (4) above relating to the Issuer, any of the
Guarantors or any of the Issuer’s Significant Subsidiaries) then in every such
case, unless the principal of all of the Notes shall have already become due
and payable, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding, by notice in writing to Issuer
(and to the Trustee if given by Holders) (an “Acceleration Notice”), may
declare all principal thereof and all premium, if any, and accrued and unpaid
Interest (and Liquidated Damages, if any) thereon to be due and payable
immediately. If an Event of Default specified in clause (4) above, relating to the
Issuer, any of the Guarantors or any of the Issuer’s Significant Subsidiaries
occurs all principal thereof and all premium, if any, and accrued and unpaid
Interest (and Liquidated Damages, if any) thereon will be immediately due and
payable on all outstanding Notes without any declaration or other act on the
part of the Trustee or the Holders. The Holders of a majority in aggregate
principal amount of Notes generally are authorized to rescind such acceleration
if all existing Events of Default (other than the non-payment of the principal
of and premium, if any, and Interest (and Liquidated Damages, if any) on the
Notes which have become due solely by such acceleration) have been cured or
waived.


 


Section 6.2                                                              ACCELERATION


 


(a)                                  Subject
to the terms of the Intercreditor Agreement, if an Event of Default (other than
an Event of Default specified in clause (9) or (10) of Section 6.1 that occurs
with respect to the Issuer, any of the Guarantors or any of their Significant
Subsidiaries) occurs and is continuing under this Indenture, then in every such
case, unless the principal of all of the Notes shall have already become due
and payable, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes, then outstanding, by written notice to the
Issuer (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal of,
premium, if any, and accrued and unpaid Interest (and


 


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Liquidated Damages, if any) on the Notes to be due and payable
immediately.  Upon a declaration of
acceleration, such principal of, premium, if any, and accrued and unpaid
Interest (and Liquidated Damages, if any) shall be immediately due and payable.
If an Event of Default specified in clause (9) or (10) of Section 6.1, relating
to the Issuer, any of the Guarantors or any of their Significant Subsidiaries
occurs, all principal and accrued and unpaid Interest (and Liquidated Damages,
if any) thereon will be immediately due and payable on all outstanding Notes
without any declaration or other act on the part of the Trustee or the Holders.


 


(b)                                 At
any time after such a declaration of acceleration being made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article VI, the Holders of not less
than a majority in aggregate principal amount of then outstanding Notes, by
written notice to the Issuer and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration and its consequences if all
existing Events of Default, other than the non-payment of the principal of,
premium, if any, and Interest (and Liquidated Damages, if any) on the Notes
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.4 hereof.


 


(c)                                  No
such waiver shall cure or waive any subsequent Default or impair any right
consequent thereon.


 


Section 6.3                                                              OTHER
REMEDIES


 


If an Event of Default occurs and is continuing, subject to the terms
of the Intercreditor Agreement, the Trustee, in its capacity as Trustee or in
its capacity as Notes Collateral Agent, may pursue any available remedy to
collect the payment of principal, premium, if any, and Interest (and Liquidated
Damages, if any) on the Notes  or to
enforce the performance of any provision of the Notes or this Indenture.


 


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


 


Section 6.4                                                              WAIVER
OF DEFAULTS


 


Subject to Section 6.7 hereof, and prior to the declaration of
acceleration of the maturity of the Notes, 
the Holders of a majority in aggregate principal amount of the
outstanding Notes by written notice to the Issuer and to the Trustee, may, on
behalf of all Holders, waive any existing or past Default or Event of Default
hereunder and its consequences under this Indenture, except (i) a Default in
the payment of principal of, premium, if any, or Interest (or Liquidated
Damages, if any) on any Note not yet cured as specified in clauses (1) and (2)
of Section 6.1 hereof or (ii) a Default with respect to any covenant or
provision hereof which, under Article IX, cannot be modified or amended without
the consent of the Holder of each outstanding Note affected.


 


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 


 


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Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right arising therefrom.


 


Section 6.5                                      CONTROL
BY MAJORITY


 


Subject to all provisions of this Indenture and applicable law, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee.  However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines in good faith may be unduly prejudicial
to the rights of other Holders not joining in the giving of such direction or
that may involve the Trustee in personal liability, and the Trustee may take
any other action it deems proper that is not inconsistent with any such
direction received from Holders. 
Subject to Section 7.1, the Trustee shall be under no obligation to
exercise any of its rights or powers under this Indenture at the request, order
or direction of any of the Holders, unless such Holders have offered to the
Trustee reasonable security or indemnity.


 


Section 6.6                                      LIMITATION
ON SUITS


 


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


 


(a)                                  the
Holder gives to the Trustee written notice of a continuing Event of Default;


 


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


 


(c)                                  such
Holder or Holders offer and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;


 


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


 


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


 


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


 


Section 6.7                                                              RIGHTS
OF HOLDERS OF NOTES TO RECEIVE PAYMENT


 


Notwithstanding
any other provision of this Indenture, except as permitted by Section 9.2
hereof, the right of any Holder to receive payment of the principal of, premium
and Interest (and Liquidated Damages, if any) on a Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to


 


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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 6.8                                                              COLLECTION
SUIT BY TRUSTEE


 


If an Event of Default specified in Section 6.1(1) or (2) 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 Issuer for the whole amount
of principal of, premium and Interest (and Liquidated Damages, if any)
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.


 


Section 6.9                                                              TRUSTEE
MAY FILE PROOFS OF CLAIM


 


The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Issuer (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 7.7 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 7.7 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; provided, however that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and may be a member of the creditor’s committee.


 


Section 6.10                                                        PRIORITIES


 


Subject to the terms of the Intercreditor Agreement, if the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order:


 


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First: 
to the Trustee, its agents and attorneys for amounts due under Section
7.7 hereof, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection (including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel);


 


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


 


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


 


Fourth: 
to the Issuer or to such party as a court of competent jurisdiction
shall direct.


 


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


 


Section 6.11                                                        UNDERTAKING
FOR COSTS


 


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


 


ARTICLE
VII

TRUSTEE


 


Section 7.1                                                              DUTIES
OF TRUSTEE


 


(a)                                  If
an Event of Default of which the Trustee has knowledge has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent 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 of which the Trustee has
knowledge:


 


(i)                                     the
duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that


 


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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


 


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


 


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


 


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


 


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


 


(iii)                               the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 6.5 hereof; and


 


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


 


(d)                                 Whether
or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to Sections 7.1 and 7.2 hereof.


 


(e)                                  The
Trustee is hereby authorized and directed to and shall enter into the
Intercreditor Agreement (in its capacities as Trustee and as Notes Collateral
Agent).


 


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


 


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Section 7.2                                                              RIGHTS
OF TRUSTEE


 


(a)                                  In
connection with the Trustee’s rights and duties under this Indenture, 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 under this Indenture, it may require
an Officers’ Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel.  The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.


 


(c)                                  The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder by or through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent 
or attorney appointed with due care.


 


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


 


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


 


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


 


(g)                                 The
Trustee shall not be deemed to have knowledge of any Default or Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact a Default or
Event of Default is received by the Trustee at the Corporate Trust Office, and
such notice references this Indenture and the Notes.  Delivery of reports, information and documents to the Trustee under
Section 4.3 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
Issuer’s compliance with any of their covenants thereunder (as to which the
Trustee is entitled to rely exclusively on an Officers’ Certificate).


 


(h)                                 The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of 


 


85

















 


indebtedness or other paper or document, but the Trustee may, in its
discretion, make such further inquiry or investigation into such facts or
matters as it may see fit.


 


(i)                                     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 (including
as Notes Collateral Agent) hereunder and under each of the Collateral
Agreements, and each agent, custodian and other Person employed to act
hereunder and under each of the Collateral Agreements.


 


(j)                                     The
Trustee may request that the Issuer deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


 


Section 7.3                                                              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 Issuer or any
Affiliate of the Issuer with the same rights it would have if it were not
Trustee.  However, in the event that the
Trustee acquires any conflicting interest (as defined in the TIA) it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign.  Any
Agent may do the same with like rights and duties.  The Trustee is also subject to Sections 7.10 and 7.11 hereof.


 


Section 7.4                                                              TRUSTEE’S
DISCLAIMER


 


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


 


Section 7.5                                                              NOTICE
OF DEFAULTS


 


If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice in the manner
and to the extent provided by Section 313(c) of the TIA of the Default or Event
of Default within 90 days after it occurs. 
Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, Liquidated Damages, if any, or Interest on any
Note, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders.


 


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Section 7.6                                                              REPORTS
BY TRUSTEE TO HOLDERS OF THE NOTES


 


Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders a brief report dated as of such reporting
date that complies with TIA § 313(a) (but if no event described in TIA § 313(a)
has occurred within the 12 months preceding the reporting date, no report need
be transmitted).  The Trustee also shall
comply with TIA § 313(b)(2).  The
Trustee shall also transmit by mail all reports as required by TIA § 313(c).


 


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


 


Section 7.7                                                              COMPENSATION
AND INDEMNITY


 


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


 


The Issuer and the Guarantors, jointly and severally, shall indemnify
the Trustee against any and all losses, liabilities or expenses (including
reasonable attorneys’ fees) 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 Issuer
(including this Section 7.7) and defending itself against any claim (whether
asserted by the Issuer or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except, in each case, to the extent any such loss, liability or
expense may be attributable to its negligence, bad faith or willful
misconduct.  The Trustee shall notify
the Issuer promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the
Issuer shall not relieve the Issuer of its obligations hereunder.  The Issuer shall defend the claim and the
Trustee shall cooperate in the defense. 
The Trustee may have separate counsel and the Issuer shall pay the
reasonable fees and expenses of such counsel. 
The Issuer need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld.


 


The obligations of the Issuer under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture.


 


To secure the Issuer’s payment obligations in this Section 7.7, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the


 


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Trustee, except that held in trust to pay principal and interest on
particular Notes.  Such Lien shall
survive the satisfaction and discharge of this Indenture.


 


When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 6.1(9) or 6.1(10) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.


 


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


 


Section 7.8                                                              REPLACEMENT
OF TRUSTEE


 


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


 


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


 


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


 


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


 


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


 


(d)                                 the
Trustee becomes incapable of acting.


 


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


 


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


 


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


 


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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer.  Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture and the
Intercreditor Agreement.  The successor
Trustee shall mail a notice of its succession to Holders.  The retiring Trustee shall 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 7.7 hereof. 
Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Issuer’s obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.


 


Section 7.9                                                              SUCCESSOR
TRUSTEE BY MERGER, ETC.


 


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


 


Section 7.10                                                        ELIGIBILITY;
DISQUALIFICATION


 


There shall at all times be a Trustee hereunder that is a corporation
or trust Issuer (or a member of a bank holding company) 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 (or the bank holding company of which it is a member has) a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition.


 


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


 


Section 7.11                                                        PREFERENTIAL
COLLECTION OF CLAIMS AGAINST ISSUER


 


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
VIII

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.1                                                              OPTION
TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE


 


The Issuer may, at the option of the Issuer’s Board of Directors
evidenced by a resolution set forth in an Officers’ Certificate, elect to have
either Section 8.2 or 8.3 hereof be applied to all outstanding Notes and
Guarantees upon compliance with the conditions set forth below in this Article
VIII.


 


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Section 8.2                                                              LEGAL
DEFEASANCE AND DISCHARGE


 


Upon the Issuer’s exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Issuer and the Guarantors, as applicable,
shall, subject to the satisfaction of the applicable conditions set forth in
Section 8.4 hereof, be deemed to have been discharged from the Issuer’s and the
Guarantor’s obligations with respect to all outstanding Notes and Guarantees,
as applicable, on the date the conditions set forth below are satisfied (hereinafter,
“Legal
Defeasance”).  For this
purpose, Legal Defeasance means that the Issuer shall be deemed to have paid
and discharged all amounts owed under the outstanding Notes and the Guarantors
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Guarantees, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.5 hereof and the other
Sections of this Indenture referred to in clauses (a) and (b) of this Section
8.2 below, and to have satisfied all the Issuer’s and the Guarantor’s other
obligations under such Notes, such Guarantees and this Indenture (and the
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging the same, including instruments releasing the
Collateral as security for the Notes and the Guarantees), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:  (a) the rights of
Holders to receive solely from the trust fund described in Section 8.4 hereof,
and as more fully set forth in Section 8.4, payments in respect of the
principal of, premium, if any, and Interest (and Liquidated Damages, if any),
on such Notes when such payments are due, (b) the Issuer’s obligations with
respect to such Notes under Article II and Section 4.2, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Issuer’s and the
Guarantors’ obligations in connection therewith and (d) this Article VIII.  Subject to compliance with this Article
VIII, the Issuer may exercise its option under this Section 8.2 notwithstanding
the prior exercise of its option under Section 8.3 hereof.


