EXHIBIT
4.1


 


 












 


TRUE TEMPER SPORTS, INC.


 


AND EACH OF THE
GUARANTORS PARTY HERETO


 


83/8%
SENIOR SUBORDINATED NOTES DUE 2011


 












 


INDENTURE


 


Dated as of March 15,
2004


 












 


THE BANK OF NEW YORK


 


Trustee


 












 

















 


CROSS-REFERENCE
TABLE*


 




	
  Trust
  Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  13.03

  
	
   

  	
  (c)

  	
   

  	
  13.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06; 7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06; 13.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314(a)(4)

  	
   

  	
  13.05

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  13.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  N.A.

  
	
  316(a) (last sentence)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  317(a)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
  318(a)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  13.01

  






 












N.A. means not applicable.


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


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  
	
  DEFINITIONS AND INCORPORATION

  BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions.

  	
   

  
	
  Section 1.02

  	
  Other Definitions.

  	
   

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust
  Indenture Act.

  	
   

  
	
  Section 1.04

  	
  Rules of Construction.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE
  NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Form and Dating.

  	
   

  
	
  Section 2.02

  	
  Execution and Authentication.

  	
   

  
	
  Section 2.03

  	
  Registrar and Paying Agent.

  	
   

  
	
  Section 2.04

  	
  Paying Agent to Hold Money in Trust.

  	
   

  
	
  Section 2.05

  	
  Holder Lists.

  	
   

  
	
  Section 2.06

  	
  Transfer and Exchange.

  	
   

  
	
  Section 2.07

  	
  Replacement Notes.

  	
   

  
	
  Section 2.08

  	
  Outstanding Notes.

  	
   

  
	
  Section 2.09

  	
  Treasury Notes.

  	
   

  
	
  Section 2.10

  	
  Temporary Notes.

  	
   

  
	
  Section 2.11

  	
  Cancellation.

  	
   

  
	
  Section 2.12

  	
  Defaulted Interest.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices to Trustee.

  	
   

  
	
  Section 3.02

  	
  Selection of Notes to Be Redeemed.

  	
   

  
	
  Section 3.03

  	
  Notice of Redemption.

  	
   

  
	
  Section 3.04

  	
  Effect of Notice of Redemption.

  	
   

  
	
  Section 3.05

  	
  Deposit of Redemption or Purchase Price.

  	
   

  
	
  Section 3.06

  	
  Notes Redeemed or Purchased in Part.

  	
   

  
	
  Section 3.07

  	
  Optional Redemption.

  	
   

  
	
  Section 3.08

  	
  Mandatory Redemption.

  	
   

  
	
  Section 3.09

  	
  Offer to Purchase by Application of Excess
  Proceeds.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes.

  	
   

  
	
  Section 4.02

  	
  Maintenance of Office or Agency.

  	
   

  
	
  Section 4.03

  	
  Reports.

  	
   

  
	
  Section 4.04

  	
  Compliance Certificate.

  	
   

  
	
  Section 4.05

  	
  Taxes.

  	
   

  
	
  Section 4.06

  	
  Stay, Extension and Usury Laws.

  	
   

  
	
  Section 4.07

  	
  Restricted Payments.

  	
   

  
	
  Section 4.08

  	
  Dividend and Other Payment Restrictions
  Affecting Subsidiaries.

  	
   

  
	
  Section 4.09

  	
  Incurrence of Indebtedness and Issuance of
  Preferred Stock.

  	
   

  
	
  Section 4.10

  	
  Asset Sales.

  	
   

  



 


i

















 


	
  Section 4.11

  	
  Transactions with Affiliates.

  	
   

  
	
  Section 4.12

  	
  Liens.

  	
   

  
	
  Section 4.13

  	
  Business Activities.

  	
   

  
	
  Section 4.14

  	
  Corporate Existence.

  	
   

  
	
  Section 4.15

  	
  Offer to Repurchase Upon Change of Control.

  	
   

  
	
  Section 4.16

  	
  No Layering of Debt.

  	
   

  
	
  Section 4.17

  	
  Limitation on Sale and Leaseback
  Transactions.

  	
   

  
	
  Section 4.18

  	
  Additional Note Guarantees.

  	
   

  
	
  Section 4.19

  	
  Designation of Restricted and Unrestricted
  Subsidiaries.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger, Consolidation, or Sale of Assets.

  	
   

  
	
  Section 5.02

  	
  Successor Corporation Substituted.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default.

  	
   

  
	
  Section 6.02

  	
  Acceleration.

  	
   

  
	
  Section 6.03

  	
  Other Remedies.

  	
   

  
	
  Section 6.04

  	
  Waiver of Past Defaults.

  	
   

  
	
  Section 6.05

  	
  Control by Majority.

  	
   

  
	
  Section 6.06

  	
  Limitation on Suits.

  	
   

  
	
  Section 6.07

  	
  Rights of Holders to Receive Payment.

  	
   

  
	
  Section 6.08

  	
  Collection Suit by Trustee.

  	
   

  
	
  Section 6.09

  	
  Trustee May File Proofs of Claim.

  	
   

  
	
  Section 6.10

  	
  Priorities.

  	
   

  
	
  Section 6.11

  	
  Undertaking for Costs.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee.

  	
   

  
	
  Section 7.02

  	
  Rights of Trustee.

  	
   

  
	
  Section 7.03

  	
  Individual Rights of Trustee.

  	
   

  
	
  Section 7.04

  	
  Trustee’s Disclaimer.

  	
   

  
	
  Section 7.05

  	
  Notice of Defaults.

  	
   

  
	
  Section 7.06

  	
  Reports by Trustee to Holders of the Notes.

  	
   

  
	
  Section 7.07

  	
  Compensation and Indemnity.

  	
   

  
	
  Section 7.08

  	
  Replacement of Trustee.

  	
   

  
	
  Section 7.09

  	
  Successor Trustee by Merger, etc.

  	
   

  
	
  Section 7.10

  	
  Eligibility; Disqualification.

  	
   

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against
  Company.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Option to Effect Legal Defeasance or
  Covenant Defeasance.

  	
   

  
	
  Section 8.02

  	
  Legal Defeasance and Discharge.

  	
   

  
	
  Section 8.03

  	
  Covenant Defeasance.

  	
   

  
	
  Section 8.04

  	
  Conditions to Legal or Covenant Defeasance.

  	
   

  
	
  Section 8.05

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

  	
   

  



 


ii

















 


	
  Section 8.06

  	
  Repayment to Company.

  	
   

  
	
  Section 8.07

  	
  Reinstatement.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without Consent of Holders.

  	
   

  
	
  Section 9.02

  	
  With Consent of Holders.

  	
   

  
	
  Section 9.03

  	
  Compliance with Trust Indenture Act.

  	
   

  
	
  Section 9.04

  	
  Revocation and Effect of Consents.

  	
   

  
	
  Section 9.05

  	
  Notation on or Exchange of Notes.

  	
   

  
	
  Section 9.06

  	
  Trustee to Sign Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  SUBORDINATION

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Agreement to Subordinate.

  	
   

  
	
  Section 10.02

  	
  Liquidation; Dissolution; Bankruptcy.

  	
   

  
	
  Section 10.03

  	
  Default on Designated Senior Debt.

  	
   

  
	
  Section 10.04

  	
  Acceleration of Notes.

  	
   

  
	
  Section 10.05

  	
  When Distribution Must Be Paid Over.

  	
   

  
	
  Section 10.06

  	
  Notice by Company.

  	
   

  
	
  Section 10.07

  	
  Subrogation.

  	
   

  
	
  Section 10.08

  	
  Relative Rights.

  	
   

  
	
  Section 10.09

  	
  Subordination May Not Be Impaired by
  Company.

  	
   

  
	
  Section 10.10

  	
  Distribution or Notice to Representative.

  	
   

  
	
  Section 10.11

  	
  Rights of Trustee and Paying Agent.

  	
   

  
	
  Section 10.12

  	
  Authorization to Effect Subordination.

  	
   

  
	
  Section 10.13

  	
  Amendments.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  NOTE
  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee.

  	
   

  
	
  Section 11.02

  	
  Subordination of Note Guarantee.

  	
   

  
	
  Section 11.03

  	
  Limitation on Guarantor Liability.

  	
   

  
	
  Section 11.04

  	
  Execution and Delivery of Note Guarantee.

  	
   

  
	
  Section 11.05

  	
  Guarantors May Consolidate, etc., on
  Certain Terms.

  	
   

  
	
  Section 11.06

  	
  Releases.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Satisfaction and Discharge.

  	
   

  
	
  Section 12.02

  	
  Application of Trust Money.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Trust Indenture Act Controls.

  	
   

  
	
  Section 13.02

  	
  Notices.

  	
   

  
	
  Section 13.03

  	
  Communication by Holders with Other
  Holders.

  	
   

  
	
  Section 13.04

  	
  Certificate and Opinion as to Conditions
  Precedent.

  	
   

  
	
  Section 13.05

  	
  Statements Required in Certificate or
  Opinion.

  	
   

  
	
  Section 13.06

  	
  Rules by Trustee and Agents.

  	
   

  
	
  Section 13.07

  	
  No Personal Liability of Directors,
  Officers, Employees and Stockholders.

  	
   

  



 


iii

















 


	
  Section 13.08

  	
  Governing Law.

  	
   

  
	
  Section 13.09

  	
  No Adverse Interpretation of Other
  Agreements.

  	
   

  
	
  Section 13.10

  	
  Successors.

  	
   

  
	
  Section 13.11

  	
  Severability.

  	
   

  
	
  Section 13.12

  	
  Counterpart Originals.

  	
   

  
	
  Section 13.13

  	
  Legal Holidays.

  	
   

  
	
  Section 13.14

  	
  Table of Contents, Headings, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  
	
  Exhibit
  A

  	
  FORM
  OF NOTE

  	
   

  
	
  Exhibit
  B

  	
  FORM
  OF CERTIFICATE OF TRANSFER

  	
   

  
	
  Exhibit
  C

  	
  FORM
  OF CERTIFICATE OF EXCHANGE

  	
   

  
	
  Exhibit
  D

  	
  FORM
  OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  	
   

  
	
  Exhibit
  E

  	
  FORM
  OF NOTATION OF GUARANTEE

  	
   

  
	
  Exhibit
  F

  	
  FORM
  OF SUPPLEMENTAL INDENTURE

  	
   

  
				



 


iv

















 


INDENTURE dated as of March 15, 2004 among True Temper
Sports, Inc., a Delaware corporation (the “Company”),
the Guarantors (as defined) and The Bank of New York, a New York Banking
Corporation, as trustee (the “Trustee”).


 


The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders (as defined) of the   83/8%
Senior Subordinated Notes due 2011 (the “Notes”):


 


ARTICLE 1


DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01                                Definitions.


 


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


 


“Acquired
Debt” means, with respect to any specified Person:


 


(1)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; and


 


(2)
Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.


 


“Additional
Interest” means all liquidated damages owing pursuant to the
applicable Registration Rights Agreement.


 


“Additional
Notes” means additional Notes (other than the Initial Notes
and the applicable Exchange Notes) issued under this Indenture in accordance
with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial
Notes.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, “control,” as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings. No
Person (other than the Company or any Subsidiary of the Company) in whom a
Receivables Subsidiary makes an Investment in connection with a Qualified
Receivables Transaction will be deemed to be an Affiliate of the Company or any
of its Subsidiaries solely by reason of such Investment.


