Exhibit 4.1


 


TRIUMPH GROUP, INC.

as Issuer


 


and


 


THE GUARANTORS PARTY HERETO


 






 


8%  SENIOR SUBORDINATED NOTES
DUE 2017


 






 


INDENTURE


 


DATED AS OF November 16,
2009


 






 


U.S. BANK NATIONAL
ASSOCIATION


as Trustee


 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust
  Indenture

  Act Section

  	
   

  	
  Indenture

  Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.3;
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
  12.3

  
	
  (c)

  	
   

  	
  12.3

  
	
  313(a)

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
  7.6

  
	
  (b)(2)

  	
   

  	
  7.6;
  7.7

  
	
  (c)

  	
   

  	
  7.6;
  12.2

  
	
  (d)

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
  4.3;
  12.5

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  12.4

  
	
  (c)(2)

  	
   

  	
  12.4

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  12.5

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.1

  
	
  (b)

  	
   

  	
  1.1,
  7.5; 12.2

  
	
  (c)

  	
   

  	
  7.1

  
	
  (d)

  	
   

  	
  7.1

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last
  sentence)

  	
   

  	
  2.9

  
	
  (a)(1)(A)

  	
   

  	
  6.5

  
	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
  2.13

  
	
  317(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.9

  



 


i

















 


	
  (b)

  	
   

  	
  2.3

  
	
  318(a)

  	
   

  	
  12.1

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  12.1

  



 






N.A.
means not applicable.


 


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


 


ii

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
  1

  
	
  SECTION 1.2

  	
  Other
  Definitions

  	
  31

  
	
  SECTION 1.3

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  31

  
	
  SECTION 1.4

  	
  Rules of
  Construction

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  Form and
  Dating

  	
  32

  
	
  SECTION 2.2

  	
  Execution
  and Authentication

  	
  34

  
	
  SECTION 2.3

  	
  Registrar;
  Paying Agent

  	
  35

  
	
  SECTION 2.4

  	
  Paying
  Agent to Hold Money in Trust

  	
  35

  
	
  SECTION 2.5

  	
  Holder
  Lists

  	
  36

  
	
  SECTION 2.6

  	
  Book-Entry
  Provisions for Global Securities

  	
  36

  
	
  SECTION 2.7

  	
  Replacement
  Notes

  	
  40

  
	
  SECTION 2.8

  	
  Outstanding
  Notes

  	
  40

  
	
  SECTION 2.9

  	
  Treasury
  Notes

  	
  41

  
	
  SECTION 2.10

  	
  Temporary
  Notes

  	
  41

  
	
  SECTION 2.11

  	
  Cancellation

  	
  41

  
	
  SECTION 2.12

  	
  Defaulted
  Interest

  	
  42

  
	
  SECTION 2.13

  	
  Record
  Date

  	
  42

  
	
  SECTION 2.14

  	
  Computation
  of Interest

  	
  42

  
	
  SECTION 2.15

  	
  CUSIP
  Number

  	
  42

  
	
  SECTION 2.16

  	
  Special
  Transfer Provisions

  	
  42

  
	
  SECTION 2.17

  	
  Issuance
  of Additional Notes

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Notices
  to Trustee

  	
  45

  
	
  SECTION 3.2

  	
  Selection
  of Notes to Be Redeemed

  	
  45

  
	
  SECTION 3.3

  	
  Notice
  of Redemption

  	
  46

  
	
  SECTION 3.4

  	
  Effect
  of Notice of Redemption

  	
  47

  
	
  SECTION 3.5

  	
  Deposit
  of Redemption of Purchase Price

  	
  47

  
	
  SECTION 3.6

  	
  Notes
  Redeemed in Part

  	
  47

  



 


i

















 


	
  SECTION 3.7

  	
  Optional
  Redemption

  	
  48

  
	
  SECTION 3.8

  	
  Mandatory
  Redemption

  	
  48

  
	
  SECTION 3.9

  	
  Offer
  to Purchase

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Payment
  of Notes

  	
  50

  
	
  SECTION 4.2

  	
  Maintenance
  of Office or Agency

  	
  50

  
	
  SECTION 4.3

  	
  Provision
  of Financial Information

  	
  51

  
	
  SECTION 4.4

  	
  Compliance
  Certificate

  	
  52

  
	
  SECTION 4.5

  	
  Taxes

  	
  52

  
	
  SECTION 4.6

  	
  Stay,
  Extension and Usury Laws

  	
  52

  
	
  SECTION 4.7

  	
  Limitation
  on Restricted Payments

  	
  53

  
	
  SECTION 4.8

  	
  Limitation
  on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
  56

  
	
  SECTION 4.9

  	
  Limitation
  on Incurrence of Debt

  	
  58

  
	
  SECTION 4.10

  	
  Limitation
  on Asset Sales

  	
  59

  
	
  SECTION 4.11

  	
  Limitation
  on Transactions with Affiliates

  	
  60

  
	
  SECTION 4.12

  	
  Limitation
  on Liens

  	
  62

  
	
  SECTION 4.13

  	
  Limitation
  on Sale and Leaseback Transactions

  	
  62

  
	
  SECTION 4.14

  	
  Offer
  to Purchase upon Change of Control

  	
  62

  
	
  SECTION 4.15

  	
  Corporate
  Existence

  	
  63

  
	
  SECTION 4.16

  	
  Business
  Activities

  	
  64

  
	
  SECTION 4.17

  	
  Additional
  Note Guarantees

  	
  64

  
	
  SECTION 4.18

  	
  Limitation
  on Creation of Unrestricted Subsidiaries

  	
  64

  
	
  SECTION 4.19

  	
  Maintenance
  of Properties; Insurance; Books and Records

  	
  65

  
	
  SECTION 4.20

  	
  Limitation
  on Senior Subordinated Debt

  	
  65

  
	
  SECTION 4.21

  	
  Payments
  for Consent

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Consolidation,
  Merger, Conveyance, Transfer or Lease

  	
  66

  
	
  SECTION 5.2

  	
  Successor
  Person Substituted

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  Events
  of Default

  	
  68

  
	
  SECTION 6.2

  	
  Acceleration

  	
  69

  
	
  SECTION 6.3

  	
  Other
  Remedies

  	
  70

  
	
  SECTION 6.4

  	
  Waiver
  of Past Defaults

  	
  71

  



 


ii

















 


	
  SECTION 6.5

  	
  Control
  by Majority

  	
  71

  
	
  SECTION 6.6

  	
  Limitation
  on Suits

  	
  71

  
	
  SECTION 6.7

  	
  Rights
  of Holders of Notes to Receive Payment

  	
  72

  
	
  SECTION 6.8

  	
  Collection
  Suit by Trustee

  	
  72

  
	
  SECTION 6.9

  	
  Trustee
  May File Proofs of Claim

  	
  72

  
	
  SECTION 6.10

  	
  Priorities

  	
  72

  
	
  SECTION 6.11

  	
  Undertaking
  for Costs

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Duties
  of Trustee

  	
  73

  
	
  SECTION 7.2

  	
  Rights
  of Trustee

  	
  75

  
	
  SECTION 7.3

  	
  Individual
  Rights of Trustee

  	
  76

  
	
  SECTION 7.4

  	
  Trustee’s
  Disclaimer

  	
  76

  
	
  SECTION 7.5

  	
  Notice
  of Defaults

  	
  76

  
	
  SECTION 7.6

  	
  Reports
  by Trustee to Holders of the Notes

  	
  76

  
	
  SECTION 7.7

  	
  Compensation
  and Indemnity

  	
  77

  
	
  SECTION 7.8

  	
  Replacement
  of Trustee

  	
  78

  
	
  SECTION 7.9

  	
  Successor
  Trustee by Merger, Etc.

  	
  79

  
	
  SECTION 7.10

  	
  Eligibility;
  Disqualification

  	
  79

  
	
  SECTION 7.11

  	
  Preferential
  Collection of Claims Against the Issuer

  	
  79

  
	
  SECTION 7.12

  	
  Trustee’s
  Application for Instructions from the Issuer

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Option
  to Effect Defeasance or Covenant Defeasance

  	
  80

  
	
  SECTION 8.2

  	
  Defeasance
  and Discharge

  	
  80

  
	
  SECTION 8.3

  	
  Covenant
  Defeasance

  	
  81

  
	
  SECTION 8.4

  	
  Conditions
  to Defeasance or Covenant Defeasance

  	
  82

  
	
  SECTION 8.5

  	
  Deposited
  Money and Government Securities to Be Held in Trust; Other Miscellaneous
  Provisions

  	
  84

  
	
  SECTION 8.6

  	
  Repayment
  to Issuer

  	
  84

  
	
  SECTION 8.7

  	
  Reinstatement

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  Without
  Consent of Holders of the Notes

  	
  85

  
	
  SECTION 9.2

  	
  With
  Consent of Holders of Notes

  	
  86

  
	
  SECTION 9.3

  	
  Compliance
  with Trust Indenture Act

  	
  87

  
	
  SECTION 9.4

  	
  Revocation
  and Effect of Consents

  	
  87

  



 


iii

















 


	
  SECTION 9.5

  	
  Notation
  on or Exchange of Notes

  	
  88

  
	
  SECTION 9.6

  	
  Trustee
  to Sign Amendments, Etc.

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  
	
  NOTE GUARANTEES

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  Note
  Guarantees

  	
  88

  
	
  SECTION 10.2

  	
  Execution
  and Delivery of Note Guarantee

  	
  90

  
	
  SECTION 10.3

  	
  Severability

  	
  90

  
	
  SECTION 10.4

  	
  Limitation
  of Guarantors’ Liability

  	
  90

  
	
  SECTION 10.5

  	
  Guarantors
  May Consolidate, Etc., on Certain Terms

  	
  91

  
	
  SECTION 10.6

  	
  Releases
  Following Sale of Assets

  	
  91

  
	
  SECTION 10.7

  	
  Release
  of a Guarantor

  	
  92

  
	
  SECTION 10.8

  	
  Benefits
  Acknowledged

  	
  92

  
	
  SECTION 10.9

  	
  Future
  Guarantors

  	
  92

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  
	
  SUBORDINATION

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  Agreement
  to Subordinate

  	
  93

  
	
  SECTION 11.2

  	
  Liquidation;
  Dissolution; Bankruptcy

  	
  93

  
	
  SECTION 11.3

  	
  Default
  on Designated Senior Debt

  	
  93

  
	
  SECTION 11.4

  	
  Acceleration
  of Securities

  	
  95

  
	
  SECTION 11.5

  	
  When
  Distribution Must Be Paid Over

  	
  95

  
	
  SECTION 11.6

  	
  Notice
  by the Company

  	
  95

  
	
  SECTION 11.7

  	
  Subrogation

  	
  96

  
	
  SECTION 11.8

  	
  Relative
  Rights

  	
  96

  
	
  SECTION 11.9

  	
  Subordination
  May Not Be Impaired by the Company

  	
  96

  
	
  SECTION 11.10

  	
  Distribution
  or Notice to Representative

  	
  96

  
	
  SECTION 11.11

  	
  Rights
  of Trustee and Paying Agent

  	
  97

  
	
  SECTION 11.12

  	
  Authorization
  to Effect Subordination

  	
  97

  
	
  SECTION 11.13

  	
  Trustee
  Not Fiduciary for Holders of Senior Debt

  	
  97

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  SECTION 12.1

  	
  Trust
  Indenture Act Controls

  	
  98

  
	
  SECTION 12.2

  	
  Notices

  	
  98

  
	
  SECTION 12.3

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
  99

  
	
  SECTION 12.4

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  99

  
	
  SECTION 12.5

  	
  Statements
  Required in Certificate or Opinion

  	
  99

  
	
  SECTION 12.6

  	
  Rules by
  Trustee and Agents

  	
  100

  



 


iv

















 


	
  SECTION 12.7

  	
  No
  Personal Liability of Directors, Officers, Employees, Stockholders and the
  Trustee

  	
  100

  
	
  SECTION 12.8

  	
  Governing
  Law

  	
  100

  
	
  SECTION 12.9

  	
  No
  Adverse Interpretation of Other Agreements

  	
  101

  
	
  SECTION 12.10

  	
  Successors

  	
  101

  
	
  SECTION 12.11

  	
  Severability

  	
  101

  
	
  SECTION 12.12

  	
  Counterpart
  Originals

  	
  101

  
	
  SECTION 12.13

  	
  Table
  of Contents, Headings, Etc.

  	
  101

  
	
  SECTION 12.14

  	
  Qualification of Indenture

  	
  101

  



 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  FORM OF
  8% SENIOR SUBORDINATED NOTE

  
	
  Exhibit B

  	
   

  	
  FORM OF
  NOTATIONAL GUARANTEE

  
	
  Exhibit C

  	
   

  	
  FORM OF
  CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO RULE
  144A

  
	
  Exhibit D

  	
   

  	
  FORM OF CERTIFICATE
  TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S

  



 


v

















 


This Indenture, dated as of November 16, 2009,
is by and among Triumph Group, Inc., a Delaware corporation (the “Company” or the “Issuer”), the
Guarantors (as defined herein), and U.S. Bank National Association, as trustee
(the “Trustee”).


 


Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the holders of (i) the
Issuer’s 8% Senior Subordinated Notes due 2017 issued on the date hereof that
contain the restrictive legend in Exhibit A (the “Initial Notes”), (ii) Exchange Notes issued in exchange
for the Initial Notes pursuant to the Registration Rights Agreement or pursuant
to an effective registration statement under the Securities Act without the restrictive
legends in Exhibit A (the “Exchange Notes”)
and (iii) Additional Notes issued from time to time as either Initial
Notes or Exchange Notes (together with the Initial Notes and any Exchange
Notes, the “Notes”).


 


ARTICLE I


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


SECTION 1.1                                                  Definitions.


 


“Acquired Debt”  means Debt (1) of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or (2) assumed in connection with the acquisition of assets
from such Person.  Acquired Debt shall be
deemed to have been Incurred, with respect to clause (1) of the
preceding sentence, on the date such Person becomes a Restricted Subsidiary
and, with respect to clause (2) of the preceding sentence, on the
date of consummation of such acquisition of assets.


 


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


 


“Additional Notes”
means Notes (other than the Initial Notes) issued pursuant to Article II
hereof and otherwise in compliance with the provisions of this Indenture.


 


“Affiliate”
of any Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such
Person.  For the purposes of this
definition, “control” when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and
the terms “controlling” and “controlled” have meanings that correspond to the
foregoing.  For purposes of Section 4.11,
any Person directly or indirectly owning 15% or more of the outstanding Capital
Interests of the Company will be deemed an Affiliate.


 


“Agent”
means any Registrar, Paying Agent (so long as Trustee serves in such capacity)
or co-registrar.


 

















 


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


 


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


 


(2)                                  the excess of:


 


(a)                                  the present value at such
redemption date of (i) the Redemption Price of the Note at November 15,
2013 (such Redemption Price being set forth in the table appearing in Section 3.7(ii))
plus (ii) all required interest payments due on the Note through November 15,
2013 (excluding accrued but unpaid interest), computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50 basis points;
over


 


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


 


“Asset Acquisition”
means:


 


(a)                                  an Investment
by the Company or any Restricted Subsidiary in any other Person pursuant to
which such Person shall become a Restricted Subsidiary, or shall be merged with
or into the Company or any Restricted Subsidiary; or


 


(b)                                 the acquisition
by the Company or any Restricted Subsidiary of the assets of any Person which
constitute all or substantially all of the assets of such Person, any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business and consistent with past
practices.


 


“Asset Sale”  means any transfer, conveyance, sale, lease or other
disposition (including, without limitation, dispositions pursuant to any
consolidation or merger) by the Company or any of its Restricted Subsidiaries
to any Person (other than to the Company or one or more of its Restricted
Subsidiaries) in any single transaction or series of transactions of:


 


(i)                                     Capital
Interests in another Person (other than directors’ qualifying shares or shares
or interests required to be held by foreign nationals pursuant to local law);
or


 


(ii)                                  any other
property or assets (other than in the normal course of business, including any
sale or other disposition of obsolete or permanently retired equipment);


 


provided,
however,  that the term “Asset
Sale” shall exclude:


 


(a)                                  any asset
disposition permitted by Section 5.1 that constitutes a disposition of all
or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole;


 


(b)                                 any transfer,
conveyance, sale, lease or other disposition of property or assets, the gross
proceeds of which (exclusive of indemnities) do not exceed in any one or
related series of transactions $5.0 million;


 


2
















 


(c)                                  sales or other
dispositions of cash or Eligible Cash Equivalents;


 


(d)                                 sales of
interests in Unrestricted Subsidiaries;


 


(e)                                  the sale and
leaseback of any assets within 90 days of the acquisition thereof;


 


(f)                                    the disposition
of assets that, in the good faith judgment of the Company, are no longer used
or useful in the business of such entity;


 


(g)                                 a Restricted
Payment or Permitted Investment that is otherwise permitted by this Indenture;


 


(h)                                 any trade-in of
equipment in exchange for other equipment; provided that
in the good faith judgment of the Company, the Company or such Restricted
Subsidiary receives equipment having a fair market value equal to or greater
than the equipment being traded in;


 


(i)                                     the concurrent
purchase and sale or exchange of Related Business Assets or a combination of
Related Business Assets between the Company or any of its Restricted
Subsidiaries and another Person to the extent that the Related Business Assets
received by the Company or its Restricted Subsidiaries are of equivalent or
better market value than the Related Business Assets transferred;


 


(j)                                     the creation of
a Lien (but not the sale or other disposition of the property subject to such
Lien);


 


(k)                                  leases or
subleases in the ordinary course of business to third persons not interfering
in any material respect with the business of the Company or any of its Restricted
Subsidiaries and otherwise in accordance with the provisions of this Indenture;


 


(l)                                     any disposition
by a Subsidiary to the Company or by the Company or a Subsidiary to a Restricted
Subsidiary;


 


(m)                               dispositions of
accounts receivable in connection with the collection or compromise thereof in
the ordinary course of business and consistent with past practice, including,
without limitation, those under the GE/Citi Sales Arrangements or similar arrangements;


 


(n)                                 licensing or
sublicensing of intellectual property or other general intangibles in accordance
with industry practice in the ordinary course of business;


 


(o)                                 any transfer of
accounts receivable, or a fractional undivided interest therein, by a Receivable
Subsidiary in a Qualified Receivables Transaction;


 


(p)                                 sales of
accounts receivable to a Receivable Subsidiary pursuant to a Qualified Receivables
Transaction for the Fair Market Value thereof including cash in an 


 


3

















 


amount at least equal to 75%
of the Fair Market Value thereof (for the purposes of this clause (p), Purchase
Money Notes will be deemed to be cash);


 


(q)                                 foreclosures on
assets to the extent it would not otherwise result in a Default or Event of Default;
or


 


(r)                                    sales or
transfers of equipment under the Leasing Facility.


 


For purposes of this definition, any series of
related transactions that, if effected as a single transaction, would constitute
an Asset Sale shall be deemed to be a single Asset Sale effected when the last
such transaction which is a part thereof is effected.


 


“Asset Sale Offer”
means an Offer to Purchase required to be made by the Company pursuant to Section 4.10
to all Holders.


 


“Attributable
Debt” in respect of a Sale and Leaseback Transaction means, at the
time of determination, the present value (discounted at the rate of interest
implicit in such transaction) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been or
may be extended).


 


“Average Life”
means, as of any date of determination, with respect to any Debt, the quotient
obtained by dividing (i) the sum of the products of (x) the number of
years from the date of determination to the dates of each successive scheduled
principal payment (including any sinking fund or mandatory redemption payment
requirements) of such Debt multiplied by (y) the amount of such principal
payment by (ii) the sum of all such principal payments.


 


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


 


“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act, except that in calculating the beneficial ownership of
any particular “person,” as such term is used in Section 13(d)(3) of
the Exchange Act, such “person” shall be deemed to have beneficial ownership of
all securities that such “person” has the right to acquire, whether such right
is currently exercisable or is exercisable only upon the occurrence of a subsequent
condition.


 


“Board of
Directors” means (i) with respect to the Company or any Restricted
Subsidiary, its board of directors or any duly authorized committee thereof; (ii) with
respect to a corporation, the board of directors of such corporation or any
duly authorized committee thereof; and (iii) with respect to any other
entity, the board of directors or similar body of the general partner or
managers of such entity or any duly authorized committee thereof.


 


“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or any Restricted Subsidiary to have been duly adopted
by the Board of Directors, unless the context specifically requires that such
resolution be adopted by a majority of the Disinterested Directors, in which
case by a majority of such Disinterested Directors, 


 


4

















 


and to be in full force and
effect on the date of such certification and delivered to the Trustee.


 


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


 


“Capital
Interests” in any Person means any and all shares, interests
(including Preferred Interests), participations or other equivalents in the
equity interest (however designated) in such Person and any rights (other than
Debt securities convertible into an equity interest), warrants or options to
acquire an equity interest in such Person.


 


“Capital Lease
Obligations” means any obligation under a lease that is required to
be capitalized for financial reporting purposes in accordance with GAAP; and
the amount of Debt represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with GAAP; and the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may
be terminated by the lessee without payment of a penalty.


 


“Certificated
Notes” means Notes that are in the form of Exhibit A
attached hereto, other than the Global Notes.


 


“Change of Control”
means:


 


(1)                                  the Company
becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by
any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), that is or becomes the ultimate “beneficial
owner” (as such term is used in Rules 13d-3 and 13d-5 under the Exchange
Act, except that for purposes of this clause (1) such person or group
shall be deemed to have “beneficial ownership” of all shares that any such
person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50% of the Voting Interests in the Company,


 


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


 


(3)                                  the Company
sells, conveys, transfers or leases (either in one transaction or a series of
related transactions) all or substantially all of its assets to, or merges or
consolidates with or into, a Person other than a Restricted Subsidiary of the
Company.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated thereunder.


 


5

















 


“Commission”
means the Securities and Exchange Commission and any successor thereto.


 


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


 


“Company”
or “Issuer” has the meaning set forth in the
preamble hereto until a successor replaces it in accordance with the applicable
provisions of this Indenture and, thereafter, means the successor thereto.


 


“Consolidated
Cash Flow Available for Fixed Charges” means, with respect to any Person
for any period:


 


(i)                                 the sum of,
without duplication, the amounts for such period, taken as a single accounting
period, of:


 


(a)                                  Consolidated Net Income;


 


(b)                                 Consolidated Non-cash
Charges;


 


(c)                                  Consolidated Interest
Expense to the extent the same was deducted in computing Consolidated Net
Income;


 


(d)                                 Consolidated Income Tax
Expense; and


 


(e)                                  any expenses or charges
related to any equity offering, Permitted Investment, recapitalization or Debt
Incurrence permitted to be made under this Indenture (whether or not
successful) or related to this offering of the Notes; less


 


(ii)                                   the amount of extraordinary,
non-recurring or unusual gains.


 


“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person, the
ratio of the aggregate amount of Consolidated Cash Flow Available for Fixed
Charges of such Person for the four full fiscal quarters, treated as one
period, for which financial information in respect thereof is available
immediately preceding the date of the transaction (the “Transaction Date”) giving rise to the need
to calculate the Consolidated Fixed Charge Coverage Ratio (such four full
fiscal quarter period being referred to herein as the “Four-Quarter Period”) to the aggregate
amount of Consolidated Fixed Charges of such Person for the Four-Quarter
Period.  In addition to and without
limitation of the foregoing, for purposes of this definition, “Consolidated
Cash Flow Available for Fixed Charges” and “Consolidated Fixed Charges” shall
be calculated after giving effect on a pro forma basis for the period of
such calculation, to any Asset Sales or other dispositions or Asset
Acquisitions, investments, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP) and designations of any Restricted Subsidiary
to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a
Restricted Subsidiary occurring during the Four-Quarter Period or any time subsequent
to the last day of the Four-


 


6

















 


Quarter Period and on or
prior to the Transaction Date, as if such Asset Sale or other disposition or
Asset Acquisition (including the incurrence or assumption of any such Acquired
Debt), investment, merger, consolidation, disposed operation or designation
occurred on the first day of the Four-Quarter Period.  For purposes of this definition, pro forma
calculations shall be made in accordance with Article 11 of Regulation S-X
promulgated under the Securities Act.


 


Furthermore, in calculating “Consolidated Fixed
Charges” for purposes of determining the denominator (but not the numerator) of
this “Consolidated Fixed Charge Coverage Ratio”:


 


(a)                                 interest on
outstanding Debt determined on a fluctuating basis as of the Transaction Date
and which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such Debt in
effect on the Transaction Date; and


 


(b)                                 if interest on
any Debt actually incurred on the Transaction Date may optionally be determined
at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four-Quarter Period.


 


If such Person or any of its Restricted Subsidiaries
directly or indirectly Guarantees Debt of a third Person, the above clause
shall give effect to the incurrence of such Guaranteed Debt as if such Person
or such Subsidiary had directly incurred or otherwise assumed such Guaranteed
Debt.


 


“Consolidated
Fixed Charges” means, with respect to any Person for any period, the
sum of, without duplication, the amounts for such period of:


 


(a)                                 Consolidated
Interest Expense; and


 


(b)                                 the product of (i) all
dividends and other distributions paid or accrued during such period in respect
of Redeemable Capital Interests of such Person and its Restricted Subsidiaries
(other than dividends paid in Qualified Capital Interests), times (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal.


 


“Consolidated
Income Tax Expense” means, with respect to any Person for any
period, the provision for federal, state, local and foreign income taxes of
such Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP paid or accrued during such period,
including any penalties and interest related to such taxes or arising from any
tax examinations, to the extent the same were deducted in computing Consolidated
Net Income.


 


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


 


7

















 


(i)                                the total
interest expense of such Person and its Restricted Subsidiaries for such period
as determined on a consolidated basis in accordance with GAAP, including,
without limitation:


 


(a)                                  any amortization of Debt
discount;


 


(b)                                 the net cost under any
Hedging Obligation or Swap Contract in respect of interest rate protection
(including any amortization of discounts);


 


(c)                                  the interest portion of any
deferred payment obligation;


 


(d)                                 all commissions, discounts
and other fees and charges owed with respect to letters of credit, bankers’
acceptances, financing activities or similar activities; and


 


(e)                                  all accrued interest;


 


(ii)                                  the interest
component of Capital Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by such Person and its Restricted Subsidiaries during such
period determined on a consolidated basis in accordance with GAAP; and


 


(iii)                                   all capitalized
interest of such Person and its Restricted Subsidiaries for such period;


 


less interest income of such
Person and its Restricted Subsidiaries for such period; provided, however,
that Consolidated Interest Expense will exclude (I) the amortization or
write-off of debt issuance costs and deferred financing fees, commissions, fees
and expenses, (II) any expensing of interim loan commitment and other
financing fees and (III) any interest on the Convertible Notes to the
extent not paid in cash.


 


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


 


(A)                             the Net Income
(but not loss) of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to the
specified Person or a Restricted Subsidiary thereof;


 


(B)                               the Net Income
of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted without
any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its equity holders;


 


8

















 


(C)                               the Net Income
of any Person acquired during the specified period for any period prior to the
date of such acquisition shall be excluded;


 


(D)                              gains or losses
on Asset Sales shall be exluded;


 


(E)                                the cumulative
effect of a change in accounting principles shall be excluded; and


 


(F)                                notwithstanding
clause (A) above, (x) the Net Income (but not loss) of any
Unrestricted Subsidiary shall be excluded, whether or not distributed to the
specified Person or one of its Subsidiaries and (y) the Net Income (or
loss) attributable to any discontinued operations shall be excluded.