 


Section 8.3                                                              COVENANT
DEFEASANCE


 


Upon the Issuer’s exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, subject to the satisfaction of the applicable
conditions set forth in Section 8.4 hereof, the Issuer and the Guarantors shall
be released from their respective obligations under Sections 4.3, 4.4, 4.5,
4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.19 and 4.20 and
Article V hereof on and after the date the conditions set forth below are
satisfied (hereinafter, “Covenant Defeasance”), and the Notes and
the Guarantees shall thereafter be deemed not “outstanding” for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes).  For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Guarantees,
the Issuer and the Guarantors may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under


 


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Section 6.1 hereof, but, except as specified above, the remainder of
this Indenture and such Notes and Guarantees shall be unaffected thereby.  In addition, upon the Issuer’s exercise
under Section 8.1 hereof of the option applicable to this Section 8.3, subject
to the satisfaction of the applicable conditions set forth in Section 8.4
hereof, (x) Sections 6.1(3) through 6.1(8) hereof shall not constitute Events
of Default to the extent such events occur thereafter and (y) Sections 6.1(9)
and 6.1(l0) hereof shall not constitute an Event of Default to the extent they
occur after the 91st day following the occurrence of the Issuer’s exercise of
Covenant Defeasance; provided, however that for all other
purposes as set forth herein, such Covenant Defeasance provisions shall be
effective.


 


Section 8.4                                                              CONDITIONS
TO LEGAL OR COVENANT DEFEASANCE


 


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


 


(a)                                  in
the case of an election under Section 8.2 or 8.3 hereof, the Issuer must
irrevocably deposit with the Trustee, in trust, for the benefit of Holders of
the Notes, U.S. legal tender, U.S. Government Obligations or a combination
thereof, in amounts that will be sufficient, in the written opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of and premium, if any, and Interest (and Liquidated Damages, if any)
on the Notes on the stated date for payment or any redemption date thereof (and
the Issuer must specify whether the Notes are being defeased to Stated Maturity
or a particular redemption date), and the Trustee must have, for the benefit of
Holders of the Notes, a valid, perfected, exclusive security interest in the
trust;


 


(b)                                 in
the case of an election under Section 8.2 hereof, the Issuer must deliver to
the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee
confirming that:


 


(1)                                  the Issuer has
received from, or there has been published by the Internal Revenue Service, a
ruling, or


 


(2)                                  since the date of
this Indenture, there has been a change in the applicable Federal income tax
law,


 


in either case to the effect that Holders of Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;


 


(c)                                  in
the case of an election under Section 8.3 hereof, the Issuer must deliver to
the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee confirming
that Holders of Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant had not occurred;


 


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(d)                                 in
the case of an election under Section 8.2 or 8.3 hereof, (x) no Default or
Event of Default shall have occurred and be 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 (y) no Event of Default relating to
bankruptcy or insolvency may occur at any time from the date of the deposit to
the 91st calendar day thereafter (it being understood that the condition shall
not be deemed satisfied until the expiration of such period);


 


(e)                                  in
the case of an election under Section 8.2 or 8.3 hereof, the Legal Defeasance
or Covenant Defeasance, as applicable, may not result in a breach or violation
of, or constitute a default under, any other material agreement or instrument
(other than this Indenture) to which the Issuer or any of the Subsidiaries are
a party or by which the Issuer, or any of the Subsidiaries are bound;


 


(f)                                    in
the case of an election under Section 8.2 or 8.3 hereof, the Issuer must
deliver to the Trustee an Officers’ Certificate stating that the deposit was
not made by the Issuer with the intent to hinder, delay or defraud any other of
the Issuer’s creditors; and


 


(g)                                 in
the case of an election under Section 8.2 or 8.3 hereof, the Issuer must
deliver to the Trustee an Officers’ Certificate confirming the satisfaction of
conditions in clauses (a) through (f) above, and an Opinion of Counsel confirming
the satisfaction of the conditions in clauses (a) (with respect to the validity
and perfection of the security interest), (b), (c) and (e) above.


 


Legal Defeasance and Covenant Defeasance shall be deemed to occur on
the date all of the applicable conditions set forth in this Section 8.4 are
satisfied.


 


Section 8.5                                                              DEPOSITED
MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS


 


Subject to Section 8.6 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the “Trustee”)
pursuant to Section 8.4 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and Interest (and Liquidated
Damages, if any), but such money need not be segregated from other funds except
to the extent required by law; provided, however, that any trust account
established pursuant to this Article VIII shall not constitute Collateral.


 


The Issuer and the Guarantors, jointly and severally, shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or U.S. Government Obligations deposited pursuant to
Section 8.4 hereof or the 


 


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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.


 


Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the request
of the Issuer any money or U.S. Government Obligations held by it as provided
in Section 8.4 hereof which, in the opinion of a firm of independent public
accountants nationally recognized in the United States expressed in a written
certification thereof delivered to the Trustee 
(not at the Trustee’s expense)(which may be the opinion delivered under
Section 8.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.


 


Section 8.6                                                              REPAYMENT
TO ISSUER


 


Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of, premium, if any,
Liquidated Damages, if any, or Interest on any Note and remaining unclaimed for
two years after such principal, and premium, if any, Liquidated Damages, if
any, or Interest has become due and payable shall be paid to the Issuer on its
written request or (if then held by the Issuer) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as a creditor, be
permitted to look only to the Issuer for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuer as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Issuer cause to
be published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer.


 


Section 8.7                                                              REINSTATEMENT


 


If the Trustee or Paying Agent is unable to apply any United States
legal tender or U.S. Government Obligations in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order directing the repayment
of the deposited money to the Issuer or otherwise making the deposit
unavailable to make payments under the Notes when due, or if any court enters
an order avoiding the deposit of money with the Trustee or Paying Agent or
otherwise requires the payment of the money so deposited to the Issuer or to a
fund for the benefit of the Issuer’s creditors, then (so long as the insufficiency
exists or the order remains in effect) the Issuer’s and the Guarantors’
obligations under this Indenture, the Notes, the Guarantees and the Collateral
Agreements shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.3 or 8.4 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.3 or
8.4 hereof, as the case may be; provided, however, that, if the Issuer
makes any payment of principal of, premium, if any, Liquidated Damages, if any,
or Interest on any Note following the reinstatement of the


 


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Issuer’s obligations, the Issuer shall 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.


 


Section 8.8                                                              SATISFACTION
AND DISCHARGE


 


The Issuer may terminate its obligations and the obligations of the
Guarantors under this Indenture, the Notes and the Guarantees (except as
described below) when:


 


(a)                                  all
the Notes previously authenticated and delivered (except lost, stolen or
destroyed Notes which have been replaced and Notes for whose payment money has
theretofore been deposited with the Trustee or the paying agent in trust or
segregated and held in trust by the Issuer and thereafter repaid to the Issuer
or a Guarantor) have been delivered to the Trustee for cancellation, or


 


(b)                                 (1)                                  all
Notes have been called for redemption pursuant either Section 3.7 or 3.8 by
mailing to Holders a notice of redemption or all Notes otherwise have become
due and payable,


 


(2)                                  the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the Trustee
U.S. legal tender, U.S. Government Obligations or a combination thereof, in an
amount sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of and
Interest (and Liquidated Damages, if any) on the Notes to the Redemption Date
or maturity, as the case may be, together with irrevocable instructions from
the Issuer directing the Trustee to apply such funds to the payment thereof at
maturity or redemption, as the case may be,


 


(3)                                  the Issuer and the
Guarantors each has paid all other sums payable by it under this Indenture, the
Notes and the Guarantees,


 


(4)                                  no Default or Event
of Default shall have occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit),


 


(5)                                  such deposit shall
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
Issuer or any of the Subsidiaries are a party or by which the Issuer or any of
the Subsidiaries are bound, and


 


(6)                                  the Issuer shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
confirming the satisfaction of all conditions set forth in clauses (1) through
(5) above.


 


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ARTICLE
IX

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.1                                                              WITH
CONSENT OF HOLDERS OF A MAJORITY


 


Except as expressly stated otherwise in Section 9.2 or 9.3, and subject
to Sections 6.4 and 6.7 hereof, the Issuer, the Guarantors and the Trustee may
amend, supplement or otherwise modify this Indenture, the Notes, the
Guarantees, the Intercreditor Agreement, the Collateral Agreements and the
Registration Rights Agreement, with the consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes), and, subject to Sections 6.4 and 6.7 hereof,
any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, or Interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Notes and
the Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes (including consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, the Notes).


 


Subject to Sections 6.4 and 6.7 hereof, and except as stated otherwise
in Section 9.2, the Holders of a majority in aggregate principal amount of the
Notes then outstanding may waive compliance in a particular instance by the
Issuer or any Subsidiary with any provision of this Indenture or the Notes.


 


It is understood that, except as expressly stated otherwise in the
Section 9.2 or 9.3, Sections 4.13 and 4.14 hereof may be amended, waived or
modified in accordance with this Section 9.1.


 


Section 9.2                                                              WITH
CONSENT OF ALL AFFECTED HOLDERS OF NOTES


 


Without the consent of the Holder of each outstanding Note affected, an
amendment, supplement, modification or waiver may not (with respect to Notes
held by a non-consenting Holder):


 


(1)                                  reduce the principal amount
of Notes whose Holders must consent to an amendment, supplement, modification
or waiver,


 


(2)                                  change the Stated
Maturity on any Note,


 


(3)                                  reduce the principal
of or any premium (including redemption premium but not including any
redemption premium relating Sections 4.13 and 4.14) on any Note,


 


(4)                                  reduce the rate of or
change the time for payment of Interest (or Liquidated Damages, if any), on any
Note,


 


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(5)                                  waive a Default or
Event of Default in the payment of principal of or premium, if any, or Interest
(or Liquidated Damages, if any) on any Note (except a rescission of
acceleration of the Notes by the Holders of a majority in aggregate principal
amount of the Notes and a waiver of the payment default that resulted from such
acceleration),


 


(6)                                  waive any redemption
payment with respect to any Note (other than provisions relating to or payments
required by Sections 4.13 and 4.14,


 


(7)                                  reduce the Change of
Control Purchase Price or the Asset Sale Offer Price or alter any other
provisions with respect to the redemption of the Notes required by Sections
4.13 and 4.14 after the corresponding Asset Sale or Change of Control has
occurred,


 


(8)                                  change the coin or
currency in which, the principal of or premium, if any, or Interest (or
Liquidated Damages, if any) on any Note is payable,


 


(9)                                  impair the right to
institute suit for the enforcement of payment of the principal of or premium,
if any, or Interest (or Liquidated Damages, if any) on any Note on or after the
Stated Maturity (or on or after the Redemption Date),


 


(10)                            make any change in the
provisions of this Indenture relating to waivers of past Defaults with respect
to, or the rights of Holders to receive, scheduled payments of principal of or
premium, if any, or Interest (or Liquidated Damages, if any) on the Notes,


 


(11)                            modify or change any
provision of this Indenture affecting the ranking of the Notes or any Guarantee
in a manner adverse to the Holders of the Notes,


 


(12)                            release any Guarantor from
any of its obligations under its Guarantee or this Indenture other than in
compliance with this Indenture, or


 


(13)                            make any changes in the
foregoing amendment, supplement and waiver provisions.


 


Section 9.3                                                              WITHOUT
CONSENT OF HOLDERS OF NOTES


 


Notwithstanding Section 9.1 or 9.2 hereof, without the consent of the
Holders, the Issuer, the Guarantors and the Trustee (in its capacities as such
and as Notes Collateral Agent) may amend, modify or supplement this Indenture,
the Notes, the Guarantees, the Intercreditor Agreement, the Collateral
Agreements and the Registration Rights Agreement:


 


(1)                                  to cure any
ambiguity, defect or inconsistency,


 


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(2)                                  to provide for
uncertificated Notes in addition to or in place of certificated Notes,


 


(3)                                  to provide for the
assumption of any of the Issuer’s or the Guarantors’ obligations to Holders in
the case of a merger or consolidation or a sale of all or substantially all of
the Issuer’s assets in accordance with this Indenture,


 


(4)                                  to evidence the
release of any Guarantor permitted to be released under the terms of this
Indenture or to evidence the addition of any new Guarantor,


 


(5)                                  to comply with
requirements of the SEC in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act,


 


(6)                                  to comply with the
provisions of DTC or the Trustee with respect to the provisions of this
Indenture and the Notes relating to transfers and exchanges of Notes or
beneficial interests therein, or


 


(7)                                  to
make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the rights of any Holder of Notes
under this Indenture, the Notes, the Guarantees, the Intercreditor Agreement,
the Collateral Agreements or the Registration Rights Agreement.


 


Section 9.4                                                              CONSENT
PAYMENT; SUPPLEMENTAL INDENTURES


 


In connection with any amendment, supplement, modification or waiver
under this Article IX, the Issuer may, but shall not be obligated to, offer to
any Holder who consents to such amendment, supplement or waiver, or to all
Holders, consideration for such Holder’s consent to such amendment, supplement,
modification or waiver.


 


It shall not be necessary for the consent of the Holders under Section
9.1 or 9.2 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.


 


The Issuer may not sign an amendment or supplemental indenture until
its  Board of Directors approves it.


 


After an amendment, supplement, modification or waiver under Section
9.1 or 9.2 becomes effective, the Issuer shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver.  Any failure of the Issuer to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental Indenture or waiver.


 


Section 9.5                                                              REVOCATION
AND EFFECT OF CONSENTS


 


Until an amendment, supplement or waiver becomes effective (as
determined by the Issuer and which may be prior to any such amendment,
supplement or


 


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waiver becoming operative), a consent to it by a Holder is a continuing
consent by the Holder and every subsequent Holder of a Note or a 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 or subsequent Holder may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective (as
determined by the Issuer and which may be prior to any such amendment,
supplement or waiver becoming operative).