 


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


 


“Applicable Premium”
means, with respect to any Note on any Section 3.07(b) Redemption Date, the
greater of:


 


1

















 


(1)
1.0% of the principal amount of the Note; or


 


(2)
the excess of:


 


(a)  the present value at such Section 3.07(b)
Redemption Date of (i) the redemption price of the Note at March 15, 2008,
(such redemption price being set forth in the table appearing in Section 3.07)
plus (ii) all required interest payments due on the Note through March 15,
2008, (excluding accrued but unpaid interest to the Section 3.07(b) Redemption
Date), computed using a discount rate equal to the Treasury Rate as of such Section
3.07(b) Redemption Date plus 50 basis points; over


 


(b)  the principal amount of the Note, if
greater.


 


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


 


“Asset Sale” means:


 


(1)
the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole will be governed by Section
4.15 and/or Section 5.01 and not by the provisions of Section 4.10; and


 


(2)
the issuance of Equity Interests in any of the Company’s Restricted
Subsidiaries or the sale of Equity Interests in any of the Company’s Restricted
Subsidiaries (in each case, other than directors’ qualifying shares or shares
required by applicable law to be held by a Person other than Parent or a
Restricted Subsidiary).


 


Notwithstanding the preceding, none of the following
items will be deemed to be an Asset Sale:


 


(1)
any single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $3.0 million;


 


(2)
a transfer of assets between or among the Company and its Restricted
Subsidiaries or between and among the Company’s Restricted Subsidiaries;


 


(3)
an issuance of Equity Interests by a Restricted Subsidiary of the Company to
the Company or to a Restricted Subsidiary of the Company;


 


(4)
any sale or transfer of Equity Interests in a Restricted Subsidiary of the
Company by the Company or any of its Restricted Subsidiaries to any Restricted
Subsidiary of the Company;


 


(5)
the sale or lease of products, services, inventory, accounts receivable or
other assets or right in the ordinary course of business and any sale or other
disposition of damaged, worn-out or obsolete assets in the ordinary course of
business;


 


(6)
the sale or other disposition of cash or Cash Equivalents;


 


(7)
the sale and leaseback of any assets within 90 days of the acquisition
thereof;


 


(8)
foreclosures on assets;


 


2

















 


(9)
any settlement, release or surrender of tort or other litigation claims;


 


(10)
the grant of any Liens not otherwise prohibited by this Indenture;


 


(11)
any exchange of property pursuant to Section 1031 of the Internal Revenue
Code, as amended, for use in a Permitted Business;


 


(12)
any transfer or sale of accounts receivable and related assets of the type
specified in the definition of “Qualified Receivables Transaction” to a
Receivables Subsidiary for the Fair Market Value thereof, including cash in an
amount at least equal to 75% of the book value thereof as determined in
accordance with GAAP, it being understood that, for the purposes of this
clause (12), investments received in exchange for the transfer of accounts
receivable and related assets will be deemed to constitute cash if the
Receivables Subsidiary or other payor is required to repay such investments as
soon as practicable from available cash collections less amounts required to be
established as reserves pursuant to contractual agreements with entities that
are not Affiliates of the Company entered into as part of a Qualified
Receivables Transaction;


 


(13)
the licensing of intellectual property; and


 


(14)
a Restricted Payment that does not violate Section 4.07 or a Permitted
Investment.


 


“Attributable
Debt” means in respect of a sale and leaseback transaction,
at the time of determination, the present value of the obligation of the lessee
for net 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 extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale and
leaseback transaction results in a Capital Lease Obligation, no Attributable
Debt shall be deemed to be represented thereby and instead the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of “Capital Lease Obligation.”


 


“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 that term is used in Section 13(d)(3) of the Exchange Act).


 


“Board of Directors” means:


 


(1)
with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;


 


(2)
with respect to a partnership, the Board of Directors of the general partner of
the partnership;


 


(3)
with respect to a limited liability company, the managing member or members or
any controlling committee of managing members thereof; and


 


(4)
with respect to any other Person, the board or committee of such Person serving
a similar function.


 


3

















 


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


 


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


 


“Capital
Lease Obligation” means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet prepared 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 prepaid by the lessee without payment
of a penalty.


 


“Capital
Stock” means:


 


(1)
in the case of a corporation, corporate stock;


 


(2)
in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;


 


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


 


(4)
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
the issuing Person, but excluding from all of the foregoing (A) any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock and (B) any compensation
agreement, plan or arrangement conferred upon employees of Parent, the Company
or any Restricted Subsidiary of the Company to the extent such agreement, plan
or arrangement provides for payments tied to measures of operating performance.


 


“Cash
Equivalents” means:


 


(1)
United States dollars;


 


(2)
Government Securities having maturities of not more than twelve months from the
date of acquisition;


 


(3)
certificates of deposit and eurodollar time deposits with maturities of twelve
months or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding six months and overnight bank deposits, in each case,
with any lender party to the Credit Facilities or with any domestic commercial
bank having capital and surplus in excess of $500.0 million and a Thompson
Bank Watch Rating of “B” or better;


 


(4)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications
specified in clause (3) above;


 


(5)
commercial paper having the rating of “P-2” (or higher) from Moody’s or “A-3”
(or higher) from S&P and in each case maturing within twelve months after
the date of acquisition; and


 


(6)
any fund investing exclusively in investments of the type described in clauses
(1) through (5) above.


 


4

















 


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


 


(1)
the direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or assets of the
Company and its Subsidiaries taken as a whole to any “person” (as that term is
used in Section 13(d) of the Exchange Act) other than a Principal or a
Related Party of a Principal;


 


(2)
the adoption of a plan relating to the liquidation or dissolution of the
Company;


 


(3)
the consummation of any transaction (including, without limitation, any merger
or consolidation), the result of which is that any “person” (as defined above),
other than the Principals and the Related Parties, becomes the Beneficial
Owner, directly or indirectly, of more than 50% of the Voting Stock of the
Company, measured by voting power rather than number of shares; or


 


(4)
after the consummation of an Initial Public Offering, the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors.


 


“Clearstream”
means Clearstream Banking, S.A.


 


“Company”  means the True Temper Sports, Inc., and any
and all successors thereto.


 


“Comparable
Treasury Issue” means the United States Treasury security selected
by the Quotation Agent as having a maturity comparable to the remaining term
from the Section 3.07(b) Redemption Date to March 15, 2008, that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of a maturity most
nearly equal to March 15, 2008.


 


“Comparable Treasury Price”
means, with respect to any Section 3.07(b) Redemption Date, if clause (ii)
of the Treasury Rate is applicable, the average of three, or such lesser number
as is obtained by the trustee, Reference Treasury Dealer Quotations for such
Section 3.07(b) Redemption Date.


 


“Consolidated
Cash Flow” means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus, without duplication:


 


(1)
an amount equal to any extraordinary loss plus any net loss realized by such
Person or any of its Restricted Subsidiaries in connection with a disposition
of assets of such Person (including pursuant to any sale and leaseback
transaction), to the extent such losses were deducted in computing such
Consolidated Net Income; plus


 


(2)
provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such provision for
taxes was deducted in computing such Consolidated Net Income; plus


 


(3)
the Fixed Charges of such Person and its Restricted Subsidiaries for such
period, to the extent that such Fixed Charges were deducted in computing such
Consolidated Net Income; plus


 


(4)
depreciation, amortization (including (A) amortization of intangibles,
(B) any increased expense or depreciation or amortization charges
resulting from purchase accounting


 


5

















 


adjustments
or inventory write-ups with respect to acquisitions and (C) amortization
charges or write-off of deferred financing costs and debt issuance costs) and
other non-cash expenses (excluding any such non-cash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period except
to the extent such prepaid cash expenses were included in the calculation of
Consolidated Cash Flow for such prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation, amortization
and other non-cash expenses were deducted in computing such Consolidated Net
Income; plus


 


(5)
amounts paid pursuant to the Management Agreement to the extent such amounts
were deducted in computing such Consolidated Net Income; plus


 


(6)
any non-recurring charges for such period to the extent that such charges were
deducted in computing such Consolidated Net Income; plus


 


(7)
any non-capitalized transaction costs incurred in connection with actual or
proposed financings, acquisitions or divestitures, including, but not limited
to, financing and refinancing fees and costs incurred in connection with the
Transactions; plus


 


(8)
100% of any dividends or distributions received by such Person or a Restricted
Subsidiary of such Person after the date of this Indenture from an Unrestricted
Subsidiary of such Person to the extent that such dividends were not otherwise
included in such Consolidated Net Income; plus


 


(9)
expenses attributable to Incentive Arrangements to the extent such amounts were
deducted in computing such Consolidated Net Income; minus


 


(10)
non-cash items increasing such Consolidated Net Income for such period, other
than the accrual of revenue in the ordinary course of business,


 


in each case, on a consolidated basis and determined
in accordance with GAAP.


 


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


 


(1)
the Net Income of any Person that is not a Restricted Subsidiary will be
included only to the extent of the amount of dividends or similar distributions
directly or indirectly paid in cash to the specified Person or a Restricted
Subsidiary of the specified Person;


 


(2)
the Net Income of any Restricted Subsidiary of the specified Person will 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, 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 stockholders; provided
that (A) the Net Income (but not loss) of any Foreign Subsidiary shall be
excluded pursuant to this clause (2) only to the extent cash equal to such
Net Income (or a portion thereof) is not readily procurable to the Company from
such Foreign Subsidiary pursuant to (x) repurchases of Capital Stock if
such Foreign Subsidiary is a Wholly Owned Restricted Subsidiary of the Company
before and after giving effect to such repurchase, (y) repayment of
intercompany loans made in accordance with clause (6) Section 4.09(b) or
(z) dividends or


 


6

















 


distributions
in respect of the Capital Stock of such Foreign Subsidiary and (B) the Net
Income of any Restricted Subsidiary of the specified Person that would
otherwise be excluded pursuant to this clause (2) shall be included to the
extent of the amount of dividends or similar distributions directly or
indirectly paid in cash to the specified Person or a Restricted Subsidiary of
the specified Person during such period (subject, in the case of a dividend or
other distribution paid to another Restricted Subsidiary, to the limitation
contained in this clause (2) as applied to such other Restricted Subsidiary);


 


(3)
the cumulative effect of a change in accounting principles shall be excluded;


 


(4)
non-cash charges resulting from the impairment of goodwill pursuant to
FAS 142 shall be excluded;


 


(5)
expenses and charges related to the Transactions which are paid, taken or
otherwise accounted for within 365 days of the consummation of the
Transactions shall be excluded; and


 


(6)
notwithstanding clause (1) above, the Net Income of any Unrestricted
Subsidiary will be excluded, whether or not distributed to the specified Person
or one of its Subsidiaries.


 


 “Continuing Directors”
means, as of any date of determination, any member of the Board of Directors of
the Company who:


 


(1)
was a member of such Board of Directors immediately following the consummation
of the Transactions;


 


(2)
was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board of Directors at the time of such nomination or election;


 


(3)
prior to the consummation of an Initial Public Offering, was nominated by the
Principals pursuant to the Stockholders Agreement; or


 


(4)
following the consummation of an Initial Public Offering, was nominated for
election or elected to such Board of Directors by the Principals at such time
when the Principal and the Related Parties together is the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of the Company,
measured by voting power rather than number of shares.


 


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


 


“Credit
Agreement” means that certain Credit Agreement, to be dated
as of the date of this Indenture, by and among the True Temper Corporation, the
Company, Credit Suisse First Boston, acting through its Cayman Islands Branch,
as administrative agent, and the lenders party thereto, initially providing for
up to $130.0 million of borrowings, including any related Notes,
Guarantees, collateral documents, instruments and agreements executed in
connection therewith, and, in each case, as amended, restated, modified,
renewed, refunded, replaced (whether upon or after termination or otherwise),
increased, extended or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time.