 


“Consolidated
Non-cash Charges” means, with respect to any Person for any period,
the aggregate depreciation, amortization (including amortization of goodwill,
other intangibles, deferred financing fees, debt issuance costs, commissions,
fees and expenses) and non-cash charges and non-cash expenses of such Person
and its Restricted Subsidiaries, including, without limition, non-cash charges
and non-cash expenses related to stock-based compensation, asset impairments or
writedowns, reducing Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP (excluding any such charges constituting an extraordinary item or
loss or any charge which requires an accrual of or a reserve for cash charges
for any future period).


 


“Convertible Notes”
means the 2.525% convertible senior subordinated notes due 2026 issued by the
Company and governed by the indenture dated as of September 18, 2006 between
the Company and The Bank of New York Trust Company, N.A. as trustee.


 


“Corporate Trust Office of
the Trustee” shall be at the address of the Trustee specified in Section 12.2
hereof or such other address as to which the Trustee may give notice to the Company.


 


“Credit Agreement”
means the Company’s Amended and Restated Credit Agreement, dated August 14,
2009 and as amended on September 18, 2009, by and among the Company, the
guarantors named therein and PNC Bank, National Association, as administrative
agent, and the other agents and lenders named therein, together with all
related notes, letters of credit, collateral documents, Guarantees, and any
other related agreements and instruments executed and delivered in connection
therewith, in each case as further amended, modified, supplemented, restated, refinanced,
refunded or replaced in whole or in part from time to time including by or
pursuant to any agreement or instrument that extends the maturity of any Debt
thereunder, or increases the amount of available borrowings thereunder (provided that such increase in borrowings
is permitted under clause (i) or (xv) of the definition of the
term “Permitted Debt”), or adds Subsidiaries of the Company as additional borrowers
or guarantors thereunder, in each case with respect to such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender, group of lenders, purchasers or debt holders.


 


“Credit
Facilities” means one or more credit facilities (including the
Credit Agreement, the Existing Receivables Facility and the Leasing Facility)
with banks or other lenders providing 


 


9

















 


for revolving loans or term
loans or the issuance of letters of credit or bankers’ acceptances or the like.


 


“Debt”
means at any time (without duplication), with respect to any Person, whether recourse
is to all or a portion of the assets of such Person, or non-recourse, the
following:  (i) all indebtedness of
such Person for money borrowed or for the deferred purchase price of property,
excluding any trade payables or other current liabilities incurred in the normal
course of business; (ii) all obligations of such Person evidenced by
bonds, debentures, notes, or other similar instruments; (iii) all
reimbursement obligations of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities (excluding obligations in respect of
letters of credit or bankers’ acceptances issued in respect of trade payables)
issued for the account of such Person; provided
that such obligations shall not constitute Debt except to the extent
drawn and not repaid within five Business Days; (iv) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property or assets acquired by such Person; (v) all
Capital Lease Obligations of such Person; (vi) the maximum fixed
redemption or repurchase price of Redeemable Capital Interests in such Person
at the time of determination; (vii) any Swap Contracts and Hedging
Obligations of such Person at the time of determination; (viii) Attributable
Debt with respect to any Sale and Leaseback Transaction to which such Person is
a party; and (ix) all obligations of the types referred to in
clauses (i) through (viii) of this definition of another Person,
the payment of which, in either case, (A) such Person has Guaranteed or (B) is
secured by (or the holder of such Debt or the recipient of such dividends or
other distributions has an existing right, whether contingent or otherwise, to
be secured by) any Lien upon the property or other assets of such Person, even
though such Person has not assumed or become liable for the payment of such
Debt.  For purposes of the
foregoing:  (a) the maximum fixed repurchase
price of any Redeemable Capital Interests that do not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable
Capital Interests as if such Redeemable Capital Interests were repurchased on
any date on which Debt shall be required to be determined pursuant to this Indenture;
provided, however, that, if such Redeemable Capital
Interests are not then permitted to be repurchased, the repurchase price shall
be the book value of such Redeemable Capital Interests; (b) the amount
outstanding at any time of any Debt issued with original issue discount is the
principal amount of such Debt less the remaining unamortized portion of the
original issue discount of such Debt at such time as determined in conformity
with GAAP, but such Debt shall be deemed Incurred only as of the date of
original issuance thereof; (c) the amount of any Debt described in clause (vii) is
the net amount payable (after giving effect to permitted set-off) if such Swap
Contracts or Hedging Obligations are terminated at that time due to default of
such Person; (d) the amount of any Debt described in clause (ix)(A) above
shall be the maximum liability under any such Guarantee; (e) the amount of
any Debt described in clause (ix)(B) above shall be the lesser of (I) the
maximum amount of the obligations so secured and (II) the Fair Market
Value of such property or other assets; and (f) interest, fees, premium
and expenses and additional payments, if any, will not constitute Debt.


 


The amount of Debt of any Person at any date shall
be the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, only upon the occurrence of the
contingency giving rise to the obligations, of any contingent obligations at
such date; provided, however, that in the case of Debt sold at
a discount, the amount of such Debt at any time will be the accreted value thereof
at such time.


 


10
















 


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


 


“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 shall have been appointed and
become such pursuant to Section 2.6 hereof, and, thereafter, “Depositary”
shall mean or include such successor.


 


“Designated Senior Debt” means (i) any
Senior Debt outstanding under the Credit Agreement and (ii) after payment
in full of all Obligations under the Credit Agreement, any other Senior Debt
permitted under this Indenture the principal amount of which is $50.0 million
or more and that has been designated by the Company as “Designated Senior Debt.”


 


“DTC” means The
Depository Trust Company.


 


“Eligible Bank”
means a bank or trust company (i) that is organized and existing under the
laws of the United States of America or Canada, or any state, territory, province
or possession thereof, (ii) that, as of the time of the making or acquisition
of an Investment in such bank or trust company, has combined capital and
surplus in excess of $500.0 million and (iii) the senior Debt of
which is rated at least “A-2” by Moody’s or at least “A” by S&P.


 


“Eligible Cash
Equivalents” means any of the following Investments:  (i) securities issued or directly and
fully guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full
faith and credit of the United States is pledged in support thereof) maturing
not more than one year after the date of acquisition; (ii) time deposits
in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more
than two years after date of acquisition and that the Average Life of all such
Investments is one year or less from the respective dates of acquisition; (iii) repurchase
obligations with a term of not more than 180 days for underlying
securities of the types described in clause (i) above entered into
with any Eligible Bank; (iv) direct obligations issued by any state of the
United States or any political subdivision or public instrumentality thereof, provided that such Investments mature, or
are subject to tender at the option of the holder thereof, within 365 days
after the date of acquisition and, at the time of acquisition, have a rating of
at least A from S&P or A-2 from Moody’s (or an equivalent rating by any
other nationally recognized rating agency); (v) commercial paper of any
Person other than an Affiliate of the Company and other than structured
investment vehicles, provided that
such Investments have one of the two highest ratings obtainable from either
S&P or Moody’s and mature within 180 days after the date of
acquisition; (vi) overnight and demand deposits in and bankers’
acceptances of any Eligible Bank and demand deposits in any bank or trust
company to the extent insured by the Federal Deposit Insurance Corporation
against the Bank Insurance Fund; (vii) money market funds substantially
all of the assets of which comprise Investments of the types described in
clauses (i) through (vi); and (viii) instruments equivalent to
those referred to in clauses (i) through (vi) above or funds
equivalent to those referred to in clause (vii) above denominated in
Euros or any other foreign currency comparable in credit quality and tender to
those referred to in such clauses and customarily used by corporations for cash
management purposes in jurisdictions outside the United States to the extent
reasonably required in connection with any business conducted by 


 


11

















 


any Restricted Subsidiary
organized in such jurisdiction, all as determined in good faith by the Company.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to
time.  References to sections of ERISA
shall be construed also to refer to any successor sections.


 


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


 


“Exchange Notes”
has the meaning set forth in the Preamble.


 


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


 


“Exchange Offer
Registration Statement” has the meaning given to such term in the Registration
Rights Agreement.


 


“Existing Receivables
Facility” means the receivables purchase agreement dated as of August 7,
2008 among Triumph Receivables, LLC, as seller, the Company, as servicer, the
various purchaser groups from time to time party thereto, and PNC Bank,
National Association as administrator, together with all related notes, letters
of credit, collateral documents, Guarantees, and any other related agreements
and instruments executed and delivered in connection therewith, in each case as
further amended, modified, supplemented, restated, refinanced, refunded or
replaced in whole or in part from time to time including by or pursuant to any
agreement or instrument that extends the maturity of any Debt thereunder, or
increases the amount of available borrowings thereunder (provided
that such increase in borrowings is permitted under clause (i) or (xv) of
the definition of the term “Permitted Debt”), or adds Subsidiaries of the
Company as additional borrowers or guarantors thereunder, in each case with
respect to such agreement or any successor or replacement agreement and whether
by the same or any other agent, lender, group of lenders, purchasers or debt
holders.


 


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


 


“Fair Market
Value” means, with respect to the consideration received or paid in
any transaction or series of transactions, the fair market value thereof as
determined in good faith by the Company.


 


“Four-Quarter
Period” has the meaning set forth in the definition of “Consolidated
Fixed Charge Coverage Ratio.”


 


“GAAP”
means generally accepted accounting principles in the United States, consistently
applied, as set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board, or
in such other statements by such other entity as


 


12

















 


may be approved by a
significant segment of the accounting profession of the United States, as they
are in effect as of the Issue Date.


 


“Global Note
Legend” means the legend identified as such in Section 2.6(e)(ii) hereto.


 


“Global Notes”
means the Notes in global form and registered in the name of the Depositary or
its nominee that are in the form of Exhibit A attached hereto.


 


“GE/Citi Sales Arrangements”
means the several receivables sales agreements between certain Subsidiaries of
the Company and Citibank, N.A. or General Electric Capital Corporation, dated between
June 2004 and December 2006.


 


“Guarantee”
means, as applied to any Debt of another Person, (i) a guarantee (other
than by endorsement of negotiable instruments for collection in the normal
course of business), direct or indirect, in any manner, of any part or all of
such Debt, (ii) any direct or indirect obligation, contingent or
otherwise, of a Person guaranteeing or having the effect of guaranteeing the
Debt of any other Person in any manner and (iii) an agreement of a Person,
direct or indirect, contingent or otherwise, the practical effect of which is
to assure in any way the payment (or payment of damages in the event of
non-payment) of all or any part of such Debt of another Person (and “Guaranteed” and “Guaranteeing”
shall have meanings that correspond to the foregoing).


 


“Guarantor”
means any Person that executes a Note Guarantee in accordance with the
provisions of this Indenture and their respective successors and assigns.


 


“Hedging
Obligations” of any Person means the obligations of such Person
pursuant to any interest rate agreement, currency agreement or commodity
agreement, excluding commodity agreements relating to raw materials used in the
ordinary course of the Company’s business.


 


“Holder”
means a Person in whose name a Note is registered in the Note Register.


 


“Incur”
means, with respect to any Debt or other obligation of any Person, to create, issue,
incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise
become liable in respect of such Debt or other obligation or the recording, as
required pursuant to GAAP or otherwise, of any such Debt or other obligation on
the balance sheet of such Person; provided,
however, that a change in GAAP or
an interpretation thereunder that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt.  Debt otherwise Incurred by a
Person before it becomes a Subsidiary of the Company shall be deemed to be
Incurred at the time at which such Person becomes a Subsidiary of the Company.  “Incurrence,”
“Incurred,” “Incurrable” and “Incurring” shall have meanings that correspond
to the foregoing.  A Guarantee by the
Company or a Restricted Subsidiary of Debt Incurred by the Company or a
Restricted Subsidiary, as applicable, shall not be a separate Incurrence of
Debt.  In addition, the following shall
not be deemed a separate Incurrence of Debt:


 


(1)           amortization of Debt discount or accretion of principal
with respect to a non-interest-bearing or other discount security;


 


13

















 


(2)           the payment of regularly scheduled interest in the form of
additional Debt of the same instrument or the payment of regularly scheduled
dividends on Capital Interests in the form of additional Capital Interests of
the same class and with the same terms;


 


(3)           the obligation to pay a premium in respect of Debt arising
in connection with the issuance of a notice of redemption or making of a
mandatory offer to purchase such Debt; and


 


(4)           unrealized losses or charges in respect of Hedging
Obligations.


 


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


 


“Initial
Purchasers” means Banc of America Securities LLC, J.P. Morgan Securities
Inc. and such other initial purchasers party to the Purchase Agreement entered
into in connection with the offer and sale of the Notes dated as of November 10,
2009.


 


“Integration
Costs” means, with respect to any acquisition, all costs relating to
the integration of the acquired business or operations into the Company’s,
including labor costs, consulting fees, travel costs and any other expenses
relating to the integration process.


 


“Investment”
by any Person means any direct or indirect loan, advance (or other extension of
credit) or capital contribution to (by means of any transfer of cash or other
property or assets to another Person or any other payments for property or
services for the account or use of another Person) another Person, including,
without limitation, the following:  (i) the
purchase or acquisition of any Capital Interest or other evidence of beneficial
ownership in another Person; (ii) the purchase, acquisition or Guarantee
of the Debt of another Person; and (iii) the purchase or acquisition of
the business or assets of another Person substantially as an entirety but shall
exclude:  (a) accounts receivable
and other extensions of trade credit in accordance with the Company’s customary
practices; (b) the acquisition of property and assets from suppliers and
other vendors in the normal course of business; and (c) prepaid expenses
and workers’ compensation, utility, lease and similar deposits, in the normal
course of business.


 


“Issue Date”
means November 16, 2009, the date of original issuance of the Notes.


 


“Issuer”
or “Company” means Triumph Group, Inc.
and any Successor Entity.


 


“Leasing Facility”
means the master lease agreement dated as of March 18, 2009 by and between
Triumph Structures - Los Angeles, Inc., as lessee, and Banc of America
Leasing & Capital, LLC, as lessor, together with all related notes,
letters of credit, collateral documents, Guarantees, and any other related
agreements and instruments executed and delivered in connection therewith, in
each case as further amended, modified, supplemented, restated, refinanced,
refunded or replaced in whole or in part from time to time including by or
pursuant to any agreement or instrument that extends the maturity of any Debt
thereunder, or increases the amount of available borrowings thereunder (provided that such increase in borrowings is permitted under
clause (i) or (xv) of the definition of the term “Permitted Debt”), or
adds Subsidiaries of the Company as additional borrowers or guarantors
thereunder, in each case with respect to such 


 


14

















 


agreement or any successor
or replacement agreement and whether by the same or any other agent, lender,
group of lenders, purchasers or debt holders.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in The City
of New York, the city in which the principal Corporate Trust Office of the
Trustee is located or at a place of payment are authorized or required by law,
regulation or executive order to remain closed. 
If a payment date in a place of payment is a Legal Holiday, payment
shall be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.


 


“Lien”
means, with respect to any property or other asset, any mortgage, deed of
trust, deed to secure debt, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien (statutory or otherwise), charge,
easement, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such property or other asset (including, without limitation, any conditional
sale or other title retention agreement having substantially the same economic
effect as any of the foregoing).


 


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


 


“Net Cash
Proceeds” means, with respect to Asset Sales of any Person, cash and
Eligible Cash Equivalents received, net of: 
(i) all reasonable out-of-pocket costs and expenses of such Person
incurred in connection with such a sale, including, without limitation, all
legal, accounting, title and recording tax expenses, commissions and other fees
and expenses incurred and all federal, state, foreign and local taxes arising
in connection with such an Asset Sale that are paid or required to be accrued
as a liability under GAAP by such Person; (ii) all payments made by such
Person on any Debt, other than Senior Debt, that is secured by such properties
or other assets in accordance with the terms of any Lien upon or with respect
to such properties or other assets or that must, by the terms of such Lien or
such Debt, other than Senior Debt, or in order to obtain a necessary consent to
such transaction or by applicable law, be repaid to any other Person (other
than the Company or a Restricted Subsidiary thereof) in connection with such
Asset Sale; and (iii) all contractually required distributions and other
payments made to minority interest holders in Restricted Subsidiaries of such
Person as a result of such transaction; provided,
however, that:  (a) in the event that any consideration
for an Asset Sale (which would otherwise constitute Net Cash Proceeds) is
required by (I) contract to be held in escrow pending determination of
whether a purchase price adjustment will be made or (II) GAAP to be
reserved against other liabilities in connection with such Asset Sale, such
consideration (or any portion thereof) shall become Net Cash Proceeds only at
such time as it is released to such Person from escrow or otherwise; and (b) any
non-cash consideration received in connection with any transaction, which is
subsequently converted to cash, shall become Net Cash Proceeds only at such
time as it is so converted.


 


“Non-Recourse
Receivable Subsidiary Indebtedness” has the meaning set forth in the
definition of “Receivable Subsidiary” and shall, for the avoidance of doubt,
include Debt under the Existing Receivables Facility.


 


15

















 


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


 


“Note Guarantee”
means the Guarantee of each Guarantor of the Notes.


 


“Notes”
has the meaning set forth in the preamble to this Indenture.


 


“Obligations”
means any principal, premium, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar
proceeding at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable state,
federal or foreign law), penalties, fees, indemnifications, reimbursements
(including reimbursement obligations with respect to letters of credit and banker’s
acceptances), damages and other liabilities, and Guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities, payable under the documentation governing any Debt.


 


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


 


“Offer to
Purchase” means a written offer (the “Offer”) sent by the Company by first class mail, postage
prepaid, to each Holder at his address appearing in the Note Register on the
date of the Offer, offering to purchase up to the aggregate principal amount of
Notes set forth in such Offer at the purchase price set forth in such Offer (as
determined pursuant to this Indenture). 
Unless otherwise required by applicable law, the offer shall specify an
expiration date (the “Expiration Date”)
of the Offer to Purchase which shall be, subject to any contrary requirements
of applicable law, not less than 30 days or more than 60 days after
the date of mailing of such Offer and a settlement date (the “Purchase Date”) for purchase of Notes
within five Business Days after the Expiration Date.  The Company shall notify the Trustee at least
15 days (or such shorter period as is acceptable to the Trustee) prior to
the mailing of the Offer of the Company’s obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company.  The Offer shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Offer to Purchase.  The Offer shall also
state:


 


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


 


(2)           the Expiration Date and the Purchase Date;


 


(3)           the aggregate principal amount of the outstanding Notes
offered to be purchased pursuant to the Offer to Purchase (including, if less
than 100%, the manner by which such amount has been determined pursuant to
Indenture covenants requiring the Offer to Purchase) (the “Purchase Amount”);


 


(4)           the purchase price to be paid by the Company for each $2,000
principal amount of Notes (and integral multiples of $1,000 in excess thereof)
accepted for payment (as specified pursuant to this Indenture) (the “Purchase Price”);


 


16

















 


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


 


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


 


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


 


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


 


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


 


(10)         that Holders will be entitled to withdraw all or any portion
of Notes tendered if the Company (or its paying agent) receives, not later than
the close of business on the Expiration Date, a facsimile transmission or
letter setting forth the name of the Holder, the aggregate principal amount of
the Notes the Holder tendered, the certificate number of the Note the Holder
tendered and a statement that such Holder is withdrawing all or a portion of
his tender;


 


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


 


(12)         if applicable, that, in the case of any Holder whose Note is
purchased only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder,
in the aggregate principal amount equal to and 


 


17

















 


in exchange for the
unpurchased portion of the aggregate principal amount of the Notes so tendered.


 


“Offering Memorandum”
means the offering memorandum related to the issuance of the Initial Notes on
the Issue Date, dated November 10, 2009.


 


“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.


 


“Officers’
Certificate” means a certificate signed by two Officers of the
Company or a Guarantor, as applicable, one of whom must be the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company or such Guarantor, as applicable.


 


“Opinion of
Counsel” means an opinion from legal counsel who is reasonably
acceptable to the Trustee, and which opinion shall be addressed to the Trustee
in its capacity as such, and shall comply with any applicable provisions
herein.  The counsel may be an employee
of or counsel to the Company or any Subsidiary of the Company.


 


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


 


“Paying Agent”
means any Person authorized by the Issuer to pay the principal of, premium, if
any, or interest on, or redemption, purchase, retirement, defeasance, covenant
defeasance or similar payment with respect to, any Notes on behalf of the
Issuer.


 


“Performance Guaranty”
means the performance guaranty dated as of August 7, 2008, by the Company,
as performance guarantor, in favor of PNC Bank, National Association for the
benefit of the various purchaser groups pursuant to the Existing Receivables
Facility.


 


“Permitted
Business” means any business similar in nature to any business
conducted by the Company and the Restricted Subsidiaries on the Issue Date and
any business reasonably ancillary, incidental, complementary or related to, or
a reasonable extension, development or expansion of, the business conducted by
the Company and the Restricted Subsidiaries on the Issue Date, in each case, as
determined in good faith by the Company.


 


“Permitted Debt”
means


 


(i)            Debt Incurred pursuant to any Credit Facilities in an
aggregate principal amount at any one time outstanding not to exceed $735.0
million minus any amount used to permanently repay such Obligations (or
permanently reduce commitments with respect thereto), provided that such
repayment is made pursuant to Section 4.10;


 


(ii)           Debt under the Notes issued on the Issue Date (and any
Exchange Notes pursuant to the Registration Rights Agreement) and contribution,
indemnification and 


 


18

















 


reimbursement obligations owed by the Company or any
Guarantor to any of the other of them in respect of amounts paid or payable on
such Notes;


 


(iii)          Guarantees of the Notes (and any Exchange Notes pursuant to
the Registration Rights Agreement);


 


(iv)          Debt of the Company or any Restricted Subsidiary
outstanding on the Issue Date (other than clauses (i), (ii) or (iii) above),
including Debt under the Existing Receivables Facility, the Leasing Facility
and the Convertible Notes;


 


(v)           intercompany Debt between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries;


 


(vi)          Guarantees Incurred by the Company of Debt of a Restricted
Subsidiary otherwise permitted to be incurred under this Indenture;


 


(vii)         Guarantees by any Restricted Subsidiary of Debt of the
Company or any Restricted Subsidiary, including Guarantees by any Restricted
Subsidiary of Debt under the Credit Agreement and the Performance Guaranty
under the Existing Receivables Facility, provided
that (a) such Debt is Permitted Debt or is otherwise Incurred
in accordance with Section 4.9 hereof and (b) such Guarantees are
subordinated to the Notes to the same extent as the Debt being Guaranteed if
such Debt is a Subordinated Obligation;


 


(viii)        Debt incurred in respect of workers’
compensation claims and self-insurance obligations, and, for the avoidance of
doubt, indemnity, bid, performance, warranty, release, appeal, surety and
similar bonds, letters of credit for operating purposes and completion
Guarantees provided or incurred (including Guarantees thereof) by the Company
or a Restricted Subsidiary in the ordinary course of business;


 


(ix)                                Debt under Swap
Contracts and Hedging Obligations;


 


(x)                                   Debt owed by
the Company to any Restricted Subsidiary, provided
that if for any reason such Debt ceases to be held by the Company or
a Restricted Subsidiary, as applicable, such Debt shall cease to be Permitted
Debt and shall be deemed Incurred as Debt of the Company for purposes of this Indenture;


 


(xi)                                Debt of the
Company or any Restricted Subsidiary pursuant to Capital Lease Obligations and
Purchase Money Debt, provided that
the aggregate principal amount of such Debt outstanding at any time may not
exceed $25.0 million in the aggregate;


 


(xii)                             Debt arising
from agreements of the Company or a Restricted Subsidiary providing for
indemnification, contribution, earnout, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
acquisition or disposition of any business, assets or Capital Interests of a
Restricted Subsidiary otherwise permitted under this Indenture;


 


19

















 


(xiii)                       the issuance by
any of the Company’s Restricted Subsidiaries to the Company or to any of its
Restricted Subsidiaries of shares of Preferred Interests; provided, however,
that:


 


(a)           any
subsequent issuance or transfer of Capital Interests that results in any such
Preferred Interests being held by a Person other than the Company or a Restricted
Subsidiary; and


 


(b)           any
sale or other transfer of any such Preferred Interests to a Person that is not
either the Company or a Restricted Subsidiary;


 


shall
be deemed, in each case, to constitute an issuance of such Preferred Interests
by such Restricted Subsidiary that was not permitted by this clause (xiii);


 


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


 


(xv)                         Debt of the
Company or any Restricted Subsidiary not otherwise permitted pursuant to this
definition, in an aggregate principal amount not to exceed $25.0 million
at any time outstanding;


 


(xvi)                      Purchase Money
Notes Incurred by any Receivable Subsidiary that is a Restricted Subsidiary in
a Qualified Receivables Transaction and Non-Recourse Receivable Subsidiary
Indebtedness; and


 


(xvii)                   Refinancing
Debt.


 


Notwithstanding anything herein to the contrary,
Debt permitted under clauses (i), (ii), (xi) and (xv) of this definition of “Permitted
Debt” shall not constitute “Refinancing Debt” under clause (xvii) of this
definition of “Permitted Debt.”


 


“Permitted Investments”
means:


 


(a)          Investments in existence on the Issue Date;


 


(b)          Investments required pursuant to any agreement or
obligation of the Company or a Restricted Subsidiary, in effect on the Issue
Date, to make such Investments;


 


(c)          Investments in cash and Eligible Cash Equivalents;


 


(d)          Investments in property and other assets, owned or used by
the Company or any Restricted Subsidiary in the normal course of business;


 


(e)          Investments by the Company or any of its Restricted
Subsidiaries in the Company or any Restricted Subsidiary;


 


20

















 


(f)            Investments by the Company or any Restricted Subsidiary
in a Person, if as a result of such Investment (A) such Person becomes a
Restricted Subsidiary or (B) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated or wound-up into, the Company or a Restricted
Subsidiary;


 


(g)           Swap Contracts and Hedging Obligations;


 


(h)           receivables owing to the Company or any of its
Subsidiaries and advances to suppliers, in each case if created, acquired or
made in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms;


 


(i)            Investments received in settlement of obligations owed to
the Company or any Restricted Subsidiary and as a result of bankruptcy or
insolvency proceedings or upon the foreclosure or enforcement of any Lien in
favor of the Company or any Restricted Subsidiary;


 


(j)            Investments in joint ventures not in excess of $20.0
million in the aggregate at any one time outstanding;


 


(k)           Investments by the Company or any Restricted Subsidiary
not otherwise permitted under this definition, in an aggregate amount not to
exceed $50.0 million at any one time outstanding;


 


(l)            loans and advances (including for travel and relocation)
to employees in an amount not to exceed $2.5 million in the aggregate at
any one time outstanding;


 


(m)          Investments the payment for which consists solely of
Capital Interests of the Company;


 


(n)           any Investment in any Person to the extent such Investment
represents the non-cash portion of the consideration received in connection
with an Asset Sale consummated in compliance with Section 4.10 or any
other disposition of property not constituting an Asset Sale;


 


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


 


(p)           Guarantees by the Company or any Restricted Subsidiary of
Debt of the Company or a Restricted Subsidiary (other than a Receivables
Subsidiary) of Debt otherwise permitted by Section 4.9; and


 


(q)           any Investment by the Company or any Restricted Subsidiary
in a Receivable Subsidiary or any Investment by a Receivable Subsidiary in any
other Person in connection with a Qualified Receivables Transaction, so long as
any Investment in a Receivable


 


21

















 


Subsidiary is in the form of
a Purchase Money Note or an Investment in Capital Interests.


 


“Permitted Junior Securities” means: (i) Equity
Interests in the Company or any Guarantor; or (ii) Debt securities that
are subordinated to all Senior Debt and any Debt securities issued in exchange
for Senior Debt to substantially the same extent as, or to a greater extent
than, the Notes and the Note Guarantees are subordinated to Senior Debt under
this Indenture.