 


The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Issuer notwithstanding the provisions of the TIA.  If a record date is fixed, then notwithstanding the last sentence
of the immediately preceding paragraph, those Persons who were Holders at such
record date, and only those Persons (or their duly designated proxies), shall
be entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date.


 


After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any of paragraphs (1)
through (12) of Section 9.2 hereof, in which case, the amendment, supplement or
waiver shall bind only each Holder who has consented to it and every subsequent
Holder of a Note or a portion of a Note that evidences the same debt as the
consenting Holder’s Note; provided, that any such waiver shall not
impair or affect the right of any Holder to receive payment of principal and
premium of and Interest (and Liquidated Damages, if any) on a Note, on or after
the respective dates set for such amounts to become due and payable expressed
in such Note, or to bring suit for the enforcement of any such payment on or
after such respective dates.


 


Section 9.6                                                              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 Issuer in exchange for all Notes may
issue and the Trustee shall authenticate new Notes that reflect the amendment,
supplement or waiver.


 


Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.


 


Section 9.7                                                              TRUSTEE
TO SIGN AMENDMENTS, ETC.


 


Upon the request of the Issuer accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in this Section 9.7, the Trustee shall join
with the Issuer in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture adversely affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which


 


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case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental indenture.  In executing any amendment or supplemental indenture, the Trustee
shall be entitled to receive indemnity reasonably satisfactory to it and to
receive and (subject to Section 7.1 hereof) shall be fully protected in relying
upon, an Officers’ Certificate and an Opinion of Counsel stating that the
execution of such amendment or supplemental indenture is authorized or
permitted by this Indenture.


 


Section 9.8                                                              COMPLIANCE
WITH TRUST INDENTURE ACT


 


Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.


 


ARTICLE
X

COLLATERAL AND SECURITY


 


Section 10.1                                                        COLLATERAL
AGREEMENTS; SECURITY INTERESTS.


 


(a)                                  The
due and punctual payment of the principal and premium, if any, of, and Interest
(and Liquidated Damages, if any) on, the Notes when and as the same shall be
due and payable, whether on an Interest Payment Date, at maturity, by
acceleration, repurchase, redemption or otherwise, and performance of all other
Obligations under this Indenture, the Notes, the Collateral Agreements and the
Registration Rights Agreement, shall be secured as provided in the Collateral
Agreements.


 


(b)                                 After
the Issue Date, the Issuer shall, and shall cause each of the Subsidiaries to,
use commercially reasonable efforts to grant a perfected security interest in
substantially all of the Issuer’s and the Guarantors’ assets, including assets
acquired after the Issue Date in accordance with the Collateral Agreements, but
in any event excluding the Excluded Assets.


 


(c)                                  The
Issuer shall, and shall cause each of the Guarantors to, do or cause to be done
all such acts and things as may be reasonably necessary, or as may be required
by the provisions of the Collateral Agreements, to assure and confirm to the
Trustee the security interest in the Collateral contemplated hereby and by the
Collateral Agreements, as from time to time constituted, so as to render the
same available for the security and benefit of this Indenture and of the Notes
secured hereby, according to the intent and purposes herein and therein
expressed, including (1) using all commercially reasonable efforts to obtain
customary consents and waivers from landlords of premises where any of the
Collateral is located, and (2) taking all commercially reasonable efforts to
grant a perfected Lien on all real property owned by the Issuer and the
Guarantors and to provide customary title insurance for the benefit of the
Notes Collateral Agent with respect thereto, including, without limitation,
commercially reasonable efforts to cause the removal of record of all existing
monetary encumbrances (other than as provided in the Collateral Agreements)
such that the Collateral Agreements shall constitute a first priority Lien on
all such real property, subject to Liens permitted by the Collateral


 


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Agreements.  The Issuer shall,
and shall cause each of the Guarantors to, take any and all actions reasonably
required to cause the Collateral Agreements to create and maintain, as security
for the Obligations under this Indenture, the Notes, the Collateral Agreements
and the Registration Rights Agreement, valid and enforceable, perfected (except
as expressly provided herein or therein) Liens in and on all the Collateral, in
favor of the Notes Collateral Agent, superior to and prior to the rights of all
third Persons (other than holders of Purchase Money Indebtedness that was
incurred in accordance with the provisions of Section 4.7 hereof), and subject
to no other Liens, other than as provided herein and therein; provided, that
the Note Collateral Agent’s Lien securing the Collateral may be subordinated
pursuant to the terms of the Intercreditor Agreement to a Lien securing
Indebtedness outstanding pursuant to Section 4.7 hereof, but only to the extent
provided in the Intercreditor Agreement.


 


(d)                                 The
Issuer represents and warrants and covenants that it (or the Guarantors) has
executed and delivered, filed and recorded and/or will execute and deliver,
file and record, all instruments and documents, and has done or will do or
cause to be done all such acts and other things as are reasonably necessary to
subject the Collateral to the Lien of Notes Collateral Agent under the
Collateral Agreements.  The Issuer (or
the Guarantors) shall execute and deliver, file and record all instruments and
do all acts and other things as may be reasonably necessary to perfect,
maintain and protect the security interests created by the Collateral
Agreements and shall pay all filing, recording, mortgage or other taxes or fees
incidental thereto.


 


(e)                                  The
security interests in the Collateral created by the Collateral Agreements as
now or hereafter in effect shall be held by the Notes Collateral Agent for the
equal and ratable benefit and security of the Notes without preference,
priority or distinction of any thereof over any other by reason, or difference
in time, of issuance, sale or otherwise, and for the enforcement of the payment
of principal of, premium, if any, and Interest on the Notes in accordance with
their terms.


 


(f)                                    Each
Holder, by its acceptance of a Note, consents and agrees to the terms of the
Collateral Agreements and the Intercreditor Agreement (including, without
limitation, the provisions providing for foreclosure and release of the
Collateral) as the same may be in effect or may be amended from time to time in
accordance with their terms and authorizes and directs the Notes Collateral
Agent to enter into the Collateral Agreements and to perform its obligations
and exercise its rights thereunder in accordance therewith.  The Issuer initially appoints the Trustee as
Notes Collateral Agent and/or Trustee under the Collateral Agreements.  Any successor Trustee will act as Notes
Collateral Agent and/or Trustee under the Collateral Agreements or appoint
another Person to act in such capacity.


 


Section 10.2                                                             FURTHER
ASSURANCES AND SECURITY.


 


The Issuer represents and warrants that at the time the Collateral
Agreements and this Indenture are executed, the Issuer (or the Subsidiaries)
(a) will have full right, power and lawful authority to grant, bargain, sell,
release, convey, hypothecate, assign, mortgage, pledge, transfer and confirm,
absolutely, the Collateral, in the manner


 


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and form done, or intended to be done, in the Collateral Agreements,
free and clear of all Liens, except for Permitted Liens, and will forever
warrant and defend the title to the same against the claims of all Persons
whatsoever, subject to the terms of the Intercreditor Agreement; (b) will
execute, acknowledge and deliver to the Trustee, at the Issuer’s expense, at
any time and from time to time such further assignments, transfer, assurances
or other instruments as may be necessary or as may be reasonably required by
the Trustee to effectuate the terms of this Indenture or the Collateral
Agreements; and (c) will at any time and from time to time do or cause to be
done all such acts and things as may be necessary, or as may be reasonably
required by the Trustee, to assure and confirm to the Trustee the security
interest in the Collateral contemplated hereby and by the Collateral Agreements,
subject to the terms of the Intercreditor Agreement.


 


Section 10.3                                                             OPINIONS.


 


(a)                                  The
Issuer shall furnish to the Trustee and the Notes Collateral Agent promptly
after the recording or filing, or re-recording or re-filing of the Collateral
Agreements and other security filings, an Opinion of Counsel (who may be
counsel for the Issuer) stating that in the opinion of such counsel the
Collateral Agreements and other security filings have been properly recorded,
filed, re-recorded or re-filed so as to make effective and perfect the security
interest intended to be created thereby and reciting the details of such
action.


 


(b)                                 The
Issuer shall furnish to the Trustee within three months after each anniversary
of the Issue Date, an Opinion of Counsel, dated as of such date, stating either
that (i) in the opinion of such counsel, all action has been taken with respect
to the recording, registering, filing, re-recording, re-registering and
refiling of all supplemental indentures, financing statements, continuation statements
or other instruments of further assurance as is necessary to maintain the Liens
of the Collateral Agreements, subject to the terms of the Intercreditor
Agreement, and reciting the details of such action or (ii) in the opinion of
such counsel, no such action is necessary to maintain such Liens.


 


(c)                                  All
such Opinions of Counsel may contain assumptions, qualifications, exceptions
and limitations as are appropriate for similar opinions relating to the nature
of the Collateral and as are reasonably acceptable to the Trustee.


 


Section 10.4                                                             RELEASE
OF COLLATERAL.


 


(a)                                  Upon
the full and final payment and performance of all the Issuer’s Obligations
under this Indenture and the Notes, the Collateral Agreements will terminate,
and the Liens granted thereunder on the Collateral will be released. In
addition, the Notes Collateral Agent shall release the Lien created by this
Indenture and the Collateral Agreements with respect to:


 


(1)                                  Collateral
that is sold, transferred, disbursed or otherwise disposed of in accordance
with the provisions of this Indenture, the Collateral Agreements and the
Intercreditor Agreement; provided
that the Notes Collateral Agent will not release such Liens in the event that
the transaction is subject to Section 5.1, 
and provided further that


 


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all products and proceeds of the Collateral so sold, transferred,
disbursed or otherwise disposed of shall continue to constitute Collateral;


 


(2)                                  Collateral
that is released with the consent of the Holders of not less than a majority of
the aggregate principal amount of the outstanding Notes as provided under
Article IX;


 


(3)                                  Bank
Priority Collateral if sold or otherwise disposed of in connection with an
enforcement of rights or remedies by the Bank Collateral Agent in accordance
with the Intercreditor Agreement;


 


(4)                                  Bank
Priority Collateral that is released by the Bank Collateral Agent pursuant to
the Credit Agreement and in accordance with the Intercreditor Agreement;


 


(5)                                  all
Collateral upon defeasance of this Indenture in accordance with Sections 8.2 or
8.3 or discharge of this Indenture in accordance Section 8.8;  and


 


(6)                                  Collateral
of a Guarantor whose Guarantee is released in accordance with this Indenture
and the Collateral Agreements;


 


provided, in each
case, that the Notes Collateral Agent has received all documentation required
by the TIA in connection therewith. 
Upon compliance with the above provisions, the Trustee shall execute,
deliver or acknowledge any necessary or proper instruments of termination,
satisfaction or release to evidence the release of any Collateral permitted to
be released pursuant to this Indenture or the Collateral Agreements.


 


(b)                               The
release of any Collateral from the terms of the Collateral Agreements shall not
be deemed to impair the security under this Indenture in contravention of the
provisions hereof and of the Collateral Agreements if and to the extent the
Collateral is released pursuant to the terms of this Indenture and the
Collateral Agreements.


 


(c)                                  For
purposes of Section 10.4(a) hereof, any certificate or opinion required by TIA
§ 314(d) may be made by an Officer of the Issuer, except in cases where TIA §
314(d) requires that such certificate or opinion be made by an independent
person, which person shall be an independent engineer, appraiser or other
expert selected or approved by the Trustee in the exercise of reasonable
care.  A person is “independent” if such
person (i) is in fact independent, (ii) does not have any direct financial
interest or any material indirect financial interest in the Issuer or in any
Affiliate of the Issuer and (iii) is not an officer, employee, promoter,
underwriter, trustee, partner or director or person performing similar
functions to any of the foregoing for the Issuer.  The Trustee shall be entitled to receive and conclusively rely
upon a certificate provided by any such person confirming that such person is
independent within the foregoing definition.


 


(d)                                 Notwithstanding
anything contained in this Indenture to the contrary, (i) the proviso of
Section 10.4(a) of this Indenture will not be applicable to any


 


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release or withdrawal of inventory, receivables and cash from the
Issuer’s deposit accounts in the ordinary course of the Issuer’s business
pursuant to the terms of the Collateral Agreements and (ii) the fair value of
inventory, receivables and cash from the Issuer’s deposit accounts released
pursuant to this Section 10.4 need not be considered in determining whether the
aggregate fair value of inventory, receivables and cash from the Issuer’s
deposit accounts released in any calendar year exceeds the 10% threshold
specified in Section 314(d)(1) of the TIA.


 


Section 10.5                                                             CERTIFICATES
OF THE ISSUER.


 


The Issuer shall furnish to the Trustee and the Notes Collateral Agent,
prior to each proposed release of Collateral, all documents required by TIA §
314(d).  The Trustee may, to the extent
permitted by Sections 7.1 and 7.2 hereof, accept as conclusive evidence of compliance
with the foregoing provisions the appropriate statements contained in such
instruments.  Any certificate or opinion
required by TIA § 314(d) may be made by an Officer of the Issuer, except in
cases where TIA § 314(d) requires that such certificate or opinion be made by
an independent engineer, appraiser or other expert within the meaning of TIA §
314(d).


 


Section 10.6                                                             AUTHORIZATION
OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER

THE COLLATERAL AGREEMENTS.