 


“Credit
Facilities” means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case, with banks or other institutional lenders providing


 


7

















 


for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables) or letters of credit, in each case,
as amended, restated, modified, renewed, refunded, replaced (whether upon or
after termination or otherwise) or refinanced (including by means of sales of
debt securities to institutional investors) in whole or in part from time to
time.


 


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


 


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


 


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


 


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


 


“Designated
Senior Debt” means:


 


(1)
any Indebtedness outstanding under the Credit Agreement; and


 


(2)
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 (or
which provides for commitments to lend) $25.0 million or more and that has
been designated by the Company as “Designated Senior Debt.”


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable for
Capital Stock (other than Disqualified Stock), pursuant to a sinking fund
obligation or otherwise, or redeemable for Capital Stock (other than
Disqualified Stock) at the option of the holder of the Capital Stock, in whole
or in part, on or prior to the date that is 91 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because such Capital
Stock matures or gives the holders of the Capital Stock the right to require
the Company to repurchase such Capital Stock upon the occurrence of a “change
of control” or an “asset sale” will not constitute Disqualified Stock if:


 


(1)
the “asset sale” or “change of control” provisions applicable to such Capital
Stock are not more favorable to the holders of such Capital Stock than the
provisions applicable to the Notes in Section 4.15 and Section 4.10 hereof or


 


(2)
the terms of such Capital Stock provide that the Company may not repurchase or
redeem any Capital Stock pursuant to the “asset sale” or “change of control”
provisions applicable to such Capital Stock unless such repurchase or
redemption complies with Section 4.07 hereof.


 


8

















 


The amount of Disqualified Stock 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 Disqualified Stock, exclusive of accrued dividends.


 


“Domestic
Subsidiary” means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia or that guarantees or otherwise provides
direct credit support for any Credit Facilities of the Company.


 


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


 


“Equity Offering”
means a public or private offer and sale of Capital Stock (other than
Disqualified Stock) of the Company.


 


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


 


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


 


“Exchange
Notes” means the Notes issued in an Exchange Offer pursuant
to Section 2.06(f) hereof.


 


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


 


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


 


“Existing
Indebtedness” means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture, until such amounts are repaid.


 


“Fair Market Value” means
the value that would be paid by a willing buyer to an unaffiliated willing
seller in a transaction not involving distress or necessity of either party,
determined in good faith by the Board of Directors of the Company (unless
otherwise provided in this Indenture).


 


“Fixed
Charge Coverage Ratio” means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings) or
issues, repurchases or redeems Preferred Stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated and
on or prior to the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio will be calculated
giving pro forma effect to such incurrence, assumption, Guarantee, repayment,
repurchase, redemption, defeasance or other discharge of Indebtedness, or such
issuance, repurchase or redemption of Preferred Stock, and the use of the
proceeds therefrom, as if the same had occurred at the beginning of the
applicable four-quarter reference period.


 


In addition, for purposes of calculating the Fixed
Charge Coverage Ratio:


 


(1)
acquisitions that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations, or any
Person or any of its Restricted


 


9

















 


Subsidiaries
acquired by the specified Person or any of its Restricted Subsidiaries, and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date will be calculated to include the Consolidated Cash Flow of
the acquired entities on a pro forma basis after giving effect to cost savings
resulting from employee terminations, facilities consolidations and closings,
standardization of employee benefits and compensation policies, consolidation
of property, casualty and other insurance coverage and policies,
standardization of sales and distribution methods, reductions in taxes other
than income taxes and other cost savings reasonably expected to be realized
from such acquisition and any other operating expense reduction that would be
permitted to be reflected on pro forma financial statements pursuant to
Rule 11-02 of Regulation S-X under the Securities Act, as if they had
occurred on the first day of the four-quarter reference period;


 


(2)
the Consolidated Cash Flow (positive or negative) directly attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses (and ownership interests therein) disposed of, or assets that are
the subject of an Asset Sale consummated, prior to the Calculation Date, will
be excluded;


 


(3)
the Fixed Charges (positive or negative) attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of, or assets that are the subject
of an Asset Sale consummated, prior to the Calculation Date, will be excluded,
but only to the extent that the obligations giving rise to such Fixed Charges
will not be obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date;


 


(4)
any Person that is a Restricted Subsidiary on the Calculation Date will be
deemed to have been a Restricted Subsidiary at all times during such
four-quarter period;


 


(5)
any Person that is not a Restricted Subsidiary on the Calculation Date will be
deemed not to have been a Restricted Subsidiary at any time during such
four-quarter period; and


 


(6)
if any Indebtedness bears a floating rate of interest, the interest expense on
such Indebtedness will be calculated as if the rate in effect on the
Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligation applicable to such Indebtedness if such
Hedging Obligation has a remaining term as at the Calculation Date in excess of
12 months).


 


“Fixed
Charges” means, with respect to any specified Person for any
period, the sum, without duplication, of (in each case, determined on a
consolidated basis in accordance with GAAP):


 


(1)
the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, including, without
limitation, amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, and net of the
effect of all payments made or received pursuant to Hedging Obligations in
respect of interest rates (excluding cash costs paid to unwind an agreement or
instrument governing any Hedging Obligations existing on or prior to the date
of this Indenture); plus


 


(2)
the consolidated interest expense of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus


 


10

















 


(3)
any interest on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries (but only to the extent of
the value of the assets so secured), whether or not such Guarantee or Lien is
called upon; plus


 


(4)
the product of (a) all dividends, whether paid or accrued and whether or
not in cash, on any series of Disqualified Stock of such Person or any series
of Preferred Stock of such Person’s Restricted Subsidiaries, other than
dividends on Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted Subsidiary of
the Company, times (b) 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
the issuer of such Disqualified Stock or Preferred Stock, expressed as a
decimal (as estimated by the Chief Financial Officer of the Company in good
faith); less


 


(5)
to the extent included in clause (1), (2), (3) or (4) above, the
amortization during such period of capitalized financing costs associated with
the Transactions.


 


“Foreign
Subsidiary” means any Restricted Subsidiary of the Company
that is not a Domestic Subsidiary.


 


“GAAP”
means generally accepted accounting principles in the United States 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 have been approved by a significant segment
of the accounting profession, which are in effect from time to time.


 


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


 


“Global
Notes” means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the “Schedule of Exchanges of Interests in the Global Note”
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.


 


“Government
Securities” means 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 of those
securities).


 


“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any
manner including, without limitation, through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any
Indebtedness.


 


“Guarantors”
means each of:


 


(1)
True Temper Sports, PRC Holdings, Inc.;


 


(2)
El Cajon Equipment Corporation; and


 


(3)
any other Restricted Subsidiary of the Company that executes a Note Guarantee
in accordance with the provisions of this Indenture,


 


11

















 


and their respective successors and assigns, in each
case, until the Note Guarantee of such Person has been released in accordance
with the provisions of the Indenture.


 


“Hedging
Obligations” means, with respect to any specified Person, the
obligations of such Person under:


 


(1)
interest rate swap agreements (whether from fixed to floating or from floating
to fixed), interest rate cap agreements and interest rate collar agreements;


 


(2)
other agreements or arrangements designed to manage, or to protect such Person
against fluctuations in, interest rates or interest rate risk;


 


(3)
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to manage, or to protect such Person against
fluctuations in, currency exchange rates or commodity prices; and


 


(4)
any forward contract, commodity swap, commodity option or other similar
agreement or arrangement designed to manage, or to protect such Person against
fluctuations in, commodity prices.


 


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


 


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


 


“Immaterial Subsidiary” means, as of any
date, any Restricted Subsidiary of the Company whose total assets, as of that
date, are less than $100,000 and whose total revenues for the most recent
12-month period do not exceed $100,000; provided
that a Restricted Subsidiary will not be considered to be an Immaterial
Subsidiary if it, directly or indirectly, guarantees or otherwise provides
direct credit support for any Indebtedness of the Company.


 


“Incentive
Arrangements” means any (i) earn-out agreements,
(ii) stock appreciation rights, (iii) phantom stock plans,
(iv) employment agreements, (v) non-competition agreements and
(vi) incentive and bonus plans entered into by the Company or any of its
Restricted Subsidiaries for the benefit of, and in order to retain, executives,
officers or employees of Persons or businesses in connection with the
acquisition of the Capital Stock of such Persons or the acquisition of such
business by the Company or such Restricted Subsidiary.


 


“Indebtedness”
means, without duplication, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:


 


(1)
in respect of borrowed money;


 


(2)
evidenced by bonds, Notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof);


 


(3)
in respect of banker’s acceptances;


 


12

















 


(4)
representing Capital Lease Obligations or Attributable Debt in respect of sale
and leaseback transactions;


 


(5)
representing the balance deferred and unpaid of the purchase price of any
property due more than six months after such property is acquired, except any
such balance that constitutes an accrued expense or trade payable incurred in
the ordinary course of business; or


 


(6)
representing any Hedging Obligations,


 


if and to the extent any of the preceding items (other
than letters of credit, Attributable Debt and Hedging Obligations) would appear
as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes, to the
extent not otherwise included, (i) the Guarantee by the specified Person
of any Indebtedness of any other Person and (ii) all Indebtedness of
others secured by a Lien on any asset of the specified Person (whether or not
such Indebtedness is assumed by the specified Person).


 


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


 


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


 


“Initial
Notes” means the first $125.0 million aggregate principal
amount of Notes issued under this Indenture on the date hereof.


 


 “Initial Public Offering” means a primary underwritten public
offering of the common stock of the Company or any direct or indirect parent of
the Company other than any public offering or sale pursuant to a registration
statement on Form S-8 or a comparable form.


 


“Initial
Purchasers” means Credit Suisse First Boston LLC and Goldman,
Sachs & Co.


 


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


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees or other obligations), advances or capital contributions (excluding
(i) commission, travel and similar advances to officers and employees made
in the ordinary course of business and (ii) extensions of trade credit and
accounts receivables made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company will be deemed to have made
an Investment on the date of any such sale or disposition equal to the Fair
Market Value of the Company’s Investments in such Subsidiary that were not sold
or disposed of in an amount determined as provided in the final paragraph of
Section 4.07.  Except as otherwise
provided in this Indenture, the amount of an Investment will be determined at
the time the Investment is made and without giving effect to subsequent changes
in value.


 


“Legal
Holiday” means a Saturday, Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed.


 


13

















 


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


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and, except in connection with any Qualified Receivables Transaction, any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.


 


“Management
Agreement” means that certain Management Agreement, dated the date
of this Indenture, among GGEP Management, L.L.C., the Company and the Parent,
as in effect from time to time.


 


“Moody’s”
means Moody’s Investor’s Service, Inc., or any successor entity.


 


“Net
Income” means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:


 


(1)
any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (a) any Asset Sale; or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and


 


(2)  any extraordinary gain or loss, together
with any related provision for taxes on such extraordinary gain or loss.


 


“Net
Proceeds” means the aggregate cash proceeds actually received
by the Company or any of its Restricted Subsidiaries in respect of any Asset
Sale (including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
(i) the direct costs relating to such Asset Sale, including, without
limitation, all legal, title and recording tax expenses, legal, accounting and
investment banking fees, sales commissions, any relocation expenses and other
fees and expenses incurred, and all Federal, state, foreign and local taxes
required to be accrued as a liability under GAAP, as a consequence of such
Asset Sale, (ii) all payments made on any Indebtedness, other than
Indebtedness incurred pursuant to the Credit Facilities, which is secured by
any assets subject to such Asset Sale, in accordance with the terms of any Lien
upon or other security agreement of any kind with respect to such assets, or
which must by its terms, or in order to obtain a necessary consent to such
Asset Sale, or by applicable law, be repaid out of the proceeds from such Asset
Sale, (iii) all distributions and other payments required to be made to
minority interest holders in any of the Company’s Restricted Subsidiaries as a
result of such Asset Sale, (iv) the deduction of appropriate amounts
provided by the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the property or other assets disposed in such Asset
Sale and retained by the Company or any of its Restricted Subsidiaries after
such Asset Sale, and (v) any portion of the purchase price from an Asset
Sale placed in escrow, whether as a reserve for adjustment of the purchase
price, for satisfaction of indemnities in respect of such Asset Sale or
otherwise in connection with that Asset Sale; provided
that such portion of the purchase price will constitute “Net Proceeds” at such
time that it is released from such escrow.