 


“Permitted Liens”
means:


 


(a)           Liens on the assets of the Company or any Guarantor
securing Senior Debt and Liens on the assets of any other Restricted Subsidiary
that is not a Guarantor securing Debt incurred by such Restricted Subsidiary;


 


(b)           Liens in favor of the Company or any Restricted Subsidiary;


 


(c)           Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or consolidated
with the Company or the Restricted Subsidiary;


 


(d)           Liens on property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary of the Company, provided
that such Liens were in existence prior to the contemplation of such
acquisition and do not extend to any property other than the property so
acquired by the Company or the Restricted Subsidiary;


 


(e)           Liens existing on the Issue Date;


 


(f)            Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $10.0 million at any one time outstanding; and


 


(g)           Liens securing Refinancing Debt; provided that any such
Lien covers only the assets that secure the Debt being refinanced.


 


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


 


“Preferred
Interests,” as applied to the Capital Interests in any Person, means
Capital Interests in such Person of any class or classes (however designated)
that rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Common Interests in such Person.


 


“Purchase
Agreement” means the purchase agreement dated November 10, 2009
by and among the Company, the Initial Purchaser and the Guarantors named
therein.


 


22
















 


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


 


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


 


“Purchase Money
Debt” means Debt


 


(i)            Incurred to finance the purchase or construction
(including additions and improvements thereto) of any assets (other than
Capital Interests) of such Person or any Restricted Subsidiary; and


 


(ii)           that is secured by a Lien on such assets where the lender’s
sole security is to the assets so purchased or constructed; and


 


in either case that does not
exceed 100% of the cost and to the extent the purchase or construction prices
for such assets are or should be included in “addition to property, plant or
equipment” in accordance with GAAP.


 


“Purchase Money
Note” means a promissory note of a Receivable Subsidiary to the
Company or any Restricted Subsidiary, which note must be repaid from cash
available to the Receivable Subsidiary, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables.  The repayment of a Purchase Money Note may be
subordinated to the repayment of other liabilities of the Receivable Subsidiary
on terms determined in good faith by the Company to be substantially consistent
with market practice in connection with Qualified Receivables Transactions.


 


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


 


“Qualified
Capital Interests” in any Person means a class of Capital Interests
other than Redeemable Capital Interests.


 


“Qualified Equity
Offering” means (i) an underwritten public equity offering of
Qualified Capital Interests pursuant to an effective registration statement
under the Securities Act yielding gross proceeds to either of the Company, or
any direct or indirect parent company of the Company, of at least
$50.0 million or (ii) a private equity offering of Qualified Capital
Interests of the Company, or any direct or indirect parent company of the
Company other than (x) any such public or private sale to an entity that
is an Affiliate of the Company and (y) any public offerings registered on Form S-8;
provided that, in the case of an
offering or sale by a direct or indirect parent company of the Company, such
parent company contributes to the capital of the Company the portion of the Net
Cash Proceeds of such offering or sale necessary to pay the aggregate Redemption Price
(plus accrued interest to the redemption date) of the Notes to be redeemed pursuant
to Section 3.7.


 


“Qualified
Receivables Transaction” means any transaction or series of
transactions entered into by the Company or any of its Restricted Subsidiaries
pursuant to which the Company or such Restricted Subsidiary transfers to (a) a
Receivable Subsidiary (in the case of a transfer by 


 


23

















 


the Company or any of its
Restricted Subsidiaries) or (b) any other Person (in the case of a transfer
by a Receivable Subsidiary), or grants a security interest in, any accounts
receivable (whether now existing or arising in the future) of the Company or
any of its Restricted Subsidiaries, and any assets related thereto, including,
without limitation, all collateral securing such accounts receivable, all
contracts and all Guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and other assets which are customarily
transferred or in respect of which security interests are customarily granted
in connection with an accounts receivable financing transaction; provided such transaction is on market
terms as determined in good faith by the Company at the time the Company or
such Restricted Subsidiary enters into such transaction.  For the avoidance of doubt, on the Issue
Date, the Existing Receivables Facility shall qualify as a Qualified
Receivables Transaction.


 


“Receivable
Subsidiary” means a Subsidiary of the Company:


 


(1)           that is formed solely for the purpose of, and that engages
in no activities other than activities in connection with, financing accounts
receivable of the Company and/or its Restricted Subsidiaries;


 


(2)           that is designated by the Board of Directors as a
Receivable Subsidiary pursuant to an Officers’ Certificate that is delivered to
the Trustee;


 


(3)           that is either (a) a Restricted Subsidiary or (b) an
Unrestricted Subsidiary designated in accordance with Section 4.18;


 


(4)           no portion of the Debt or any other obligation (contingent
or otherwise) of which (a) is at any time Guaranteed by the Company or any
Restricted Subsidiary (excluding Guarantees of obligations (other than any
Guarantee of Debt) pursuant to Standard Securitization Undertakings), (b) is
at any time recourse to or obligates the Company or any Restricted Subsidiary
in any way, other than pursuant to Standard Securitization Undertakings, or (c) subjects
any asset of the Company or any other Restricted Subsidiary of the Company, directly
or indirectly, contingently or otherwise, to the satisfaction thereof, other
than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary  Indebtedness”);


 


(5)           with which neither the Company nor any Restricted Subsidiary
has any material contract, agreement, arrangement or understanding other than (a) contracts,
agreements, arrangements and understandings entered into in the ordinary course
of business on terms no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons that are
not Affiliates of the Company in connection with a Qualified Receivables
Transaction as determined in good faith by the Board of Directors of the
Company, (b) fees payable in the ordinary course of business in connection
with servicing accounts receivable in connection with such a Qualified Receivables
Transaction as determined in good faith by the Board of Directors of the Company
and (c) any Purchase Money Note issued by such Receivable Subsidiary to
the Company or a Restricted Subsidiary; and


 


24

















 


(6)           with respect to which neither the Company nor any other
Restricted Subsidiary has any obligation (a) to subscribe for additional shares
of Capital Interests therein or make any additional capital contribution or
similar payment or transfer thereto except in connection with a Qualified
Receivables Transaction or (b) to maintain or preserve the solvency or any
balance sheet term, financial condition, level of income or results of
operations thereof.


 


For the avoidance of doubt,
on the Issue Date, Triumph Receivables, LLC shall qualify as a Receivable
Subsidiary.


 


“Redeemable
Capital Interests” in any Person means any equity security of such
Person that by its terms (or by terms of any security into which it is
convertible or for which it is exchangeable), or otherwise (including the
passage of time or the happening of an event), is required to be redeemed, is
redeemable at the option of the holder thereof in whole or in part (including
by operation of a sinking fund), or is convertible or exchangeable for Debt of
such Person at the option of the holder thereof, in whole or in part, at any
time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which
is required to be redeemed, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof before such date will be deemed
to be Redeemable Capital Interests. 
Notwithstanding the preceding sentence, any equity security that would
constitute Redeemable Capital Interests solely because the holders of the
equity security have the right to require the Company to repurchase such equity
security upon the occurrence of a change of control or an asset sale will not
constitute Redeemable Capital Interests if the terms of such equity security
provide that the Company may not repurchase or redeem any such equity security
pursuant to such provisions unless such repurchase or redemption complies with Section 4.7.  The amount of Redeemable Capital Interests
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Redeemable Capital Interests or portion thereof, exclusive
of accrued dividends.


 


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


 


“Refinancing Debt”
means Debt that refunds, refinances, renews, replaces or extends any Debt
permitted to be Incurred by the Company or any Restricted Subsidiary pursuant
to the terms of this Indenture, whether involving the same or any other lender
or creditor or group of lenders or creditors, but only to the extent that


 


(i)            the Refinancing Debt is subordinated to the Notes to at
least the same extent as the Debt being refunded, refinanced or extended, if
such Debt was subordinated to the Notes,


 


(ii)            the Refinancing Debt is scheduled to mature either (a) no
earlier than the Debt being refunded, refinanced or extended or (b) at
least 91 days after the maturity date of the Notes,


 


25

















 


(iii)          the Refinancing Debt has an Average Life at the time such
Refinancing Debt is Incurred that is equal to or greater than the Average Life
of the Debt being refunded, refinanced, renewed, replaced or extended,


 


(iv)          such Refinancing Debt is in an aggregate principal amount
that is less than or equal to the sum of (a) the aggregate principal or
accreted amount (in the case of any Debt issued with original issue discount,
as such) then outstanding under the Debt being refunded, refinanced, renewed,
replaced or extended, (b) the amount of accrued and unpaid interest, if
any, and premiums owed, if any, not in excess of preexisting prepayment
provisions on such Debt being refunded, refinanced, renewed, replaced or
extended and (c) the amount of reasonable and customary fees, expenses and
costs related to the Incurrence of such Refinancing Debt, and


 


(v)           such Refinancing Debt is Incurred by the same Person (or
its successor) that initially Incurred the Debt being refunded, refinanced,
renewed, replaced or extended, except that the Company may Incur Refinancing
Debt to refund, refinance, renew, replace or extend Debt of any Restricted
Subsidiary of the Company.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as
of the date of the Issue Date, among the Company, the Guarantors and the
Initial Purchasers.


 


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


 


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


 


“Restricted Global Note”
means a Global Note that is a Restricted Note.


 


“Restricted Note”
has the meaning set forth in Rule 144(a)(3) under the Securities Act
for the term “restricted securities”; provided,
however, that the Trustee shall
be entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Note.  Restricted Notes are required to bear the
Restricted Notes Legend.


 


“Restricted Notes
Legend” means the legend identified as such in Section 2.6(e)(i) hereto.


 


26

















 


“Restricted Payment” is defined to mean any of the following:


 


(a)                                  any dividend or
other distribution declared and paid on the Capital Interests in the Company or
on the Capital Interests in any Restricted Subsidiary of the Company that are
held by, or declared and paid to, any Person other than the Company or a
Restricted Subsidiary of the Company, other than


 


(i)            dividends, distributions or payments
made solely in Qualified Capital Interests in the Company and


 


(ii)            dividends or distributions payable
to the Company or a Restricted Subsidiary of the Company or to other holders of
Capital Interests of a Restricted Subsidiary on a pro rata
basis;


 


(b)                                 any payment
made by the Company or any of its Restricted Subsidiaries to purchase, redeem,
acquire or retire any Capital Interests in the Company (including the
conversion into, or exchange for, Debt of any Capital Interests) other than any
such Capital Interests owned by the Company or any Restricted Subsidiary (other
than a payment made solely in Qualified Capital Interests in the Company);


 


(c)                                  any payment
made by the Company or any of its Restricted Subsidiaries (other than a payment
made solely in Qualified Capital Interests in the Company) to redeem,
repurchase, defease (including an in substance or legal defeasance) or otherwise
acquire or retire for value (including pursuant to mandatory repurchase
covenants), prior to any scheduled maturity, scheduled sinking fund or
mandatory redemption payment, Debt of the Company or any Guarantor that is
subordinate in right of payment to the Notes or Note Guarantees (excluding any
Debt owed to the Company or any Restricted Subsidiary); except payments of
principal and interest in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case, within one year of the
due date thereof;


 


(d)                                 any Investment
by the Company or a Restricted Subsidiary in any Person, other than a Permitted
Investment; and


 


(e)                                  any designation
of a Restricted Subsidiary as an Unrestricted Subsidiary.


 


“Restricted Subsidiary”
means any Subsidiary that has not been designated as an “Unrestricted
Subsidiary” in accordance with this Indenture. 
For the avoidance of doubt, Triumph Receivables, LLC, Triumph Group
Charitable Foundation, Triumph Interiors, Ltd., Saygrove Actuation &
Motion Control Limited and Airframe Spares & Logistics GmbH will be
Unrestricted Subsidiaries on the Issue Date.


 


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


 


27

















 


“Sale and
Leaseback Transaction” means any direct or indirect arrangement
pursuant to which property is sold or transferred by the Company or a
Restricted Subsidiary and is thereafter leased back as a capital lease by the
Company or a Restricted Subsidiary.


 


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


 


“Senior Debt”
means:


 


(1)           all Debt of the Company or any Guarantor outstanding under
the Credit Agreement and all Hedging Obligations with respect thereto, whether
outstanding on the Issue Date or incurred thereafter;


 


(2)           any other Debt of the Company or any
Guarantor permitted to be incurred under the terms of this Indenture, unless
the instrument under which such Debt is incurred expressly provides that it is
on a parity with or subordinated in right of payment to the Notes or the
relevant Note Guarantees, respectively; and


 


(3)           all Obligations with respect to the items listed in the
preceding clauses (1) and (2) (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for
in the documentation and with respect thereto, whether or not such interest is
an allowed claim under applicable law).


 


Notwithstanding
anything to the contrary in the preceding, Senior Debt will not include:


 


(a)           any liability for federal, state, local or other taxes
owed or owing by the Company or any Guarantor;


 


(b)           any Debt of the Company or any Guarantor to any of its
Subsidiaries or other Affiliates;


 


(c)           any trade payables;


 


(d)           the portion of any Debt that is incurred in violation of
this Indenture;


 


(e)           any Debt of the Company or any Guarantor that, when
incurred, was without recourse to the Company or such Guarantor;


 


(f)            any Debt owed to any employee of the Company or any of
its Subsidiaries;


 


(g)           any Debt of the Company under the Convertible Notes; or


 


(h)           any Debt of the Company or any Guarantor that is expressly
subordinated to any other Debt of the Company or such Guarantor.


 


28

















 


For the avoidance of doubt,
the Notes shall rank pari passu with
the Convertible Notes.


 


“Senior Subordinated Indebtedness”
means (i) with respect to the Company, the Notes and any other
Debt of the Company that specifically provides that such Debt is to have the
same rank as the Notes in right of payment and is not subordinated by its terms
in right of payment to any Debt or other obligation of the Company which is not
Senior Debt; (ii) with respect to any Guarantor, the Note Guarantees and
any other Debt of such Guarantor that specifically provides that such Debt is
to have the same rank as the Note Guarantees in right of payment and is not
subordinated by its terms in right of payment to any Debt or other obligation
of such Guarantor which is not Senior Debt; and (iii) the Convertible
Notes.


 


“Significant
Subsidiary” has the meaning set forth in Rule 1-02 of
Regulation S-X under the Securities Act and Exchange Act, but shall not
include any Unrestricted Subsidiary.


 


“Standard
Securitization Undertakings” means representations, warranties,
covenants and indemnities entered into by the Company or any Restricted
Subsidiary which are reasonably customary in an accounts receivable securitization
transaction as determined in good faith by the Company, including Guarantees by
the Company or any Restricted Subsidiary of any of the foregoing obligations of
the Company or a Restricted Subsidiary.


 


“Stated Maturity,”
when used with respect to (i) any Note or any installment of interest
thereon, means the date specified in such Note as the fixed date on which the
principal amount of such Note or such installment of interest is due and
payable and (ii) any other Debt or any installment of interest thereon,
means the date specified in the instrument governing such Debt as the fixed
date on which the principal of such Debt or such installment of interest is due
and payable.


 


“Subordinated Obligations” means any Debt of the Company or any
Guarantor that is subordinate or junior in right of payment to the Notes or the
Note Guarantees pursuant to a written agreement to that effect.


 


“Subsidiary”
means, with respect to any Person, any corporation, limited or general partnership,
trust, association or other business entity of which an aggregate of at least a
majority of the outstanding Capital Interests therein is, at the time, directly
or indirectly, owned by such Person and/or one or more Subsidiaries of such
Person.


 


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


 


“Successor Entity”
means a corporation or other entity that succeeds to and continues the business
of Triumph Group, Inc.


 


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, 


 


29

















 


collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination
of any of the foregoing (including, without limitation, any fuel price caps and
fuel price collar or floor agreements and similar agreements or arrangements
designed to protect against or manage fluctuations in fuel prices and any
options to enter into any of the foregoing), whether or not any such transaction
is governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.


 


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


 


“Transaction Date”
has the meaning set forth in the definition of “Consolidated Fixed Charge
Coverage Ratio.”


 


“Treasury Rate”
means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) which has become
publicly available at least two Business Days prior to the date fixed for
prepayment (or, if such Statistical Release is no longer published, any
publicly available source for similar market data)) most nearly equal to the
then remaining term of the Notes to November 15, 2013; provided, however, that if the then remaining
term of the Notes to November 15, 2013 is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given,
except that, if the then remaining term of the Notes to November 15, 2013
is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be
used.


 


“Trustee”
has the meaning set forth in the preamble to this Indenture until a successor replaces
it in accordance with the applicable provisions of this Indenture and, thereafter,
means the successor.


 


“Unrestricted Global Note”
means a Global Note that is an Unrestricted Note.


 


“Unrestricted Notes”
means one or more Notes that do not and are not required to bear the Restricted
Notes Legend including, without limitation, the Exchange Notes and any Notes
registered under the Securities Act pursuant to and in accordance with the
Registration Rights Agreement.


 


“Unrestricted
Subsidiary” means:


 


(1)           any Subsidiary designated as such by
an Officers’ Certificate as set forth below where neither the Company nor any
of its Restricted Subsidiaries (i) provides 


 


30

















 


credit support for, or Guarantee of, any Debt of such Subsidiary or any
Subsidiary of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt, but excluding in the case of a Receivables
Subsidiary any Standard Securitization Undertakings) or (ii) is directly
or indirectly liable for any Debt of such Subsidiary or any Subsidiary of such
Subsidiary (except in the case of a Receivables Subsidiary any Standard
Securitization Undertakings); and


 


(2)           any Subsidiary of an Unrestricted
Subsidiary.


 


“Voting Interests”
means, with respect to any Person, securities of any class or classes of
Capital Interests in such Person entitling the holders thereof generally to
vote on the election of members of the Board of Directors or comparable body of
such Person.


 


SECTION 1.2                                                  Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “Affiliate Transaction”

  	
   

  	
   

  	
  4.11

  
	
  “Agent Members”

  	
   

  	
   

  	
  2.6

  
	
  “Change of Control Offer”

  	
   

  	
   

  	
  4.14

  
	
  “covenant defeasance”

  	
   

  	
   

  	
  8.3

  
	
  “Covenant Suspension Event”

  	
   

  	
   

  	
  4.20

  
	
  “defeasance”

  	
   

  	
   

  	
  8.2

  
	
  “Discharge”

  	
   

  	
   

  	
  8.2

  
	
  “Event of Default”

  	
   

  	
   

  	
  6.1

  
	
  “Excess Proceeds”

  	
   

  	
   

  	
  4.10

  
	
  “Expiration Date”

  	
   

  	
   

  	
  3.9

  
	
  “non-payment default”

  	
   

  	
   

  	
  11.3

  
	
  “Note Register”

  	
   

  	
   

  	
  2.3

  
	
  “Offer Amount”

  	
   

  	
   

  	
  3.9

  
	
  “Purchase Date”

  	
   

  	
   

  	
  3.9

  
	
  “QIB”

  	
   

  	
   

  	
  2.1

  
	
  “QIB Global Note”

  	
   

  	
   

  	
  2.1

  
	
  “Payment Blockage Notice”

  	
   

  	
   

  	
  11.3

  
	
  “redemption date”

  	
   

  	
   

  	
  3.1

  
	
  “Registrar”

  	
   

  	
   

  	
  2.3

  
	
  “Regulation S”

  	
   

  	
   

  	
  2.1

  
	
  “Regulation S Global Note”

  	
   

  	
   

  	
  2.1

  
	
  “Rule 144A”

  	
   

  	
   

  	
  2.1

  
	
  “Surviving Entity”

  	
   

  	
   

  	
  5.1

  



 


SECTION 1.3                                                  Incorporation
by Reference of Trust Indenture Act.


 


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


 


31

















 


The following TIA term used in this Indenture has
the following meaning:


 


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


 


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


 


SECTION 1.4                                                       Rules of
Construction.


 


Unless the context otherwise requires:


 


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


 


(2)           an accounting term
not otherwise defined herein 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)           unless otherwise
specified, any reference to a Section or an Article refers to such Section or
Article of this Indenture;


 


(6)           provisions apply to
successive events and transactions;


 


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


 


(8)           for the avoidance of
doubt, any references to “interest” shall include any Additional Interest that
may be payable.


 


ARTICLE II


 


THE NOTES


 


SECTION 2.1                                                  Form and
Dating.


 


(a)           The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A attached hereto.  The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage.  Each Note shall be dated the date of its
authentication.  The Notes initially
shall be issued only in denominations of $2,000 and any integral multiple of
$1,000 in excess thereof.


 


32
















 


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 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.


 


The Notes shall be issued initially in the form of
one or more Global Notes substantially in the form attached as Exhibit A
hereto and shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee as Note Custodian, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided.


 


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 amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and transfers of interests.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof.


 


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


 


(b)           The
Initial Notes are being issued by the Issuer only (i) to “qualified
institutional buyers” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) (“QIBs”) and (ii) in
reliance on Regulation S under the Securities Act (“Regulation S”).  After such initial offers, Initial Notes that
are Restricted Notes may be transferred to QIBs, in reliance on Rule 144A,
outside the United States pursuant to Regulation S or to the Company, in
accordance with certain transfer restrictions. 
Initial Notes that are offered in reliance on Rule 144A shall be issued
in the form of one or more permanent Global Notes substantially in the form set
forth in Exhibit A (the “QIB Global Note”)
deposited with the Trustee, as Note Custodian, duly executed by the Company and
authenticated by the Trustee as hereinafter provided.  Initial Notes that are offered in offshore
transactions in reliance on Regulation S shall be issued in the form of one or
more Global Notes substantially in the form set forth in Exhibit A
(the “Regulation S Global Note”) deposited
with the Trustee, as Note Custodian, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. 
The QIB Global Note and the Regulation S Global Note shall each be
issued with separate CUSIP numbers.  The
aggregate principal amount of each Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
Note Custodian.  Transfers of Notes
between QIBs and to or by purchasers pursuant to Regulation S shall be
represented by appropriate increases and decreases to the respective amounts of
the appropriate Global Notes, as more fully provided in Section 2.16.


 


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


 


33

















 


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


 


Participants shall have no rights either under this
Indenture with respect to any Global Note held on their behalf by the
Depositary or by the Note Custodian or under such Global Note, and the
Depositary may be treated by the Issuer, the Trustee and any agent of the
Issuer or the Trustee as the absolute owner of such Global Note for all purposes
whatsoever.  Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, the Trustee or any Agent or
other agent of the Issuer or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Participants, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.


 


The Trustee shall have no responsibility or
obligation to any Holder, any member of (or a participant in) DTC or any other
Person with respect to the accuracy of the records of DTC (or its nominee) or
of any participant or member thereof, with respect to any ownership interest in
the Notes or with respect to the delivery of any notice (including any notice
of redemption) or the payment of any amount or delivery of any Notes (or other
security or property) under or with respect to the Notes.  The Trustee may rely (and shall be fully
protected in relying) upon information furnished by DTC with respect to its
members, participants and any Beneficial Owners in the Notes.


 


(d)           Notes
issued in certificated form, including Global Notes, shall be substantially in
the form of Exhibit A attached hereto.


 


SECTION 2.2                                                  Execution and
Authentication.


 


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


 


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


 


A Note shall not be valid until authenticated by the
manual signature of an authorized signatory 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 one Officer directing the Trustee to authenticate and deliver
the Notes and certifying that all conditions precedent to the issuance of the
Notes contained herein have been complied with, authenticate Notes for original
issue up to the aggregate principal amount stated in paragraph 4 of the
Notes.  The aggregate principal amount of
Notes outstanding at any time may not exceed such amount except as provided in Section 2.17
hereof.


 


34

















 


The Trustee may appoint an authenticating agent
reasonably acceptable to the Issuer to authenticate Notes.  Unless limited by the terms of such
appointment, 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 the Issuer or an Affiliate of
the Issuer.


 


SECTION 2.3                                                  Registrar;
Paying Agent.


 


The Issuer shall maintain (i) an office or
agency where Notes may be presented for registration of transfer or for
exchange (“Registrar”) and (ii) an office or
agency where Notes may be presented for payment to a Paying Agent.  The Registrar shall keep a register of the
Notes (the “Note Register”) and of their transfer
and exchange.  The Issuer may appoint one
or more co-registrars and one or more additional paying agents; provided, however, that
at all times there shall be only one Note Register.  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.  The Issuer or any of its
Restricted Subsidiaries may act as Paying Agent or Registrar.


 


The Issuer shall notify the Trustee and the Holders
of the name and address of any Agent not a party to this Indenture.  The Issuer or any Guarantor may act as Paying
Agent or Registrar.  The Issuer shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which shall incorporate the provisions of Section 317(b) of
the TIA.  The agreement shall implement
the provisions of this Indenture that relate to such Agent.  The Issuer shall notify the Trustee of the
name and address of any such Agent.


 


The Issuer initially appoints the Trustee to act as
the Registrar and Paying Agent and initially appoints the Corporate Trust
Office of the Trustee as the office or agency of the Company for such purposes
and as the office or agency of the Company where notices  and demands to or upon the Issuer in respect
of the Notes and this Indenture may be served and the Trustee as the agent of
the Issuer to receive such notices and demands.


 


The Issuer initially appoints DTC to act as the
Depositary 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 shall hold in trust
for the benefit of the Holders or the Trustee all money held by the Paying
Agent for the payment of principal, premium, if any, or interest on the Notes,
and shall 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 a Subsidiary) shall have no further
liability for the money.  If the Issuer or
a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all 


 


35

















 


money held by it as Paying
Agent.  Upon the occurrence of events
specified in Section 6.1(8) hereof, 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 to the Trustee at least seven (7) 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, including the
aggregate principal amount of the Notes held by each Holder thereof, and the
Issuer shall otherwise comply with TIA § 312(a).


 


SECTION 2.6                                                       Book-Entry
Provisions for Global Securities.


 


(a)           Each
Global Note constituting a Restricted Note shall (i) be registered in the
name of the Depositary for such Global Notes or the nominee of such Depositary,
(ii) be delivered to the Trustee as Note Custodian and (iii) bear
legends as required by Section 2.6(e).


 


Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture
with respect to any Global Note held on their behalf by the Depositary, or the
Trustee as its custodian, or under the Global Note, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.


 


(b)           Transfers
of a Global Note shall be limited to transfers of such Global Note in whole,
but not in part, to the Depositary, its successors or their respective
nominees.  Interests of Beneficial Owners
(or the requesting Beneficial Owners in the case of clause (ii) immediately
below) in a Global Note may be transferred in accordance with Section 2.16
and the rules and procedures of the Depositary.  In addition, Certificated Notes shall be
transferred to all Beneficial Owners in exchange for their beneficial interests
if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for the Global Notes or the Depositary ceases to be a
“clearing agency” registered under the Exchange Act and a successor depositary
is not appointed by the Company within ninety (90) days of such notice or (ii) an
Event of Default of which a Responsible Officer of the Trustee has actual
notice has occurred and is continuing and the Registrar has received a request
from the Depositary or a Beneficial Owner in a Global Note to issue such Certificated
Notes.


 


(c)           In
connection with the transfer of the entire Global Note to beneficial owners pursuant
to clause (b) of this Section, such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each Beneficial Owner identified
by the Depositary in exchange for its beneficial


 


36

















 


interest in such
Global Note an equal aggregate principal amount of Certificated Notes of authorized
denominations.


 


(d)                                 The registered
holder of a Global Note may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interest through Agent Members,
to take any action which a Holder is entitled to take under this Indenture or
the Notes.


 


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


 


(i)                                     Private
Placement Legend.