 


Subject to the terms of the Intercreditor Agreement, the Trustee may,
in its sole discretion and without the consent of the Holders, on behalf of the
Holders, take all actions it deems reasonably necessary or appropriate in order
to (a) enforce any of the terms of the Collateral Agreements and (b) collect
and receive any and all amounts payable in respect of the Obligations of the
Issuer and the Guarantors hereunder and under the Notes, the Collateral
Agreements and the Registration Rights Agreement.  Subject to the terms of the Intercreditor Agreement, and to the
extent permitted by this Indenture or the Collateral Agreements, the Trustee
shall have the power to institute and to maintain such suits and proceedings as
it may reasonably deem expedient to prevent any impairment of the Collateral by
any acts that may be unlawful or in violation of the Collateral Agreements or
this Indenture, and such suits and proceedings as the Trustee may reasonably
deem expedient to preserve or protect its interest and the interests of the
Holders in the Collateral (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 interest hereunder or be prejudicial to
the interests of the Holders or the Trustee).


 


Section 10.7                                                             AUTHORIZATION
OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE

COLLATERAL AGREEMENTS.


 


The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Collateral Agreements, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Collateral Agreements, subject to the terms of the
Intercreditor Agreement.


 


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Section 10.8                                                             PURCHASER
PROTECTED.


 


No purchaser or grantee of any property or rights purporting to be
released herefrom shall be bound to ascertain the authority of the Trustee or
the Notes Collateral Agent to execute the release or to inquire as to the
existence of any conditions herein prescribed for the exercise of such
authority; nor shall any purchaser or grantee of any property or rights permitted
by this Indenture to be sold or otherwise disposed of by the Issuer be under
any obligation to ascertain or inquire into the authority of the Issuer to make
such sale or other disposition.


 


ARTICLE
XI

GUARANTEES


 


Section 11.1                                                             GUARANTEES


 


By its execution hereof, each of the Guarantors acknowledges and agrees
that it receives substantial benefits from the Issuer and that such party is
providing its Guarantee for good and valuable consideration, including, without
limitation, such substantial benefits and services.  Accordingly, subject to the provisions of this Article XI, each
Guarantor, jointly and severally, hereby unconditionally guarantees on a senior
secured basis to each Holder of a Note authenticated and delivered by the
Trustee and its successors and assigns that: (i) the principal of, premium, if
any, and Interest and Liquidated Damages, if any, on the Notes shall be duly
and punctually paid in full when due, whether at maturity, by acceleration,
call for redemption, upon a Change of Control Offer, an Asset Sale Offer, or
otherwise, and interest on overdue principal, premium, if any, Liquidated
Damages, if any, and (to the extent permitted by law) interest on any Interest,
if any, on the Notes and all other obligations of the Issuer to the Holders or
the Trustee under the Notes, this Indenture, the Collateral Agreements and the
Registration Rights Agreement (including fees, expenses or other) shall be
promptly paid in full or performed, all in accordance with the terms hereof;
and (ii) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations or under the Notes, the Collateral Agreements or
Registration Rights Agreement, the same shall be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration, call for redemption, upon a Change of
Control, an Asset Sale Offer, or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 11.6 hereof
(collectively, the “Guarantee Obligations”).


 


Subject to the provisions of this Article XI, each Guarantor hereby
agrees that its Guarantee hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes, this Indenture, the
Collateral Agreements, the Registration Rights Agreement or the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any thereof, any releases of the Collateral, the entry of any judgment against
the Issuer, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
Guarantor.  Each Guarantor hereby waives
and relinquishes with respect to its Guarantee Obligations: (a) any right to
require the Trustee, the Holders or the Issuer


 


104

















 


(each, a “Benefited Party”) to proceed against the
Issuer, the Subsidiaries or any other Person or to proceed against or exhaust
any security held by a Benefited Party at any time or to pursue any other
remedy in any Collateral Agent’s power before proceeding against the
Guarantors; (b) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other Person or Persons or the failure of
a Benefited Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other Person or
Persons; (c) demand, protest and notice of any kind (except as expressly required
by this Indenture); (d) any defense based upon an election of remedies by a
Benefited Party, including but not limited to an election to proceed against
the Guarantors for reimbursement; (e) any defense based upon any statute or
rule of law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of the
principal; (f) any defense arising because of a Benefited Party’s election, in
any proceeding instituted under the Bankruptcy Law, of the application of
Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any
borrowing or grant of a security interest under Section 364 of the Bankruptcy
Code.  The Guarantors hereby covenant
that, except as otherwise provided therein, the Guarantees shall not be
discharged except by payment in full of all Guarantee Obligations, including
the principal, premium, if any, and Interest on the Notes and all other costs
provided for under this Indenture or as provided in Article VIII.


 


If any Holder or the Trustee is required by any court or otherwise to
return to either the Issuer or the Guarantors, or any trustee or similar
official acting in relation to either the Issuer or the Guarantors, any amount
paid by the Issuer or the Guarantors to the Trustee or such Holder, the
Guarantees, to the extent theretofore discharged, shall be reinstated in full
force and effect.  Each of the
Guarantors agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Guarantee Obligations hereby until
payment in full of all such obligations guaranteed hereby.  Each Guarantor agrees that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article VI hereof for the purposes hereof, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Guarantee
Obligations, and (y) in the event of any acceleration of such obligations as
provided in Article VI hereof, such Guarantee Obligations (whether or not due
and payable) shall forthwith become due and payable by such Guarantor for the
purpose of the Guarantee.


 


Section 11.2                                                             EXECUTION
AND DELIVERY OF GUARANTEES


 


To evidence the Guarantees set forth in Section 11.1 hereof, each of
the Guarantors agrees that a notation of the Guarantees substantially in the
form included in Exhibit A hereto shall be endorsed on each Note authenticated
and delivered by the Trustee and that a supplemental indenture substantially in
the form of Exhibit E hereto shall be executed on behalf of each of the
Guarantors by an Officer thereof in accordance with Section 11.4 hereof.


 


105

















 


Each of the Guarantors agree that the Guarantees set forth in this
Article XI shall remain in full force and effect and apply to all the Notes
notwithstanding any failure to endorse on each Note a notation of the
Guarantees.


 


If an Officer whose signature is on a Note or a notation of Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which the Guarantees are endorsed, the Guarantees shall be valid nevertheless.


 


The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantees set forth in
this Indenture on behalf of the Guarantors.


 


Section 11.3                                                             GUARANTORS
MAY CONSOLIDATE, ETC., ON CERTAIN TERMS


 


(a)                                  Nothing
contained in this Indenture or in the Notes shall prevent any consolidation or
merger of any Guarantor with or into each other or with or into the Issuer;
provided, however, that such consolidation or merger shall otherwise comply
with this Indenture.  Upon any such
consolidation or merger, the Guarantee of the Guarantor that does not survive
the consolidation or merger shall no longer be of any force or effect.


 


(b)                                 No
Guarantor will consolidate or merge with or into (whether or not such Guarantor
is the surviving Person) another Person unless, subject to the provisions of
the following paragraph and the other provisions of this Indenture and the
Collateral Agreements:


 


(1)                                  the
Person formed by, resulting from or surviving any such consolidation or merger
(if other than such Guarantor)


 


(A)                              expressly assumes all the
obligations of such Guarantor pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee, pursuant to which such Person shall
unconditionally guarantee, on a senior secured basis, all of such Guarantor’s
obligations under such Guarantor’s Guarantee on the terms set forth in this
Indenture, and grants a security interest in and/or pledges the collateral
owned by such Person to secure such Obligations on the terms set forth in the
Collateral Agreements, and


 


(B)                                delivers to the Trustee
an Opinion of Counsel that such supplemental indenture and guarantee and the
Collateral Agreements have been duly authorized, executed and delivered and
that each of the supplemental indenture, the guarantee, this Indenture and the
Collateral Agreements constitutes a legal, valid and binding and enforceable
obligation of such Person, in each case subject to customary qualifications;
and


 


(2)                                  immediately
before and immediately after giving effect to such transaction on a pro forma basis, no Default or Event of
Default shall have occurred or be continuing.


 


106

















 


(c)                                  In
case of any such consolidation or merger and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and reasonably satisfactory in form to the Trustee, of the Guarantees
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by such Guarantor, such
successor corporation shall succeed to and be substituted for such Guarantor
with the same effect as if it had been named herein as a Guarantor.  Such successor corporation thereupon may
cause to be signed any or all of the Guarantees to be endorsed upon all of the
Notes issuable hereunder which theretofore shall not have been signed by the
Issuer and delivered to the Trustee. 
All the Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Guarantees had been issued at the date of the execution hereof.


 


(d)                                 The
Trustee, subject to the provisions of Section 12.4 hereof, shall be entitled to
receive an Officers’ Certificate as conclusive evidence that any such
consolidation or merger, and any such assumption of Guarantee Obligations,
comply with the provisions of this Section 11.3.  Such Officers’ Certificate shall comply with the provisions of
Section 12.5 hereof.


 


Section 11.4                                                             GUARANTEE
BY FUTURE SUBSIDIARIES


 


The Issuer shall cause each of the Issuer’s existing and future
Subsidiaries to (i) execute and deliver to the Trustee a supplemental indenture
substantially in the form of Exhibit E hereto and a guarantee substantially in
the form included in Exhibit A hereto, pursuant to which such Subsidiary shall
unconditionally guarantee on a senior secured basis, all of the Issuer’s
Obligations under the Notes and this Indenture on the terms set forth in this
Indenture, (ii) execute a security agreement and other Collateral Agreements
necessary or reasonably requested by the Trustee to grant the Trustee a valid,
enforceable, perfected Lien on the Collateral described therein, and (iii)
deliver to the Trustee an Opinion of Counsel that such supplemental indenture,
guarantee and Collateral Documents have been duly authorized, executed and
delivered by such Subsidiary and that each of such documents and this
Indenture, guarantee and Collateral Documents have constitutes a legal, valid,
binding and enforceable obligation of such Subsidiary, in each case subject to
customary qualifications including exceptions for bankruptcy, fraudulent
transfer and equitable principles. 
Thereafter, such Subsidiary shall be a Guarantor for all purposes of
this Indenture.


 


Section 11.5                                                             RELEASE
OF GUARANTORS


 


Notwithstanding Section 11.3(b) hereof, upon the sale or disposition
(including by merger or sale or transfer of all of the Equity Interests) of a
Guarantor (as an entirety) to a Person which is not and is not required to
become a Guarantor, the designation of a Guarantor as an Unrestricted
Subsidiary, or the liquidation or dissolution of a Guarantor, which transaction
is otherwise in compliance with this Indenture (including, without limitation,
Section 4.13), such Guarantor will be deemed released from the Issuer’s
Obligations under its Guarantee of the Notes and the Collateral


 


107

















 


Agreements; provided, however, that any such
termination shall occur only to the extent that all obligations of such
Guarantor under all of its guarantees of, and under all of its pledges of
assets or other security interests which secure, any of the Issuer’s
Indebtedness or any Indebtedness of any other of the Subsidiaries shall also
terminate upon such release, sale or transfer and none of the Issuer’s Equity
Interests are pledged for the benefit of any holder of any of the Issuer’s
Indebtedness or any Indebtedness of any of the Subsidiaries.


 


The Trustee, subject to the provisions of Section 12.4 hereof, shall be
entitled to receive an Officers’ Certificate as conclusive evidence that such
sale or other disposition or that such designation was made by the Issuer in
accordance with the provisions of this Indenture.  Except as provided in Section 11.3(a) hereof, any Guarantor not
released from its obligations under its Guarantee shall remain liable for the
full amount of principal of and Interest on the Notes and for the other
obligations of any Guarantor under this Indenture as provided in this Article
XI.


 


Notwithstanding the foregoing provisions of this Article XI, (i) any
Guarantor whose Guarantee would otherwise be released pursuant to the
provisions of this Section 11.5 may elect, at its sole discretion, by written
notice to the Trustee, to maintain such Guarantee in effect notwithstanding the
event or events that otherwise would cause the release of such Guarantee (which
election to maintain such Guarantee in effect may be conditional or for a
limited period of time), and (ii) any subsidiary of the Issuer which is not a
Guarantor may elect, at its sole discretion, by written notice to the Trustee,
to become a Guarantor (which election may be conditional or for a limited
period of time).


 


Section 11.6                                                             LIMITATION
OF GUARANTOR’S LIABILITY; CERTAIN BANKRUPTCY

EVENTS


 


(a)                                  Each
Guarantor, and by its acceptance of Notes each Holder, hereby confirms that it
is the intention of all such parties that the Guarantee Obligation of such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law.  To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
Guarantee Obligations of each Guarantor under this Article XI shall be limited
to the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
Guarantee Obligations of such other Guarantor under this Article XI, result in
the Guarantee Obligations of such Guarantor under the Guarantee of such
Guarantor not constituting a fraudulent transfer or conveyance.


 


(b)                                 Each
Guarantor hereby covenants and agrees, to the fullest extent that it may do so
under applicable law, that in the event of the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Issuer, such Guarantor shall
not file (or join in any filing of), or otherwise seek to participate in the
filing of, any motion or


 


108

















 


request seeking to stay or to prohibit
(even temporarily) execution on the Guarantee and hereby waives and agrees not
to take the benefit of any such stay of execution, whether under Section 362 or
105 of the Bankruptcy Law or otherwise.


 


Section 11.7                                                             APPLICATION
OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS


 


(a)                                  For
purposes of any provision of this Indenture which provides for the delivery by
any Guarantor of an Officers’ Certificate and/or an Opinion of Counsel, the
definitions of such terms in Section 1.1 hereof shall apply to such Guarantor
as if references therein to the Issuer were references to such Guarantor.