 


“Non-Recourse Debt” means Indebtedness:


 


(1)
as to which neither the Company nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any undertaking,
agreement or instrument that would


 


14

















 


constitute
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender; and


 


(2)
no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder of any
other Indebtedness of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment of the
Indebtedness to be accelerated or payable prior to its Stated Maturity; and


 


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


 


“Note
Guarantee” means the Guarantee by each Guarantor of the
Company’s obligations under this Indenture and the Notes, executed pursuant to
the provisions of this Indenture.


 


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


 


“Obligations”
means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“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 or any Vice-President of such Person.


 


“Officers’
Certificate” means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 13.05 hereof.


 


“Opinion
of Counsel” means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
13.05 hereof.  The counsel may be an
employee of or counsel to the Company, any Subsidiary of the Company or the
Trustee.


 


“Parent”
means True Temper Corporation.


 


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


 


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


 


“Permitted
Business” means any business conducted or proposed to be
conducted by the Company and its Restricted Subsidiaries on the date of this
Indenture or any business that is similar, reasonably related, incidental or
ancillary thereto or to the manufacture of sports equipment or metal or
graphite products.


 


15

















 


“Permitted
Investments” means:


 


(1)
any Investment in the Company or in a Restricted Subsidiary of the Company;


 


(2)
any Investment in Cash Equivalents;


 


(3)
any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of, or immediately after, such Investment:


 


(a)  such Person becomes a Restricted Subsidiary
of the Company; 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 into, the Company or a Restricted Subsidiary of the
Company;


 


(4)
any Investment made as a result of the receipt of non-cash consideration from
(i) an Asset Sale that was made pursuant to and in compliance with Section
4.10 or (ii) any sale, disposition, conveyance or transfer of assets not
constituting an Asset Sale;


 


(5)
any acquisition of assets or Capital Stock solely in exchange for the issuance
of Equity Interests (other than Disqualified Stock) of the Company;


 


(6)
any Investments received in compromise or resolution of (A) obligations of
trade creditors, customers or debtors of the Company or any of its Restricted
Subsidiaries that were incurred in the ordinary course of business of the
Company or any of its Restricted Subsidiaries, including pursuant to any plan
of reorganization, workout or similar arrangement upon the bankruptcy,
foreclosure or insolvency of such trade creditor, customer or debtor; or
(B) litigation, arbitration or other disputes with Persons who are not
Affiliates;


 


(7)
Investments represented by Hedging Obligations;


 


(8)
loans or advances to employees, directors or officers of the Company or a
Restricted Subsidiary of the Company made to extend, refinance, renew, replace,
defease, or refund loans or advances by the Company or a Restricted Subsidiary
of the Company existing on the date of this Indenture;


 


(9)
loans or advances to employees, directors or officers of the Company or a
Restricted Subsidiary of the Company made in the ordinary course of business
not to exceed $2.0 million in the aggregate at any one time outstanding;


 


(10)
Investments existing on the date of this Indenture, and any extensions,
modifications or renewals thereof;


 


(11)
Investments in any Person (other than the Company or any of its Restricted
Subsidiaries) engaged in a Permitted Business in an amount not to exceed
$7.5 million at any one time outstanding;


 


(12)
Investments in Unrestricted Subsidiaries having an aggregate fair market value,
taken together with all other Investment made pursuant to this clause (12)
that are at any one time outstanding, not to exceed $3.0 million;


 


16

















 


(13)
Investments constituting prepayments or credits made to customers or suppliers
in the ordinary course of business;


 


(14)
Investments constituting of prepaid expenses, negotiable instruments held for
collection and lease, utility and workers’ compensation, performance and other
similar deposits made in the ordinary course of business;


 


(15)
Investments in or repurchases of the Notes;


 


(16)
any Investment by the Company or any of its Restricted Subsidiaries in a
Receivables Subsidiary, or any Investment by a Receivables Subsidiary in
another Person, in each case in connection with a Qualified Receivables
Transaction; provided, however, that such Investment is in the
form of a purchase money note, equity or residual interest, limited liability
company interest; and


 


(17)
other Investments in any Person having an aggregate Fair Market Value (measured
on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (17) that are at any one time outstanding,
not to exceed $15.0 million.


 


“Permitted
Junior Securities” means:


 


(1)
common Equity Interests in the Company or any Guarantor; or


 


(2)
preferred equity or debt securities of the Company or any Guarantor issued
pursuant to a plan of reorganization consented to by each class of Senior Debt
and 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:


 


(1)
Liens on assets of the Company or any of its Restricted Subsidiaries securing
Senior Debt that was permitted by the terms of this Indenture to be incurred;


 


(2)
whether or not existing on the date of this Indenture, Liens securing
Indebtedness under this Indenture, the Notes or the Note Guarantees;


 


(3)
Liens in favor of the Company or any of its Restricted Subsidiaries;


 


(4)
Liens on property of a Person existing at the time such Person is merged with
or into or consolidated with the Company or any 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 Subsidiary;


 


(5)
Liens on property (including Capital Stock) existing at the time of acquisition
of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence
prior to, and not incurred in contemplation of, such acquisition;


 


17

















 


(6)
Liens to secure the performance of statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a like nature incurred in the
ordinary course of business;


 


(7)
Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
clause (4) of the second paragraph of Section 4.09 covering only the
assets acquired with or financed by such Indebtedness;


 


(8)
Liens existing on the date of this Indenture;


 


(9)
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings; provided that any
reserve or other appropriate provision as is required in conformity with GAAP
has been made therefor;


 


(10)
Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and
mechanics’ Liens, in each case, incurred in the ordinary course of business;


 


(11)
survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to the use of
real property that were not incurred in connection with Indebtedness and that
do not materially impair their use in the operation of the business of such
Person;


 


(12)
Liens created for the benefit of (or to secure) the Notes (or the Note
Guarantees);


 


(13)
judgment Liens not giving rise to an Event of Default so long as such Lien is
adequately bonded and any appropriate legal proceedings which may have been
duly initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired;


 


(14)
Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under this Indenture; provided, however,
that:


 


(a)  the new Lien shall be limited to all or part
of the same property and assets that secured or, under the written agreements
pursuant to which the original Lien arose, could secure the original Lien (plus
improvements and accessions to, such property or proceeds or distributions
thereof); and


 


(b)  the Indebtedness secured by the new Lien is
not increased to any amount greater than the sum of (x) the outstanding
principal amount, or, if greater, committed amount, of the Permitted
Refinancing Indebtedness and (y) an amount necessary to pay any fees and
expenses, including premiums, related to such renewal, refunding, refinancing,
replacement, defeasance or discharge;


 


(15)
Liens on a pledge of the Capital Stock of an Unrestricted Subsidiary securing
any Indebtedness of such Unrestricted Subsidiary;


 


(16)
any interest or title of a lessor under any Capital Lease Obligation;


 


18

















 


(17)
Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents and other property relating to such letters of
credit and products and proceeds thereof;


 


(18)
Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or any of its
Restricted Subsidiaries, including rights of offset and set-off;


 


(19)
Liens securing Hedging Obligations which Hedging Obligations relate to
Indebtedness that is otherwise permitted under this Indenture;


 


(20)
leases or subleases granted to others that do not materially interfere with the
ordinary course of business of the Company and its Restricted Subsidiaries;


 


(21)
Liens arising from filing Uniform Commercial Code financing statements
regarding leases;


 


(22)
Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customer duties in connection with the importation of goods;


 


(23)
Liens on assets of the Company, any Restricted Subsidiary of the Company or a
Receivables Subsidiary incurred in connection with a Qualified Receivables
Transaction; and


 


(24)
Liens with respect to obligations that do not exceed $7.5 million at any
one time outstanding.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to renew, refund, refinance, replace, defease or
discharge other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); provided that:


 


(1)
the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness renewed, refunded, refinanced,
replaced, defeased or discharged (plus all accrued interest on the Indebtedness
and the amount of all fees and expenses, including premiums, incurred in
connection therewith);


 


(2)
such Permitted Refinancing Indebtedness has a final maturity date later than
the final maturity date of, and has a Weighted Average Life to Maturity equal
to or greater than the Weighted Average Life to Maturity of, the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged;


 


(3)
if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders as those contained in the
documentation governing the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged; and


 


19

















 


(4)
such Indebtedness is incurred either (i) by the Company or any Guarantor
or (ii) if the obligor on the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged is a Restricted Subsidiary that is
not a Guarantor, then by such Restricted Subsidiary.


 


“Permitted Sale and
Leaseback Transaction” means any sale and leaseback transaction by
the Company or any of its Restricted Subsidiaries entered into in order to
renew, refund, refinance, replace, defease or discharge any sale and leaseback
transaction by the Company or any of its Restricted Subsidiaries; provided that:


 


(1)
the Attributable Debt associated with such sale and leaseback transaction does
not exceed the Attributable Debt associated with the sale and leaseback
transaction being renewed, refunded, refinanced, replaced, defeased or
discharged (plus all accrued interest on the Attributable Debt and the amount
of all fees and expenses, including premiums, incurred in connection
therewith);


 


(2)
the Attributable Debt associated with such sale and leaseback transaction has a
final maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Attributable Debt associated with the sale and leaseback
transaction being renewed, refunded, refinanced, replaced, defeased or
discharged;


 


(3)
if the Attributable Debt associated with such sale and leaseback transaction
being renewed, refunded, refinanced, replaced, defeased or discharged is
subordinated in right of payment to the Notes, the Attributable Debt associated
with such sale and leaseback transaction is subordinated in right of payment
to, the Notes on terms at least as favorable to the Holders of Notes as those
contained in the documentation governing the sale and leaseback transaction
being renewed, refunded, refinanced, replaced, defeased or discharged; and


 


(4)
such sale and leaseback transaction is entered into either (i) by the
Company or any Guarantor or (ii) if the party to the sale and leaseback
transaction being renewed, refunded, refinanced, replaced, defeased or
discharged is a Restricted Subsidiary that is not a Guarantor, then by such
Restricted Subsidiary.


 


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


 


“Preferred Stock”
means any Capital Stock of any class or classes of a Person which is preferred
as to payments of dividends, or as to distributions upon any liquidation or
dissolution, over Capital Stock of any other class of such Person.


 


“Principals”
means, collectively, Gilbert Global Equity Partners, L.P., Gilbert Global
Equity Partners (Bermuda), L.P. and GGEP/SK Equity Partners, LLC.


 


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


 


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


 


“Qualified
Receivables Transaction” means any transaction or series of
transactions entered into by the Company or any of its Restricted Subsidiary
pursuant to which the Company or such Restricted


 


20

















 


Subsidiary sells,
conveys or otherwise transfers to (i) a Receivables Subsidiary (in the
case of a transfer by the Company or such Restricted Subsidiary) and
(ii) any other Person (in the case of a transfer by a Receivables 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 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
(including contract rights) which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable.


 


“Quotation Agent”
means the Reference Treasury Dealer selected by the trustee after consultation
with the Company.