 


(1)           Unless and until (x) a Note is exchanged for an
Exchange Note or sold in connection with an effective shelf registration
statement pursuant to the Registration Rights Agreement or (y) the Company
determines and there is delivered to the Trustee an Opinion of Counsel
reasonably satisfactory to the Trustee and a letter of representation of the
Company reasonably satisfactory to the Trustee to the effect that the following
legend and the related restrictions on transfer are not required in order to
maintain compliance with the provisions of the Securities Act, each Global Note
and each Certificated Note (and all Notes issued in exchange therefor or
substitution therefor) shall bear the legend in substantially the following
form:


 


“THE SECURITY (OR ITS
PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. 
EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT
THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.  THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF 


 


37

















 


COUNSEL IF THE COMPANY SO
REQUESTS), (ii) TO THE COMPANY, OR (iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE.  NO REPRESENTATION CAN BE MADE AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY
EVIDENCED HEREBY.”


 


(ii)                                  Global Note
Legend.  Each Global Note, whether or
not an Exchange Note, Restricted Global Note or Unrestricted Global Note, shall
bear a legend in substantially the following form:


 


“THIS GLOBAL NOTE IS HELD BY
THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.6(e)(iv) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(b) 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 (“DTC”)
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS 


 


38

















 


WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”


 


(iii)                               Each Global
Note shall bear the Global Note Legend on the face thereof.


 


(iv)                              At such time as
all beneficial interests in Global Notes have been exchanged for Certificated
Notes, redeemed, repurchased or cancelled, all Global Notes 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 Certificated
Notes, redeemed, repurchased or cancelled, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note, by the Trustee or the Note Custodian, at the
direction of the Trustee, to reflect such reduction.


 


(f)                                    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 Certificated Notes at the Registrar’s
request.


 


(ii)                             No service
charge shall be made to a Holder for any registration of transfer or exchange,
but the Issuer may require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in connection therewith
(other than any such stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.2, 2.10, 3.6, 4.10,
4.14 and 9.5 hereto).


 


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


 


(iv)        The Registrar shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period beginning at the
opening of fifteen (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 a record date and the next succeeding
interest payment date.


 


(v)         [Reserved].


 


(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 neither the Trustee, any Agent nor the Issuer
shall be affected by notice to the contrary.


 


39

















 


(vii)       The Trustee shall authenticate Global Notes and Certificated
Notes in accordance with the provisions of Section 2.2 hereof.  Except as provided in Section 2.6(b),
neither the Trustee nor the Registrar shall authenticate or deliver any
Certificated Note in exchange for a Global Note.


 


(viii)      Each Holder agrees to provide reasonable
indemnity to the Issuer and the Trustee against any liability that may result
from the transfer, exchange or assignment of such Holder’s Note in violation of
any provision of this Indenture and/or applicable United States federal or
state securities law.


 


(ix)        The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among Agent Members or
Beneficial Owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.


 


(x)         Affiliates of the Company are prohibited from taking
beneficial interest in one or more Restricted Global Notes.


 


SECTION 2.7                                                       Replacement
Notes.


 


If any mutilated Note is surrendered to the Trustee,
or the Issuer and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Issuer shall issue and the Trustee,
upon the written order of the Issuer signed by an Officer of the Issuer, shall
authenticate a replacement Note if the Trustee’s requirements are met.  If required by the Trustee or the Issuer, an
indemnity bond must be supplied by the 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 and the
Trustee may charge for their expenses in replacing a Note.


 


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.


 


SECTION 2.8                                                       Outstanding
Notes.


 


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


 


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


 


40

















 


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
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
aggregate principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Issuer or by any Affiliate of 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 shown on the register as being owned
shall be so disregarded.  Notwithstanding
the foregoing, Notes that are to be acquired by the Issuer or an Affiliate of
the Issuer pursuant to an exchange offer, tender offer or other agreement shall
not be deemed to be owned by such entity until legal title to such Notes passes
to such entity.


 


SECTION 2.10                                                 Temporary Notes.


 


Until Certificated Notes are ready for delivery, the
Issuer may prepare and the Trustee shall authenticate temporary Notes upon a
written order of the Issuer signed by two Officers of the Issuer.  Temporary Notes shall be substantially in the
form of Certificated Notes but may have variations that the Issuer considers
appropriate for temporary Notes.  Without
unreasonable delay, the Issuer shall prepare and the Trustee shall upon receipt
of a written order of the Issuer signed by two Officers authenticate
Certificated Notes in exchange for temporary Notes.


 


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 to the Trustee
for cancellation any Notes previously authenticated and delivered hereunder or
which the Issuer may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly cancelled by the Trustee.  All Notes surrendered for registration of
transfer, exchange or payment, if surrendered to any Person other than the Trustee,
shall be delivered to the Trustee.  The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation.  Subject to Section 2.7 hereof, the
Issuer may not issue new Notes to replace Notes that they have redeemed or paid
or that have been delivered to the Trustee for cancellation.  All cancelled Notes held by the Trustee shall
be disposed of in accordance with its customary practice, and certification of
their disposal delivered to the Issuer, unless by a written order, signed by an
Officer of the Issuer, the Issuer shall direct that cancelled Notes be returned
to it.


 


41

















 


SECTION 2.12                                                 Defaulted
Interest.


 


If the Issuer defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five (5) Business
Days prior to the payment date, in each case at the rate provided in the Notes
and in Section 4.1 hereof.  The
Issuer shall fix or cause to be fixed each such special record date and payment
date and shall promptly thereafter notify the Trustee of any such date.  At least fifteen (15) days before the special
record date, the Issuer (or the Trustee, in the name and at the expense of the
Issuer) shall deliver or cause to be delivered to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.


 


SECTION 2.13                                                 Record Date.


 


The record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined as
provided for in TIA § 316 (c).


 


SECTION 2.14                                                 Computation of
Interest.


 


Interest on the Notes shall be computed on the basis
of a 360-day year comprised of twelve 30-day months.


 


SECTION 2.15                                                 CUSIP Number.


 


The Issuer in issuing the Notes may use a “CUSIP”
and/or ISIN or other similar number, and if it does so, the Company may use the
CUSIP and/or ISIN or other similar number in notices of redemption or exchange
as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP and/or ISIN or other similar number printed in the
notice or on the Notes and that reliance may be placed only on the other
identification numbers printed on the Notes. 
The Issuer shall promptly notify the Trustee of any change in the CUSIP
and/or ISIN or other similar number.


 


SECTION 2.16                                                 Special
Transfer Provisions.


 


Unless and until (i) a Restricted Note is
exchanged for an Exchange Note or sold in connection with an effective shelf
registration statement pursuant to the Registration Rights Agreement or (ii) the
Restricted Notes Legend is no longer required pursuant to Section 2.6(e),
the following provisions shall apply:


 


(a)                                  Transfers to
QIBs.  The following provisions shall
apply with respect to the registration of any proposed transfer of a Restricted
Note (other than pursuant to Regulation S):


 


(i)            The Registrar shall register the transfer of a Restricted
Note by a Holder to a QIB if such transfer is being made by a proposed
transferor who has 


 


42

















 


provided the Registrar with (a) an appropriately completed
certificate of transfer in the form attached to the Note and (b) a letter
substantially in the form set forth in Exhibit C hereto.


 


(ii)           If the proposed transferee is an Agent Member and the
Restricted Note to be transferred consists of an interest in the Regulation S
Global Note, upon receipt by the Registrar of (x) the items required by
paragraph (i) above and (y) instructions given in accordance with the
Depositary’s and the Registrar’s procedures therefor, the Registrar shall
reflect on its books and records the date and an increase in the principal
amount of the QIB Global Note in an amount equal to the principal amount of the
beneficial interest in the Regulation S Global Note to be so transferred, and
the Registrar shall reflect on its books and records the date and an
appropriate decrease in the principal amount of such Regulation S Global Note.


 


(b)                                 Transfers
Pursuant to Regulation S.  The
following provisions shall apply with respect to registration of any proposed
transfer of a Restricted Note pursuant to Regulation S:


 


(i)            The Registrar shall register any proposed transfer of a
Restricted Note pursuant to Regulation S by a Holder upon receipt of (a) an
appropriately completed certificate of transfer in the form attached to the
Note and (b) a letter substantially in the form set forth in Exhibit D
hereto from the proposed transferor.


 


(ii)           If the proposed transferee is an Agent Member holding a
beneficial interest in a QIB Global Note and the Restricted Note to be
transferred consists of an interest in a QIB Global Note, upon receipt by the Registrar
of (x) the letter, if any, required by paragraph (i) above and (y) instructions
in accordance with the Depositary’s and the Registrar’s procedures therefor,
the Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Regulation S Global Note in an amount equal to
the principal amount of the beneficial interest in the QIB Global Note to be
transferred, and the Registrar shall reflect on its books and records the date
and an appropriate decrease in the principal amount of the QIB Global Note.


 


(c)                                  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,
the Trustee shall authenticate, one or more Global Notes not bearing the
Restricted Notes Legend in an aggregate principal amount equal to the principal
amount of the beneficial interests in the Global Notes that are Restricted
Notes tendered for acceptance in accordance with the Exchange Offer and
accepted for exchange in the Exchange Offer. 
Concurrently with the issuance of such Global Notes, the Registrar shall
cause the aggregate principal amount of the applicable Restricted Notes to be
reduced accordingly, and the Registrar shall deliver to the Persons 


 


43

















 


designated
by the Holders of Restricted Notes so accepted Global Notes not bearing the
Restricted Notes Legend in the appropriate principal amount.


 


(d)                                 Restricted
Notes Legend.  Upon the
transfer, exchange or replacement of Unrestricted Notes, the Registrar shall
deliver Unrestricted Notes that do not bear the Restricted Notes Legend.  Upon the transfer, exchange or replacement of
Restricted Notes, the Registrar shall deliver only Restricted Notes that bear
the Restricted Notes Legend unless the Restricted Notes Legend is no longer
required by Section 2.6(e), or the Company determines and there is
delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee and a letter of representation of the Issuer reasonably satisfactory to
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required or appropriate in order to ensure that subsequent
transfers of the Notes are effected in compliance with the Securities Act.


 


(e)                                  General.  By its acceptance of any Note bearing the
Restricted Notes Legend, each Holder of such a Note acknowledges receipt of a
Restricted Note with restrictions on transfer of such Note set forth in this
Indenture and in the Restricted Notes Legend and agrees that it shall transfer
such Note only as provided in this Indenture until such time as the Restricted
Note Legend is no longer required pursuant to Section 2.6(e) and such
Holder transfers such a Restricted Note to an Unrestricted Note. The Registrar
shall not register a transfer of any Note unless such transfer complies with
the restrictions on transfer of such Note set forth in this Indenture. In
connection with any transfer of Notes, each Holder agrees by its acceptance of
the Notes to furnish the Registrar or the Company such certifications, legal
opinions or other information as either of them may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities Act
until such time as the Restricted Note Legend is no longer required pursuant to
Section 2.6(e) and such Holder transfers such a Restricted Note to an
Unrestricted Note; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other
information.


 


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


 


SECTION 2.17                                                 Issuance of
Additional Notes.


 


The Company shall be entitled to issue Additional
Notes under this Indenture that shall have identical terms as the Initial
Notes, other than with respect to the date of issuance, issue price, amount of
interest payable on the first interest payment date applicable thereto and any
customary escrow provisions (and, if such Additional Notes shall be issued in
the form of Restricted Notes, other than with respect to transfer restrictions,
any Registration Rights Agreement and additional interest with respect
thereto); provided that such issuance is not prohibited
by the terms of this Indenture, including Section 4.9.  The Initial Notes and any Additional Notes
and all Exchange Notes shall be treated as a single class for all purposes
under this Indenture.


 


44
















 


With respect to any Additional Notes, the Company
shall set forth in a resolution of its Board of Directors and in an Officers’
Certificate, a copy of each of which shall be delivered to the Trustee, the
following information:


 


(1)           the aggregate
principal amount of such Additional Notes to be authenticated and delivered pursuant
to this Indenture;


 


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


 


(3)           whether such
Additional Notes shall be Restricted Notes.


 


ARTICLE III


 


REDEMPTION AND PREPAYMENT


 


SECTION 3.1                                                       Notices to
Trustee.


 


If the Issuer elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.7 hereof, it shall furnish to
the Trustee, at least forty-five (45) days (or such shorter period as is
acceptable to the Trustee) before a date fixed for redemption (the “redemption date”), an Officers’ Certificate setting forth (i) the
section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
Redemption Price.


 


If the Issuer is required to make an Offer to
Purchase pursuant to Section 4.10 or 4.14 hereof, it shall furnish to the
Trustee, at least forty-five (45) days (or such shorter period as is acceptable
to the Trustee) before the scheduled purchase date, an Officers’ Certificate
setting forth (i) the section of this Indenture pursuant to which the
offer to purchase shall occur, (ii) the terms of the offer, (iii) the
principal amount of Notes to be purchased, (iv) the purchase price and (v) the
purchase date and further setting forth a statement to the effect that (a) the
Issuer or one of its Subsidiaries has effected an Asset Sale and there are
Excess Proceeds aggregating more than $20.0 million or (b) a Change of
Control has occurred, as applicable.


 


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 to be redeemed among the Holders
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 by such
method as the Trustee shall deem fair and appropriate (and in a manner that
complies with applicable requirements of the Depositary); provided
that no Notes of $2,000 or less shall be redeemed in part.  Notices of redemption shall be sent electronically
or mailed by first class mail at least 30 but not more than 60 days before the
redemption date to each Holder of Notes to be redeemed at its registered
address.  If any Note is to be 


 


45

















 


redeemed in part only, the
notice of redemption that relates to such Note shall state the portion of the
principal amount thereof to be redeemed. 
A new Note in principal amount equal to the unredeemed portion of the
original Note will be issued in the name of the Holder thereof upon cancellation
of the original Note.  On and after the
redemption date, interest ceases to accrue on Notes or portions of them called
for redemption.  The Trustee shall make
the selection from the Notes outstanding and not previously called for
redemption and shall promptly notify the Issuer in writing of the Notes selected
for redemption.  The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of the Notes that have denominations larger than $2,000.


 


SECTION 3.3                                                       Notice of
Redemption.


 


Subject to the provisions of Section 3.9, at
least 30 days but not more than 60 days before a redemption date, the Issuer shall
send or cause to be sent by electronic transmission or by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed.


 


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


 


(1)           the redemption date;


 


(2)           the Redemption
Price;


 


(3)           if any Note is being
redeemed in part, the portion of the principal amount of such Notes to be
redeemed and that, 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;


 


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


 


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


 


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


 


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


 


(8)           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 (or such shorter period as is acceptable to the Trustee), an
Officer’s Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in the notices as provided in the preceding
paragraph.  The notice


 


46

















 


sent in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
a Holder receives such notice.  In any
case, failure to give such notice by electronic transmission or by mail or any
defect in the notice to the Holder of any Note shall not affect the validity of
the proceeding for the redemption of any other Note.


 


SECTION 3.4                                                       Effect of
Notice of Redemption.


 


Once notice of redemption is sent in accordance with
Section 3.3 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the Redemption Price plus accrued and unpaid
interest, if any, to such date.  A notice
of redemption may not be conditional.


 


SECTION 3.5                                                       Deposit of
Redemption of Purchase Price.


 


On or before 10:00 a.m. (New York City time) on
each redemption date or the date on which Notes must be accepted for purchase
pursuant to Section 4.10 or 4.14, the Issuer shall deposit with the
Trustee or with the Paying Agent (other than the Issuer or an Affiliate of the
Issuer) money sufficient to pay the Redemption Price of and accrued and unpaid
interest, if any, on all Notes to be redeemed or purchased 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 (including any applicable premium), and accrued interest, if any, on,
all Notes to be redeemed or purchased.


 


If Notes called for redemption or tendered in an
Asset Sale Offer or Change of Control Offer are paid or if Issuer has deposited
with the Trustee or Paying Agent money sufficient to pay the redemption or
purchase price of, and unpaid and accrued interest, if any, on, all Notes to be
redeemed or purchased, on and after the redemption or purchase date, interest,
if any, shall cease to accrue on the Notes or the portions of Notes called for
redemption or tendered and not withdrawn in an Asset Sale Offer or Change of
Control Offer (regardless of whether certificates for such securities are
actually surrendered).  If a Note is
redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest, if
any, shall be paid to the Person in whose name such Note was registered at the
close of business on such record date. 
If any Note called for redemption 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
or purchase date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case, at the rate provided
in the Notes and in Section 4.1 hereof.


 


SECTION 3.6                                                       Notes Redeemed
in Part.


 


Upon surrender of a Note that is redeemed in part,
the Issuer shall issue and, upon the written request of an Officer of the
Issuer, 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.


 


47

















 


SECTION 3.7                                                       Optional
Redemption.


 


(i)      The Notes may be redeemed, in whole or in part, at any time
prior to November 15, 2013, at the option of the Company upon not less than
30 nor more than 60 days’ prior notice mailed by first-class mail to each
Holder’s registered address, at a Redemption Price equal to 100% of the
principal amount of the Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest, if any, to, the applicable redemption date
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date).


 


(ii)     The Notes are subject to redemption, at the option of the
Issuer, in whole or in part, at any time on or after November 15,
2013, upon not less than 30 nor more than 60 days’ notice at the following
Redemption Prices (expressed as percentages of the principal amount to be
redeemed) set forth below, plus accrued and unpaid interest, if any, to, but
not including, the redemption date (subject to the right of Holders of record
on the relevant regular record date to receive interest due on an interest
payment date that is on or prior to the redemption date), if redeemed during
the 12-month period beginning November 15 of the years indicated:


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
  2013

  	
   

  	
  104.0

  	
  %

  
	
  2014

  	
   

  	
  102.0

  	
  %

  
	
  2015 and thereafter

  	
   

  	
  100.0

  	
  %

  



 


(iii)    In addition to the optional redemption of the Notes in accordance
with the provisions of the preceding paragraph, prior to November 15,
2012, the Issuer may, with the net proceeds of one or more Qualified Equity
Offerings, redeem up to 35% of the aggregate principal amount of the
outstanding Notes (including Additional Notes) at a Redemption Price equal to
108.0% of the principal amount thereof, together with accrued and unpaid
interest thereon, if any, to the date of redemption; provided
that at least 65% of the principal amount of Notes then outstanding (including
Additional Notes) remains outstanding immediately after the occurrence of any
such redemption (excluding Notes held by the Company or its Subsidiaries) and
that any such redemption occurs within 90 days following the closing of any
such Qualified Equity Offering.


 


(iv)    The Issuer may, at any time and from time to time, purchase Notes
in the open market or otherwise, subject to compliance with this Indenture and
compliance with all applicable securities laws.


 


SECTION 3.8                                                       Mandatory
Redemption.


 


The Issuer shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.


 


48

















 


SECTION 3.9                                                       Offer to
Purchase.


 


In the event that the Issuer shall be required to
commence an Offer to Purchase pursuant to an Asset Sale Offer or a Change of
Control Offer, the Issuer shall follow the procedures specified below.


 


Unless otherwise required by applicable law, an
Offer to Purchase shall specify an expiration date (the “Expiration
Date”) of the Offer to Purchase, which shall be, subject to any contrary
requirements of applicable law, not less than 30 days or more than 60 days
after the date of delivering of such Offer, and a settlement date (the “Purchase Date”) for purchase of Notes within five Business
Days after the Expiration Date.  On the
Purchase Date, the Company shall purchase the aggregate principal amount of
Notes required to be purchased pursuant to Section 4.10 hereof or Section 4.14
hereof (the “Offer Amount”), or if less than
the Offer Amount has been tendered, all Notes tendered in response to the Offer
to Purchase.  Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.  If the Purchase Date is on or after the
interest record date and on or before the related interest payment date, any
accrued and unpaid interest, if any, shall be paid to the Person in whose name
a Note is registered at the close of business on such record date, and no
additional interest, if any, shall be payable to the Holders who tender Notes
pursuant to the Offer to Purchase.  The
Company shall notify the Trustee at least 15 days (or such shorter period as is
acceptable to the Trustee in its sole discretion) prior to the delivering of
the Offer of the Company’s obligation to make an Offer to Purchase, and the
Offer shall be sent electronically or mailed by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company.  The Offer shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Offer to Purchase.


 


On or before 10:00 a.m. (New York City time) on
each Purchase Date, the Issuer shall irrevocably deposit with the Trustee or
Paying Agent (other than the Issuer or an Affiliate of the Issuer) in
immediately available funds the aggregate purchase price equal to the Offer
Amount, together with accrued and unpaid interest, if any, thereon, to be held
for payment in accordance with the terms of this Section 3.9.  On the Purchase Date, the Issuer shall, to
the extent lawful, (i) accept for payment, on a pro rata
basis to the extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Offer to Purchase, or if less than the Offer Amount
has been tendered, all Notes tendered, (ii) deliver or cause the Paying
Agent or depositary, as the case may be, to deliver to the Trustee Notes so
accepted and (iii) deliver to the Trustee an Officers’ Certificate stating
that such Notes or portions thereof were accepted for payment by the Issuer in
accordance with the terms of this Section 3.9.  The Issuer, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than three
(3) Business Days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Issuer for purchase, plus any accrued and
unpaid interest, if any, thereon, and the Issuer shall promptly issue a new
Note, and the Trustee, at the written request of the Issuer, shall authenticate
and mail or deliver at the expense of the Issuer such new Note to such Holder,
equal in principal amount to any unpurchased portion of such Holder’s Notes
surrendered; provided that each such new Note will
be in a principal amount of $2,000 or any integral multiple of $1,000 in excess
thereof.  Any Note not so accepted shall
be promptly mailed or delivered by the Issuer to the Holder thereof.  The Issuer 


 


49

















 


shall publicly announce in a
newspaper of general circulation or in a press release provided to a nationally
recognized financial wire service the results of the Offer to Purchase on the
Purchase Date.


 


The Issuer shall comply with the requirements of any
applicable securities laws and any regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Notes as a result of an Asset Sale Offer or Change of Control Offer.  To the extent that the provisions of any
securities laws or regulations conflict with Sections 3.9, 4.10 or 4.14 of this
Indenture, the Company will comply with the applicable securities laws and
regulations and will be deemed to have complied with its obligations under Section 3.9,
4.0 or 4.14, as applicable, by virtue of such compliance.


 


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


 


ARTICLE IV


 


COVENANTS


 


SECTION 4.1                                                       Payment of
Notes.


 


(a)           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 for all purposes hereunder on the date the Paying
Agent, if other than the Issuer or a Subsidiary thereof, holds, as of 10:00 a.m.
(New York City time), money deposited by the Issuer in immediately available
funds and designated for and sufficient to pay all such principal, premium, if any,
and interest then due.


 


(b)           The
Issuer shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to 1% per
annum in excess of the then applicable interest rate on the Notes to the extent
lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (without
regard to any applicable grace period) at the same rate to the extent lawful.


 


SECTION 4.2                                                       Maintenance of
Office or Agency.


 


The Issuer shall maintain an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee or 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. 
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.  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 of 


 


50

















 


the Trustee and the Company
hereby appoints the Trustee its agent to receive all such presentations, surrenders,
notices and demands.


 


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
designations.  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.


 


SECTION 4.3                                                       Provision of
Financial Information.


 


Whether or not required by the Commission, so long
as any Notes are outstanding, the Company will furnish to the Holders of Notes,
or file electronically with the Commission through the Commission’s Electronic
Data Gathering, Analysis and Retrieval System (or any successor system), within
the time periods specified in the Commission’s rules and regulations:


 


(1)           all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and, with
respect to the annual information only, a report on the annual financial
statements by the Company’s certified independent accountants; and


 


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


 


In addition, whether or not required by the
Commission, the Company will file a copy of all of the information and reports
referred to in clauses (1) and (2) above with the Commission for
public availability within the time periods specified in the Commission’s rules and
regulations (unless the Commission will not accept such a filing) and make such
information available to prospective investors. 
In addition, the Company and the Subsidiary Guarantors have agreed that,
for so long as any Notes remain outstanding, they will furnish to the Holders
and to prospective investors, upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


If the Company has designated any of its
Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual
financial information required by the preceding paragraph shall include a
reasonably detailed presentation, either on the face of the financial statements
or in the footnotes thereto, and in “Management’s Discussion and Analysis of
Financial Condition and Results of Operations,” of the financial condition and
results of operations of the Company and its Restricted Subsidiaries separate
from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Company.


 


51

















 


SECTION 4.4                                                       Compliance
Certificate.


 


The Company 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 Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers
with a view to determining whether each has kept, observed, performed and
fulfilled its obligations under this Indenture (including, with respect to any
Restricted Payments made during such year, the basis upon which the
calculations required by Section 4.7 hereof were computed, which calculations
may be based upon the Company’s latest available financial statements), and
further stating, as to each such Officer signing such certificate, that, to his
or her knowledge, each entity is 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, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company 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, premium, if any, or
interest on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.


 


The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers’ Certificate specifying such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto.


 


SECTION 4.5                                                       Taxes.


 


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


 


SECTION 4.6                                                       Stay, Extension
and Usury Laws.


 


The Company 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
Company and each of the Guarantors (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.


 


52

















 


SECTION 4.7                                                       Limitation on
Restricted Payments.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment
unless, at the time of and after giving effect to the proposed Restricted
Payment:


 


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


 


(b)           after giving effect
to such Restricted Payment on a pro forma basis, the Company would be permitted
to Incur at least $1.00 of additional Debt (other than Permitted Debt) pursuant
to the provisions described in the first paragraph under Section 4.9; and


 


(c)           after giving effect
to such Restricted Payment on a pro forma basis, the aggregate amount expended
or declared for all Restricted Payments made on or after the Issue Date
(excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v),
(vi), (vii), (viii), (ix), (xi) and (xii) of the next succeeding paragraph)
shall not exceed the sum (without duplication) of:


 


(1)           50%
of the Consolidated Net Income (or, if Consolidated Net Income shall be a
deficit, minus 100% of such deficit) of the Company accrued on a cumulative
basis during the period (taken as one accounting period) from the beginning of
the first full fiscal quarter during which the Issue Date occurs and ending on
the last day of the fiscal quarter immediately preceding the date of such
proposed Restricted Payment, plus


 


(2)           100%
of the aggregate net proceeds (including the Fair Market Value of property
other than cash) received by the Company subsequent to the Issue Date either (i) as
a contribution to its common equity capital or (ii) from the issuance and
sale (other than to a Subsidiary) of its Qualified Capital Interests, including
Qualified Capital Interests issued upon the conversion of Debt or Redeemable
Capital Interests of the Company, and from the exercise of options, warrants or
other rights to purchase such Qualified Capital Interests (other than, in each
case, Capital Interests or Debt sold to a Subsidiary of the Company), plus


 


(3)           100%
of the net reduction in Investments (other than Permitted Investments), subsequent
to the Issue Date, in any Person, resulting from (i) payments of interest
on Debt, dividends, repayments of loans or advances or any sale or disposition
of such Investments (but only to the extent such items are not included in the
calculation of Consolidated Net Income), in each case to the Company or any
Subsidiary from any Person or (ii) the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, not to exceed in the case of any Person
the amount of Investments previously made by the Company or any Restricted
Subsidiary in such Person subsequent to the Issue Date.