 


(b)                                 Any
request, direction, order or demand which by any provision of this Indenture is
to be made by any Guarantor, shall be sufficient if evidenced as described in
Section 12.2 hereof as if references therein to the Issuer were references to
such Guarantor.


 


(c)                                  Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders to or on any
Guarantor may be given or served as described in Section 12.2 hereof as if
references therein to the Issuer were references to such Guarantor.


 


(d)                                 Upon
any demand, request or application by any Guarantor to the Trustee to take any
action under this Indenture, such Guarantor shall furnish to the Trustee such
certificates and opinions as are required in Section 12.4 hereof as if all
references therein to the Issuer were references to such Guarantor.


 


ARTICLE
XII

MISCELLANEOUS


 


Section 12.1                                                             TRUST
INDENTURE ACT CONTROLS


 


If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by the TIA § 318(c), the imposed duties shall control.


 


Section 12.2                                                             NOTICES


 


Any notice or communication by the Issuer or the Trustee to the other
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the others’ address:


 


	
  If to the Issuer

  
	
  or the Guarantors:

  
	
   

  
	
   

  	
  Sheridan Acquisition Corp.

  
	
   

  	
  11311 McCormick Road, S260

  
	
   

  	
  Hunt Valley, Maryland 21031

  



 


109

















 


	
   

  	
  Attention:  President

  
	
   

  	
  Telecopier No.: (410) 785-7217

  
	
  with copies (which

  
	
  shall not constitute

  
	
  notice) to:

  
	
   

  
	
   

  	
  Dechert LLP

  
	
   

  	
  4000 Bell Atlantic Tower

  
	
   

  	
  1717 Arch Street

  
	
   

  	
  Philadelphia, Pennsylvania 19103

  
	
   

  	
  Attn:  Sarah B. Gelb, Esq.

  
	
   

  	
  Telecopier No.:  (215)
  994-2222

  
	
   

  
	
  If to the Trustee:

  
	
   

  
	
   

  	
  The Bank of New York

  
	
   

  	
  101 Barclay Street, Floor 8 West

  
	
   

  	
  New York, New York 10286

  
	
   

  	
  Attention:  Corporate Trust
  Administration

  
	
   

  	
  Telecopier No.:  (212)
  815-5707

  



 


The Issuer 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) shall
be deemed to have been duly given: (i) at the time delivered by hand, if
personally delivered; (ii) five Business Days after being deposited in the
mail, postage prepaid; (iii) when receipt acknowledged, if telecopied; and (iv)
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 shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar.  Any notice or
communication shall also be so mailed to any Person described in TIA § 313(c),
to the extent required by the TIA. 
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.


 


If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.


 


If the Issuer mails a notice or communication to Holders, it shall mail
a copy to the Trustee and each Agent at the same time.


 


110

















 


Section 12.3                                                             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 Issuer, the Trustee, the Registrar and
anyone else shall have the protection of TIA § 312(c).


 


Section 12.4                                                             CERTIFICATE
AND OPINION AS TO CONDITIONS PRECEDENT


 


Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, the Issuer shall furnish to the Trustee:


 


(a)                                  an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.5 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


 


(b)                                 an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.5 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.


 


Section 12.5                                                             STATEMENTS
REQUIRED IN CERTIFICATE OR OPINION


 


Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA § 314(a)(4)) shall include:


 


(a)                                  a
statement that the Person making such certificate or opinion has read such
covenant or condition;


 


(b)                                 a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;


 


(c)                                  a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and


 


(d)                                 a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been satisfied;


 


provided, however,
that with respect to matters of fact, an Opinion of Counsel may rely on an
Officers’ Certificate or certificate of public officials.


 


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Section 12.6                                                             RULES
BY TRUSTEE AND AGENTS


 


The Trustee may make reasonable rules for action by or at a meeting of
Holders.  The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for its functions.


 


Section 12.7                                                             NO
PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS


 


No direct or indirect stockholder, incorporator, controlling Person,
employee, officer or director, as such, past, present or future of the Issuer,
the Guarantors or any successor entity shall have any personal liability in
respect of the Issuer’s obligations or the obligations of the Guarantors under
this Indenture, the Notes, the Guarantees, the Registration Rights Agreement,
the Collateral Agreements or the Intercreditor Agreement solely by reason of
his, her or its status as such stockholder, incorporator, controlling Person, employee,
officer or director, except that this provision shall in no way limit the
obligation of any Guarantor pursuant to any Guarantee of the Notes.


 


Section 12.8                                                             GOVERNING
LAW


 


THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B); PROVIDED, THAT WITH RESPECT TO THE
CREATION, ATTACHMENT, PERFECTION, PRIORITY, ENFORCEMENT OF AND REMEDIES
RELATING TO THE SECURITY INTEREST IN ANY REAL PROPERTY COLLATERAL, THE
GOVERNING LAW MAY BE THE LAWS OF THE JURISDICTIONS WHERE SUCH COLLATERAL IS
LOCATED WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.


 


Section 12.9                                                             NO
ADVERSE INTERPRETATION OF OTHER AGREEMENTS


 


This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Issuer or the Subsidiaries or of any other
Person.  Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.


 


Section 12.10                                                       SUCCESSORS


 


Except as otherwise provided in Section 11.5, all agreements of the
Issuer and the Guarantors in this Indenture and the Notes shall bind their
successors.  All agreements of the
Trustee in this Indenture shall bind the its successors.


 


112

















 


Section 12.11                                                       SEVERABILITY


 


In case any one or more of the provisions of this Indenture or in the
Notes or in the Guarantees shall be held invalid, illegal or unenforceable, in
any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.


 


Section 12.12                                                       COUNTERPART
ORIGINALS


 


The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but
all of them together represent the same agreement.


 


Section 12.13                                                       TABLE
OF CONTENTS, HEADINGS, ETC.


 


The Table of Contents 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 shall in no way modify or restrict any
of the terms or provisions hereof.


 


Section 12.14                                                       INTERCREDITOR
AGREEMENT


 


So long as the Intercreditor Agreement is in effect, the rights, obligations
and remedies of the parties shall be subject thereto.  This Indenture shall not impose any obligation or grant any right
to any party to the extent that such obligation or right is inconsistent or
conflicts with the Intercreditor Agreement. 
This Section 12.14 is for the benefit of the Holders and the Trustee,
and none of the Issuer or Guarantors shall be third party beneficiaries hereof.


 


Section 12.15                                                       WAIVER
OF JURY TRIAL.


 


EACH OF THE PARTIES HERETO 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 OR THE
TRANSACTION CONTEMPLATED HEREBY.


 


Section 12.16                                                       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


 


113

















 


the banking industry to resume
performance as soon as practicable under the circumstances.


 


Section 12.17                                                       LIMITATION
ON DUTY OF TRUSTEE IN RESPECT OF COLLATERAL.


 


(a)                                  Beyond
the exercise of reasonable care in the custody thereof, the Trustee and the
Notes Collateral Agent shall have no duty as to any Collateral in its
possession or control or in the possession or control of any agent or bailee or
any income thereon or as to preservation of rights against prior parties or any
other rights pertaining thereto, and the Trustee and the Notes Collateral Agent
shall not be responsible for filing any financing or continuation statements or
recording any documents or instruments in any public office at any time or
times or otherwise perfecting or maintaining the perfection of any security
interest in the Collateral.  The Trustee
and the Notes Collateral Agent shall be deemed to have exercised reasonable care
in the custody of the Collateral in its possession if the Collateral is
accorded treatment substantially equal to that which it accords its own
property and shall not be liable or responsible for any loss or diminution in
the value of any of the Collateral, by reason of the act or omission of any
carrier, forwarding agency or other agent or bailee selected by the Trustee or
the Notes Collateral Agent in good faith.


 


(b)                                 The
Trustee and the Notes Collateral Agent shall not be responsible for the
existence, genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Liens in any of the Collateral,
whether impaired by operation of law or by reason of any action or omission to
act on its part hereunder, except to the extent such action or omission
constitutes gross negligence, bad faith or willful misconduct on the part of
the Trustee or the Notes Collateral Agent, for the validity or sufficiency of
the Collateral or any agreement or assignment contained therein, for the
validity of the title of the Issuer to the Collateral, for insuring the
Collateral or for the payment of taxes, charges, assessments or Liens upon the
Collateral or otherwise as to the maintenance of the Collateral.


 


[Signatures
on following page]


 


114

















 


SIGNATURES


 


IN WITNESS WHEREOF, the parties hereto have executed this Indenture as
of the date first written above.


 


 


	
   

  	
  THE ISSUER:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Rice Edmonds

  
	
   

  	
   

  	
  Name: J. Rice Edmonds

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas Daraviras

  
	
   

  	
   

  	
  Name:  Nicholas Daraviras

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
  THE TRUSTEE:

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marie E. Trimboli

  
	
   

  	
   

  	
  Name:  Marie E. Trimboli

  
	
   

  	
   

  	
  Title: Assistant Vice President

  



 

















 


EXHIBIT
A


 


[FORM OF NOTE]


 


SHERIDAN ACQUISITION CORP.


 


101⁄4% [SERIES A] [SERIES B]1
SENIOR SECURED NOTE

DUE 2011


 


	
   

  	
  CUSIP: ___________

  
	
   

  	
  ISIN:     ___________

  
	
  No.

  	
  $            ___________

  



 


The Sheridan
Acquisition Corp., a Delaware corporation (the “Issuer” which term includes any
successors under this Indenture hereinafter referred to), for value received,
hereby promise to pay to Cede & Co., or registered assigns, the principal
sum of ___________ Dollars, on August 15, 2011.


 


Interest Payment Dates:  February 15 and August 15, commencing
February 15, 2004.


 


Record Dates:  February 1 and August 1.


 


Reference is
made to the further provisions of this Note on the reverse side, which will,
for all purposes, have the same effect as if set forth at this place.


 


Upon request,
the Issuer will promptly make available to a holder of this Note information
regarding the issue price, the amount of original issue discount, the issue
date, and the yield to maturity of this Note. 
Holders should contact Sheridan Acquisition Corp., 11311 McCormick Road,
S260, Hunt Valley, Maryland 21031, Attention: 
President.


 












1                                            Series
A should be replaced with Series B in the Exchange Notes.


 


A-1

















 


IN WITNESS
WHEREOF, the Issuer has caused this instrument to be duly executed.


 


	
   

  	
  SHERIDAN ACQUISITION CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


This is one of the Notes described in the
within-mentioned Indenture.


 


	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated: 

  	
   

  	
   

  
				



 

















 


(Reverse of Note)


 


101⁄4% [Series A] [Series B]2 Senior Secured
Note due 2011


 


[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE ISSUER.]3


 


[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 ISSUER OR THEIR 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.]4


 


[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE 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


 












2                                            Series
A should be replaced with Series B in the Exchange Notes.


 


3                                            To
be included only on Global Notes deposited with DTC as Depository.


 


4                                            To
be included only on Global Notes deposited with DTC as Depository.


 


A-3

















 


ENTITLED TO RECEIVE CASH
PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE.  NOTHING IN THIS LEGEND SHALL BE DEEMED TO
PREVENT INTEREST FROM ACCRUING ON THIS NOTE.]5


 


 [THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAWS.  NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.  THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH OTHER
PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k) UNDER THE SECURITIES
ACT AS PERMITTING RESALES OF RESTRICTED SECURITIES BY NON-AFFILIATES WITHOUT
RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE “RESALE RESTRICTION
TERMINATION DATE”) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM


 












5                                            To
be included only Reg S Temporary Global Notes.


 


A-4

















 


APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS
OF ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION.]6


 


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


 


1.                                       Interest. 
The Sheridan Acquisition Corp., a Delaware corporation (the “Issuer”),
promises to pay Interest on the principal amount of this Note at 101⁄4% per annum
from the Issue Date until maturity and shall pay the Liquidated Damages, if
any, payable pursuant to Section 4 of the Registration Rights Agreement
referred to below.  The Issuer will pay
Interest and Liquidated Damages, if any, semi-annually on February 15 and
August 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”).  The first Interest Payment Date shall be
February 15, 2004.  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 Issue Date; provided that if there is no
existing Default in the payment of Interest, and if this Note is authenticated
between an Interest Record Date (defined below) referred to on the face hereof
and the next succeeding Interest Payment Date, Interest shall accrue from such
next succeeding Interest Payment Date. The Issuer shall pay Interest (including
Accrued Bankruptcy Interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at the rate
then in effect; it shall pay Interest (including Accrued Bankruptcy Interest in
any proceeding under any Bankruptcy Law) on overdue installments of Interest
and Liquidated Damages, 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 calculated on
the basis of a 360-day year consisting of twelve 30-day months.


 


2.                                       Method of Payment.  The Issuer will pay Interest on the Notes
and Liquidated Damages, if any, to the Persons who are registered Holders of
Notes at the close of business on the February 1 or August 1 next preceding the
Interest Payment Date (each an “Interest Record Date”), even if such Notes are
cancelled after such Interest Record Date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture (as defined
below) with respect to Defaulted Interest. 
The Notes will be payable as to principal, Interest, premium, if any,
and Liquidated Damages, if any, at the office or agency of the Issuer
maintained within the City and State of New York for such purpose, or, at the
option of the Issuer, payment of Interest and Liquidated Damages, if any, may
be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately
available funds to an account within the United States will be required with
respect to principal of and Interest, premium, if any, and Liquidated Damages,
if any, on all Global Notes.  Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.