 


“Receivables
Subsidiary” means a Subsidiary of the Company which engages in no
activities other than in connection with the financing of accounts receivable
or related assets (including contract rights) and which is designated by the
Board of Directors of the Company (as provided below) as a Receivables
Subsidiary (a) no portion of the Indebtedness or any other Obligations
(contingent or otherwise) of which (i) is Guaranteed by the Company or any
of its Restricted Subsidiaries (but excluding customary representations, warranties,
covenants and indemnities entered into in connection with a Qualified
Receivables Transaction), (ii) is recourse to or obligates the Company or
any of its Restricted Subsidiaries in any way other than pursuant to customary
representations, warranties, covenants and indemnities entered into in
connection with a Qualified Receivables Transaction or (iii) subjects any
property or asset (including contract rights) of the Company or any of its
Restricted Subsidiaries (other than accounts receivable and related assets as
provided in the definition of “Qualified Receivables Transaction”), directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to customary representations, warranties, covenants and indemnities
entered into in connection with a Qualified Receivables Transaction,
(b) with which neither the Company nor any of its Restricted Subsidiaries
has any material contract, agreement, arrangement or understanding other than
on terms no less favorable to the Company or such Restricted Subsidiary than
those that might be obtained at the time from Persons who are not Affiliates of
the Company, other than customary fees payable in connection with servicing
accounts receivable and (c) with which neither the Company nor any of its
Restricted Subsidiaries has any obligation to maintain or preserve such
Subsidiary’s financial condition or cause such Subsidiary to achieve certain
levels of operating results. Any such designation by the Board of Directors of
the Company will be evidenced to the trustee by filing with the trustee a
certified copy of the resolution of the Board of Directors of the Company
giving effect to such designation and an Officers’ Certificate certifying that
such designation complied with the foregoing conditions.


 


“Reference Treasury
Dealer” means Credit Suisse First Boston LLC and its successors and
assigns, Goldman, Sachs & Co. and its successor and assigns, and one
other nationally recognized investment banking firm selected by the Company
that is a primary U.S. government securities dealer.


 


“Reference Treasury
Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Section 3.07(b) Redemption Date, the average, as determined by
the trustee, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third business day immediately preceding such Section
3.07(b) Redemption Date.


 


“Registration
Rights Agreement” means the Registration Rights Agreement,
dated as of March 15, 2004, among the Company, the Guarantors and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time, and, with respect to any Additional
Notes, one or more registration rights agreements among the Company, the
Guarantors and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time


 


21

















 


to time, relating
to rights given by the Company to the purchasers of Additional Notes to
register such Additional Notes under the Securities Act.


 


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


 


“Regulation
S Global Note” means the Permanent Regulation S Global Note
and/or the Temporary Regulation S Global Note, as applicable.


 


“Related
Party” means:


 


(1)
any (a) controlling stockholder, partner or member,
(b) majority-owned (or more) Subsidiary, or (c) spouse or immediate
family member (in the case of an individual), in each case, of any Principal;
or


 


(2)
any trust, corporation, partnership, limited liability company or other entity,
the beneficiaries, stockholders, partners, members, owners or Persons
beneficially holding (directly or through one or more Subsidiaries) a greater
than 50% controlling interest of which consist of the Principals and/or such
other Persons referred to in the immediately preceding clause (1).


 


“Replacement Assets”
means any assets or Capital Stock of the type described in clauses (2) or
(4) of the second paragraph in Section 4.10.


 


“Representative”
means the indenture trustee or other trustee, agent or representative for any
Senior Debt.


 


“Responsible
Officer,” when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.


 


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


 


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


 


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


 


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


 


“Restricted
Subsidiary” of a Person means any Subsidiary of the referent Person
that is not an Unrestricted Subsidiary.


 


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


 


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


 


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


 


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


 


“S&P”
means Standard and Poor’s Ratings Group, or any successor entity.


 


22

















 


 “SEC” means the Securities
and Exchange Commission.


 


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


 


“Senior
Debt” means, with respect to any Person:


 


(1)
all Indebtedness of such Person outstanding under Credit Facilities and all
Hedging Obligations with respect thereto;


 


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


 


(3)
all Obligations with respect to the items listed in the preceding clauses
(1) and (2) (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to such Person
whether or not post-filing interest is allowed in such proceeding).


 


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


 


(1)
any liability for federal, state, local or other taxes owed or owing by such
Person;


 


(2)
any Indebtedness of such specified Person owing to any of its Subsidiaries or
Related Parties;


 


(3)
Indebtedness for goods, materials or services purchased in the ordinary course
of business or Indebtedness consisting of trade payables arising in the
ordinary course of business;


 


(4)
the portion of any Indebtedness that is incurred in violation of this
Indenture; provided that
Indebtedness under the Credit Facilities will not cease to be Senior Debt under
this clause (4) if the lenders of such Indebtedness obtained a certificate
from an officer of the Company as of the date of incurrence of such
Indebtedness to the effect that such Indebtedness was permitted to be incurred
by this Indenture; or


 


(5)
Indebtedness which is classified as non-recourse in accordance with GAAP or any
unsecured claim arising in respect thereof by reason of the application of
section 1111(b)(1) of the Bankruptcy Code.


 


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


 


“Significant
Subsidiary” means any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Indenture.


 


“Stated Maturity” means, with respect to
any installment of interest or principal on any series of Indebtedness
(including any sinking fund payments or scheduled fees), the date on which the
payment of interest or principal was scheduled to be paid in the documentation
governing such Indebtedness as of the date of this Indenture (or if such
Indebtedness is incurred after the date of this Indenture, as of the date of 


 


23

















 


incurrence), and
will not include any contingent obligations to repay, redeem or repurchase any
such interest or principal prior to the date originally scheduled for the
payment thereof.


 


“Stockholders
Agreement” means that certain Stockholders Agreement, dated as of
the date of this Indenture, among the True Temper Corporation and its
stockholders party thereto.


 


 “Subsidiary” means, with
respect to any specified Person:


 


(1)
any corporation, association or other business entity of which more than 50% of
the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency and after giving effect to any voting
agreement or stockholders’ agreement that effectively transfers voting power)
to vote in the election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and


 


(2)
any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are that Person or one or more Subsidiaries of that Person
(or any combination thereof).


 


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


 


“Temporary Regulation S Global Note
Legend” means the legend set forth in Section 2.06(g)(3)
hereof, which is required to be placed on all Temporary Regulation S Global
Notes issued under this Indenture.


 


 “TIA” means the Trust
Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).


 


“Transactions”
means the (i) acquisition by TTS Holdings LLC of substantially all of the
Capital Stock of the Parent which owns 100% of the Capital Stock of the
Company, pursuant to a stock purchase agreement dated as of January 30, 2004; (ii)
the borrowings by the Company pursuant to the Credit Agreement (iii) the
issuance of Notes provided by the purchase agreement, dated March 3, 2004 among
the Company, the Guarantors, Credit Suisse First Boston LLC and Goldman, Sachs
& Co.; (iv) the equity contribution of Gilbert Global Equity Partners, L.P.
and its affiliated funds and members of the Company’s senior management to TTS
Holdings LLC on the date of this Indenture and (v) the use of proceeds
therefrom as described in the “Use of Proceeds” section in the Company’s
Offering Circular dated March 3, 2004.


 


“Treasury Rate” means,
with respect to any Section 3.07(b) Redemption Date, (i) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated
“H.15(519)” or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after March 15, 2008, yields for the two published maturities
most closely corresponding to the Comparable Treasury Issue shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight line basis, rounding to the nearest month) or (ii) if


 


24

















 


such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Section 3.07(b) Redemption Date, in each case
calculated on the third business day immediately preceding the Section 3.07(b)
Redemption Date.


 


“Trustee”
means The Bank of New York, a New York Banking Corporation, until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.


 


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


 


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


 


“Unrestricted
Subsidiary” means any:


 


(1)
Subsidiary of the Company that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent that such Subsidiary:


 


(a)                                  has no Indebtedness other than Non-Recourse
Debt;


 


(b)                                 except as permitted by Section 4.11,
is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any
such agreement, contract, arrangement or understanding are no less favorable to
the Company or such Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company;


 


(c)                                  is a Person with respect to which
neither the Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (x) to further subscribe for additional Equity
Interests following the initial investment of the Company or any of its
Restricted Subsidiaries in such Person or (y) to maintain or preserve such
Person’s financial condition or to cause such Person to achieve any specified
levels of operating results, except to the extent that a making of any payments
in respect of the foregoing clauses (x) and (y) is expressly subject
to the ability of the ability of the Company or such Restricted Subsidiary to
make such payment in accordance with Section 4.07; and


 


has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness
of the Company or any of its Restricted Subsidiaries; or


 


(2)
Subsidiary of an Unrestricted Subsidiary.


 


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


 


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


 


25

















 


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


 


(1)
the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect of the
Indebtedness, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment;
by


 


(2)
the then outstanding principal amount of such Indebtedness.


 


“Wholly-Owned
Restricted Subsidiary” of any specified Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors’ qualifying shares) will at the time be owned by
such Person or by one or more Wholly-Owned Restricted Subsidiaries of such
Person.


 


Section 1.02                                Other Definitions.


 




	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Asset Sale Offer”

  	
   

  	
  4.10

  
	
  “Asset Sale Offer Payment Date”

  	
   

  	
  4.10

  
	
  “Asset Sale Offer Trigger Date”

  	
   

  	
  4.10

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Change of Control Offer”

  	
   

  	
  4.14

  
	
  “Change of Control Payment”

  	
   

  	
  4.14

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.14

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “nonpayment default”

  	
   

  	
  10.03

  
	
  “Offer Period”

  	
   

  	
  3.09

  
	
  “Pay the Notes”

  	
   

  	
  10.03

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Blockage Notice”

  	
   

  	
  10.03

  
	
  “Payment Default”

  	
   

  	
  6.01

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  
	
  “Section 3.07(b) Redemption Date”

  	
   

  	
  3.07

  






 


Section 1.03                                Incorporation by
Reference of Trust Indenture Act.


 


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


 


26

















 


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


 


“indenture
securities” means the Notes;


 


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


 


“indenture
to be qualified” means this Indenture;


 


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


 


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


 


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


 


Section 1.04                                Rules of Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(3)
“or” is not exclusive;


 


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


 


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


 


(6)
provisions apply to successive events and transactions; and


 


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


 


ARTICLE 2

THE NOTES


 


Section 2.01                                Form and Dating.


 


(a)  General.  The Notes and the Trustee’s certificate of
authentication will be substantially in the form of Exhibit A hereto; provided,
that the form of the Exchange Notes shall include such variations as are
permitted or required by the Registration Rights Agreement.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Note will be dated the date of its
authentication.  The Notes shall be in
denominations of $1,000 and integral multiples thereof.


 


The terms and provisions contained in the Notes will
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.  However, to the


 


27

















 


extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.


 


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


 


(c)  Temporary
Global Notes.  Notes offered
and sold in reliance on Regulation S will be issued initially in the form of
the Temporary Regulation S Global Note, which will be deposited on behalf of
the purchasers of the Notes represented thereby with the Trustee, at its New
York office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Clearstream, duly executed by the
Company and authenticated by the Trustee as hereinafter provided.  The Company will send to the Trustee written
notice of termination of the Restricted Period within two Business Days
following the termination thereof.


 


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


 


(1)
Euroclear
and Clearstream Procedures Applicable.  The provisions of the “Operating Procedures of the Euroclear
System” and “Terms and Conditions Governing Use of Euroclear” and the “General
Terms and Conditions of Clearstream Banking” and “Customer Handbook” of
Clearstream will be applicable to transfers of beneficial interests in the
Temporary Regulation S Global Note and the Permanent Regulation S Global Note
that are held by Participants through Euroclear or Clearstream.