 


53

















 


Notwithstanding the foregoing provisions, the
Company and its Restricted Subsidiaries may take the following actions, provided that, at the time of and after giving effect to the
proposed Restricted Payment, no Default or Event of Default shall have occurred
and be continuing or will occur as a consequence thereof:


 


(i)     the payment of any dividend on Capital Interests in the Company
or a Restricted Subsidiary within 60 days after declaration thereof if at the
declaration date such payment was permitted by the foregoing provisions of this
Section 4.7;


 


(ii)    the purchase, repurchase, redemption, defeasance or other
acquisition or retirement of any Qualified Capital Interests of the Company by
conversion into, or by or in exchange for, Qualified Capital Interests, or out
of Net Cash Proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of other Qualified Capital Interests of
the Company;


 


(iii)   the redemption, defeasance, repurchase or acquisition or retirement
for value of any Debt of the Company or a Guarantor that is subordinate in
right of payment to the Notes or the applicable Note Guarantee out of the Net
Cash Proceeds of a substantially concurrent issue and sale (other than to a
Subsidiary of the Company) of (x) new subordinated Debt of the Company or
such Guarantor, as the case may be, Incurred in accordance with this Indenture
or (y) Qualified Capital Interests of the Company;


 


(iv)   the purchase, redemption, retirement or other acquisition for
value of Capital Interests in the Company or any direct or indirect parent of
the Company (or any payments to a direct or indirect parent company of the
Company for the purposes of permitting any such repurchase) held by employees
or former employees of the Company or any Restricted Subsidiary (or their
estates or beneficiaries under their estates) upon death, disability,
retirement or termination of employment or alteration of employment status or
pursuant to the terms of any agreement under which such Capital Interests were
issued; provided that the
aggregate cash consideration paid for such purchase, redemption, retirement or
other acquisition of such Capital Interests does not exceed $2.5 million
in any calendar year; provided, further, that any unused amounts in any
calendar year may be carried forward to one or more future periods subject to a
maximum aggregate amount of repurchases made pursuant to this clause (iv) not
to exceed $5.0 million in any calendar year; provided, however,
that such amount in any calendar year may be increased by an amount not to
exceed (A) the cash proceeds received by the Company or any of its Restricted
Subsidiaries from the sale of Qualified Capital Interests of the Company or any
direct or indirect parent company of the Company (to the extent contributed to
the Company) to employees of the Company and its Restricted Subsidiaries that
occurs after the Issue Date; provided,
however, that the amount of such
cash proceeds utilized for any such repurchase, retirement, other acquisition
or dividend will not increase the amount available for Restricted Payments
under clause (c) of the first paragraph of this Section 4.7;
plus (B) the cash proceeds of key man life insurance policies received by
the Company and its Restricted Subsidiaries after the Issue Date (provided, however,
that the Company may elect to apply all or any portion of the aggregate
increase contemplated by the proviso of this clause (iv) in any
calendar year and, to the extent any payment described


 


54

















 


under this clause (iv) is made by delivery of Debt and not in
cash, such payment shall be deemed to occur only when, and to the extent, the
obligor on such Debt makes payments with respect to such Debt);


 


(v)    repurchase of Capital Interests deemed to occur upon the exercise
of stock options, warrants or other convertible or exchangeable securities;


 


(vi)   the extension of credit that constitutes intercompany Debt, the
Incurrence of which was permitted pursuant to Section 4.9 and pursuant to
clauses (v), (x) and (xiii) of the definition of “Permitted Debt”;


 


(vii)  cash payment, in lieu of issuance of fractional shares in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for the Capital Interests of the Company or a
Restricted Subsidiary;


 


(viii) the declaration and payment of dividends to
holders of any class or series of Redeemable Capital Interests of the Company
or any Restricted Subsidiary issued or Incurred in compliance with Section 4.9
to the extent such dividends are included in the definition of “Consolidated
Fixed Charges”;


 


(ix)    the payment of a regular cash quarterly dividend on the Company’s
common stock in November 2009 not to exceed $800,000 in the aggregate;


 


(x)     the payment of regular cash quarterly dividends on the Company’s
common stock not to exceed $10.0 million in any calendar year;


 


(xi)    other Restricted Payments not in excess of $50.0 million in the
aggregate since the Issue Date; and


 


(xii)   any refinancing, redemption, repayment, defeasance or purchase of
the Convertible Notes.


 


If the Company makes a Restricted Payment which, at
the time of the making of such Restricted Payment, in the good faith
determination of the Company, would be permitted under the requirements of this
Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustment made
in good faith to the Company’s financial statements affecting Consolidated Net
Income.


 


If any Person in which an Investment is made, which
Investment constitutes a Restricted Payment when made, thereafter becomes a
Restricted Subsidiary in accordance with this Indenture, all such Investments
previously made in such Person shall no longer be counted as Restricted
Payments for purposes of calculating the aggregate amount of Restricted
Payments pursuant to clause (c) of the first paragraph under this Section 4.7,
in each case to the extent such Investments would otherwise be so counted.


 


If the Company or a Restricted Subsidiary transfers,
conveys, sells, leases or otherwise disposes of an Investment in accordance
with Section 4.10, which Investment was originally included


 


55

















 


in the aggregate amount
expended or declared for all Restricted Payments pursuant to clause (c) of
the definition of “Restricted Payment,” the aggregate amount expended or
declared for all Restricted Payments shall be reduced by the lesser of (i) the
Net Cash Proceeds from the transfer, conveyance, sale, lease or other
disposition of such Investment or (ii) the amount of the original
Investment, in each case, to the extent originally included in the aggregate
amount expended or declared for all Restricted Payments pursuant to clause (c) of
the definition of “Restricted Payment.”


 


For purposes of this Section 4.7, if a
particular Restricted Payment involves a non-cash payment, including a
distribution of assets, then such Restricted Payment shall be deemed to be an
amount equal to the cash portion of such Restricted Payment, if any, plus an
amount equal to the Fair Market Value of the non-cash portion of such
Restricted Payment.


 


SECTION 4.8                                                       Limitation on
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, cause or suffer to exist or
become effective or enter into any encumbrance or restriction (other than
pursuant to this Indenture or any law, rule, regulation or order) on the
ability of any Restricted Subsidiary to (i) pay dividends or make any
other distributions on its Capital Interests owned by the Company or any
Restricted Subsidiary or pay any Debt or other obligation owed to the Company
or any Restricted Subsidiary, (ii) make loans or advances to the Company
or any Restricted Subsidiary thereof or (iii) transfer any of its property
or assets to the Company or any Restricted Subsidiary.


 


However, the preceding restrictions will not apply
to the following encumbrances or restrictions existing under or by reason of:


 


(a)           any encumbrance or
restriction in existence on the Issue Date, including those under the Credit
Agreement, the Existing Receivables Facility and the Leasing Facility and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof; provided
that the amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings, in the good faith
judgment of the Company, are no more restrictive in any material respect, taken
as a whole, with respect to such dividend or other payment restrictions, than
those contained in these agreements on the Issue Date or refinancings thereof;


 


(b)           any encumbrance or
restriction pursuant to an agreement relating to an acquisition of property, so
long as the encumbrances or restrictions in any such agreement relate solely to
the property so acquired (and are not or were not created in anticipation of or
in connection with the acquisition thereof);


 


(c)           any encumbrance or
restriction which exists with respect to a Person that becomes a Restricted
Subsidiary or merges with or into a Restricted Subsidiary of the Company on or
after the Issue Date, which is in existence at the time such Person becomes


 


56

















 


a
Restricted Subsidiary, but not created in connection with or in anticipation of
such Person becoming a Restricted Subsidiary, and which is not applicable to
any Person or the property or assets of any Person other than such Person or
the property or assets of such Person becoming a Restricted Subsidiary;


 


(d)           any encumbrance or
restriction pursuant to an agreement effecting a permitted renewal, refunding,
replacement, refinancing or extension of Debt issued pursuant to an agreement
containing any encumbrance or restriction referred to in the foregoing clauses (a) through
(c), so long as the encumbrances and restrictions contained in any such
refinancing agreement are no less favorable in any material respect to the
Holders than the encumbrances and restrictions contained in the agreements
governing the Debt being renewed, refunded, replaced, refinanced or extended in
the good faith judgment of the Company;


 


(e)           customary provisions
restricting subletting or assignment of any lease, contract, or license of the
Company or any Restricted Subsidiary or provisions in agreements that restrict
the assignment of such agreement or any rights thereunder;


 


(f)            any encumbrance or
restriction by reason of applicable law, rule, regulation or order;


 


(g)           any encumbrance or
restriction under this Indenture, the Notes and the Note Guarantees;


 


(h)           any encumbrance or
restriction under the sale of assets or Capital Interest, including, without
limitation, any agreement for the sale or other disposition of a subsidiary
that restricts distributions by that Subsidiary pending its sale or other
disposition;


 


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


 


(j)            customary
provisions with respect to the disposition or distribution of assets or
property in joint venture agreements, asset sale agreements, stock sale
agreements, sale leaseback agreements and other similar agreements;


 


(k)           any instrument
governing Debt or Capital Interests of a Person acquired by the Company or any
of the Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Debt or Capital Interests was incurred in connection
with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Debt, such Debt was permitted
by the terms of this Indenture to be incurred;


 


(l)            purchase money
obligations (including Capital Lease Obligations) for property acquired in the
ordinary course of business that impose restrictions on that property so
acquired of the nature described in clause (iii) of the first paragraph of
this Section 4.8;


 


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(m)          Liens securing Debt
otherwise permitted to be incurred under this Indenture, including pursuant to Section 4.12,
that limit the right of the debtor to dispose of the assets subject to such
Liens;


 


(n)           any Non-Recourse
Receivable Subsidiary Indebtedness or other contractual requirements of a
Receivable Subsidiary that is a Restricted Subsidiary in connection with a
Qualified Receivables Transaction; provided that
such restrictions apply only to such Receivable Subsidiary or the receivables
and related assets described in the definition of Qualified Receivables
Transaction which are subject to such Qualified Receivables Transaction; and


 


(o)           any other agreement
governing Debt entered into after the Issue Date that contains encumbrances and
restrictions that are not materially more restrictive with respect to any
Restricted Subsidiary than those in effect on the Issue Date with respect to
that Restricted Subsidiary pursuant to agreements in effect on the Issue Date.


 


Nothing contained in this Section 4.8 shall
prevent the Company or any Restricted Subsidiary from (i) creating,
incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.12
or (ii) restricting the sale or other disposition of property or assets of
the Company or any of its Restricted Subsidiaries that secure Debt of the
Company or any of its Restricted Subsidiaries Incurred in accordance with Section 4.9
and Section 4.12.


 


SECTION 4.9                                                       Limitation on
Incurrence of Debt.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted Subsidiaries
may Incur Debt (including Acquired Debt) if, immediately after giving effect to
the Incurrence of such Debt and the receipt and application of the proceeds
therefrom, (a) the Consolidated Fixed Charge Coverage Ratio of the Company
and its Restricted Subsidiaries, determined on a pro forma basis as if any such
Debt (including any other Debt being Incurred contemporaneously), and any other
Debt Incurred since the beginning of the Four-Quarter Period (as defined
below), had been Incurred and the proceeds thereof had been applied at the
beginning of the Four-Quarter Period, and any other Debt repaid since the
beginning of the Four-Quarter Period had been repaid at the beginning of the
Four-Quarter Period, would be greater than 2.25:1 and (b) no Default or
Event of Default shall have occurred and be continuing at the time or as a consequence
of the Incurrence of such Debt.


 


If the Debt which is the subject of a determination
under this provision is Acquired Debt, or Debt Incurred in connection with the
simultaneous acquisition of any Person, business, property or assets, or Debt of
an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then
such ratio shall be determined by giving effect (on a pro forma basis, as if
the transaction had occurred at the beginning of the Four-Quarter Period) to (x) the
Incurrence of such Acquired Debt or such other Debt by the Company or any of
its Restricted Subsidiaries and (y) the inclusion, in Consolidated Cash
Flow Available for Fixed Charges, of the Consolidated Cash Flow Available for
Fixed Charges of the acquired Person, business, property or assets or
redesignated Subsidiary.


 


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Notwithstanding the first paragraph above, the
Company and its Restricted Subsidiaries may Incur Permitted Debt.


 


For purposes of determining any particular amount of
Debt under this Section 4.9, (x) Debt Incurred under the Credit
Agreement on the Issue Date shall at all times be treated as Incurred pursuant
to clause (i) of the definition of “Permitted Debt,” and (y) Guarantees
or obligations with respect to letters of credit supporting Debt otherwise
included in the determination of such particular amount shall not be
included.  For purposes of determining
compliance with this Section 4.9, in the event that an item of Debt meets
the criteria of more than one of the types of Debt described above, including
categories of Permitted Debt and under part (a) in the first paragraph of
this Section 4.9, the Company, in its sole discretion, shall classify, and
from time to time may reclassify, all or any portion of such item of Debt.


 


The accrual of interest, the accretion or
amortization of original issue discount and the payment of interest on Debt in
the form of additional Debt or payment of dividends on Capital Interests in the
forms of additional shares of Capital Interests with the same terms will not be
deemed to be an Incurrence of Debt or issuance of Capital Interests for
purposes of this Section 4.9.


 


SECTION 4.10                                                 Limitation on
Asset Sales.


 


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


 


(1)                                  the Company (or
the Restricted Subsidiary, as the case may be) receives consideration at the
time of the Asset Sale at least equal to the Fair Market Value of the assets or
Capital Interests issued or sold or otherwise disposed of; and


 


(2)                                  at least 75% of
the consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Eligible Cash Equivalents.  For purposes of this provision, each of the
following will be deemed to be cash:


 


(a)                                  any
liabilities, as shown on the most recent consolidated balance sheet of the
Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any Note
Guarantee) that are assumed by the transferee of any such assets pursuant to a
customary assignment and assumption agreement that releases the Company or such
Restricted Subsidiary from further liability; and


 


(b)                                 any securities,
notes or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are converted by the Company or such
Restricted Subsidiary into cash within 180 days of their receipt to the extent
of the cash received in that conversion.


 


Within 360 days after the receipt of any Net Cash
Proceeds from an Asset Sale, the Company (or the applicable Restricted
Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:


 


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(1)                                  to repay Senior Debt of the
Company or any Guarantor and, if the Obligation repaid is revolving credit
Senior Debt, to correspondingly reduce commitments with respect thereto;


 


(2)                                  to acquire all or
substantially all of the assets of, or any Capital Interests of, another
Permitted Business, if, after giving effect to any such acquisition of Capital
Interests, the Permitted Business is or becomes a Restricted Subsidiary of the
Company;


 


(3)                                  to make a capital
expenditure in or that is used or useful in a Permitted Business or to make
expenditures for maintenance, repair or improvement of existing properties and
assets in accordance with the provisions of this Indenture;


 


(4)                                  to acquire other assets
(other than inventory) that are used or useful in a Permitted Business; or


 


(5)                                  any combination of the
foregoing.


 


Any Net Cash Proceeds from Asset Sales that are not
applied or invested as provided in the preceding paragraph of this Section 4.10
will constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $10.0 million, the Company will, within 30 days, make an Offer to
Purchase to all Holders of Notes (on a pro rata basis
to each series of Notes), and to all holders of other Debt ranking pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to assets sales, equal to the
Excess Proceeds.  The offer price in any
Offer to Purchase will be equal to 100% of the principal amount plus accrued
and unpaid interest to the date of purchase, and will be payable in cash.  If any Excess Proceeds remain after
consummation of an Offer to Purchase, the Company may use those funds for any
purpose not otherwise prohibited by this Indenture and they will no longer
constitute Excess Proceeds.  If the
aggregate principal amount of Notes and other pari
passu Debt tendered into such Offer to
Purchase exceeds the amount of Excess Proceeds, the Trustee will select the
Notes to be purchased on a pro rata basis
among each series.  Upon completion of
each Offer to Purchase, the amount of Excess Proceeds will be reset at zero.


 


The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other applicable securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with each repurchase of Notes pursuant to an Offer to Purchase.  To the extent that the provisions of any
securities laws or regulations conflict with the Asset Sale provisions of this
Indenture, the Company will comply with the applicable securities laws and
regulations and will be deemed to have complied with its obligations under the Asset
Sale provisions of this Indenture by virtue of such compliance.


 


SECTION 4.11                                                 Limitation on
Transactions with Affiliates.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction or series of related transactions, contract, agreement, loan,
advance or Guarantee 


 


60

















 


with, or for the benefit of,
any Affiliate of the Company (each of the foregoing, an “Affiliate
Transaction”), unless:


 


(i)                                     such Affiliate
Transaction is on terms that are not materially less favorable to the Company
or the relevant Subsidiary than those that could reasonably have been obtained
in a comparable arm’s length transaction by the Company or such Subsidiary with
an unaffiliated party;


 


(ii)                                  with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, the Company delivers to the
Trustee a resolution adopted in good faith by the majority of the Board of
Directors of the Company approving such Affiliate Transaction and set forth in
an Officers’ Certificate certifying that such Affiliate Transaction complies
with clause (i) above; and


 


(iii)                               with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $15.0 million, the Company must obtain and
deliver to the Trustee a written opinion of a nationally recognized investment
banking, accounting or appraisal firm (an “Independent Financial
Advisor”) stating that the transaction is fair to the Company or
such Restricted Subsidiary, as the case may be, from a financial point of view.


 


The foregoing limitation
does not limit, and shall not apply to:


 


(1)                                  Restricted
Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7
and Permitted Investments permitted under this Indenture;


 


(2)                                  the payment of
reasonable and customary fees and indemnities and other benefits to members of
the Board of Directors of the Company or a Restricted Subsidiary who are
outside directors;


 


(3)                                  the payment of
reasonable and customary compensation and other benefits (including retirement,
health, option, deferred compensation and other benefit plans) and indemnities
to officers and employees of the Company or any Restricted Subsidiary as
determined by the Board of Directors thereof in good faith;


 


(4)                                  transactions
between or among the Company and/or its Restricted Subsidiaries;


 


(5)                                  any agreement
or arrangement as in effect on the Issue Date and any amendment or modification
thereto so long as such amendment or modification is not more disadvantageous
to the holders of the Notes in any material respect;


 


(6)                                  any
contribution of capital to the Company;


 


(7)                                  transactions
permitted by, and complying with, Section 5.1;


 


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(8)                                  any transaction
with a joint venture, partnership, limited liability company or other entity
that would constitute an Affiliate Transaction solely because the Company or a
Restricted Subsidiary owns an equity interest in such joint venture,
partnership, limited liability company or other entity;


 


(9)                                  transactions
with customers, clients, suppliers or purchasers or sellers of goods or
services, in each case, in the ordinary course of business and consistent with
past practice and on terms that are not materially less favorable to the
Company or such Restricted Subsidiary, as the case may be, as determined in
good faith by the Company, than those that could be obtained in a comparable
arm’s length transaction with a Person that is not an Affiliate of the Company;
and


 


(10)                            transactions
effected as part of a Qualified Receivables Transaction.


 


SECTION 4.12                                                 Limitation on
Liens.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer
to exist or become effective any Lien of any kind securing Debt (other than
Permitted Liens) upon any of their property or assets, now owned or hereafter
acquired, unless all payments due under this Indenture and the notes are
secured on an equal and ratable basis with the obligations so secured (or, in
the case of Subordinated Obligations, prior or senior thereto, with the same
relative priority as the notes shall have with respect to such Subordinated
Obligations) until such time as such obligations are no longer secured by a
Lien.


 


SECTION 4.13                                                 Limitation on
Sale and Leaseback Transactions.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any Sale and Leaseback Transaction
unless:


 


(i)                                     the consideration
received in such Sale and Leaseback Transaction is at least equal to the fair
market value of the property sold, as determined by an Officers’ Certificate,


 


(ii)                                  prior to and
after giving effect to the Attributable Debt in respect of such Sale and Leaseback
Transaction, the Company and such Restricted Subsidiary comply with Section 4.9,
and


 


(iii)                               at or after
such time the Company and such Restricted Subsidiary also comply with Section 4.10.


 


SECTION 4.14                                                 Offer to
Purchase upon Change of Control.


 


Upon the occurrence of a Change of Control, unless
the Company has exercised its rights to redeem all of the Notes in accordance
with Section 3.7, the Issuer will make an Offer to Purchase (the “Change of Control Offer”) all of the outstanding Notes at a
Purchase Price in cash equal to 101% of the principal amount tendered, together
with accrued interest, if any, to but not 


 


62

















 


including the Purchase Date
(the “Change of Control Payment”).  For purposes of the foregoing, an Offer to Purchase
shall be deemed to have been made if (i) within 60 days following the date
of the consummation of a transaction or series of transactions that constitutes
a Change of Control, the Issuer commences an Offer to Purchase all outstanding
Notes at the Purchase Price and (ii) all Notes properly tendered pursuant
to the Offer to Purchase are purchased on the terms of such Offer to Purchase.


 


The Change of Control provisions described above
will be applicable whether or not any other provisions of this Indenture are
applicable.  Except as described above
with respect to a Change of Control, this Indenture does not contain provisions
that permit the Holders to require that the Issuer repurchase or redeem the
Notes in the event of a takeover, recapitalization or similar transaction.


 


Prior to repurchasing any Notes pursuant to the
provisions of this Section 4.14 but in any event within 90 days following
a Change of Control, the Company shall either repay all outstanding Senior Debt
or obtain the requisite consents, if any, under all agreements governing outstanding
Senior Debt to permit the repurchase of Notes required by this Section 4.14.
The Company shall publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.


 


The Issuer shall not be required to make a Change of
Control Offer upon a Change of Control if (i) a third party makes such
Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth herein 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 or (ii) a notice of redemption has been
given pursuant to Section 3.7.


 


To the extent that the provisions of any securities
laws or regulations conflict with the Change of Control provisions of this
Indenture, the Issuer will comply with the applicable securities laws and
regulations and will not be deemed to have breached their obligations under the
Change of Control provisions of this Indenture by virtue of such conflict.


 


In addition, an Offer to Purchase may be made in
advance of a Change of Control, conditional upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of
launching the Offer to Purchase.


 


SECTION 4.15                                                 Corporate
Existence.


 


Subject to Section 4.14 and Article V
hereof, as the case may be, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership, limited liability company or other existence of
each of its Subsidiaries in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Subsidiary and the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business 


 


63

















 


of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.


 


SECTION 4.16                                                 Business
Activities.


 


The Issuer will not, and will not permit any
Restricted Subsidiary to, engage in any business other than a Permitted
Business.


 


SECTION 4.17                                                 Additional Note
Guarantees.


 


On the Issue Date, each of the Guarantors will
Guarantee the Notes in the manner and on the terms set forth in Article X
hereof.


 


After the Issue Date, the Company will cause each of
its Domestic Restricted Subsidiaries that Guarantees any Debt of the Company or
any of its Domestic Restricted Subsidiaries incurred under any Credit Agreement
to Guarantee the Notes, which Guarantee will be subordinated to the same extent
as the Notes are subordinated to Senior Debt.


 


Each Guarantee by a Restricted Subsidiary will be
limited to an amount not to exceed the maximum amount that can be Guaranteed by
that Restricted Subsidiary without rendering the Guarantee, as it relates to
such Restricted Subsidiary, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.


 


SECTION 4.18                                                 Limitation on
Creation of Unrestricted Subsidiaries.


 


Triumph Receivables, LLC, Triumph Group Charitable
Foundation, Triumph Interiors, Ltd, Saygrove Actuation & Motion
Control Limited and Airframe Spares & Logistics GmbH will be
Unrestricted Subsidiaries on the Issue Date. 
After the Issue Date, the Company may designate any other Subsidiary of
the Company to be an “Unrestricted Subsidiary” as provided below, in which
event such Subsidiary and each other Person that is then or thereafter becomes
a Subsidiary of such Subsidiary will be deemed to be an Unrestricted Subsidiary.


 


The Company may designate any Subsidiary to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Interests of,
or owns or holds any Lien on any property of, any other Restricted Subsidiary
of the Company, provided that either:


 


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


 


(y)                                 the Company could make a
Restricted Payment at the time of designation in an amount equal to the greater
of the Fair Market Value or book value of such Subsidiary pursuant to Section 4.7
and such amount is thereafter treated as a Restricted Payment for the purpose
of calculating the amount available for Restricted Payments thereunder.


 


An Unrestricted Subsidiary may be designated as a
Restricted Subsidiary if (i) all the Debt of such Unrestricted Subsidiary
could be Incurred pursuant to Section 4.9 and (ii) all the 


 


64

















 


Liens on the property and
assets of such Unrestricted Subsidiary could be incurred pursuant to Section 4.12.


 


SECTION 4.19                                                 Maintenance of
Properties; Insurance; Books and Records.


 


(a)                                  Subject to, and in
compliance with, the provisions of Article X, the Issuer shall cause all
material properties used or useful in the conduct of its business or the
business of any of the Guarantors to be maintained and kept in good operating
condition, repair and working order (ordinary wear and tear and casualty loss
excepted) and supplied with all necessary equipment and shall cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereto; provided that the Issuer shall not be
obligated to make such repairs, renewals, replacements, betterments and
improvements that would not result in 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.


 


(b)                                 The Issuer shall maintain,
and shall cause the Guarantors to maintain, insurance with responsible carriers
against such risks and in such amounts, and with such deductibles, retentions,
self-insured amounts and co-insurance provisions, as are customarily carried by
similar businesses or similar size in the locations which such business is
conducted, including property and casualty loss, workers’ compensation and
interruption of business insurance.


 


(c)                                  The Issuer shall, and shall
cause each Guarantor to, keep proper books of record and account, in which full
and correct entries shall be made of all financial transactions of the Issuer
and each of the Guarantors, in accordance with GAAP.


 


SECTION 4.20                                                 Limitation on
Senior Subordinated Debt.


 


The Company will not incur any Debt that is
subordinate or junior in right of payment to any Senior Debt of the Company
unless it is pari passu or
subordinate in right of payment to the Notes. No Guarantor will incur any Debt
that is subordinate or junior in right of payment to the Senior Debt of such
Guarantor unless it is pari passu or
subordinate in right of payment to such Guarantor’s Note Guarantee. For
purposes of the foregoing, no Debt will be deemed to be subordinated in right
of payment to any other Debt of the Company or any Guarantor, as applicable,
solely by virtue of being unsecured or by virtue of the fact that the holders
of any secured Debt have entered into intercreditor agreements giving one or
more of such holders priority over the other holders in the collateral held by
them.


 


SECTION 4.21                                                 Payments for
Consent.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend
in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.


 


65

















 


ARTICLE V


 


SUCCESSORS


 


SECTION 5.1                                                       Consolidation,
Merger, Conveyance, Transfer or Lease.


 


The Company will not in any transaction or series of
transactions, consolidate with or merge into any other Person (other than a
merger of a Restricted Subsidiary into the Company in which the Company is the
continuing Person or the merger of a Restricted Subsidiary into or with another
Restricted Subsidiary or another Person that as a result of such transaction
becomes or merges into a Restricted Subsidiary), or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of the assets
of the Company and its Restricted Subsidiaries (determined on a consolidated
basis), taken as a whole, to any other Person, unless:


 


(i)                  either:  (a) the Company shall be the continuing
Person or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person that acquires,
by sale, assignment, conveyance, transfer, lease or other disposition, all or
substantially all of the property and assets of the Company (such Person, the “Surviving Entity”), (1) shall be a corporation,
partnership, limited liability company or similar entity organized and validly
existing under the laws of the United States, any political subdivision thereof
or any state thereof or the District of Columbia and (2) shall expressly
assume, by a supplemental indenture, the due and punctual payment of all
amounts due in respect of the principal of (and premium, if any) and interest
on all the Notes and the performance of the covenants and obligations of the
Company under this Indenture; provided that
at any time the Company or its Successor Entity is not a corporation, there
shall be a co-issuer of the Notes that is a corporation;


 


(ii)               immediately
after giving effect to such transaction or series of transactions on a pro  forma basis
(including, without limitation, any Debt Incurred or anticipated to be Incurred
in connection with or in respect of such transaction or series of
transactions), no Default or Event of Default shall have occurred and be
continuing or would result therefrom;


 


(iii)            immediately
after giving effect to any such transaction or series of transactions on a pro  forma basis
(including, without limitation, any Debt Incurred or anticipated to be Incurred
in connection with or in respect of such transaction or series of transactions)
as if such transaction or series of transactions had occurred on the first day
of the determination period, the Company (or the Surviving Entity if the
Company is not continuing) could Incur $1.00 of additional Debt (other than
Permitted Debt) under the provisions described in the first paragraph of Section 4.9;
and


 


(iv)           the Company
delivers, or causes to be delivered, to the Trustee, in form satisfactory to
the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, conveyance, assignment, transfer, lease
or other disposition complies with the requirements of this Indenture.