 












6                                            To
be included only on Transfer Restricted Notes.


 


A-5

















 


3.                                       Paying Agent and Registrar.  Initially, The Bank of New York, the Trustee
under the Indenture, will act as Paying Agent and Registrar.  The Issuer may change any Paying Agent or
Registrar without notice to any Holder. 
The Issuer or any of its subsidiaries may act in any such capacity.


 


4.                                       Indenture.  The Issuer issued the Notes under an Indenture, dated as of the
Issue Date (“Indenture”), by and among the Issuer, the Guarantors party thereto
and the Trustee.  The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§
77aaa-77bbbb).  The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms.


 


The
Obligations under the Indenture, the Intercreditor Agreement, the Notes and the
Guarantees thereof are secured by the Collateral described in the Collateral
Agreements, subject to the provisions of such agreements.  Holders are referred to the Collateral
Agreements for a statement of such terms.


 


5.                                       Optional Redemption.


 


(a)                                  At
any time prior to August 15, 2007, the Issuer may redeem the Notes for cash at
the Issuer’s option, in whole or in part, at any time or from time to time, at
a redemption price equal to the greater of (1) 100% of the principal amount of
the Notes being redeemed and (2) the sum of the present values of 105.125% of
principal amount of the Notes being redeemed and scheduled payments of Interest
on such Notes to and including August 15, 2007 discounted to the date of
redemption on semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate plus 50 basis points, together in either
case with accrued and unpaid Interest, if any, to the date of redemption.


 


(b)                                 The
Notes will be redeemable for cash at the option of the Issuer, in whole or in
part, at any time or from time to time, on or after August 15, 2007 at the
following redemption prices (expressed as percentages of the principal amount)
if redeemed during the 12-month period commencing August 15 of the years
indicated below, in each case together with accrued and unpaid Interest and Liquidated
Damages, if any, thereon to the date of redemption of the Notes (the
“Redemption Date”):


 


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2007

  	
   

  	
  105.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  102.563

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


(c)                                  Notwithstanding
the provisions of clause (b) of this Section 5, at any time on or prior to
August 15, 2006, upon a Qualified Equity Offering, up to 35% of the aggregate
principal amount of the Notes originally issued pursuant to the Indenture 


 


A-6

















 


may be redeemed at the Issuer’s
option within 90 days of such Qualified Equity Offering, with cash received by
the Issuer from the Net Cash Proceeds of such Qualified Equity Offering, at a
redemption price equal to 110.250% of principal amount thereof, together with
accrued and unpaid Interest and Liquidated Damages, if any, thereon to the
Redemption Date; provided, however, that immediately following such redemption
not less than 65% of the aggregate principal amount of the Notes originally
issued pursuant to the Indenture on the Issue Date remain outstanding.


 


(d)                                 Notice
of redemption will be mailed by first class mail at least 30 days but not more
than 60 days before the Redemption Date to each Holder whose Notes are to be
redeemed at its registered address.  Notes
in denominations larger than $1,000 may be redeemed in part but only in
integral multiples of $1,000, unless all of the Notes held by a Holder are to
be redeemed.  On and after the
Redemption Date, Interest ceases to accrue on Notes or portions thereof called
for redemption unless the Issuer defaults in such payments due on the
redemption date.


 


6.                                       Mandatory Redemption.  The Issuer shall not be required to make
mandatory redemption payments with respect to the Notes.  The Notes shall not have the benefit of any
sinking fund.


 


7.                                       Offers to Purchase.


 


(a)                                  Change of Control.  In the event that a Change of Control has
occurred, each Holder of Notes shall have the right, at such Holder’s option,
pursuant to an offer by the Issuer (subject only to conditions required by
applicable law, if any) (the “Change of
Control Offer”), to require the Issuer to repurchase all or any part
of such Holder’s Notes (provided, that the principal amount of such Notes must
be $1,000 or an integral multiple thereof) at a cash price equal to 101% of the
principal amount thereof (the “Change of
Control Purchase Price”), together with accrued and unpaid Interest
(and Liquidated Damages, if any) to the Change of Control Purchase Date.  In order to effect the Change of Control
Offer, the Issuer shall, not later than the 30th day after the
occurrence of the Change of Control, mail to each Holder of Notes notice of the
Change of Control Offer (the “Change of
Control Notice”), describing the transaction or transactions that
constitute the Change of Control and offering to repurchase the Notes on a date
(the “Change of Control Purchase Date”)
that is no earlier than 30 days and no later than 60 days after the
date that the Change of Control Notice is mailed, pursuant to the procedures
required by the Indenture and described in the Change of Control Notice. On the
Change of Control Purchase Date, to the extent lawful, the Issuer promptly
shall purchase all Notes properly tendered in response to the Change of Control
Offer.


 


On or before the Change of Control Purchase Date, the Issuer shall:
(i) accept for payment Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
cash sufficient to pay the Change of Control Purchase Price together with
accrued and unpaid Interest (and Liquidated Damages, if any) to the Change of
Control Purchase Date of all Notes so tendered, and (iii) deliver to the
Trustee the Notes so accepted together with an Officers’ Certificate listing
the Notes or portions thereof being purchased by the Issuer. The Paying Agent
promptly shall


 


A-7

















 


pay the Holders of Notes so
accepted an amount equal to the Change of Control Purchase Price together with
accrued and unpaid Interest (and Liquidated Damages, if any) to the Change of
Control Purchase Date, and the Trustee promptly shall authenticate and deliver
to such Holders a new Note equal in principal amount to any unpurchased portion
of the Note surrendered. Any Notes not so accepted shall be delivered promptly
by the Issuer to the Holder thereof. The Issuer shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Purchase Date.


 


(b)                                 Asset Sale.  Subject to certain exceptions set forth in the Indenture, the
Issuer shall not and the Guarantors shall not, and neither the Issuer nor the
Guarantors shall permit any of the Subsidiaries to, in one or a series of
related transactions, make any Asset Sale unless, with respect to any Asset
Sale or related series of Asset Sales involving securities, property or assets
(i) at least 75% of the total consideration for such Asset Sale or series of
related Asset Sales consists of cash or Cash Equivalents, and (ii) the
Issuer’s Board of Directors determines in reasonable good faith that the Issuer
shall receive or such Subsidiary shall receive, as applicable, fair market
value for such Asset Sale; provided, however, that the 75% limitation set forth
in clause (i) above shall not apply to any proposed Asset Sale for which an
independent certified accounting firm shall certify to the Issuer’s Board of
Directors and the Trustee that the after-tax cash portion of the consideration
to be received by the Issuer or such Subsidiary in such proposed Asset Sale is
equal to or greater than what the net after-tax cash proceeds would have been
had such proposed Asset Sale complied with the 75% limitation set forth in
clause (i) above.  For purposes of
clause (i) of the preceding sentence, total consideration received means the
total consideration received for such Asset Sales minus the amount of: (a) any
liabilities (other than liabilities that are by their terms subordinated to the
Notes and the Guarantees) of the Issuer or any Subsidiary that are assumed by a
transferee, provided, that the Issuer and the Subsidiaries are fully released
or indemnified from obligations in connection therewith, and (b) property that
within 90 days of such Asset Sale is converted into cash or Cash Equivalents, provided,
that such cash and Cash Equivalents shall be treated as Net Cash Proceeds
attributable to the original Asset Sale for which such property was received.


 


Within 360 days following such Asset Sale (the “360-Day Period”), Net
Cash Proceeds therefrom (the “Asset Sale Amount”), if used, shall be (1)(i)
used to retire and permanently reduce Indebtedness incurred under the Credit
Agreement (other than the repayment of Indebtedness incurred under the Credit
Agreement to fund the purchase of an asset which is sold by the Issuer within
90 days of the Issuer’s purchase pursuant to a sale-leaseback transaction);
provided, that in the case of a revolver or similar arrangement that makes
credit available, such commitment is permanently reduced by such amount, or (ii)
to the extent that such Net Cash Proceeds are from an Asset Sale of assets or
Equity Interests of a Foreign Subsidiary, used to retire Indebtedness (other
than Preferred Stock or any Indebtedness that is subordinate to or junior in
right of payment to any other Indebtedness) of such Foreign Subsidiary; (2) (i)
invested in assets or property (other than notes, bonds, obligations and
securities, except in connection with the acquisition of a Person which
immediately following such acquisition becomes a Subsidiary and a Guarantor in
a Related Business) (provided
that any such investments in assets or property of Foreign Subsidiaries may be
made only from Net Cash Proceeds


 


A-8

















 


 from an Asset Sale of assets or Equity Interests of a Foreign
Subsidiary), or (ii) used to make a Permitted Investment pursuant to clause
(d), (e), (f) or (g) of the definition thereof, in each case, which in the
reasonable good faith judgment of the Issuer’s Board of Directors will immediately
constitute or be a part of a Related Business of the Issuer or such Guarantor
or Subsidiary, as applicable (if it continues to be or becomes a Guarantor or
Subsidiary, as applicable) immediately following such transaction; or (3) any
combination of the foregoing clauses (1) and (2).  All Net Cash Proceeds from an Event of Loss shall be used as
follows: (i) first, the Issuer shall use such Net Cash Proceeds to the extent
necessary to rebuild, repair, replace or restore the assets subject to such Event
of Loss with comparable assets and (ii) then, to the extent any Net Cash
Proceeds from an Event of Loss are not used as described in the preceding
clause (i), all such remaining Net Cash Proceeds shall be reinvested or used as
provided  in the immediately preceding
clause (1), (2) or (3).


 


The accumulated Net Cash Proceeds from Asset Sales not applied as set
forth in clauses (1), (2) and (3) of the immediately preceding paragraph and
the accumulated Net Cash Proceeds from any Event of Loss not applied as set
forth in clauses (1) and (2) of the immediately preceding paragraph shall
constitute “Excess Proceeds.”
Pending the final application of any Net Cash Proceeds, the Issuer may
temporarily reduce revolving credit borrowings or otherwise invest or use for
general corporate purposes the Net Cash Proceeds in any manner that is not
prohibited by the Indenture; provided,
however, that the Issuer may not
use the Net Cash Proceeds to make Restricted Payments other than Restricted
Payments that are solely Restricted Investments or to make Permitted
Investments pursuant to clause (a) of the definition thereof. When the Excess
Proceeds equal or exceed $5,000,000, the Issuer shall offer to repurchase the
Notes, together with any other Indebtedness ranking on a parity with the Notes
and with similar provisions requiring the Issuer to make an offer to purchase
such Indebtedness with the proceeds from such Asset Sale pursuant to a cash
offer (subject only to conditions required by applicable law, if any), pro rata in proportion to the respective
principal amounts of such Indebtedness (or accreted values in the case of
Indebtedness issued with an original issue discount) and the Notes (the “Asset Sale Offer”) at a purchase price of
100% of the principal amount (or accreted value in the case of Indebtedness
issued with an original issue discount) (the “Asset
Sale Offer Price”) together with accrued and unpaid Interest (and
Liquidated Damages, if any) to the Asset Sale Purchase Date. In order to effect
the Asset Sale Offer, the Issuer shall, promptly after expiration of the
360-Day Period following the Asset Sale that produced such Exceeds Proceeds,
mail to each Holder of Notes notice of the Asset Sale Offer (the “Asset Sale
Notice”), offering to repurchase the Notes on a date (the “Asset Sale Purchase Date”) that is no
earlier than 30 days and no later than 60 days after the date that the Asset
Sale Notice is mailed, pursuant to the procedures required by the Indenture and
described in the Asset Sale Notice. On the Asset Sale Purchase Date, the Issuer
shall apply an amount equal to the Excess Proceeds (the “Asset Sale Offer
Amount”) plus an amount equal to accrued and unpaid interest (and Liquidated
Damages, if any) to the purchase of all Indebtedness properly tendered in accordance
with the provisions of this Section 7(b) (on a pro
rata basis if the Asset Sale Offer Amount is insufficient to
purchase all Indebtedness so tendered) at the Asset Sale Offer Price together
with accrued and unpaid interest (and Liquidated Damages, if any) to the Asset
Sale Purchase Date. To


 


A-9

















 


the extent that the aggregate
amount of Notes and such other pari passu Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Asset Sale Offer Amount, the Issuer may use
any remaining Net Cash Proceeds as otherwise permitted by the Indenture.
Following the consummation of each Asset Sale Offer in accordance with the
provisions of this Section 7(b), the Excess Proceeds amount shall be reset to
zero.


 


8.                                       Denominations, Transfer, Exchange.  The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000.  The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and the
Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture.  The Issuer
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, it 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 an Interest
Record Date and the corresponding Interest Payment Date.