 


Section 2.02                                Execution and
Authentication.


 


At least one Officer must sign the Notes for the
Company by manual or facsimile signature.


 


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


 


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


 


28

















 


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


 


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


 


Section 2.03                                Registrar and
Paying Agent.


 


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


 


The Company initially appoints The Depository Trust
Company (“DTC”)
to act as Depositary with respect to the Global Notes.


 


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


 


Section 2.04                                Paying Agent to
Hold Money in Trust.


 


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


 


Section 2.05                                Holder Lists.


 


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


 


29

















 


Section 2.06                                Transfer and Exchange.


 


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


 


(1)
the Depositary (A) notifies the Company that it is unwilling or unable to
continue to act as Depositary and the Depositary fails to appoint a successor
Depositary or (B) has ceased to be a clearing agency registered under the
Exchange Act;


 


(2)
the Company, at its option, notifies the Trustee in writing that it elects to
cause the issuance of the Definitive Notes; or


 


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


 


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


 


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


 


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


 


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


 


(A)  both:


 


30

















 


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


 


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


 


(B)  both:


 


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


 


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


 


provided, however, that
in no event shall a Temporary Regulation S Global Note be exchanged for a
Definitive Note prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificate identified by the Company and
its counsel to be required pursuant to Rule 903 under the Securities Act.


 


Upon consummation of an Exchange Offer by the Company
in accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(2) shall be deemed to have been satisfied upon receipt by the Registrar
of the instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.


 


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


 


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


 


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


 


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


 


31

















 


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


 


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


 


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


 


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


 


(D)  the Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


32

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


33

















 


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


 


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


 


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


 


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


 


(D)  the Registrar receives the following:


 


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


 


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


 


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


 


(3)
Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company will execute
and the Trustee will authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(3) will be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest requests through instructions to the
Registrar from or through the Depositary and the Participant or Indirect
Participant.  The Trustee will deliver
such Definitive Notes to the


 


34

















 


Persons
in whose names such Notes are so registered. 
Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(3) will not bear the Private Placement Legend.


 


(4)
Transfer or Exchange of Temporary Regulation
S Global Notes. 
Notwithstanding the other provisions of this Section 2.06, a beneficial
interest in the Temporary Regulation S Global Note may not be (A) exchanged for
a Definitive Note prior to (x) the expiration of the Restricted Period (unless
such exchange is approved by the Company, does not require an investment
decision on the part of the Holder thereof and does not violate the provisions
of Regulation S) and (y) the receipt by the Registrar of any certificates
identified by the Company or its counsel to be required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a Person who
takes delivery thereof in the form of a Definitive Note prior to the events set
forth in subclause (A) above or unless the transfer is pursuant to an exemption
from the registration requirements of the Securities Act other than Rule 903 or
Rule 904.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


35

















 


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


 


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


 


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


 


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


 


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


 


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


 


(D)  the Registrar receives the following:


 


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


 


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


 


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


 


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


 


36

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(2)
Restricted
Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be exchanged
by the Holder thereof for an Unrestricted Definitive Note or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:


 


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


 


37

















 


distribution
of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;


 


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


 


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


 


(D)
 the Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


38

















 


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


 


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


 


(1)
Private Placement Legend.


 


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


 


“THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933 (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.


 


THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (IV) TO AN IAI THAT, PRIOR TO
SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM
OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT
OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.”


 


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


 


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


 


39

















 


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


 


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


 


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


 


“THE RIGHTS ATTACHING TO THIS TEMPORARY REGULATION S
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).  NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
OF THIS TEMPORARY REGULATION S GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE CASH
PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE.  NOTHING IN THIS LEGEND SHALL BE DEEMED TO
PREVENT INTEREST FROM ACCRUING ON THIS NOTE.”


 


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


 


40

















 


(i)  General
Provisions Relating to Transfers and Exchanges.


 


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


 


(2)
No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.10, 4.15 and 9.05
hereof).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


41

















 


Section 2.07                                Replacement Notes.


 


If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company will, in absence of written
notice to the Company or the Trustee that such Note has been acquired by a
protected purchaser, issue and the Trustee, upon receipt of an Authentication
Order, will authenticate a replacement Note if the Trustee’s requirements are
met.  If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them
may suffer if a Note is replaced.  The
Company may charge for its expenses in replacing a Note, including, but not
limited to, the fees and expenses of its counsel and of the Trustee and its
counsel. In case of any mutilated, destroyed, lost or stolen Note has become or
is about to become due and payable, the Company in its discretion may pay such
Note instead of issuing a new Note in replacement thereof.


 


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


 


Section 2.08                                Outstanding Notes.


 


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


 


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


 


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


 


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


 


Section 2.09                                Treasury Notes.


 


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


 


Section 2.10                                Temporary Notes.


 


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


 


42

















 


unreasonable
delay, the Company will prepare and the Trustee will authenticate definitive
Notes in exchange for temporary Notes.


 


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


 


Section 2.11                                Cancellation.


 


The Company at any time may deliver Notes to the
Trustee for cancellation.  The Registrar
and Paying Agent will forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
The Trustee, or at the direction of the Trustee, the Registrar or the
Paying Agent, and no one else will cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and will destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act).  Certification of the destruction
of all canceled Notes will be delivered to the Company.  Subject to Section 2.07, the Company may not
issue new Notes to replace Notes that it has paid or that have been delivered
to the Trustee for cancellation.


 


Section 2.12                                Defaulted Interest.


 


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


 


ARTICLE 3

REDEMPTION AND PREPAYMENT


 


Section 3.01                                Notices to Trustee.


 


If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it must furnish to the
Trustee, at least 35 days (unless a shorter period is acceptable to the
Trustee) before the applicable redemption date, an Officers’ Certificate
setting forth:


 


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


 


(2)
the redemption date;


 


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


 


(4)
the redemption price.


 


Section 3.02                                Selection of Notes
to Be Redeemed.


 


If less than all of the Notes are to be redeemed,
pursuant to the optional redemption provisions of Section 3.07 hereof, the
Trustee will select Notes for redemption or purchase on a pro rata basis except:


 


43

















 


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


 


(2)
if otherwise required by law.


 


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


 


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


 


Section 3.03                                Notice of Redemption.


 


At least 30 days but not more than 60 days before a
redemption date, the Company will mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address, except that redemption notices may be mailed more than
60 days prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of this Indenture
pursuant to Articles 8 or 12 hereof.


 


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


 


(1)
the redemption date;


 


(2)
the redemption price;


 


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


 


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


 


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


 


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


 


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


 


44

















 


At the Company’s request, the Trustee will give the
notice of redemption in the Company’s name and at its expense; provided,
however, that the Company has delivered to the Trustee, at least 35
days (unless a shorter period shall be acceptable to the Trustee) prior to the
redemption date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph. 
Failure to give notice of redemption, or any defect therein, to any
Holder of any Note selected for redemption shall not impair or affect the
validity of the redemption of any other Note. 
If any of the Notes to be redeemed is in the form of a Global Note, then
the Company may modify the information required to be included in any
redemption notice to the extent necessary to accord with the procedures of the
Depositary applicable to redemption.


 


Section 3.04                                Effect of Notice of
Redemption.


 


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


 


Section 3.05                                Deposit of Redemption
or Purchase Price.


 


Not later than 10:00 a.m. local time in the place of
payment on the redemption or purchase date, the Company will deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued interest and Additional Interest, if any, on all
Notes to be redeemed or purchased on that date.  The Trustee or the Paying Agent will promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption or purchase price of,
and accrued interest and Additional Interest, if any, on, all Notes to be
redeemed or purchased.


 


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


 


Section 3.06                                Notes Redeemed or
Purchased in Part.


 


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


 


Section 3.07                                Optional Redemption.


 


(a)  At any
time prior to March 15, 2007, the Company may on any one or more occasions, at
its option, redeem up to 35% of the aggregate principal amount of Notes issued
under this Indenture at a redemption price of 108.375% of the principal amount,
plus accrued and unpaid interest and Additional Interest, if any, thereon to
the redemption date, with the net cash proceeds of one or more Equity Offerings
or a contribution to the Company’s common equity capital made with the net cash
proceeds of a concurrent


 


45

















 


offering
of Capital Stock (other than Disqualified Stock) of the Company’s direct or
indirect parent; provided that:


 


(1)
at least 65% of the aggregate principal amount of Notes originally issued under
this Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption; and


 


(2)
the redemption occurs within 90 days of the date of the closing of Equity
Offering or such contribution to the Company’s common equity capital, as
applicable.


 


(b)  At any
time prior to March 15, 2008, the Company may also redeem all or a part of the
Notes upon the occurrence of a Change of Control, upon not less than 30 nor
more than 60 days’ prior notice (but in no event may any such redemption
occur more than 90 days after the occurrence of such Change of Control)
mailed by first-class mail to each Holder’s registered address, at a redemption
price equal to 100% of the principal amount of Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest and Additional Interest, if any,
thereon to, the date of redemption (the “Section
3.07(b) Redemption Date”), subject to the rights of Holders of Notes
on the relevant record date to receive interest due on the relevant interest
payment date.


 


(c)  Except
pursuant to the preceding paragraphs (a) and (b), the Notes will not be
redeemable at the Company’s option prior to March 15, 2008.


 


(d)  On or
after March 15, 2008, the Company may redeem all or a part of the Notes upon
not less than 30 nor more than 60 days’ notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Additional Interest, if any, on the Notes redeemed to the
applicable redemption date, if redeemed during the twelve-month period
beginning on March 15 of the years indicated below, subject to the rights of
Holders on the relevant record date to receive interest on the relevant
interest payment date:


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
  104.188

  	
  %

  
	
  2009

  	
   

  	
  102.094

  	
  %

  
	
  2010 and
  thereafter

  	
   

  	
  100.000

  	
  %

  






 


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


 


Section 3.08                                Mandatory Redemption.


 


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


 


Section 3.09                                Offer to Purchase
by Application of Excess Proceeds.


 


In the event that, pursuant to Section 4.10 hereof,
the Company is required to commence an Asset
Sale Offer, it will follow the procedures specified below.


 


The Asset Sale Offer will remain open for a period of
at least 20 Business Days following its commencement and not more than 30
Business Days, except to the extent that a longer period is required by
applicable law (the “Offer Period”).


 


46

















 


Upon the commencement of an Asset Sale Offer, the
Company will send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. 
The notice will contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer.  The notice, which will govern the terms of
the Asset Sale Offer, will state:


 


(1)
that the Asset Sale Offer is being made pursuant to this Section 3.09 and
Section 4.10 hereof and the length of time the Asset Sale Offer will remain
open;


 


(2)
the Excess Proceeds amount, the purchase price and the Asset Sale Offer Payment
Date;


 


(3)
that any Note not tendered or accepted for payment will continue to accrue
interest;


 


(4)
that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer will cease to accrue interest after
the Asset Sale Offer Payment Date;


 


(5)
that Holders electing to have a Note purchased pursuant to an Asset Sale Offer
may elect to have Notes purchased in integral multiples of $1,000 only;


 


(6)
that Holders electing to have Notes purchased pursuant to any Asset Sale Offer
will be required to surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” attached to the Notes completed, or transfer by
book-entry transfer, to the Company, a Depositary, if appointed by the Company,
or a Paying Agent at the address specified in the notice at least three days
before the Asset Sale Offer Payment Date;


 


(7)
that Holders will be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than
the expiration of the Offer Period, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;


 


(8)
that, if the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the Offer Amount, the Company will
select the Notes and other pari passu Indebtedness to be purchased on
a pro rata basis based on the
principal amount of Notes and such other pari passu Indebtedness surrendered (with
such adjustments as may be deemed appropriate by the Company so that only Notes
in denominations of $1,000, or integral multiples thereof, will be purchased);
and


 


(9)
that Holders whose Notes were purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered
(or transferred by book-entry transfer).