 


66

















 


Notwithstanding the
foregoing, failure to satisfy the requirements of the preceding clauses (ii) and
(iii) will not prohibit:


 


(a)                                  a merger between the Company
and a Restricted Subsidiary that is a wholly owned Subsidiary of the Company;
or


 


(b)                                 a merger between the Company
and an Affiliate incorporated solely for the purpose of converting the Company
into a corporation organized under the laws of the United States or any
political subdivision or state thereof;


 


so long as, in each case, the amount of Debt
of the Company and its Restricted Subsidiaries is not increased thereby.


 


For all purposes of this Indenture and the Notes,
Subsidiaries of any Surviving Entity will, upon such transaction or series of
transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as
provided pursuant to this Indenture and all Debt, and all Liens on property or
assets, of the Surviving Entity and its Subsidiaries that was not Debt, or were
not Liens on property or assets, of the Company and its Subsidiaries
immediately prior to such transaction or series of transactions shall be deemed
to have been Incurred upon such transaction or series of transactions.


 


Upon any transaction or series of transactions that
are of the type described in, and are effected in accordance with, conditions
described in the immediately preceding paragraphs, the Surviving Entity shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company, under this Indenture with the same effect as if such Surviving
Entity had been named as the Company therein; and when a Surviving Entity duly
assumes all of the obligations and covenants of the Company pursuant to the
Indenture and the Notes, except in the case of a lease, the predecessor Person
shall be relieved of all such obligations.


 


SECTION 5.2                                                       Successor
Person Substituted.


 


Upon any consolidation or merger, or any sale,
assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the assets of the Company in accordance with Section 5.1
hereof, the successor corporation formed by such consolidation or into or with
which the Company (and, if necessary, any co-issuer) is merged or to which such
sale, assignment, conveyance, transfer, lease or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the “Company” shall refer instead to
the successor corporation and not to the Company), and shall exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein; provided, however, that
in the event of a transfer or lease, the predecessor shall not be released from
the payment of principal and interest or other obligations on the Notes.


 


67

















 


ARTICLE VI


 


DEFAULTS AND REMEDIES


 


SECTION 6.1                                                       Events of
Default.


 


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


 


(1)                                  default in the
payment in respect of the principal of (or premium, if any, on) any Note when
due and payable (whether at Stated Maturity or upon repurchase, acceleration,
optional redemption or otherwise)(whether or not prohibited by Article XI);


 


(2)                                  default in the
payment of any interest upon any Note when it becomes due and payable, and
continuance of such default for a period of 30 days (whether or not prohibited
by Article XI);


 


(3)                                  failure to perform
or comply with Section 4.3 and continuance of such failure to perform or
comply for a period of 60 days after written notice thereof has been given to
the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the outstanding Notes;


 


(4)                                  except as
permitted by this Indenture, any Note Guarantee of any Significant Subsidiary
(or any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary) shall for any reason cease to be, or it shall be
asserted by any Guarantor or the Company not to be, in full force and effect
and enforceable in accordance with its terms;


 


(5)                                  default in the
performance, or breach, of any covenant or agreement of the Company or any
Guarantor in this Indenture (other than a covenant or agreement a default in
whose performance or whose breach is specifically dealt with in clauses (1),
(2), (3) or (4) above), and continuance of such default or breach for
a period of 60 days after written notice thereof has been given to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the outstanding Notes;


 


(6)                                  a default or
defaults under any bonds, debentures, notes or other evidences of Debt (other
than the Notes) by the Company or any Restricted Subsidiary having, individually
or in the aggregate, a principal or similar amount outstanding of at least
$25.0 million, whether such Debt now exists or shall hereafter be created,
which default or defaults shall have resulted in the acceleration of the
maturity of such Debt prior to its express maturity or shall constitute a
failure to pay at least $25.0 million of such Debt when due and payable after
the expiration of any applicable grace period with respect thereto;


 


(7)                                  the entry
against the Company or any Restricted Subsidiary that is a Significant
Subsidiary of a final judgment or final judgments for the payment of money in
an aggregate amount in excess of $25.0 million, by a court or courts of
competent jurisdiction, 


 


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which
judgments remain undischarged, unwaived, unstayed, unbonded or unsatisfied for
a period of 60 consecutive days; or


 


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


 


(a)                                  commences a voluntary case,


 


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


 


(c)                                  consents to the appointment
of a custodian of it or for all or substantially all of its property,


 


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


 


(e)                                  generally is not paying its
debts as they become due; or


 


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


 


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


 


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


 


(c)                                  orders the liquidation of
the Company or any Restricted Subsidiary that is a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary


 


and the order or decree remains
unstayed and in effect for 60 consecutive days.


 


SECTION 6.2                                                       Acceleration.


 


If an Event of Default (other than an Event of
Default specified in clause (8) of Section 6.1 with respect to the
Company) occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes may declare the principal of the Notes and any accrued
interest on the Notes to be due and payable immediately by a notice in writing
to the Company (and to the Trustee if given by Holders); provided,
however, that after such acceleration,
but before a judgment or decree based on acceleration, the Holders of a
majority in aggregate principal amount of the outstanding Notes may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other 


 


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than the nonpayment of
accelerated principal of or interest on the Notes, have been cured or waived as
provided in this Indenture.


 


In the event of a declaration of acceleration of the
Notes solely because an Event of Default described in clause (6) of Section 6.1
has occurred and is continuing, the declaration of acceleration of the Notes
shall be automatically rescinded and annulled if the event of default or
payment default triggering such Event of Default pursuant to clause (6) of
Section 6.1 shall be remedied or cured by the Company or a Restricted
Subsidiary of the Company or waived by the holders of the relevant Debt within
20 Business Days after the declaration of acceleration with respect thereto and
if the rescission and annulment of the acceleration of the Notes would not
conflict with any judgment or decree of a court of competent jurisdiction
obtained by the Trustee for the payment of amounts due on the Notes.


 


If an Event of Default specified in clause (8) of
Section 6.1 occurs with respect to the Company, the principal of and any
accrued interest on the Notes then outstanding shall ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.  The Trustee
may withhold from Holders notice of any Default (except Default in payment of
principal of, premium, if any, and interest) if the Trustee determines that
withholding notice is in the interest of the Holders to do so.


 


No Holder of any Note will have any right to
institute any proceeding with respect to this Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default and unless also the Holders of
at least 25% in aggregate principal amount of the outstanding Notes shall have
made written request to the Trustee, and provided indemnity reasonably
satisfactory to the Trustee, to institute such proceeding as Trustee, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of the outstanding Notes a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.  Such limitations do not apply, however, to a
suit instituted by a Holder of a Note directly (as opposed to through the
Trustee) for enforcement of payment of the principal of (and premium, if any)
or interest on such Note on or after the respective due dates expressed in such
Note.


 


SECTION 6.3                                                       Other Remedies.


 


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


 


The Trustee may maintain a proceeding even if it
does not possess any of the Notes or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any Holder 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.


 


Pursuant to Section 4.4, the Company is
required to deliver to the Trustee annually a statement regarding compliance
with this Indenture, and the Company is required upon becoming


 


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aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.


 


SECTION 6.4                                                       Waiver of Past
Defaults.


 


The Holders of a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes waive any existing Default or Event of Default
and its consequences under this Indenture except a continuing Default or Event
of Default in the payment of interest on, or the principal of, the Notes (other
than as a result of an acceleration), which shall require the consent of all of
the Holders of the Notes then outstanding.


 


SECTION 6.5                                                       Control by
Majority.


 


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 power conferred on it. 
However, (i) the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders or that may involve the Trustee in
personal liability, and (ii) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.


 


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 or the
Trustee receives such notice from the Company;


 


(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 or security
reasonably satisfactory to the Trustee against any loss, 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 such indemnity or security;
and


 


(e)                                  during such
60-day period the Holders of a majority in aggregate 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.


 


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SECTION 6.7                                                       Rights of
Holders of Notes to Receive Payment.


 


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


 


SECTION 6.8                                                       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 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 securities or property payable or deliverable upon the
conversion or exchange of the Notes or 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.


 


SECTION 6.10                                                 Priorities.


 


Any money collected by the Trustee pursuant to this Article VI
and any money or other property distributable in respect of the Company’s
obligations under this Indenture after an 


 


72

















 


Event of Default shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:


 


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


 


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


 


Third:  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 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 their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.


 


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


 


(i)                                     the duties of
the Trustee shall be determined solely by the express provisions of this
Indenture and the TIA and the Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA 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.  However,
the Trustee shall be under a duty to examine the certificates and opinions
specifically required to be furnished to it to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts or conclusions
stated therein).


 


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


 


(i)                                     this paragraph
does not limit the effect of paragraphs (b) or (e) of this Section 7.1;


 


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


 


(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.


 


(d)                                 Whether or not therein
expressly so provided, every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c), (e) and (f) of
this Section 7.1.


 


(e)                                  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.


 


(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 and except for money held in trust pursuant to Article VIII.


 


(g)                                 The Trustee shall not be
charged with knowledge of any Event of Default unless either (1) a
Responsible Officer shall have actual knowledge of such Event of Default or (2) written
notice of such Event of Default shall have been received by a Responsible
Officer in accordance with the provisions of this Indenture.


 


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SECTION 7.2                                                       Rights of
Trustee.


 


(a)           The
Trustee, as Trustee and acting in each of its capacities hereunder, may conclusively
rely and shall be fully protected in acting or refraining from acting on any
document believed by it to be genuine and to have been signed or presented by
the proper Person.  The Trustee need not
investigate any fact or matter stated in any such document.


 


(b)           Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both.  The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel of the
Trustee’s own choosing and the Trustee shall be fully protected from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance on the advice or opinion of such counsel or on any
Opinion of Counsel.


 


(c)           The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any attorney or agent 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.  Any
request or direction of the Issuer mentioned herein shall be sufficiently
evidenced by an Officers’ Certificate and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.  Whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, conclusively rely upon an Officers’ Certificate.


 


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


 


(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 and 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 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 indebtedness or other paper or documents, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine during normal
business hours the books, records and premises of the Company or any Guarantor,
personally or by agent or attorney at the sole cost of the Company, and shall
incur no liability or additional liability of any kind by reason of such
inquiry or investigation.


 


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


 


(i)            The
Trustee may request that the Company 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 Section 310(b) of
the TIA, it must eliminate such conflict within 90 days, apply to the
Commission 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, and it shall not be accountable for the Issuer’s use of the proceeds
from the Notes or any money paid to the Issuer’s 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, any statement or recital in any document in
connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication on the Notes.


 


SECTION 7.5                                                       Notice of
Defaults.


 


If a Default occurs and is continuing and if it is
actually known to a Responsible Officer of the Trustee, the Trustee shall send
electronically or mail to Holders a notice of the Default within 90 days after
it occurs.  Except in the case of a
Default in payment of principal of, premium, if any, or interest on any Note,
the Trustee may withhold the notice if and so long as the Trustee in good faith
determines that withholding the notice is in the interests of the Holders.


 


SECTION 7.6                                                       Reports by
Trustee to Holders of the Notes.


 


Within 60 days after each June 1 beginning with
the June 1, 2010, and for so long as Notes remain outstanding, the Trustee
shall send 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 twelve months preceding the reporting date, no report need
be transmitted).  


 


76

















 


The Trustee also shall
comply with TIA § 313(b).  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 delivery to
the Holders shall be mailed or delivered to the Company and filed with the
Commission and each stock exchange on which the Company has informed the
Trustee in writing the Notes are listed in accordance with TIA § 313(d).  The Company shall promptly notify the Trustee
when the Notes are listed on any stock exchange and of any delisting thereof.


 


SECTION 7.7                                                       Compensation
and Indemnity.


 


The Issuer shall pay to the Trustee from time to
time compensation for its acceptance of this Indenture and services hereunder
as the parties will agree from time to time. 
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, but not limited to, 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 (which for purposes of this Section 7.7
shall include its officers, directors, employees and agents) against any and
all claims, damage, losses, liabilities or expenses (including 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 to the extent any
such loss, claim, damage, liability or expense may be attributable to its
negligence, willful misconduct or bad faith. 
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 Trustee may have separate
counsel and the Issuer shall pay the reasonable fees and expenses of one such
counsel.  The Issuer need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.  Under no circumstances shall
the Trustee be liable for any consequential or punitive damages of any kind.


 


The obligations of the Issuer and the Guarantors
under this Section 7.7 shall survive the satisfaction and discharge or
termination for any reason of this Indenture or the resignation or removal of
the Trustee.


 


To secure the Issuer’s and the Guarantors’
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 Trustee, except
that held in trust to pay principal or interest, if any, on particular
Notes.  Such Lien shall survive the
satisfaction and discharge or termination for any reason of this Indenture and
the resignation or removal of the Trustee.


 


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In addition, and without prejudice to the rights
provided to the Trustee under any of the provisions of this Indenture, when the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.1(8) 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.


 


“Trustee” for the purposes of this Section 7.7
shall include any predecessor Trustee and the Trustee in each of its capacities
hereunder and each agent, custodian and other person employed to act hereunder;
provided, however,
that the negligence, willful misconduct or bad faith of any Trustee hereunder
shall not affect the rights of any other Trustee hereunder.


 


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 at any time and be discharged
from the trust hereby created by so notifying the Issuer in writing.  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 Trustee for any reason, the Issuer shall notify each
Holder of such event and shall promptly appoint a successor Trustee.  Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of all outstanding
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer.


 


A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Issuer.  Promptly after that, the retiring Trustee
shall transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided in Section 7.7 hereof, 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.  A successor Trustee shall
deliver notice of its succession to each Holder.


 


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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 aggregate principal amount of all
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.


 


If the Trustee fails to comply with Section 7.10
hereof, any Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


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


 


SECTION 7.10                                                 Eligibility;
Disqualification.


 


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


 


This Indenture shall always have a Trustee who
satisfies the requirements of TIA §§ 310(a)(l), (2) and (5).  If this Indenture becomes qualified under the
TIA, the Trustee shall be subject to TIA § 310(b) including the provision
in § 310(b)(1); provided that
there shall be excluded from the operation of TIA § 310(b)(1) any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuer or the Guarantors
are outstanding if the requirements for exclusion set forth in TIA
§ 310(b)(1) are met.


 


SECTION 7.11                                                 Preferential
Collection of Claims Against the 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.


 


SECTION 7.12                                                 Trustee’s
Application for Instructions from the Issuer.


 


Any application by the Trustee for written
instructions from the Issuer may, at the option of the Trustee, set forth in
writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective.  The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified 


 


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in such application (which
date shall not be less than twenty Business Days after the date any officer of
the Issuer actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.


 


ARTICLE VIII


 


DEFEASANCE AND COVENANT
DEFEASANCE


 


SECTION 8.1                                                       Option to
Effect Defeasance or Covenant Defeasance.


 


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


 


SECTION 8.2                                                       Defeasance and
Discharge.


 


Upon the Issuer’s exercise under Section 8.1
hereof of the option applicable to this Section 8.2, the Issuer shall,
subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be deemed to have been discharged from its obligations with respect to
all outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, “defeasance”).  For this purpose, defeasance means that the
Issuer shall be deemed to have paid and discharged the entire Debt represented
by the outstanding Notes, 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 (a) and (b) below, and to have satisfied all
of its other obligations under such Notes and this Indenture (and the Trustee,
on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:  (a) the rights of Holders of outstanding
Notes to receive payments in respect of the principal of, premium, if any, and
interest, if any, on such Notes when such payments are due from the trust
referred to in Section 8.4(l); (b) the Issuer’s obligations with
respect to such Notes under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2
hereof; (c) the rights, powers, trusts, benefits and immunities of the
Trustee, including without limitation thereunder, under Section 7.7, 8.5
and 8.7 hereof and the Issuer’s obligations in connection therewith; (d) the
Company’s rights pursuant to Section 3.7; and (e) the provisions of
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.


 


The Issuer and the
Guarantors may terminate the obligations under this Indenture when:


 


(1)           either:  (A) all Notes theretofore authenticated
and delivered have been delivered to the Trustee for cancellation, or (B) all
such Notes not theretofore delivered to the Trustee for cancellation (i) have
become due and payable or (ii) will become due and 


 


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payable
within one year or are to be called for redemption within one year (a “Discharge”) under irrevocable arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company has irrevocably deposited
or caused to be deposited with the Trustee funds in an amount sufficient to pay
and discharge the entire indebtedness on the Notes, not theretofore delivered
to the Trustee for cancellation, for principal of, premium, if any, and
interest to the Stated Maturity or date of redemption;


 


(2)           the Issuer has paid
or caused to be paid all other sums then due and payable under this Indenture
by the Issuer;


 


(3)           the deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Issuer or any Guarantor is a party or by which the Issuer
or any Guarantor is bound, including, without limitation, Senior Debt;


 


(4)           the Issuer has
delivered irrevocable instructions to the Trustee under this Indenture to apply
the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be; and


 


(5)           the Issuer has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
reasonably acceptable to the Trustee, each stating that all conditions
precedent under this Indenture relating to the Discharge have been complied
with.


 


The Issuer may elect, at its option, to have
its obligations discharged with respect to the outstanding Notes.  Such defeasance means that the Issuer will be
deemed to have paid and discharged the entire indebtedness represented by the
outstanding Notes, except for:


 


(1)           the rights of
Holders of such Notes to receive payments in respect of the principal of and
any premium and interest on such Notes when payments are due,


 


(2)           the Issuer’s
obligations with respect to such Notes concerning issuing temporary Notes,
registration of Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payment and money for security payments
held in trust,


 


(3)           the rights, powers,
trusts, duties and immunities of the Trustee,


 


(4)           the Company’s right
of optional redemption, and


 


(5)           the defeasance
provisions of this Indenture.


 


SECTION 8.3                                                       Covenant
Defeasance.


 


Upon the Issuer’s exercise under Section 8.1
hereof of the option applicable to this Section 8.3, the Issuer shall,
subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be released from its obligations under the covenants contained in
Sections 4.3, 4.4, 4.7, 4.8, 


 


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4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.16, 4.17, 4.20, 4.21 and 5.1 hereof with respect to the outstanding
Notes on and after the date the conditions set forth below are satisfied
(hereinafter, “covenant defeasance”), and the
Notes 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, the Issuer or any of its Subsidiaries 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 Section 6.1
hereof, but, except as specified above, the remainder of this Indenture and
such Notes 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 conditions set forth in Section 8.4 hereof, Sections 6.1(3) and (5) hereof
shall not constitute Events of Default.


 


SECTION 8.4                                                       Conditions to
Defeasance 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:


 


In order to exercise either
defeasance or covenant defeasance with respect to outstanding Notes:


 


(1)           the Issuer must
irrevocably have deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to the benefits of the Holders of
such Notes:  (A) money in an amount,
or (B) U.S. government obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an amount or (C) a
combination thereof, in each case sufficient without reinvestment, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, the entire
indebtedness in respect of the principal of and premium, if any, and interest
on such Notes on the Stated Maturity thereof or (if the Issuer has made
irrevocable arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name and at the expense of the Issuer) the
redemption date thereof, as the case may be, in accordance with the terms of
this Indenture and such Notes;


 


(2)           in the case of
defeasance, the Issuer shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
of this Indenture, there has been a change in the applicable United States
federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the 


 


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Holders
of such Notes will not recognize gain or loss for United States federal income
tax purposes as a result of the deposit, defeasance and discharge to be
effected with respect to such Notes and will be subject to United States
federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, defeasance and discharge were not to occur;


 


(3)           in the case of
covenant defeasance, the Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such outstanding Notes will not
recognize gain or loss for United States federal income tax purposes as a result
of the deposit and covenant defeasance to be effected with respect to such
Notes and will be subject to federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and covenant
defeasance were not to occur;


 


(4)           no Default or Event
of Default with respect to the outstanding Notes shall have occurred and be
continuing at the time of such deposit after giving effect thereto (other than
a Default or Event of Default resulting from the borrowing of funds to be applied
to such deposit and the grant of any Lien to secure such borrowing);


 


(5)           such defeasance or
covenant defeasance shall not cause the Trustee to have a conflicting interest
within the meaning of the TIA (assuming all Notes are in default within the
meaning of the TIA);


 


(6)           such defeasance or
covenant defeasance shall not result in a breach or violation of, or constitute
a default under, any material agreement or material instrument (other than this
Indenture) to which the Company is a party or by which the Company is bound,
including, without limitation, Senior Debt; and


 


(7)           the Company shall
have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such defeasance
or covenant defeasance have been complied with.


 


In the event of a defeasance or a Discharge, a
Holder whose taxable year straddles the deposit of funds and the distribution
in redemption to such Holder would be subject to tax on any gain (whether
characterized as capital gain or market discount) in the year of deposit rather
than in the year of receipt.  In
connection with a Discharge, in the event the Issuer becomes insolvent within
the applicable preference period after the date of deposit, monies held for the
payment of the Notes may be part of the bankruptcy estate of the Issuer,
disbursement of such monies may be subject to the automatic stay of the
Bankruptcy Code and monies disbursed to Holders may be subject to disgorgement
in favor of the Issuer’s estate.  Similar
results may apply upon the insolvency of the Issuer during the applicable
preference period following the deposit of monies in connection with
defeasance.


 


Notwithstanding the foregoing, the Opinion of
Counsel required by clause (2) above with respect to a defeasance need not
to be delivered if all Notes not therefore delivered to the Trustee for
cancellation (x) have become due and payable, or (y) will become due
and payable at Stated 


 


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


 


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
non-callable 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, shall not be invested, and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company or any Subsidiary
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, but such money need not be segregated from other
funds except to the extent required by law.


 


The Issuer shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable U.S. government obligations deposited pursuant to Section 8.4
hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the outstanding Notes.


 


Anything in this Article VIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon the written request of the Issuer and be relieved of all liability
with respect to any money or non-callable U.S. government obligations held by
it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(1) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
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, or interest, if any, on any Note and remaining unclaimed
for one year after such principal and premium, 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 an unsecured general creditor, 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 shall be repaid to the Issuer.


 


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SECTION 8.7                  Reinstatement.


 


If the Trustee or Paying Agent is unable to apply
any United States dollars or non-callable U.S. government obligations in
accordance with Section 8.2 or 8.3 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations of
the Issuer under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.2 or 8.3 hereof, as the case may be; provided, however, that,
if the Issuer makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its 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.


 


ARTICLE IX


 


AMENDMENT, SUPPLEMENT AND
WAIVER


 


SECTION 9.1                  Without Consent of Holders
of the Notes.


 


Notwithstanding Section 9.2 of this Indenture,
without the consent of any Holders, the Issuer, the Guarantors and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental to this Indenture and the Note Guarantees for any of the following
purposes:


 


(1)           to evidence the
succession of another Person to the Company and the assumption by any such
Successor Entity of the covenants of the Company in this Indenture, the Note
Guarantees and the Notes;


 


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


 


(3)           to add
additional Events of Default;


 


(4)           to provide for
uncertificated Notes in addition to or in place of the certificated Notes;


 


(5)           to evidence and
provide for the acceptance of appointment under this Indenture by a successor
Trustee;


 


(6)           to provide for
or confirm the issuance of Additional Notes in accordance with the terms of
this Indenture;


 


(7)           to add a
Guarantor or to release a Guarantor in accordance with this Indenture;


 


85

















 


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


 


(9)           to make any
other provisions with respect to matters or questions arising under this
Indenture; provided that such actions pursuant to
this clause (9) shall not adversely affect the interests of the Holders in
any material respect, as determined in good faith by the Board of Directors of
the Company;


 


(10)         to conform the
text of this Indenture or the Notes to any provision of the “Description of
Notes” in the Offering Memorandum to the extent that the Trustee has received
an Officers’ Certificate stating that such text constitutes an unintended
conflict with the description of the corresponding provision in the “Description
of Notes”; or


 


(11)         to effect or
maintain the qualification of the Indenture under the TIA.


 


SECTION 9.2                  With Consent of Holders of
Notes.


 


With the consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding Notes, the Issuer,
the Guarantors and the Trustee may enter into an indenture or indentures
supplemental to this Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or the Notes or of modifying in any manner the rights of the Holders of the
Notes under this Indenture, including the definitions herein; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
outstanding Note affected thereby:


 


(1)           change the
Stated Maturity of any Note or of any installment of interest on any Note, or
reduce the amount payable in respect of the principal thereof or the rate of
interest thereon or any premium payable thereon, or reduce the amount that
would be due and payable on acceleration of the maturity thereof, or change the
place of payment where, or the coin or currency in which, any Note or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof, or change the date on which any Notes may be subject to redemption or
reduce the Redemption Price therefor;


 


(2)           reduce the
percentage in aggregate principal amount of the outstanding Notes, the consent
of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;


 


(3)           modify the
obligations of the Company to make Offers to Purchase upon a Change of Control
or from the Excess Proceeds of Asset Sales if such modification was done after
the occurrence of such Change of Control or such Asset Sale;


 


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


 


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(5)           modify any of
the provisions of this paragraph or provisions relating to waiver of defaults
or certain covenants, except to increase any such percentage required for such
actions or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each outstanding Note
affected thereby; or


 


(6)           release any
Note Guarantees required to be maintained under this Indenture (other than in accordance
with the terms of this Indenture).


 


The Holders of not less than a majority in aggregate
principal amount of the outstanding Notes may on behalf of the Holders of all
the Notes waive any past default under this Indenture and its consequences,
except a default:


 


(1)           in any payment in respect of
the principal of (or premium, if any) or interest on any Notes (including any
Note which is required to have been purchased pursuant to an Offer to Purchase
which has been made by the Issuer); or


 


(2)           in respect of a covenant or
provision hereof which under this Indenture cannot be modified or amended
without the consent of the Holder of each outstanding Note affected, each of
which, for the avoidance of doubt, shall require the consent of all the Holders
of the Notes outstanding.


 


SECTION 9.3                  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.


 


SECTION 9.4                  Revocation and Effect of
Consents.


 


Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on the Note. 
However, any such Holder or subsequent Holder may revoke the consent as
to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective.  When an amendment, supplement or waiver
becomes effective in accordance with its terms, it thereafter binds every
Holder.


 


The Issuer may, but shall not be obligated to, fix a
record date for determining which Holders consent to such amendment, supplement
or waiver.  If the Issuer fixes a record
date, the record date shall be fixed at (i) the later of 30 days prior to
the first solicitation of such consent or the date of the most recent list of
Holders furnished for the Trustee prior to such solicitation pursuant to Section 2.5
hereof or (ii) such other date as the Issuer shall designate.


 


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SECTION 9.5                  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.


 


After any amendment, supplement or waiver becomes
effective, the Company shall mail to Holders a notice briefly describing such
amendment, supplement or waiver.  The
failure to give such notice shall not affect the validity and effect of such
amendment, supplement or waiver.


 


SECTION 9.6                  Trustee to Sign Amendments,
Etc.


 


The Trustee shall sign any amended or supplemental
indenture authorized pursuant to this Article IX if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  The Issuer
and the Guarantors may not sign an amendment or supplemental indenture until
their respective Boards of Directors approve it.  In signing or refusing to sign any amendment
or supplemental indenture the Trustee shall be entitled 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, that all conditions precedent thereto have been met or waived, that
such amendment or supplemental indenture is not inconsistent herewith, and that
it will be valid and binding upon the Issuer in accordance with its terms.


 


ARTICLE X


 


NOTE GUARANTEES


 


SECTION 10.1                Note Guarantees.