 


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


 


10.                                 Amendment, Supplement, Modification and Waiver.  Subject to certain exceptions, the
Indenture, the Notes or the Guarantees may be amended, modified or supplemented
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes, and any existing Default or compliance with any provision of
the Indenture, the Notes or the Guarantees may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding
Notes.  Without the consent of any
Holder of a Note, the Indenture, the Notes, the Guarantees, the Intercreditor
Agreement, the Collateral Agreements and the Registration Rights Agreement may
be amended, modified or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place
of certificated Notes, to provide for the assumption of the Issuer’s or any
Guarantor’s  obligations to Holders of
the Notes in case of a merger or consolidation, or sale of all or substantially
all of its assets in accordance with the Indenture, to evidence the release any
Guarantor permitted to be released under the terms of the Indenture or to
evidence the addition of any new Guarantor, to comply with requirements of the
SEC in order to effect or maintain the qualification of the Indenture under the
TIA, to comply with the provisions of DTC or the Trustee with respect to the
provisions of the Indenture and this Notes relating to transfers and exchanges
of Notes of beneficial interests therein, or to make any change that would
provide any additional rights or benefits to the Holders or that does not
adversely affect the rights of any Holder of Notes under the Indenture, the
Notes, the Guarantees, the Intercreditor Agreement, the Collateral Agreements
or the Registration Rights Agreement.


 


11.                                 Defaults and Remedies.   Each of the following constitutes an Event
of Default: (a) the Issuer’s failure to pay any installment of Interest (or
Liquidated Damages, if any) on the Notes as and when the same becomes due and
payable and the continuance of any such failure for 30 days, (b) the
Issuer’s failure to pay all or any part


 


A-10

















 


of the principal of or premium,
if any, on the Notes when and as the same becomes due and payable at maturity,
redemption, by acceleration or otherwise, including, without limitation,
payment of the Change of Control Purchase Price or the Asset Sale Offer Price,
on Notes validly tendered and not properly withdrawn pursuant to a Change of
Control Offer or Asset Sale Offer, as applicable, (c) the Issuer’s failure or
the failure by any of the Subsidiaries to observe or perform any other covenant
or agreement contained in the Notes or the Indenture and, except for the
provisions under Sections 4.9, 4.13, 4.14 and 5.1 of the Indenture, the
continuance of such failure for a period of 60 days after written notice
is given to Issuer by the Trustee, or to Issuer and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Notes outstanding, (d) a
default occurs (after giving effect to any waivers, amendments, applicable
grace periods or any extension of any maturity date) in the Issuer’s
Indebtedness or the Indebtedness of any of the Subsidiaries with an aggregate
amount outstanding in excess of $5,000,000 (x) resulting from the failure
to pay principal of such Indebtedness at maturity, or (y) if as a result
of such default, the maturity of such Indebtedness has been accelerated prior
to its stated maturity, (e) final unsatisfied judgments not covered by
insurance aggregating in excess of $5,000,000 at any one time rendered against
the Issuer or any of the Subsidiaries and not stayed, bonded or discharged
within 60 days after their entry, (f) any Guarantee of a Guarantor ceases
to be in full force and effect or becomes unenforceable or invalid or is
declared null and void (other than in accordance with the terms of the
Guarantee and the Indenture) or any Guarantor denies or disaffirms its
Obligations under its Guarantee, in each case other than by reason of the
termination of the Indenture or the release of any such Guarantee in accordance
with the Indenture, (g) any failure to comply with any material agreement or
covenant in any of the Collateral Agreements, and such failure or breach shall
continue for a period of 60 days after written notice is given to the
Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Notes outstanding, or (h) any of
the Collateral Agreements at any time for any reason ceases to be in full force
and effect, or is declared null and void, or shall cease to be effective in all
material respects to give the Notes Collateral Agent the Liens with the
priority purported to be created thereby subject to no other Liens (in each
case, other than as expressly permitted by the Indenture and the applicable
Collateral Agreement, by reason of the termination of the Indenture or the
applicable Collateral Agreement in accordance with its terms or which was
caused by a default by the Notes Collateral Agent in respect of the Collateral
Agreements), (i) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Issuer, any of the Guarantors, or any
Significant Subsidiary in an involuntary case under any applicable Bankruptcy
Law now or hereafter in effect, (B) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Issuer,
any of the Guarantors or any Significant Subsidiary or for all or substantially
all of the property and assets of the Issuer, any of the Guarantors or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs of
the Issuer, any of the Guarantors or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period of 60
consecutive days, or (j) the Issuer, any of the Guarantors or any Significant
Subsidiary (A) commences a voluntary case under any applicable Bankruptcy Law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of or
taking


 


A-11

















 


possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Issuer, any of the Guarantors or any Significant Subsidiary or for all or
substantially all of the property and assets of the Issuer, any of the
Guarantors or any Significant Subsidiary or (C) effects any general assignment
for the benefit of creditors.


 


12.                                 Trustee Dealings with Issuer.  The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuer or their Affiliates, and may otherwise deal with the Issuer or their
Affiliates, as if it were not the Trustee.


 


13.                                 No Recourse Against Others.  No direct or indirect stockholder,
incorporator, controlling Person, employee, officer or director, as such, past,
present or future of the Issuer, the Guarantors or any successor entity shall
have any personal liability in respect of the Issuer’s obligations or the
obligations of the Guarantors under this Indenture, the Notes, the Guarantees,
the Registration Rights Agreement, the Collateral Agreements or the
Intercreditor Agreement solely by reason of his, her or its status as such
stockholder, incorporator, controlling Person, employee, officer or director,
except that this provision shall in no way limit the obligation of any
Guarantor pursuant to any Guarantee of the Notes.


 


14.                                 Authentication.  This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.


 


15.                                 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).


 


16.                                 Additional Rights of Holders of Transfer Restricted
Notes.7  In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Transfer Restricted Notes
shall have all the rights set forth in the Registration Rights Agreement dated
as of the date of the Indenture, by and among the Issuer, the Guarantors and
the Initial Purchaser (the “Registration
Rights Agreement”).


 


17.                                 CUSIP Numbers.  Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer 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, and any
such redemption shall not be affected by any defect in or omission of such
numbers.


 












7                                            To
be included only on Transfer Restricted Notes.


 


A-12

















 


18.                                 Notation of Guarantee.  As more fully set forth in the Indenture, to
the extent permitted by law, each of the Guarantors from time to time, in
accordance with Article XI of the Indenture, unconditionally and jointly and
severally guarantees, to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, that:


 


By its
execution of its Guarantee, each of the Guarantors acknowledges and agrees that
it receives substantial benefits from the Issuer and that such party is
providing its Guarantee for good and valuable consideration, including, without
limitation, such substantial benefits and services.  Accordingly, subject to the provisions of Article XI of the
Indenture, each Guarantor, jointly and severally, unconditionally guarantees on
a senior secured basis to each Holder of a Note authenticated and delivered by
the Trustee and its successors and assigns that: (i) the principal of, premium,
if any, and Interest and Liquidated Damages, if any, on the Notes shall be duly
and punctually paid in full when due, whether at maturity, by acceleration,
call for redemption, upon a Change of Control Offer, an Asset Sale Offer, or
otherwise, and interest on overdue principal, premium, if any, Liquidated
Damages, if any, and (to the extent permitted by law) interest on any Interest,
if any, on the Notes and all other obligations of the Issuer to the Holders or
the Trustee under the Notes, the Indenture, the Collateral Agreements and the
Registration Rights Agreement (including fees, expenses or other) shall be
promptly paid in full or performed, all in accordance with the terms of the
Indenture; and (ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, the same shall be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration, call for redemption, upon a Change
of Control, an Asset Sale Offer, or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 11.6 of the
Indenture.


 


When a
successor assumes all the obligations of its predecessor under the Notes and
the Indenture, the predecessor may be released from those obligations.


 


19.                                 Governing Law.  THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL LAWS AND RULES 327(B); PROVIDED THAT WITH RESPECT TO THE
CREATION, ATTACHMENT, PERFECTION OR PRIORITY OF THE SECURITY INTEREST IN ANY
REAL PROPERTY, COLLATERAL, THE GOVERNING LAW MAY BE THE LAWS OF THE
JURISDICTIONS WHERE SUCH COLLATERAL IS LOCATED WITHOUT REGARD TO THE CONFLICT
OF LAW PROVISIONS THEREOF.


 


The Issuer will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.  Requests may be made to:


 


A-13

















 


	
   

  	
  SHERIDAN ACQUISITION CORP.

  
	
   

  	
  11311 McCormick Road, S260

  
	
   

  	
  Hunt Valley, Maryland 21031

  
	
   

  	
  Attention: President

  



 


20.                                 Security. 
This Note is Guaranteed and secured by substantially all of the assets
of the Issuer and the Guarantors, subject to certain exceptions and limitations
more fully set forth in the Indenture and Collateral Agreements.


 


A-14

















 


Assignment Form


 


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


 


 


	
   

  
	
  (Insert assignee’s soc. sec. or tax I.D.
  no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and
  zip code)

  
	
   

  
	
  and irrevocably appoint 

  	
   

  
	
   

  
	
  to transfer this Note on the books of the Issuer.  The agent may substitute another to act
  for it.

  
	
   

  
	
  Date: 

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  
	
   

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

  
	
   

  
	
  Signature Guarantee*

  
	
   

  
							



 












* NOTICE:  The Signature must be
guaranteed by an Institution which is a member of one of the following
recognized signature Guarantee Programs: (i) The Securities Transfer Agent
Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program
(MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other
guarantee program acceptable to the Trustee.


 


A-15

















 


Option of Holder to Elect Purchase


 


If you want to
elect to have this Note purchased by the Issuer pursuant to Section 4.13 or
4.14 of the Indenture, check the box below:


 




	
  Section 4.13   o

  	
   

  	
  Section 4.14   o

  






 


If you want to
elect to have only part of the Note purchased by the Issuer pursuant to Section
4.13 or 4.14 of the Indenture, state the amount you elect to have purchased (in
denominations of $1,000 only, except if you have elected to have all of your
Notes purchased): 
$                   


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  	
  (Sign exactly as your name appears on the Note)

  
	
   

  
	
   

  	
  Social Security or Tax Identification No.:

  	
   

  
	
   

  
	
  Signature Guarantee*

  
	
   

  
	
   

  
							



 












* NOTICE:  The Signature must be
guaranteed by an Institution which is a member of one of the following
recognized signature Guarantee Programs: (i) The Securities Transfer Agent
Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program
(MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv)  such other guarantee program acceptable to
the Trustee.


 


A-16

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE
GLOBAL NOTE8


 


The following
exchanges of an interest in this Global Note for an interest in another Global
Notes or for a Definitive Note, or exchanges of an interest in another Global
Note or a Definitive Note for an interest in this Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  Decrease in

  Principal Amount of 

  this Global Note

  	
   

  	
  Amount of

  Increase in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Principal
  Amount of

  this Global Note

  Following Such

  Decrease or Increase

  	
   

  	
  Signature
  of

  Authorized Officer

  of

  Trustee or Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












8                                            This
should be included only if the Note is issued in global form.


 


A-17

















 


GUARANTEE


 


Each Guarantor listed below (which term “Guarantor” includes any
successors or assigns under the Indenture, dated the date hereof, among the
Issuer (defined below), the Guarantors (as defined therein) and The Bank of New
York, as trustee (the “Indenture”),
as supplemented by any supplemental indentures thereto), has executed a
supplemental indenture in substantially the form attached as Exhibit E to the
Indenture and has irrevocably and unconditionally guaranteed on a senior
secured basis the Guarantee Obligations (as defined in Section 11.1 of the
Indenture), which include (i) the due and punctual payment of the principal of,
premium, if any, and Interest and Liquidated Damages, if any, on the 101⁄4%
Senior Secured Notes due 2011 (the “Notes”) of Sheridan Acquisition Corp., a
Delaware corporation (the “Issuer”),
whether at maturity, by acceleration, call for redemption, upon a Change of
Control Offer, an Asset Sale Offer, or otherwise, the due and punctual payment
of interest on the overdue principal and premium, if any, and (to the extent
permitted by law) interest on any Interest on the Notes, and the due and
punctual performance of all other obligations of the Issuer, to the Holders or
the Trustee all in accordance with the terms set forth in Article XI of the
Indenture, and (ii) in case of any extension of time of payment or renewal of
any Notes or any such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration, call for redemption, upon
a Change of Control Offer, an Asset Sale Offer, or otherwise.


 


The obligations of each Guarantor to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
XI of the Indenture and reference is hereby made to such Indenture for the
precise terms of this Guarantee.


 


No direct or indirect stockholder, incorporator, controlling Person,
employee, officer or director, as such, past, present or future of the Issuer,
the Guarantors or any successor entity shall have any personal liability in
respect of the Issuer’s obligations or the obligations of the Guarantors under
this Indenture, the Notes, the Guarantees, the Registration Rights Agreement,
the Collateral Agreements or the Intercreditor Agreement solely by reason of
his, her or its status as such stockholder, incorporator, controlling Person,
employee, officer or director, except that this provision shall in no way limit
the obligation of any Guarantor pursuant to any Guarantee of the Notes.


 


This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its successors and assigns
until full and final payment of all of the Issuer’s obligations under the Notes
and Indenture or until released or legally defeased in accordance with the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders, and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in


 


A-18

















 


such transferee or assignee,
all subject to the terms and conditions hereof.  This is a Guarantee of payment and performance and not of
collectibility.


 


This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.


 


The obligations of each Guarantor under this Guarantee shall be limited
to the extent necessary to insure that it does not constitute a fraudulent
conveyance under applicable law.


 


THE TERMS OF ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.


 


Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.


 


[signature
page follows]


 


A-19

















 


IN WITNESS WHEREOF, each Guarantor has caused this instrument to be
duly executed.


 


	
  Dated: 

  	
   

  	
   

  
	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
					



 

















 


EXHIBIT
B


 


FORM OF CERTIFICATE OF TRANSFER


 


Sheridan Acquisition Corp.