 


The Company, the Depositary or the Paying Agent, as
the case may be, will promptly (but in any case not later than five days after
the Asset Sale Offer Payment 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 Company for purchase, and the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company, will authenticate
and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered.  Any Note not so accepted
shall be promptly mailed or delivered by the Trustee to the Holder thereof.


 


47

















 


ARTICLE 4

COVENANTS


 


Section 4.01                                Payment of Notes.


 


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


 


The Company will 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 will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest (without regard to any
applicable grace period) at the same rate to the extent lawful.


 


Notwithstanding anything to the contrary contained in
this Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income taxes imposed by the United States from principal or
interest payments hereunder.


 


Section 4.02                                Maintenance of
Office or Agency.


 


The Company will maintain in the Borough of Manhattan,
the City of New York, the office or agency required under Section 2.03.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or
agency.  If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.


 


The Company may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission
will in any manner relieve the Company of its obligation to maintain an office
or agency in the Borough of Manhattan, the City of New York for such
purposes.  The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.


 


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


 


Section 4.03                                Reports.


 


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


 


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


 


48

















 


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


 


All such reports will be prepared in all material
respects in accordance with all of the SEC rules and regulations applicable to
such reports. Each annual report on Form 10-K will include a report on the
Company’s consolidated financial statements by the Company’s certified
independent accountants. In addition, the Company will file a copy of each
of the reports referred to in clauses (1) and (2) above with the SEC
for public availability within the time periods specified in the SEC rules and
regulations applicable to such reports (unless the SEC will not accept such a
filing). In addition, the Company has agreed that, prior to the consummation of
an Exchange Offer in respect of the Notes as required by the Registration Right
Agreement or the effectiveness of a Shelf Registration Statement, for so long
as any Notes remain outstanding, it will furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act.


 


Section 4.04                                Compliance
Certificate.


 


(a)  The
Company and each Guarantor (to the extent that such Guarantor is so required
under the TIA) shall deliver to the Trustee, within 120 days after the end of
the Company’s 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 the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to his or her actual knowledge the Company has
during the preceding fiscal year kept, observed, performed and fulfilled each
and every covenant contained in this Indenture and 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 has 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 the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a description
of the event and what action the Company is taking or proposes to take with
respect thereto.


 


(b)  So long as
not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.03 above shall be accompanied by a written statement of
the Company’s independent public accountants (who shall be a firm of
established national reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Article 4 or Article 5 hereof insofar as they relate to accounting matters or,
if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.


 


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


 


Section 4.05                                Taxes.


 


The Company will pay or discharge, and will cause each
of its Restricted Subsidiaries to pay or discharge, prior to delinquency, all
material taxes, assessments, and governmental levies imposed upon the Company or
its Restricted Subsidiaries except such as are contested in good faith and by
appropriate


 


49

















 


proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders.


 


Section 4.06                                Stay,
Extension and Usury Laws.


 


The Company and each of the Guarantors covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that affects 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 will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.


 


Section 4.07                                Restricted
Payments.


 


(a)  The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly:


 


(1)
declare or pay any dividend or make any other payment or distribution on
account of the Company’s or any of its Restricted Subsidiaries’ Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Company or any of its Restricted
Subsidiaries) or similar payment to the direct or indirect holders of the
Company’s or any of its Restricted Subsidiaries’ Equity Interests solely in
their capacity as such (in each case, other than (A) dividends,
distributions or payments payable in Equity Interests (other than Disqualified
Stock) of the Company and (B) dividends, distributions or payments payable
to the Company or any of its Restricted Subsidiaries);


 


(2)
purchase, redeem or otherwise acquire or retire for value (including, without
limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) any Equity
Interests of the Company or any direct or indirect parent of the Company (other
than (A) any such Equity Interests owned by the Company or any of its
Restricted Subsidiaries and (B) in connection with any exercise of any
option to exchange any such Equity Interests into any Equity Interests of the
Company other than Disqualified Stock);


 


(3)
make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness of the Company or any
Guarantor that is contractually subordinated to the Notes or to any Note
Guarantee (excluding any intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries), except a payment of interest or
principal at the Stated Maturity thereof; or


 


(4)
make any Restricted Investment


 


(all such payments and other actions set forth in
these clauses (1) through (4) above being collectively referred to as
“Restricted Payments”), unless,
at the time of and after giving effect to such Restricted Payment:


 


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


 


50

















 


(2)
the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a); and


 


(3)
such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries since
the date of this Indenture (excluding Restricted Payments permitted by clauses
(2), (3), (4), (5)(f), (5)(g), 5(h), (6), (8), (9), (10), (11) and
(13) of paragraph (b) of this Section 4.07), is less than the sum, without
duplication, of:


 


(a)  50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period) from the beginning of
the fiscal quarter in which the date of this Indenture occurs to the end of the
Company’s most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit); plus


 


(b)  100% of the aggregate net proceeds,
including the fair market value of the property other than cash, received by
the Company since the date of this Indenture as a contribution to its common
equity capital or from the issue or sale of Equity Interests of the Company
(other than Disqualified Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities
of the Company that have been converted into or exchanged for such Equity
Interests (including any additional net proceeds received by the Company upon
such conversion or exchange) (other than Equity Interests (or Disqualified
Stock or debt securities) sold to a Restricted Subsidiary of the Company); plus


 


(c)  to the extent that any Restricted Investment
that was made after the date of this Indenture is sold for cash or otherwise
liquidated or repaid for cash, the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any); plus


 


(d)  to the extent that any Unrestricted
Subsidiary of the Company designated as such after the date of this Indenture
is redesignated as a Restricted Subsidiary after the date of this Indenture,
the Fair Market Value of the Company’s Investment in such Subsidiary as of the
date of such redesignation; plus


 


(e)  100% of any dividends or distributions
received by the Company or a Restricted Subsidiary of the Company after the
date of this Indenture from an Unrestricted Subsidiary of the Company, to the
extent that such dividends were not otherwise included in the Consolidated Net
Income of the Company for such period.


 


(b)  The
preceding provisions will not prohibit:


 


(1)
the payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of the dividend or giving of
the redemption notice, as the case may be, if at the date of declaration or
notice, the dividend or redemption payment would have complied with the
provisions of this Indenture;


 


(2)
the making of any Restricted Payment in exchange for, or out of the net cash proceeds
of the substantially concurrent sale (other than to a Restricted Subsidiary of
the Company) of, Equity Interests of the Company (other than Disqualified
Stock) or from the substantially concurrent contribution of common equity
capital to the Company; provided
that the amount of


 


51

















 


any such
net cash proceeds that are utilized for any such Restricted Payment will be
excluded from clause (3)(b) of Section 4.07(a) hereof;


 


(3)
the repurchase, redemption, defeasance or other acquisition or retirement for
value of Indebtedness of the Company or any Guarantor that is contractually
subordinated to the Notes or to any Note Guarantee with the net cash proceeds
from a substantially concurrent incurrence of Permitted Refinancing
Indebtedness;


 


(4)
the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis;


 


(5)
the declaration or payment of dividends to, or the making of loans, advances or
other payments to, Parent (A) for expenses incurred by Parent in its
capacity as a holding company or for services rendered on behalf of the Company
or its Subsidiaries or (B) in amounts necessary for Parent to pay any of:


 


(a)  customary salary, bonus and other benefits
payable to officers, employees and consultants of Parent;


 


(b)  fees and expenses paid to members of the
Board of Directors of Parent;


 


(c)  general corporate overhead expenses of
Parent, including, without limitation, franchise taxes and other fees required
to maintain the existence of Parent, insurance premiums, administrative, legal,
tax and accounting fees for services provided by third parties, and any
indemnification claims made by directors or officers of Parent attributable to
the ownership or operation of the Company and its Subsidiaries;


 


(d)  management, consulting or advisory fees paid
to Parent or to permit Parent to pay management, consulting or advisory fees,
in each case, not to exceed $1.5 million in any fiscal year;


 


(e)  the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of Parent held by,
or any payments made in connection with stock appreciation rights granted by
Parent to, any current or former employee, director or consultant of Parent (or
their heirs or estates) pursuant to any management equity subscription
agreement, stockholders agreement, employment agreement, stock option
agreement, stock appreciation rights agreement or any other similar agreement,
plan or arrangement;


 


(f)  federal, state and local income tax
liabilities of Parent;


 


(g)  after the consummation of an Initial Public
Offering, cash payments in lieu of the issuance of fractional shares in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Capital Stock of Parent; and


 


(h)  the repurchase of Equity Interests of Parent
deemed to occur upon the exercise of stock options to the extent such Equity
Interests represent a portion of the exercise price of those stock options;


 


provided that
(x) with respect to clauses (a) through (c) above, the aggregate
amount paid does not exceed $2.0 million in any fiscal year; and
(y) with respect to clause (e) above,


 


52

















 


the aggregate price paid shall not exceed
(i) $1.0 million in any calendar year (with unused amounts in any
calendar year being carried over to succeeding calendar years), plus (ii) the aggregate cash proceeds
received by the Company from any issuance or reissuance of Equity Interests by
Parent to members of management of the Company and its Restricted Subsidiaries
and the proceeds to the Company of any “key-man” life insurance policies; provided further that the cancellation of
Indebtedness owing to the Company from members of management of the Company or
any Restricted Subsidiary of the Company in connection with such repurchase of
Equity Interests will not be deemed to be a Restricted Payment;


 


(6)
the repurchase of Equity Interests deemed to occur upon the exercise of stock
options to the extent such Equity Interests represent a portion of the exercise
price of those stock options;


 


(7)
so long as no Default has occurred and is continuing or would be caused
thereby, the declaration and payment of dividends and distributions to holders
of any class or series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the date of this Indenture, the
issuance of which was in accordance with Section 4.09 hereof;


 


(8)
the declaration or payment of dividends or other payments to Parent pursuant to
any tax sharing agreement or other arrangement among Parent or other members of
the affiliated corporations of which Parent is the common parent;


 


(9)
distributions to Parent to fund the Transactions;


 


(10)
in the event of any Asset Sale that requires the Company to make an Asset Sale
Offer pursuant to the terms of this Indenture, so long as no Default has
occurred and is continuing or would be caused thereby, the payment, repurchase,
redemption, defeasance or other acquisition or retirement for value of
Indebtedness of the Company or any Guarantor that is contractually subordinated
to the Notes or to any Note Guarantee, in each case, at a purchase price not
greater than 100% of the principal amount (or if such Indebtedness was issued
with original issue discount, 100% of the accreted value) of such Indebtedness,
plus any accrued and unpaid interest thereon; provided,
that prior to such the payment, repurchase, redemption, defeasance or other
acquisition or retirement, the Company (or a third part to the extent permitted
by this Indenture) has made an Asset Sale Offer with respect to the Notes as a
result of such Asset Sale and has repurchased all Notes validly tendered and
not withdrawn in connection with such Asset Sale Offer;


 


(11)
after the consummation of an Initial Public Offering, cash payments in lieu of
the issuance of fractional shares in connection with the exercise of warrants,
options or other securities convertible into or exchangeable for Capital Stock
of the Company or any of its Restricted Subsidiaries;


 


(12)
so long as no Default has occurred and is continuing or would be caused thereby,
from an after an Initial Public Offering, the declaration or payment of
dividends by the Company on its shares of common stock in an annual amount not
to exceed 6.0% of the gross proceeds (before deducting underwriting discounts
and commissions and other fees and expenses of the offering) received by the
Company (directly or as a common equity contribution from Parent) from the
shares of common stock of the Company, Parent or any other direct or indirect
parent of the Company, in such Initial Public Offering; and


 


53

















 


(13)
so long as no Default has occurred and is continuing or would be caused
thereby, other Restricted Payments in an aggregate amount not to exceed
$15.0 million since the date of this Indenture.