 


(a)           Each Guarantor hereby jointly and severally, fully,
unconditionally and irrevocably guarantees the Notes and obligations of the
Issuer hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee on behalf of such
Holder, that:  (i) the principal of
and premium, if any and interest on the Notes shall be paid in full when due,
whether at Stated Maturity, by acceleration, call for redemption or otherwise
(including, without limitation, the amount that would become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Code), together with interest on the overdue principal, if any, and
interest on any overdue interest, to the extent lawful, and all other
obligations of the Issuer to the Holders or the Trustee hereunder or thereunder
shall be paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal
of any Notes or of any such other obligations, the same shall be paid in full
when due or performed in accordance with the terms of the extension or 


 


88

















 


renewal, whether at Stated Maturity, by acceleration
or otherwise.  Each of the Note
Guarantees shall be a guarantee of payment and not of collection.


 


(b)           Each Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor.


 


(c)           Each Guarantor hereby waives the benefits of
diligence, presentment, demand for payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or any other Person, protest, notice and
all demands whatsoever and covenants that the Note Guarantee of such Guarantor
shall not be discharged as to any Note except by complete performance of the
obligations contained in such Note and such Note Guarantee or as provided for
in this Indenture.  Each of the
Guarantors hereby agrees that, in the event of a default in payment of
principal or premium, if any or interest on such Note, whether at its Stated
Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such Note,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Guarantors to enforce such Guarantor’s Note Guarantee
without first proceeding against the Company or any other Guarantor.  Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or
any of the Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Notes, to collect interest
on the Notes, or to enforce or exercise any other right or remedy with respect
to the Notes, such Guarantor shall pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.


 


(d)           If any Holder or the Trustee is required by any
court or otherwise to return to the Issuer or any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Issuer
or any Guarantor, any amount paid by any of them to the Trustee or such Holder,
the Note Guarantee of each of the Guarantors, to the extent theretofore
discharged, shall be reinstated in full force and effect.  This paragraph (d) shall remain
effective notwithstanding any contrary action which may be taken by the Trustee
or any Holder in reliance upon such amount required to be returned.  This paragraph (d) shall survive the
termination of this Indenture.


 


(e)           Each Guarantor further agrees that, as between each
Guarantor, 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 of the Note Guarantee of
such Guarantor, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided
in Article VI hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for the purpose of the
Note Guarantee of such Guarantor.


 


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SECTION 10.2                Execution and Delivery of
Note Guarantee.


 


To evidence its Note Guarantee set forth in Section 10.1,
each Guarantor agrees that a notation of such Note Guarantee substantially in
the form attached hereto as Exhibit B shall be endorsed on each
Note authenticated and delivered by the Trustee.  Such notation of Note Guarantee shall be
signed on behalf of such Guarantor by an officer of such Guarantor (or, if an
officer is not available, by a board member or director) on behalf of such
Guarantor by manual or facsimile signature. 
In case the officer, board member or director of such Guarantor who
shall have signed such notation of Note Guarantee shall cease to be such
officer, board member or director before the Note on which such Note Guarantee
is endorsed shall have been authenticated and delivered by the Trustee, such
Note nevertheless may be authenticated and delivered as though the Person who
signed such notation of Note Guarantee had not ceased to be such officer, board
member or director.


 


Each Guarantor agrees that its Note Guarantee set
forth in Section 10.1 shall remain in full force and effect and apply to
all the Notes notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.  The delivery of any
Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of any Note Guarantee set forth in this Indenture on
behalf of the Guarantors.


 


The failure to endorse a Note Guarantee shall not
affect or impair the validity thereof.


 


SECTION 10.3                Severability.


 


In case any provision of any Note Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


SECTION 10.4                Limitation of Guarantors’
Liability.


 


Each Guarantor and by its acceptance of Notes, each
Holder, confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law
relating to fraudulent transfer or conveyance. 
To effectuate the foregoing intention, the Trustee, the Holders and
Guarantors hereby irrevocably agree that the obligations of such Guarantor
under its Note Guarantee shall be limited to the maximum amount that will not,
after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Note Guarantee,
result in the obligations of such Guarantor under its Note Guarantee
constituting a fraudulent transfer or conveyance.


 


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SECTION 10.5                Guarantors May Consolidate,
Etc., on Certain Terms.


 


Except as otherwise provided in Section 10.6, a
Guarantor may not sell or otherwise dispose of all or substantially all of its
assets, or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person unless:


 


(1)           immediately
after giving effect to such transactions, no Default or Event of Default exists;
and


 


(2)           either:


 


(A)          the Person
acquiring the property in any such sale or disposition or the Person formed by
or surviving any such consolidation or merger assumes all the obligations of
that Guarantor under this Indenture pursuant to a supplemental indenture
satisfactory to the Trustee; or


 


(B)           the Net Cash
Proceeds of any such sale or other disposition of a Guarantor are applied in
accordance with the provisions of Section 4.10 hereof; and


 


(3)           the Company
delivers, or causes to be delivered, to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that such sale, other disposition,
consolidation or merger complies with the requirements of this Indenture.


 


In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the Note Guarantee and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor.  All the Note Guarantees so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Note Guarantees theretofore and thereafter issued in accordance with the terms
of this Indenture as though all such Note Guarantees had been issued at the
date of the execution hereof.


 


Except as set forth in Articles IV and V hereof, and
notwithstanding clauses (1) and (2) above, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Guarantor with or into the Issuer or another Guarantor, or shall prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Issuer or another Guarantor.


 


SECTION 10.6                Releases Following Sale of
Assets.


 


Any Guarantor shall be released and relieved of any
obligations under this Note Guarantee, (1) in connection with any sale or
other disposition by the Issuer or any Subsidiary of the Issuer of all or
substantially all of the assets of that Guarantor (including by way of merger
or consolidation) to a Person that is not (either before or after giving effect
to such transaction) a Subsidiary, if the Issuer or the Guarantor applies the
Net Proceeds of that sale or other 


 


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disposition in accordance
with the provisions of Section 4.10 hereof; or (2) in connection with
any sale of all of the Capital Stock of a Guarantor by the Issuer or any
Subsidiary of the Issuer to a Person that is not (either before or after giving
effect to such transaction) a Subsidiary, if the Issuer applies the Net Cash Proceeds
of that sale in accordance with the provisions of Section 4.10
hereof.  Upon delivery to the Trustee of
an Officers’ Certificate and an Opinion of Counsel to the effect that such sale
or other disposition was made by the Issuer in accordance with the provisions
of this Indenture, including without limitation Section 4.10 hereof, the
Trustee shall execute any documents reasonably required in order to evidence
the release of any Guarantor from its obligations under its Note Guarantee.


 


Any Guarantor not released from its obligations
under this Note 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 X.


 


SECTION 10.7                Release of a Guarantor.


 


Any Guarantor that is designated by the Board of
Directors of the Company as an Unrestricted Subsidiary in accordance with the
terms of this Indenture shall, at such time, be deemed automatically and
unconditionally released and discharged of its obligations under its Note
Guarantee without any further action on the part of the Trustee or any
Holder.  The Trustee shall deliver an
appropriate instrument evidencing such release upon receipt of the Company’s
request for such release accompanied by an Officers’ Certificate certifying as
to the compliance with this Section 10.7. 
Any Guarantor not so released shall remain liable for the full amount of
principal of and interest on the Notes as provided in its Note Guarantee.


 


SECTION 10.8                Benefits Acknowledged.


 


Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that its guarantee and waivers pursuant to its Note
Guarantee are knowingly made in contemplation of such benefits.


 


SECTION 10.9                Future Guarantors.


 


Each Person that is required to become a Guarantor
after the Issue Date pursuant to Section 4.17 shall promptly execute and
deliver to the Trustee a supplemental indenture pursuant to which such Person
shall become a Guarantor. Concurrently with the execution and delivery of such
supplemental indenture, the Company shall deliver to the Trustee an Opinion of
Counsel and an Officers’ Certificate to the effect that such supplemental
indenture has been duly authorized, executed and delivered by such Person and
that, subject to the application of bankruptcy, insolvency, moratorium,
fraudulent conveyance or transfer and other similar laws relating to creditors’
rights generally and to the principles of equity, whether considered in a
proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such Guarantor
in accordance with its terms and/or to such other matters as the Trustee may
reasonably request.


 


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ARTICLE XI


 


SUBORDINATION


 


SECTION 11.1                Agreement to Subordinate.


 


The payment of principal, interest and premium and
Additional Interest, if any, on the Notes will be subordinated to the prior
payment in full in cash or Cash Equivalents of all Senior Debt of the Company
or the relevant Guarantor, as the case may be, including Senior Debt of the
Company or the relevant Guarantor incurred after the Issue Date.


 


SECTION 11.2                Liquidation; Dissolution;
Bankruptcy.


 


The holders of Senior Debt of the Company shall be
entitled to receive payment in full of all Obligations due in respect of Senior
Debt of the Company (including interest after the commencement of any bankruptcy
proceeding at the rate specified for the applicable Senior Debt of the Company
or the relevant Guarantor) before the Holders of Notes shall be entitled to receive
any payment with respect to the Notes (except that Holders of Notes may receive
and retain Permitted Junior Securities and payments made from the trust
pursuant to Article VIII), in the event of any distribution to creditors
of the Company in connection with:


 


(a)            any liquidation, dissolution or winding up of the
Company or the relevant Guarantor;


 


(b)           any bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or the relevant
Guarantor, or their respective property;


 


(c)            any assignment by the Company or the relevant
Guarantor for the benefit of the Company’s or the relevant Guarantor’s
creditors; or


 


(d)           any marshaling of the Company’s or the relevant
Guarantor’s assets and liabilities.


 


SECTION 11.3                Default on Designated Senior
Debt.


 


The Company may not make any
payment in respect of the Notes (except in Permitted Junior Securities or from
the trust pursuant to Article VIII) if:


 


(a)           a payment default on
Designated Senior Debt (including at maturity, whether by acceleration in
accordance with the terms of the Designated Senior Debt or otherwise) occurs
and is continuing beyond any applicable grace period; or


 


(b)           any other default occurs and
is continuing on any series of Designated Senior Debt that permits holders of
that series of Designated Senior Debt to accelerate its maturity and the
Trustee receives a notice of such default (a “Payment
Blockage Notice”) from the holders of such Designated Senior Debt (a
“non-payment default”).


 


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Payments on the Notes may
and shall be resumed:


 


(a)           in the case of a payment
default on Designated Senior Debt, upon the date on which such default is cured
or waived; and


 


(b)           in the case of a non-payment
default on Designated Senior Debt, the earlier of (A) the date on which
such default is cured or waived, (B) 179 days after the date on which the
applicable Payment Blockage Notice is received and (C) the date the Trustee
receives notice from the representative for such Designated Senior Debt
rescinding the Payment Blockage Notice, in each case unless the maturity of
such Designated Senior Debt has been accelerated.


 


No new Payment Blockage
Notice may be delivered unless and until:


 


(a)           360 days have elapsed since
the delivery of the immediately prior Payment Blockage Notice; and


 


(b)           all scheduled payments of
principal, interest and premium and Additional Interest, if any, on the Notes
that have come due have been paid in full in cash;


 


provided,
however, that if any Payment Blockage Notice is delivered to the Trustee by or
on behalf of the holders of Designated Senior Debt of the Company, a
representative of holders of Debt under Designated Senior Debt may give another
Payment Blockage Notice within such period; provided further,
that in no event may the total number of days during which any payment blockage
period or periods on the Notes is in effect exceed 179 days in the aggregate
during any consecutive 360-day period, and there must be at least 181 days
during any consecutive 360-day period during which no payment blockage period
is in effect.


 


No non-payment default that
existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice unless such default has been cured or waived in writing for a period
of not less than 90 days.


 


If the Trustee or any Holder
of the Notes receives a payment in respect of the Notes (except in Permitted
Junior Securities or from the trust pursuant to Article VIII) when:


 


(a)           the payment is prohibited by
this Article XI; and


 


(b)           the Trustee or the Holder
has actual knowledge that the payment is prohibited (provided that such
actual knowledge shall not be required in the case of any payment default on
Designated Senior Debt),


 


the Trustee or the Holder,
as the case may be, shall hold the payment in trust for the benefit of the
holders of Senior Debt.  Upon the proper
written request of the holders of Senior Debt, the Trustee or the Holder, as
the case may be, shall deliver the amounts in trust to the holders of Senior
Debt or their proper representative.


 


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The Company and the Trustee shall notify the
administrative agent under the Credit Agreement prior to the commencement of
any offer to repurchase or the giving of a notice of redemption of the Notes in
accordance with the terms of this Indenture. 
The subordination and payment blockage provisions described above will
not prevent a Default from occurring under this Indenture upon the failure of
the Company to pay interest or principal with respect to the Notes when due by
their terms.  If payment of the Notes is
accelerated because of an Event of Default, the Company and the Trustee must
promptly notify the representatives of the holders of Designated Senior Debt of
the acceleration; provided, that any failure to
give such notice shall have no effect whatsoever on the subordination
provisions described herein.  So long as
there shall remain outstanding any Senior Debt under the Credit Agreement, a
Payment Blockage Notice may be given only by the administrative agent
thereunder unless otherwise agreed to in writing by the requisite lenders named
therein.  If any Designated Senior Debt
of the Company is outstanding, neither the Company nor any Guarantor may pay
the Notes until five business days after the representatives of all the issuers
of such Designated Senior Debt receive notice of such acceleration and,
thereafter, may pay the Notes only if this Indenture otherwise permits payment
at that time.


 


SECTION 11.4               Acceleration of Securities.


 


The Company and the Trustee must promptly notify the
representatives of the holders of the Designated Senior Debt if payment of the
Notes is accelerated because of an Event of Default.


 


SECTION 11.5               When Distribution Must Be
Paid Over.


 


In the event that the Trustee or any Holder receives
any payment of any Obligations with respect to the Notes (except in Permitted
Junior Securities or from the trust pursuant to Article VIII hereof) at a
time when the Trustee or such Holder, as applicable, has actual knowledge that
such payment is prohibited by this Article XI, such payment shall be held
by the Trustee or such Holder, as applicable, in trust for the benefit of, and
shall be paid forthwith over and delivered, upon written request, to the
holders of Senior Debt or their representative, as their respective interests
may appear, for application to the payment of all Obligations with respect to
Senior Debt remaining unpaid to the extent necessary to pay such Obligations in
full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.


 


With respect to the holders of Senior Debt, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article XI, and no implied covenants
or obligations with respect to the holders of Senior Debt shall be read into
this Indenture against the Trustee.


 


SECTION 11.6               Notice by the Company.


 


The Company shall promptly notify the Trustee and
the Paying Agent in writing of any facts known to the Company that would cause
a payment of any Obligations with respect to the 


 


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Notes to violate this Article XI,
but failure to give such notice shall not affect the subordination of the Notes
to the Senior Debt as provided in this Article XI.


 


SECTION 11.7               Subrogation.


 


After all Senior Debt is paid in full and until the
Notes are paid in full, Holders of Notes shall be subrogated (equally and
ratably with all other Debt pari passu with
the Notes) to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions otherwise payable to
the Holders of Notes have been applied to the payment of Senior Debt.  A distribution made under this Article XI
to holders of Senior Debt that otherwise would have been made to Holders of
Notes is not, as between the Company and Holders, a payment by the Company on
the Notes.


 


SECTION 11.8               Relative Rights.


 


This Article XI defines the relative rights of
Holders of Notes and holders of Senior Debt. 
Nothing in this Indenture shall:


 


(a)            impair, as between the Company and Holders of Notes,
the obligation of the Company, which is absolute and unconditional, to pay
principal of and interest and Additional Interest, if any, on the Notes in
accordance with their terms;


 


(b)           affect the relative rights of Holders of Notes and
creditors of the Company other than their rights in relation to holders of
Senior Debt; or


 


(c)            prevent the Trustee or any Holder of Notes from
exercising its available remedies upon a Default or Event of Default, subject
to the prior notice requirement set forth in Section 6.2 and the rights of
holders and owners of Senior Debt to receive distributions and payments otherwise
payable to Holders of Notes.


 


If the Company fails because of this Article XI
to pay principal of or interest or Additional Interest, if any, on a Note on
the due date, the failure is still a Default or Event of Default.


 


SECTION 11.9               Subordination May Not
Be Impaired by the Company.


 


No right of any holder of Senior Debt to enforce the
subordination of the Debt evidenced by the Notes shall be impaired by any act
or failure to act by the Company or any Holder or by the failure of the Company
or any Holder to comply with this Indenture.


 


SECTION 11.10             Distribution or Notice to
Representative.


 


Whenever a distribution is to be made or a notice
given to holders of Senior Debt, the distribution may be made and the notice
given to their representative.


 


Upon any payment or distribution of assets of the
Company referred to in this Article XI, the Trustee and the Holders of
Notes shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such representative or of the



 


96

















 


liquidating trustee or agent
or other Person making any distribution to the Trustee or to the Holders of
Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt and other Debt of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article XI.


 


SECTION 11.11             Rights of Trustee and Paying
Agent.


 


Notwithstanding this Article XI or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article XI.  Only the Company or a representative may give
the notice.  Nothing in this Article XI
shall impair the claims of, or payments to, the Trustee under or pursuant to Section 7.7
hereof.


 


The Trustee in its individual or any other capacity
may hold Senior Debt with the same rights it would have if it were not
Trustee.  Any Agent may do the same with
like rights.


 


SECTION 11.12             Authorization to Effect
Subordination.


 


Each Holder of Notes, by the Holder’s acceptance
thereof, authorizes and directs the Trustee on such Holder’s behalf to take
such action as may be necessary or appropriate to effectuate the subordination
as provided in this Article XI, and appoints the Trustee to act as such
Holder’s attorney-in-fact for any and all such purposes.  If the Trustee does not file a proper proof
of claim or proof of debt in the form required in any proceeding referred to in
Section 6.9 hereof at least 30 days before the expiration of the time to
file such claim, the lenders under the Credit Agreement are hereby authorized
to file an appropriate claim for and on behalf of the Holders of the Notes.


 


SECTION 11.13             Trustee Not Fiduciary for
Holders of Senior Debt.


 


The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt and shall not be liable to any such holders
if the Trustee shall in good faith mistakenly pay over or distribute to Holders
of Notes or to the Company or to any other person cash, property or securities
to which any holders of Senior Debt shall be entitled by virtue of this Article XI
or otherwise, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee. 
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article XI and no implied covenants or
obligations with respect to holders of Senior Debt shall be read into this
Indenture against the Trustee.


 


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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 TIA § 318(c), the imposed duties
shall control.


 


SECTION 12.2                Notices.


 


Any notice or communication by the Issuer, any
Guarantor or the Trustee to the others 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 any Guarantor:


 


Triumph Group, Inc.

1550 Liberty Ridge Drive

Wayne, PA  19087

Facsimile:  (610) 251-1555

Attention:  General Counsel


 


With a copy to:


 


Ballard Spahr LLP

1735 Market Street, 51st Floor

Philadelphia, PA  19103

Facsimile:  (215) 864-9181

Attention:  Gerald J. Guarcini, Esq.


 


If to the Trustee:


 


U.S. Bank National Association

Corporate Trust Services

Two Liberty Place

50 South 16th Street, Suite 2000

Mail Station: EX-PA-WBSP

Philadelphia, PA  19102

Facsimile:  (215) 761-9412

Attention:  George J. Rayzis


 


The Issuer, the Guarantors and the Trustee, by
notice to the others, may designate additional or different addresses for
subsequent notices or communications.


 


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All notices and communications (other than those
sent to Holders and the Trustee) shall be deemed to have been duly given:  at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier promising next Business Day delivery.


 


Any notice or communication to a Holder shall be
sent electronically or mailed by first class mail or by overnight air courier
promising next Business Day delivery to its address shown on the register kept
by the Registrar.  Any notice or
communication shall also be so sent to any Person described in TIA
§ 313(c), to the extent required by the TIA.  Failure to send 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 or delivered
in the manner provided above within the time prescribed, it is duly given,
whether or not the addressee receives it, except in the case of notices or
communications given to the Trustee, which shall be effective only upon actual
receipt.


 


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


 


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 Guarantor, 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 (other than the initial
issuance of the Notes), the Issuer shall furnish to the Trustee upon request:


 


(a)           an Officers’ Certificate (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 (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 comply with
the provisions of TIA § 314(e) and shall include:


 


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(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
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.


 


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, Stockholders and the Trustee.


 


No director, officer, employee, stockholder, general
or limited partner or incorporator, past, present or future, of the Company or
any of its Subsidiaries, as such or in such capacity, shall have any personal
liability for any obligations of the Issuer under the Notes, any Note Guarantee
or this Indenture by reason of his, her or its status as such director,
officer, employee, stockholder, general or limited partner or incorporator.


 


No recourse may, to the full extent permitted by
applicable law, be taken, directly or indirectly, with respect to the
obligations of the Company or the Guarantors on the Notes or under this
Indenture or any related documents, any certificate or other writing delivered
in connection therewith, against (i) the Trustee in its individual capacity,
or (ii) any partner, owner, beneficiary, agent, officer, director,
employee, agent, successor or assign of the Trustee, each in its individual
capacity, or (iii) any holder of equity in the Trustee.


 


Each Holder of Notes by accepting a Note waives and
releases all such liability.  The waiver
and release are part of the consideration for the issuance of the Notes.


 


SECTION 12.8                Governing Law.


 


THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES, IF ANY.  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 ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO 


 


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THIS INDENTURE, THE NOTES,
THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


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 its 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.


 


All agreements of the Issuer and the Guarantors in
this Indenture and the Notes and the Note Guarantees, as applicable, shall bind
their respective successors and assigns. 
All agreements of the Trustee in this Indenture shall bind its
successors and assigns.


 


SECTION 12.11              Severability.


 


In case any provision in this Indenture or in the
Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.


 


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, Cross-Reference Table and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.


 


SECTION 12.14     Qualification of Indenture.


 


The Issuer and the Guarantors shall qualify this
Indenture under the Trust Indenture Act in accordance with the terms and
conditions of the Registration Rights Agreement and shall pay all reasonable
costs and expenses (including attorneys’ fees and expenses for the Issuer, the
Guarantors and the Trustee) incurred in connection therewith, including, but
not limited to, costs and expenses of qualification of this Indenture and the
Notes and printing this Indenture and the Notes.  The Trustee shall be entitled to receive from
the Issuer and the Guarantors any such Officer’s Certificates, Opinions of Counsel
or other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the Trust Indenture Act.


 


[Signatures
on following page]


 


101

















 


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


 


	
   

  	
  TRIUMPH
  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


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


 


	
   

  	
  TRIUMPH GROUP ACQUISITION HOLDINGS, INC.

  
	
   

  	
  THE TRIUMPH GROUP OPERATIONS, INC.

  
	
   

  	
  CBA ACQUISITION, LLC

  
	
   

  	
  MEXMIL CHINA, LLC

  
	
   

  	
  HT PARTS L.L.C.

  
	
   

  	
  KILROY STEEL, INC.

  
	
   

  	
  KILROY STRUCTURAL STEEL CO.

  
	
   

  	
  LAMAR ELECTRO-AIR CORPORATION

  
	
   

  	
  AIRFRAME SPARES & LOGISTICS, LLC

  
	
   

  	
  TRIUMPH ACCESSORY SERVICES—GRAND PRAIRIE, INC.

  
	
   

  	
  TRIUMPH ACTUATION SYSTEMS, LLC

  
	
   

  	
  TRIUMPH ACTUATION SYSTEMS—CONNECTICUT, LLC

  
	
   

  	
  TRIUMPH ACTUATION SYSTEMS—VALENCIA, INC.

  
	
   

  	
  TRIUMPH AEROSPACE SYSTEMS GROUP, INC.

  
	
   

  	
  TRIUMPH AEROSPACE SYSTEMS—WICHITA, INC.

  
	
   

  	
  TRIUMPH AEROSPACE SYSTEMS—NEWPORT NEWS, INC.

  
	
   

  	
  TRIUMPH AFTERMARKET SERVICES GROUP, INC.

  
	
   

  	
  TRIUMPH AIRBORNE STRUCTURES, INC.

  
	
   

  	
  TRIUMPH AVIATIONS INC.

  
	
   

  	
  TRIUMPH COMPOSITE SYSTEMS, INC.

  
	
   

  	
  TRIUMPH CONTROLS, LLC

  
	
   

  	
  TRIUMPH ENGINEERING SERVICES, INC.

  
	
   

  	
  TRIUMPH ENGINEERED SOLUTIONS, INC.

  
	
   

  	
  TRIUMPH FABRICATIONS—FORT WORTH, INC.

  
	
   

  	
  TRIUMPH FABRICATIONS—HOT SPRINGS, INC.

  
	
   

  	
  TRIUMPH FABRICATIONS—SAN DIEGO, INC.

  
	
   

  	
  TRIUMPH GEAR SYSTEMS, INC.

  
	
   

  	
  TRIUMPH GEAR SYSTEMS—MACOMB, INC.

  
	
   

  	
  TRIUMPH INSTRUMENTS, INC.

  
	
   

  	
  TRIUMPH INSTRUMENTS—BURBANK, INC.

  
	
   

  	
  TRIUMPH INTERIORS, LLC

  



 


2

















 


	
   

  	
  TRIUMPH METALS COMPANY

  
	
   

  	
  TRIUMPH PRECISION, INC.

  
	
   

  	
  TRIUMPH PRECISION CASTINGS CO.

  
	
   

  	
  TRIUMPH PROCESSING, INC.

  
	
   

  	
  TRIUMPH STRUCTURES—EAST TEXAS, INC.

  
	
   

  	
  TRIUMPH STRUCTURES—KANSAS CITY, INC.

  
	
   

  	
  TRIUMPH STRUCTURES—LONG ISLAND, LLC

  
	
   

  	
  TRIUMPH STRUCTURES—LOS ANGELES, INC.

  
	
   

  	
  TRIUMPH STRUCTURES—WICHITA, INC.

  
	
   

  	
  TRIUMPH THERMAL SYSTEMS, INC.

  
	
   

  	
  TRIUMPH TURBINE SERVICES, INC.

  
	
   

  	
  TRIUMPH INVESTMENT HOLDINGS, INC.

  
	
   

  	
  TRIUMPH INSULATION SYSTEMS, LLC

  
	
   

  	
  THE MEXMIL HOLDING CO., LLC

  
	
   

  	
  TRIUMPH GROUP HOLDINGS—MEXICO, LLC

  
	
   

  	
  TRIUMPH GROUP INVESTMENT—MEXICO, LLC

  
	
   

  	
  as
  Guarantors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NU-TECH
  BRANDS, INC.

  
	
   

  	
  TRIUMPH
  BRANDS, INC.

  
	
   

  	
  TRIUMPH
  GROUP ACQUISITION CORP.

  
	
   

  	
  as
  Guarantors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


3

















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


4






 


 












 


EXHIBIT A


 


FORM OF
8% SENIOR SUBORDINATED NOTE


 


(Face
of Note)


8%
Senior Subordinated Notes due 2017


 


[Global Notes Legend]


 


[Insert the Global Note
Legend, if applicable, pursuant to the provisions of the Indenture]


 


[Restricted Notes Legend]


 


[Insert the Restricted Notes
Legend, if applicable, pursuant to the provisions of the Indenture]


 


A-1

















 


TRIUMPH
GROUP, INC.


8%
SENIOR SUBORDINATED NOTES DUE 2017


 


	
  No.

  	
   

  	
   

  	
   

  	
  [144A
  CUSIP: 896818 AC5]

  
	
   

  	
   

  	
  [144A
  ISIN: US896818AC58]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [REG
  S CUSIP: U8968G AA2]

  
	
   

  	
   

  	
  [REG
  S ISIN: USU8968GAA23]

  



 


 


Triumph Group, Inc. promises to pay to Cede &
Co., or registered assigns, the principal sum of
              Dollars
($          ) on November 15,
2017.