11311 McCormick Road, S260

Hunt Valley, Maryland 21061


 


The Bank of New York

101 Barclay Street, Floor 8 West

New York, New York 10286

Attention: Corporate Trust Administration


 


Re:  101⁄4% Senior Secured Notes due 2011


 


Dear Sirs:


 


Reference is
hereby made to the Indenture, dated as of August 21, 2003 (the “Indenture”), among Sheridan Acquisition
Corp. (the “Issuer”), the
Guarantors party thereto and The Bank of New York, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.  _________, (the “Transferor”) owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $_________ in such Note[s] or interests (the “Transfer”), to _________ (the “Transferee”), as further specified in
Annex A hereto.  In connection with the
Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.                                       o                                    Check if Transferee will take
delivery of a beneficial interest in the 144A Global Note or of a Definitive
Note Pursuant to Rule 144A. 
The Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a “qualified institutional buyer” within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any State of the
United States.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.


 


2.                                       o                                    Check if Transferee will take
delivery of a beneficial interest in the Regulation S Global Note or of a
Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under


 


B-1

















 


the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser) and the interest transferred will be held immediately
thereafter through Euroclear or Clearstream. 
Upon consummation of the proposed transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
be subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.


 


3.                                       o                                    Check if Transferee will take
delivery of a beneficial interest in a Global Note or of a 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 Issuer 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 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 a form of Exhibit D to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this


 


B-2

















 


certification and provided to the Issuer, which has confirmed its
acceptability), 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 Global Note and/or 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 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 and the Securities Act.


 


(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 and the Securities Act.


 


(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.


 


[signature
page follows]


 


B-3

















 


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


 


	
   

  	
   

  
	
   

  	
  Dated: 

  	
   

  
	
  [Insert Name of Transferor]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
				



 


B-4

















 


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


 


(i)                                             o                                    144A
Global Note, or


 


(ii)                                          o                                    501
Global Note, or


 


(iii)                                       o                                    Reg
S Global Note; 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, or


 


(ii)                                          o                                    501
Global Note, or


 


(iii)                                       o                                    Reg
S Global Note,


 


(iv)                                      o                                    Unrestricted
Global Note; or


 


(b)                                                         o                                    a
Restricted Definitive Note; or


 


(c)                                                          o                                    an
Unrestricted Definitive Note,


 


in accordance with the terms of the Indenture.


 


B-5

















 


EXHIBIT
C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Sheridan Acquisition Corp.

11311 McCormick Road, S260

Hunt Valley, Maryland 21061


 


The Bank of New York

101 Barclay Street, Floor 8 West

New York, New York 10286

Attention: Corporate Trust Administration


 


Re:  101⁄4% Senior Secured Notes due 2011


 


Dear Sirs:


 


Reference is
hereby made to the Indenture, dated as of August 21, 2003 (the “Indenture”), between Sheridan Acquisition
Corp. (the “Issuer”), the
Guarantors party thereto and The Bank of New York, as trustee.  Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.


 


_________, (the “Owner”)
owns and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $_________ in such Note[s] or interests (the
“Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.                                       Exchange of Restricted Definitive
Notes or Beneficial Interests in a Restricted Global Note for Unrestricted
Definitive Notes or Beneficial Interests in an Unrestricted Global Note.


 


(a)                                  o                                    Check if Exchange is from beneficial
interest in a Restricted Global Note to beneficial interest in an Unrestricted
Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the United States Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global Note
is being acquired in compliance with any applicable blue sky securities laws of
any State of the United States.


 


(b)                                 o                                    Check if Exchange is from beneficial
interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for an


 


C-1

















 


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 Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any State of the United States.


 


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


 


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


 


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


 


(a)                                  o                                    Check if Exchange is from beneficial
interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
(i) the Restricted Definitive Note 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 Restricted Definitive Note
issued will continue to be subject to the


 


C-2

















 


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  Reg S Global Note, or o  501
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.


 


[signature
page follows]


 


C-3

















 


 


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


 


	
   

  	
   

  
	
  [Insert Name of Owner]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Title:

  
	
   

  
	
   

  
	
  Dated:

  	
   

  	
   

  
					



 


C-4

















 


EXHIBIT
D


 


FORM OF CERTIFICATE FROM ACQUIRING

INSTITUTIONAL ACCREDITED INVESTOR


 


Sheridan Acquisition Corp.

11311 McCormick Road, S260

Hunt Valley, Maryland 21061


 


The Bank of New York

101 Barclay Street, Floor 8 West

New York, New York 10286

Attention: Corporate Trust Administration


 


 


Re:  101⁄4% Senior Secured Notes due 2011


 


Dear Sirs:


 


Reference is
hereby made to the Indenture, dated as of August 21, 2003 (the “Indenture”), between Sheridan Acquisition
Corp. (the “Issuer”), the
Guarantors party thereto and The Bank of New York, 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) a
beneficial interest in a Global Note, or (b) a Definitive Note, we confirm
that:


 


1.                                       We understand
and acknowledge that the Notes have not been registered under the Securities
Act of 1933, as amended (the “Securities Act”),
or any other applicable securities law, and may not be offered, sold or
otherwise transferred except in compliance with the registration requirements
of the Securities Act or any other applicable securities law or pursuant to an
exemption therefrom and in each case in compliance with the conditions for
transfer set forth below.


 


2.                                       We are an
institutional “accredited investor” under the Securities Act within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act (“Rule 501”) or, if the Notes are to be
purchased for one or more accounts (“investor
accounts”) for which we are acting as fiduciary or agent, each such
investor account is an institutional “accredited investor” on a like
basis.  We have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of purchasing the Notes and invest in or purchase securities
similar to the Notes in the normal course of our business.  We and any accounts for which we are acting
are each aware that we may be required, and are each able, to bear the economic
risk of our or its investment in the Notes for an indefinite period of time.


 


D-1

















 


3.                                       We are
purchasing the Notes for our own account, or for one or more investor accounts
for which we are acting as a fiduciary or agent, in each case for investment,
and not with a view to, or for offer or sale in connection with, any distribution
thereof in violation of the Securities Act, subject to any requirement of law
that the disposition of our property or the property of such investor account
or accounts be at all times within our or their control and subject to our or
their ability to resell such Notes pursuant to Rule 144A under the Securities
Act (“Rule 144A”) or any
exemption from registration available under the Securities Act.


 


4.                                       We agree on our
own behalf and on behalf of any investor account for which we are purchasing
Notes to offer, sell or otherwise transfer such Notes prior to the date which
is two years (or such other period that may hereafter be provided under Rule
144(k) under the Securities Act as permitting resales of restricted securities
by non-affiliates without restriction) after the later of the date of original
issue and the last date on which the Issuer or any affiliate of the Issuer was
the owner of such Notes (or any predecessor thereof) (the “Resale Restriction Termination Date”) only
(a) to the Issuer, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) for so long as the Notes are
eligible for resale pursuant to Rule 144A to a person the we reasonably believe
is a “qualified institutional buyer” as defined in Rule 144A (a “QIB”) that purchases for its own account
or for the account of a QIB and to whom notice is given that the transfer is
being made in reliance on Rule 144A, (d) outside the United States in an
offshore transaction in accordance with Rule 904 under the Securities Act, (e)
to an institutional “accredited investor” within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 that is purchasing the Notes for its own
account or for the account of such an institutional “accredited investor” for
investment purposes only, and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act, or (f)
pursuant to any other available exemption from the registration requirements of
the Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such investor
account or accounts be at all times within our, its or their control and in
each case in compliance with any applicable securities laws of any U.S. state
or any other applicable jurisdiction. 
The foregoing restrictions on resale will not apply subsequent to the
Resale Restriction Termination Date.  If
any resale or other transfer of the Notes is proposed to be made pursuant to
clause (e) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in the form
of this letter to the Issuer and the Trustee, which shall provide, among other
things, that the transferee is an institutional “accredited investor” within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 and that it is
acquiring such Notes for investment purposes and not for distribution in
violation of the Securities Act.  Each
purchaser acknowledges that the Issuer and the Trustee reserve the right prior
to the offer, sale or other transfer made prior to the Resale Termination Date
to require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Issuer and the Trustee.


 


D-2

















 


5.                                       We understand
that the Notes will be delivered in registered form only and that the
certificates delivered to us in respect of the Notes will contain a legend
substantially to the following effect:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE
DATE WHICH IS TWO YEARS (OR SUCH OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED
UNDER RULE 144(k) UNDER THE SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED
SECURITIES BY NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO EITHER
OF THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON
IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THIS


 


D-3

















 


SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE
AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF ANY U.S.
STATE OR ANY OTHER APPLICABLE JURISDICTION.


 


6.                                       If we are
acquiring any of the Notes as a fiduciary or agent for one or more investor
accounts, we represent that we have sole investment discretion with respect to
each such account and we have full power to make the foregoing acknowledgments,
representations, warranties and agreements on behalf of each such investor
account.


 


[signature
page follows]


 


D-4

















 


You and the
Issuer 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.


 


	
   

  	
   

  	
  Dated:
                           ,
                 

  
	
  [Insert Name of Accredited Investor]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
				



 


D-5

















 


EXHIBIT
E

FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT

GUARANTORS


 


Supplemental
Indenture (this “Supplemental Indenture”),
dated as of ____, among ______________ (the “Guaranteeing
Subsidiary”), a subsidiary of 
Sheridan Acquisition Corp. (or its permitted successor), a Delaware
corporation (the “Issuer”), and
The Bank of New York, as trustee under the Indenture referred to below (the “Trustee”).


 


W  I  T  N
E  S  S  E  T  H


 


WHEREAS, the
Issuer has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of August 21, 2003,
providing for the issuance of 101⁄4% Senior Secured Notes due 2011 (the “Notes”);


 


WHEREAS,
Section 11.4 of the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture and a Guarantee pursuant to which any newly-acquired or created
Guarantor shall unconditionally guarantee all of the Issuer’s obligations under
the Notes and the Indenture on the terms and conditions set forth herein and in
such Guarantee; and


 


WHEREAS,
pursuant to Section 9.3 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.                                       Joinder to Indenture.  Each of the parties hereto hereby agrees to
become bound by the terms, conditions and other provisions of the Indenture
with all attendant rights, duties and obligations stated therein, with the same
force and effect as if originally named as a Guarantor therein and as if such
party executed the Indenture on the date thereof.


 


3.                                       Agreement to Guarantee.  The Guaranteeing Subsidiary irrevocably and
unconditionally guarantees the Guarantee Obligations, which include (i) the due
and punctual payment of the principal of, premium, if any, and Interest and
Liquidated Damages, if any, on the Notes, whether at maturity, by acceleration,
call for redemption, upon a Change of Control Offer, an Asset Sale Offer, or
otherwise, the due and punctual payment of interest on the overdue principal
and premium, if any, and (to the extent permitted by law) interest on any
Interest on the Notes, and the due and punctual performance of all other
obligations of the Issuer, to the Holders or the Trustee all in accordance with
the terms set forth in Article XI of the Indenture, and (ii) in case of any


 


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extension of time of payment or
renewal of any Notes or any such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration, call for
redemption, upon a Change of Control Offer, an Asset Sale Offer, or otherwise.


 


The
obligations of Guaranteeing Subsidiary to the Holders and to the Trustee
pursuant to this Supplemental Indenture and the Indenture are expressly set
forth in Article XI of the Indenture and reference is hereby made to such
Indenture for the precise terms of the Guarantee.


 


No direct or
indirect stockholder, incorporator, controlling Person, employee, officer or
director, as such, past, present or future of the Issuer, the Guarantors or any
successor entity shall have any personal liability in respect of the Issuer’s
obligations or the obligations of the Guarantors under the Indenture, the
Notes, the Guarantees, the Registration Rights Agreement, the Collateral Agreements
or the Intercreditor Agreement solely by reason of his, her or its status as
such stockholder, incorporator, controlling Person, employee, officer or
director, except that provision shall in no way limit the obligation of any
Guarantor pursuant to any Guarantee of the Notes.


 


This is a
continuing Guarantee and shall remain in full force and effect and shall be
binding upon each Guarantor and its successors and assigns until full and final
payment of all of the Issuer’s obligations under the Notes and Indenture or
until released or legally defeased in accordance with the Indenture and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders, and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.  This is a Guarantee of payment and
performance and not of collectibility.


 


The
obligations of the Guaranteeing Subsidiary under its Subsidiary Guarantee shall
be limited to the extent necessary to insure that it does not constitute a
fraudulent conveyance under applicable law.


 


THE TERMS OF
ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.


 


4.                                       NEW YORK LAW TO GOVERN.  THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B);
PROVIDED, THAT WITH RESPECT TO THE CREATION, ATTACHMENT, PERFECTION, PRIORITY,
ENFORCEMENT OF AND REMEDIES RELATING TO THE SECURITY INTEREST IN ANY REAL
PROPERTY COLLATERAL, THE GOVERNING LAW MAY BE THE LAWS OF THE


 


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JURISDICTIONS WHERE SUCH
COLLATERAL IS LOCATED WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.


 


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.


 


[signature
page follows]


 


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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.


 


	
   

  	
  GUARANTEEING SUBSIDIARY:

  
	
   

  	
  NAME:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  THE TRUSTEE:

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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EXHIBIT
F


 


FORM OF INTERCREDITOR AGREEMENT


 


[attached]


 


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