 


Interest Payment Dates:  May 15 and November 15, beginning May 15,
2010


 


Record Dates: 
May 1 and November 1


 


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


 


Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by manual
signature, this Note shall not be entitled to any benefits under the Indenture
referred to on the reverse hereof or be valid or obligatory for any purpose.


 


A-2

















 


In WITNESS HEREOF, the Issuer has caused this instrument to be duly
executed.


 


	
  Dated
  [         ], 20[    ]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TRIUMPH
  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


A-3

















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


This
is one of the Notes


referred
to in the within-mentioned Indenture:


Dated:  [          ],
20[  ]


 


U.S. BANK NATIONAL ASSOCIATION,

as Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


A-4

















 


(Reverse of Note)


8% Senior Subordinated Notes due 2017


TRIUMPH GROUP, INC.


 


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


 


(1)           Interest.


 


(a)           Triumph Group, Inc., a Delaware corporation, or
its successor (together, “Triumph”),
promises to pay interest on the principal amount of this Note (the “Notes”) at a fixed rate. 
Triumph will pay interest in United States dollars (except as otherwise
provided herein) semiannually in arrears on May 15 and November 15 of
each year, commencing on May 15, 2010 or, if any such day is not a
Business Day, on the next succeeding Business Day (each an “Interest  Payment Date”).  Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from and including November 16, 2009; provided
that if there is no existing Default or Event of Default in the payment of
interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date (but after May 15,
2010), interest shall accrue from such next succeeding Interest Payment Date,
except in the case of the original issuance of the Notes, in which case interest
shall accrue from the date of authentication. 
Triumph shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.  Interest shall be computed on the basis of a
360-day year comprised of twelve 30-day months. 
The interest rate on the Notes will in no event be higher than the maximum
rate permitted by New York law as the same may be modified by United States law
of general application.


 


[(b)          Registration Rights Agreement.  The Holder of this Note is entitled to the
benefits of a Registration Rights Agreement, dated as of November 16,
2009, among the Issuer, the Guarantors party thereto and the Initial
Purchasers.](1)


 


(2)           Method of Payment.  Triumph will pay interest on the Notes
(except defaulted interest) on the applicable Interest Payment Date to the
Persons who are registered Holders of the Notes at the close of business on the
May 1 and November 1 preceding the Interest Payment Date, even if
such Notes are cancelled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest.  


 






(1)           To be included
only in the Initial Notes on the Issue Date and any Additional Notes that bear
the Restricted Note Legend.


 


A-5

















 


The Notes shall be payable
as to principal, premium and interest at the office or agency of Triumph maintained
for such purpose within or without the City and State of New York, or, at the
option of Triumph, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available
funds shall be required with respect to principal of, premium, if any, and
interest on, all Global Notes and all other Notes the Holders of which shall
have provided written wire transfer instructions to Triumph and the Paying
Agent.  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.


 


Any payments of principal of and interest on this
Note prior to Stated Maturity shall be binding upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon.  The amount due and payable at the maturity of
this Note shall be payable only upon presentation and surrender of this Note at
an office of the Trustee or the Trustee’s agent appointed for such purposes.


 


(3)           Paying Agent and Registrar.  Initially, U.S. Bank National Association,
the Trustee under the Indenture, shall act as Paying Agent and Registrar.  Triumph may change any Paying Agent or
Registrar without notice to any Holder. 
Triumph or any of its Restricted Subsidiaries may act in any such capacity.


 


(4)           Indenture.  Triumph issued the Notes under an Indenture,
dated as of November 16, 2009 (the “Indenture”),
among Triumph, the Guarantors and the Trustee. 
The terms of the Notes include those stated in the Indenture and those
made a part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”).  To the extent the provisions of this Note are
inconsistent with the provisions of the Indenture, the Indenture shall
govern.  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 Notes
issued on the Issue Date are senior subordinated unsecured Obligations of
Triumph limited to $175,000,000 in aggregate principal amount, plus amounts, if
any, sufficient to pay premium and interest on outstanding Notes as set forth
in Paragraph 2 hereof.  The Indenture
permits the issuance of Additional Notes subject to compliance with certain
conditions.


 


The payment of principal and interest on the Notes
is unconditionally guaranteed on a senior subordinated basis by the Guarantors.


 


(5)           Optional Redemption.


 


(a)           The Notes may be redeemed, in whole or in part, at
any time prior to November 15, 2013, at the option of Triumph, upon not
less than 30 nor more than 60 days’ prior notice sent electronically or mailed
by first-class mail to each Holder’s registered address, at a Redemption Price
equal to 100% of the principal amount of the Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest, if any, to, the applicable
redemption date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date).


 


A-6

















 


(b)           The Notes are subject to redemption, at the option
of Triumph, in whole or in part, at any time on or after November 15,
2013, upon not less than 30 nor more than 60 days’ notice at the following
Redemption Prices (expressed as percentages of the principal amount to be redeemed)
set forth below, plus accrued and unpaid interest, if any, to, but not
including, the redemption date (subject to the right of Holders of record on
the relevant regular record date to receive interest due on an interest payment
date that is on or prior to the redemption date), if redeemed during the
12-month period beginning November 15 of the years indicated:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2013

  	
   

  	
  104.000

  	
  %

  
	
  2014

  	
   

  	
  102.000

  	
  %

  
	
  2015 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(c)           In addition to the optional redemption of the Notes
in accordance with the provisions of the preceding paragraph, prior to November 15,
2012, Triumph may, with the net proceeds of one or more Qualified Equity
Offerings, redeem up to 35% of the aggregate principal amount of the
outstanding Notes (including Additional Notes) at a Redemption Price equal to
108.000% of the principal amount of thereof, together with accrued and unpaid
interest thereon, if any, to the date of redemption; provided
that at least 65% of the principal amount of Notes then outstanding (including
Additional Notes) remains outstanding immediately after the occurrence of any
such redemption (excluding Notes held by Triumph or its Subsidiaries) and that
any such redemption occurs within 90 days following the closing of any such
Qualified Equity Offering.


 


(6)           Mandatory Redemption.  Triumph shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


(7)           Repurchase at Option of Holder.


 


(a)           Upon the occurrence of a Change of Control, unless Triumph
has exercised its right to redeem all of the Notes pursuant to Section 3.7
of the Indenture, Triumph will make an Offer to Purchase for all of the
outstanding Notes at a purchase price in cash equal to 101% of the principal
amount tendered, together with accrued interest, if any, to but not including
the date of purchase.  Within 60 days
following any Change of Control, Triumph will mail or deliver a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control setting forth the procedures governing the Change of Control Offer
required by the Indenture.


 


(b)           Upon the occurrence of certain Asset Sales, Triumph
may be required to offer to purchase the Notes.


 


(c)           Holders of the Notes that are the subject of an Offer
to Purchase will receive notice of an Offer to Purchase pursuant to an Asset
Sale or a Change of Control from Triumph prior to any related Purchase Date and
may elect to have such Notes purchased by completing the form titled “Option of
Holder to Elect Purchase” appearing below.


 


A-7

















 


(8)           Notice of Redemption.  Notice of redemption shall be delivered 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 $2,000 may
be redeemed in part but only in a minimum amount of $2,000 principal amount
(and integral multiples of $1,000 in excess thereof), unless all of the Notes
held by a Holder are to be redeemed.  On
and after the redemption date, interest ceases to accrue on the Notes or
portions hereof called for redemption.


 


(9)           Denominations, Transfer, Exchange.  The Notes are in registered form without
coupons in initial denominations of $2,000 and any integral multiple of $1,000
in excess thereof.  The transfer of the
Notes may be registered and the 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 Triumph may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture.  Triumph 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 a record date and the corresponding
Interest Payment Date.


 


(10)         Persons Deemed Owners.  The registered holder of a Note may be
treated as its owner for all purposes.


 


(11)         Amendment, Supplement and Waiver.  Subject to the following paragraphs, the
Indenture and the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, including, without limitation, consents obtained in
connection with a purchase of or tender offer or exchange offer for Notes, and
any existing Default or Event of Default or compliance with any provision of
the Indenture or the Notes 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 tender offer or exchange offer for the
Notes.


 


Without the consent of any Holders, Triumph, the
Guarantors and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental to the Indenture and the Note Guarantees
for any of the following purposes:


 


(1)           to evidence the succession
of another Person to Triumph and the assumption by any such Successor Entity of
the covenants of Triumph in the Indenture, the Note Guarantees and the Notes;


 


(2)           to add to the covenants of
Triumph for the benefit of the Holders, or to surrender any right or power
herein conferred upon Triumph;


 


(3)           to add additional Events of
Default;


 


(4)           to provide for
uncertificated Notes in addition to or in place of the certificated Notes;


 


A-8

















 


(5)           to evidence and provide for
the acceptance of appointment under the Indenture by a successor Trustee;


 


(6)           to provide for or confirm
the issuance of Additional Notes in accordance with the terms of the Indenture;


 


(7)           to add a Guarantor or to
release a Guarantor in accordance with the Indenture;


 


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


 


(9)           to make any other provisions
with respect to matters or questions arising under the Indenture; provided that such actions pursuant to this clause (9) shall
not adversely affect the interests of the Holders in any material respect, as
determined in good faith by the Board of Directors of Triumph;


 


(10)         to conform the text of the
Indenture or the Notes to any provision of the “Description of Notes” in the
Offering Memorandum to the extent that the Trustee has received an Officers’
Certificate stating that such text constitutes an unintended conflict with the
description of the corresponding provision in the “Description of Notes”; or


 


(11)         to effect or maintain the
qualification of the Indenture under the TIA.


 


With the consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding Notes, Triumph, the
Guarantors and the Trustee may enter into an indenture or indentures
supplemental to the Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
the Notes or of modifying in any manner the rights of the Holders of the Notes
under the Indenture, including the definitions therein; provided,
however, that no such supplemental
indenture shall, without the consent of the Holder of each outstanding Note
affected thereby:


 


(1)           change the Stated Maturity
of any Note or of any installment of interest on any Note, or reduce the amount
payable in respect of the principal thereof or the rate of interest thereon or
any premium payable thereon, or reduce the amount that would be due and payable
on acceleration of the maturity thereof, or change the place of payment where,
or the coin or currency in which, any Note or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof, or change the date on which
any Notes may be subject to redemption or reduce the Redemption Price therefor,


 


(2)           reduce the percentage in
aggregate principal amount of the outstanding Notes, the consent of whose
Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain provisions
of the Indenture or certain defaults thereunder and their consequences)
provided for in the Indenture,


 


A-9

















 


(3)           modify the obligations of
Triumph to make Offers to Purchase upon a Change of Control or from the Excess
Proceeds of Asset Sales if such modification was done after the occurrence of
such Change of Control or such Asset Sale,


 


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


 


(5)           modify any of the provisions
of this paragraph or provisions relating to waiver of defaults or certain
covenants, except to increase any such percentage required for such actions or
to provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Note affected
thereby, or


 


(6)           release any Note Guarantees
required to be maintained under the Indenture (other than in accordance with
the terms of the Indenture).


 


The Holders of not less than a majority in aggregate
principal amount of the outstanding Notes may on behalf of the Holders of all
the Notes waive any past default under the Indenture and its consequences,
except a default:


 


(1)           in any payment in respect of
the principal of (or premium, if any) or interest on any Notes (including any
Note which is required to have been purchased pursuant to an Offer to Purchase
which has been made by the Issuer), or


 


(2)           in respect of a covenant or
provision hereof which under the Indenture cannot be modified or amended
without the consent of the Holder of each outstanding Note affected, each of
which, for the avoidance of doubt, shall require the consent of all the Holders
of the Notes outstanding.


 


(12)         Defaults and Remedies.  Events of Default include:


 


(1)           default in the payment in
respect of the principal of (or premium, if any, on) any Note when due and
payable (whether at Stated Maturity or upon repurchase, acceleration, optional
redemption or otherwise) (whether or not prohibited by Article XI of the
Indenture);


 


(2)           default in the payment of any
interest upon any Note when it becomes due and payable, and continuance of such
default for a period of 30 days (whether or not prohibited by Article XI
of the Indenture);


 


(3)           failure to perform or comply
with the Indenture provisions described under Section 4.3 thereof and
continuance of such failure to perform or comply for a period of 60 days after
written notice thereof has been given to Triumph by the Trustee or to Triumph
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the outstanding Notes;


 


A-10

















 


(4)           except as permitted by the
Indenture, any Note Guarantee of any Significant Subsidiary (or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary), shall for any reason cease to be, or it shall be asserted by any
Guarantor or Triumph not to be, in full force and effect and enforceable in
accordance with its terms;


 


(5)           default in the performance,
or breach, of any covenant or agreement of Triumph or any Guarantor in the
Indenture (other than a covenant or agreement a default in whose performance or
whose breach is specifically dealt with in clauses (1), (2) (3) or (4) above),
and continuance of such default or breach for a period of 60 days after written
notice thereof has been given to Triumph by the Trustee or to Triumph and the
Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding
Notes;


 


(6)           a default or defaults under
any bonds, debentures, notes or other evidences of Debt (other than the Notes)
by Triumph or any Restricted Subsidiary having, individually or in the
aggregate, a principal or similar amount outstanding of at least $25.0 million,
whether such Debt now exists or shall hereafter be created, which default or defaults
shall have resulted in the acceleration of the maturity of such Debt prior to
its express maturity or shall constitute a failure to pay at least $25.0
million of such Debt when due and payable after the expiration of any applicable
grace period with respect thereto;


 


(7)           the entry against Triumph or
any Restricted Subsidiary that is a Significant Subsidiary of a final judgment
or final judgments for the payment of money in an aggregate amount in excess of
$25.0 million, by a court or courts of competent jurisdiction, which judgments
remain undischarged, unwaived, unstayed, unbonded or unsatisfied for a period
of 60 consecutive days; or


 


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


 


(a)           commences a voluntary case,


 


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


 


(c)           consents to the appointment
of a custodian of it or for all or substantially all of its property,


 


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


 


(e)           generally is not paying its
debts as they become due; or


 


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


 


A-11






 


 












 


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


 


(b)           appoints a custodian of Triumph
or any Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property of Triumph or any of
its Restricted Subsidiaries; or


 


(c)           orders the liquidation of
Triumph or any Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary;


 


and
the order or decree remains unstayed and in effect for 60 consecutive days.


 


If an Event of Default (other than an Event of
Default specified in clause (8) above with respect to Triumph) occurs and
is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in aggregate principal amount of the outstanding Notes may
declare the principal of the Notes and any accrued interest on the Notes to be
due and payable immediately by a notice in writing to Triumph (and to the
Trustee if given by Holders); provided, however, that after such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate
principal amount of the outstanding Notes may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the nonpayment
of accelerated principal of or interest on the Notes, have been cured or waived
as provided in the Indenture.


 


In the event of a declaration of acceleration of the
Notes solely because an Event of Default described in clause (6) above has
occurred and is continuing, the declaration of acceleration of the Notes shall
be automatically rescinded and annulled if the event of default or payment default
triggering such Event of Default pursuant to clause (6) shall be remedied
or cured by Triumph or a Restricted Subsidiary of Triumph or waived by the
holders of the relevant Debt within 20 Business Days after the declaration of
acceleration with respect thereto and if the rescission and annulment of the
acceleration of the Notes would not conflict with any judgment or decree of a
court of competent jurisdiction obtained by the Trustee for the payment of
amounts due on the Notes.


 


If an Event of Default specified in clause (8) above
occurs with respect to Triumph, the principal of and any accrued interest on
the Notes then outstanding shall ipso facto become immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder.  For further information as to
waiver of defaults, see Article IX of the Indenture.  The Trustee may withhold from Holders notice
of any Default (except Default in payment of principal of, premium, if any, and
interest) if the Trustee determines that withholding notice is in the interest
of the Holders to do so.


 


No Holder of any Note will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the 


 


A-12

















 


Trustee written notice of a
continuing Event of Default and unless also the Holders of at least 25% in
aggregate principal amount of the outstanding Notes shall have made written
request to the Trustee, and provided indemnity reasonably satisfactory to the
Trustee, to institute such proceeding as Trustee, and the Trustee shall not
have received from the Holders of a majority in aggregate principal amount of
the outstanding Notes a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days.  Such limitations do not apply, however, to a
suit instituted by a Holder of a Note directly (as opposed to through the Trustee)
for enforcement of payment of the principal of (and premium, if any) or
interest on such Note on or after the respective due dates expressed in such
Note.


 


Triumph will be required to furnish to the Trustee
annually a statement as to the performance of certain obligations under the
Indenture and as to any default in such performance.  Triumph also is required to notify the
Trustee if it becomes aware of the occurrence of any Default or Event of Default.


 


(13)         Subordination.  This Note will be subordinated in right of
payment, as set forth in Article XI of the Indenture, to the prior payment
in full of cash or cash equivalents of Senior Debt of Triumph.


 


(14)         Trustee Dealings with Triumph.  The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for
Triumph, the Guarantors or their respective Affiliates, and may otherwise deal
with Triumph, the Guarantors or their respective Affiliates, as if it were not
the Trustee.


 


(15)         No Recourse Against Others.  No director, officer, employee, stockholder,
general or limited partner or incorporator, past, present or future, of
Triumph, the Guarantors or any of their respective Subsidiaries, as such or in
such capacity, shall have any personal liability for any obligations of Triumph
under the Notes, any Note Guarantee or the Indenture by reason of his, her or
its status as such director, officer, employee, stockholder, general or limited
partner or incorporator.


 


No recourse may, to the full extent permitted by
applicable law, be taken, directly or indirectly, with respect to the
obligations of Triumph or the Guarantors on the Notes or under the Indenture or
any related documents, any certificate or other writing delivered in connection
therewith, against (i) the Trustee in its individual capacity, or (ii) any
partner, owner, beneficiary, agent, officer, director, employee, agent,
successor or assign of the Trustee, each in its individual capacity, or (iii) any
holder of equity in the Trustee.


 


Each Holder of Notes by accepting a Note waives and
releases all such liability.  The waiver
and release are part of the consideration for the issuance of the Notes.


 


(16)         Authentication.  This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


(17)         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), 


 


A-13

















 


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).


 


(18)         CUSIP, ISIN 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,
ISIN or other similar numbers in notices of redemption as a convenience to the
Holders.  No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


 


(19)         THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES, IF
ANY.  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 ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THE INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS
CONTEMPLATED HEREBY


 


Triumph shall furnish to any Holder upon written
request and without charge a copy of the Indenture.  Requests may be made to:


 


Triumph
Group, Inc.

1550 Liberty Ridge Drive

Wayne, PA  19087

Attention:  General Counsel


 


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 Triumph. 
The agent may substitute another to act for him.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the

  
	
   

  	
  face
  of this Note)

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  guarantee:

  	
   

  	
   

  	
   

  
						



 


(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)


 


A-15

















 


OPTION
OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note purchased by
Triumph pursuant to 4.10 (Asset Sale) or 4.14 (Change of Control) of the
Indenture, check the box below:


 


[   ]
Section 4.10       [   ]
Section 4.14


 


If you want to elect to have only part of the Note
purchased by Triumph pursuant to Section 4.10 or 4.14 of the Indenture,
state the amount you elect to have purchased:


 


	
  $

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the Note)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tax
  Identification Number:

  	
   

  
	
   

  	
   

  
	
  Signature guarantee:

  	
   

  	
   

  	
   

  
										



 


(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)


 


A-16

















 


CERTIFICATE TO BE DELIVERED UPON


EXCHANGE OR REGISTRATION


OF RESTRICTED NOTES


 


Triumph
Group, Inc.

1550 Liberty Ridge Drive

Wayne, PA  19087

Attention:  General Counsel


 


U.S.
Bank National Association 

Corporate Trust Services

Two Liberty Place

50 South 16th Street, Suite 2000

Mail Station: EX-PA-WBSP

Philadelphia, PA  19102

Facsimile:  (215) 761-9412

Attention:  George J. Rayzis


 


	
  Re:

  	
  Triumph
  Group, Inc. 8% Senior Subordinated Notes due 2017

  
	
   

  	
  CUSIP
  #

  	
   

  



 


Reference is hereby made to that certain Indenture
dated November 16, 2009 (the “Indenture”)
among Triumph Group, Inc. (“Triumph”), the
Guarantors party thereto and U.S. Bank National Association, as trustee (the “Trustee”). 
Capitalized terms used but not defined herein shall have the meanings
set forth in the Indenture.


 


This certificate relates to $__________ principal
amount of Notes held in (check applicable space) _________ book-entry or ____________
definitive form by the undersigned.


 


The undersigned __________________ (transferor)
(check one box below):


 


o            hereby requests the
Registrar to deliver in exchange for its beneficial interest in the Global Note
held by the Depositary a Note or Notes in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Note (or the portion thereof indicated above), in
accordance with Section 2.6 of the Indenture;


 


o            hereby requests the Trustee
to exchange or register the transfer of a Note or Notes to ______________
(transferee).


 


In connection with any transfer of any of the Notes
evidenced by this certificate occurring prior to the expiration of the periods
referred to in Rule 144(d) under the Securities Act of 1933, as
amended, the undersigned confirms that such Notes are being transferred in
accordance with its terms:


 


A-17

















 


CHECK ONE BOX BELOW:


 


(1)           o            to Triumph or any of its subsidiaries, subject to Section 2.6
of the Indenture; or


 


(2)           o            inside the United States to a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act of
1933, as amended) that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that such transfer is being
made in reliance on Rule 144A under the Securities Act of 1933, as
amended, in each case pursuant to and in compliance with Rule 144A
thereunder; or


 


(3)           o            outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities Act of 1933, as
amended, in compliance with Rule 904 thereunder; or


 


(4)           o            pursuant to an effective registration statement
under the Securities Act of 1933, as amended.


 


A-18

















 


Unless one of the boxes is checked, the Registrar
will refuse to register any of the Notes evidenced by this certificate in the
name of any person other than the registered holder thereof.


 


 


	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  	
   

  
	
  (Signature
  must be guaranteed by a participant

  	
   

  
	
  in
  a recognized signature guarantee medallion program)

  	
   

  
				



 


TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS
CHECKED.


 


The undersigned represents and warrants that it is
purchasing this Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a “qualified
institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”),
and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is relying
upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.


 


	
   

  	
  [Name
  of Transferee]

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  NOTICE:
  To be executed by an executive officer

  	
   

  
				



 


A-19

















 


SCHEDULE A


 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The following exchanges of a part of this Global
Note for other 8% Senior Subordinated Notes have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of 

  Decrease in 

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of 

  Increase in 

  Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount

  of this Global Note

  Following Such

  Decrease (or 

  Increase)

  	
   

  	
  Signature of 

  Authorized Officer 

  of Trustee or Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-20

















 


EXHIBIT B


 


FORM OF NOTATIONAL GUARANTEE


 


Each Guarantor listed below (hereinafter referred to
as the “Guarantor,” which term includes any
successors or assigns under that certain Indenture, dated as of November 16,
2009, by and among Triumph Group, Inc. (“Triumph”),
the Guarantors party thereto and the Trustee (as amended and supplemented from
time to time, the “Indenture”) and
any additional Guarantors) has guaranteed the 8% Senior Subordinated Notes due
2017 (the “Notes”) and the obligations of Triumph
under the Indenture, which include (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Notes of Triumph, whether at
stated maturity, by acceleration 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, if any, on the Notes, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee all in accordance with the terms set forth in Article X of
the Indenture, (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 or otherwise, and (iii) the
payment of any and all costs and expenses (including reasonable attorneys’
fees) incurred by the Trustee or any Holder in enforcing any rights under this
Note Guarantee or the Indenture.


 


The obligations of each Guarantor to the Holders and
to the Trustee pursuant to this Note Guarantee and the Indenture are expressly
set forth in Article X of the Indenture and reference is hereby made to
such Indenture for the precise terms of this Note Guarantee.  Each Note Guarantee will be subordinated in
right of payment, as set forth in Article XI of the Indenture, to the
prior payment in full in cash or cash equivalents of Senior Debt of the
relevant Guarantor.


 


No stockholder, employee, officer, director or
incorporator, as such, past, present or future of each Guarantor shall have any
liability under this Note Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator.


 


This is a continuing Note 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 Triumph’s
obligations under the Notes and Indenture or until released 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 Note Guarantee of payment and not
of collection.


 


This Note Guarantee shall not be valid or obligatory
for any purpose until the certificate of authentication on the Note upon which
this Note 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 its
Note Guarantee shall be limited to the extent necessary 


 


B-1

















 


to insure that it does not
constitute a fraudulent conveyance or fraudulent transfer under applicable law.


 


THE TERMS OF ARTICLE X OF THE INDENTURE ARE
INCORPORATED HEREIN BY REFERENCE.


 


Capitalized terms used herein have the same meanings
given in the Indenture unless otherwise indicated.


 


	
  Dated
  as of

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-2

















 


EXHIBIT C


 


[FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]


 


Triumph
Group, Inc.

1550 Liberty Ridge Drive

Wayne, PA  19087

Attention:  General Counsel


 


U.S.
Bank National Association 

Corporate Trust Services

Two Liberty Place

50 South 16th Street, Suite 2000

Mail Station: EX-PA-WBSP

Philadelphia, PA  19102

Facsimile:  (215) 761-9412

Attention:  George J. Rayzis


 


Re:          Triumph Group, Inc.
8% Senior Subordinated Notes due 2017 (the “Notes”)


 


Ladies
and Gentlemen:


 


In connection with our proposed sale of $____________
aggregate principal amount at maturity of the Notes, we hereby certify that
such transfer is being effected pursuant to and in accordance with Rule 144A
(“Rule 144A”) under the United States Securities Act of 1933, as amended
(the “Securities Act”), and, accordingly, we hereby further certify that the
Notes are being transferred to a person that we reasonably believe is
purchasing the Notes 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 Notes are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.


 


You and Triumph Group, Inc. 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.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


C-1

















 


	
   

  	
  Signature
  guarantee:

  	
   

  



 


(Signature
must be guaranteed by a participant in a recognized signature guarantee medallion
program)


 


C-2

















 


EXHIBIT D


 


[FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS

PURSUANT TO REGULATION S]


 


Triumph
Group, Inc.

1550 Liberty Ridge Drive

Wayne, PA  19087

Attention:  General Counsel


 


U.S.
Bank National Association

Corporate Trust Services

Two Liberty Place

50 South 16th Street, Suite 2000

Mail Station: EX-PA-WBSP

Philadelphia, PA  19102

Facsimile:  (215) 761-9412

Attention:  George J. Rayzis


 


Re:          Triumph Group, Inc.
8% Senior Subordinated Notes due 2017 (the “Notes”)


 


Ladies
and Gentlemen:


 


In connection with our proposed sale of $__________
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we
represent that:


 


(1)           the offer of the Notes was
not made to a person in the United States;


 


(2)           either (a) at the time
the buy order was originated, the transferee was outside the United States or
we and any person acting on our behalf reasonably believed that the transferee
was outside the United States or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market and
neither we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;


 


(3)           no directed selling efforts
have been made in the United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and


 


(4)           the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act.


 


D-1

















 


In addition, if the sale is made during a restricted
period and the provisions of Rule 903(b) or Rule 904(b) of
Regulation S are applicable  thereto,  we  confirm  that  such  sale  has  been  made  in  accordance  with  the  applicable  provisions  of  Rule 903(b) or  Rule 904(b), as the case may be.


 


D-2

















 


Triumph Group, Inc. and you 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.  Terms used in this certificate
have the meanings set forth in Regulation S.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature guarantee:

  	
   

  	
   

  
				



 


(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)


 


D-3