 


The amount of all Restricted Payments (other than
cash) will be the Fair Market Value on the date of the Restricted Payment of
the asset(s) or securities proposed to be transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The Fair Market Value of any assets or securities that are required to
be valued by this Section 4.07 will be determined in good faith by the Board of
Directors of the Company.


 


Section 4.08                                Dividend and
Other Payment Restrictions Affecting Subsidiaries.


 


(a)  The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to:


 


(1)
pay dividends or make any other distributions on its Capital Stock to the
Company or any of its Restricted Subsidiaries, or with respect to any other
interest or participation in, or measured by, its profits, or pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries;


 


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


 


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


 


(b)  The
restrictions in Section 4.08(a) hereof will not apply to encumbrances or
restrictions existing under or by reason of:


 


(1)
agreements as in effect on the date of this Indenture, including agreements
governing Existing Indebtedness and Credit Facilities, and any amendments,
restatements, modifications, renewals, supplements, refundings, replacements or
refinancings of those agreements; provided
that the amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more restrictive,
taken as a whole, as determined by the Board of Directors or senior management
of the Company in their reasonable good faith judgment, with respect to such
dividend and other payment restrictions than those contained in those
agreements on the date of this Indenture;


 


(2)
(a) this Indenture, the Notes, the Note Guarantees or (b) any other
agreement governing any other Indebtedness of the Company or any the Guarantors
that ranks pari passu with the
Notes or the Note Guarantees, as applicable provided,
that, with respect to this clause (b), such agreements are not materially
more restrictive, taken as a whole, as determined by the Board of Directors or
senior management of the Company, with respect to such dividend and other
payment restrictions than those imposed by the Notes and this Indenture;


 


(3)
applicable law, rule, regulation or order;


 


(4)
any agreement or instrument governing the Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any


 


54

















 


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 Indebtedness, such Indebtedness was permitted by the terms
of this Indenture to be incurred;


 


(5)
any agreement or instrument relating to any property, asset or business
acquired by the Company or any of its Restricted Subsidiaries as in effect at
the time of such acquisition, which encumbrance or restriction is not
applicable to any property, asset or business other than the properties, assets
or businesses so acquired;


 


(6)
customary assignment, sublicensing or subletting restrictions and net worth
provisions in contracts, licenses and leases entered into in the ordinary
course of business;


 


(7)
purchase money obligations for property acquired in the ordinary course of
business and Capital Lease Obligations that impose restrictions on the property
purchased or leased of the nature described in clause (3) of the preceding
paragraph;


 


(8)
any agreement for the sale or other disposition of all or substantially all of
the Capital Stock or assets of a Restricted Subsidiary of the Company that
restricts distributions by that Restricted Subsidiary pending the sale or other
disposition;


 


(9)
Permitted Refinancing Indebtedness; provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced;


 


(10)
Liens not prohibited to be incurred pursuant to the provisions of Section 4.12
hereof that limit the right to dispose of the assets subject to such Liens;


 


(11)
provisions limiting the disposition or distribution of assets or property in
joint venture agreements, asset sale agreements, sale-leaseback agreements,
stock sale agreements and other similar agreements entered into in the ordinary
course of business, which limitation is applicable on to the assets that are
the subject of such agreements;


 


(12)
any encumbrance or restriction contained in any agreement or instrument
governing Senior Debt (including the Credit Agreement) not incurred in
violation of this Indenture; provided, however,
that such encumbrances or restrictions, taken as a whole, are no more
restrictive in the aggregate than those contained in the Credit Agreement as in
effect on the date of this Indenture, as determined in good faith by the Board
of Directors of the Company;


 


(13)
customary restrictions imposed on the transfer of, or in licenses related to,
copyrights, patents or other intellectual property and contained in agreements
entered into in the ordinary course of business;


 


(14)
any encumbrance or restriction pursuant to the terms of any agreement entered
into in connection with any Qualified Receivables Transaction; provided, however, that such encumbrance
or restriction applies only to a Receivables Subsidiary;


 


(15)
any encumbrance or restriction contained in the terms of any Indebtedness of
Foreign Subsidiaries permitted to be Incurred pursuant to Section 4.09; and


 


55

















 


(16)
restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business.


 


Section 4.09                                Incurrence
of Indebtedness and Issuance of Preferred Stock.


 


(a)  The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, Guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to (collectively, “incur”) any
Indebtedness (including Acquired Debt), and the Company will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of Preferred Stock; provided,
however, that the Company may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock, and Restricted Subsidiaries of the Company
may incur Indebtedness (including Acquired Debt) or issue Preferred Stock, if
the Fixed Charge Coverage Ratio for the Company’s most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or such Preferred Stock is issued, as the
case may be, would have been at least 2.0 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or the Disqualified Stock or the
Preferred Stock had been issued, as the case may be, at the beginning of such
four-quarter period.


 


(b)  The
provision of Section 4.09(a) hereof will not prohibit the incurrence of any of
the following items of Indebtedness (collectively, “Permitted Debt”):


 


(1)
the incurrence by the Company and its Restricted Subsidiaries of Indebtedness
and letters of credit under Credit Facilities;


 


(2)
the incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;


 


(3)
the incurrence by the Company and the Guarantors of Indebtedness represented by
the Notes and the related Note Guarantees to be issued on the date of this
Indenture and the Exchange Notes and the related Note Guarantees to be issued
pursuant to the Registration Rights Agreement;


 


(4)
the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings or
purchase money obligations, in each case, incurred for the purpose of financing
all or any part of the purchase price or cost of design, construction,
installation or improvement of property, plant or equipment used in the
business of the Company or any of its Restricted Subsidiaries, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (4), not to exceed $10.0 million at any
one time outstanding;


 


(5)
the incurrence by the Company or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to renew, refund, refinance, replace, defease or discharge any
Indebtedness that was incurred not in violation of this Indenture;


 


(6)
the incurrence by the Company or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries; provided, however,
that:


 


56

















 


(A)  if the Company or any Guarantor is the
obligor on such Indebtedness and the payee is not the Company or a Guarantor,
such Indebtedness must be expressly subordinated to the prior payment in full
in cash of all Obligations then due with respect to the Notes, in the case of
the Company, or the Note Guarantee, in the case of a Guarantor; and


 


(B)  (i) any subsequent issuance or transfer
of Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Restricted Subsidiary of the Company and
(ii) any sale or other transfer of any such Indebtedness to a Person that
is not either the Company or a Restricted Subsidiary of the Company, will be
deemed, in each case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (6);


 


(7)
the issuance by any of the Company’s Restricted Subsidiaries to the Company or
to any of its Restricted Subsidiaries of shares of Preferred Stock; provided, however, that:


 


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


 


(B)  any sale or other transfer of any such
Preferred Stock to a Person that is not either the Company or a Restricted
Subsidiary of the Company,


 


will be deemed, in each
case, to constitute an issuance of such Preferred Stock by such Restricted
Subsidiary that was not permitted by this clause (7);


 


(8)
the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations in the ordinary course of business;


 


(9)
the guarantee by the Company or any of its Restricted Subsidiaries of
Indebtedness of the Company or a Restricted Subsidiary of the Company that was
permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being
Guaranteed is subordinated to or pari passu
with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same
extent as the Indebtedness guaranteed;


 


(10)
the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of workers’ compensation claims, self-insurance
obligations, bankers’ acceptances, completion guaranties, or performance,
appeal, bid or surety bonds in the ordinary course of business;


 


(11)
the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently drawn against
insufficient funds, so long as such Indebtedness is promptly covered;


 


(12)
the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in connection with the acquisition of assets or a new Restricted
Subsidiary; provided that such
Indebtedness was incurred by the prior owner of such assets or such Restricted
Subsidiary prior to such acquisition by the Company or one of its Subsidiaries
and was not incurred in connection with, or in contemplation of, such
acquisition by the Company or one of its Subsidiaries;


 


57

















 


provided further that the principal amount of such Indebtedness
or its accreted value, as applicable, together with any other outstanding
Indebtedness incurred pursuant to this clause (12), does not exceed
$7.5 million;


 


(13)
the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the Company’s agreements or those of a Restricted
Subsidiary of the Company providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, asset or Subsidiary of the Company, other
than Guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary of the Company for the purpose
of financing such acquisition; provided
that such Indebtedness is not reflected on the Company’s balance sheet or that
of any Restricted Subsidiary of the Company (contingent obligations referred to
in a footnote or footnotes to financial statements and not otherwise reflected
on the balance sheet will not be deemed to be reflected on such balance sheet
for purposes of this clause (a)) and (b) the maximum assumable
liability in respect of such Indebtedness shall at no time exceed the aggregate
gross proceeds including non-cash proceeds (the fair market value of such
non-cash proceeds being measured at the time received and without giving effect
to any such subsequent changes in value) actually received by the Company and
its Restricted Subsidiary in connection with such disposition;


 


(14)
the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of Guarantees incurred in the ordinary course of
business in the aggregate principal amount not to exceed $5.0 million at
any time outstanding;


 


(15)
the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness to the extent that the net proceeds thereof are immediately
deposited to defease or discharge the Notes in full, in each case, in
accordance with the terms of this Indenture;


 


(16)
the incurrence of Indebtedness by a Receivables Subsidiary pursuant to a
Qualified Receivables Transaction;


 


(17)
the incurrence of Indebtedness by Foreign Subsidiaries in an aggregate
principal amount (or accreted value, as applicable) not to exceed at any time
outstanding $7.5 million; and


 


(18)
the incurrence by the Company or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate principal amount (or accreted value, as
applicable) at any one time outstanding, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (18), not to
exceed $20.0 million.


 


For purposes of determining compliance with this
Section 4.09, in the event that an item of proposed Indebtedness meets the
criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (18) above, or is entitled to be incurred
pursuant to Section 4.09(a) hereof, the Company will be permitted to classify
such item of Indebtedness on the date of its incurrence, or later reclassify
all or a portion of such item of Indebtedness, in any manner that complies with
this Section 4.09. Indebtedness under Credit Facilities outstanding on the date
on which Notes are first issued and authenticated under this Indenture will
initially be deemed to have been incurred on such date in reliance on the
exception provided by clause (1) of the definition of Permitted Debt. The
accrual of interest, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, the reclassification of Preferred Stock as
Indebtedness due to a change in accounting principles, and the payment of
dividends on Disqualified Stock in the form of additional shares of the same


 


58

















 


class of Disqualified Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes
of this Section 4.09; provided,
in each such case, that the amount of any such accrual, accretion or payment is
included in Fixed Charges of the Company as accrued. Notwithstanding any other
provision of this Section 4.09, the maximum amount of Indebtedness that the
Company or any Restricted Subsidiary may incur pursuant to this Section 4.09
shall not be deemed to be exceeded solely as a result of fluctuations in
exchange rates or currency values.


 


The amount of any Indebtedness outstanding as of any
date will be:


 


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


 


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


 


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


 


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


 


(b)  the amount of the Indebtedness of the other
Person.


 


Section 4.10                                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 Equity 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 Cash Equivalents; provided that the 75% limitation will not
apply to any Asset Sale in which the cash or Cash Equivalents portion of the
consideration received therefrom, determined pursuant to the succeeding
sentence, is equal to or greater than what the after-tax proceeds would have
been had such Asset Sale complied with the 75% limitation. For purposes of this
provision, each of the following shall be deemed to be cash:


 


(A)  any liabilities, as shown on the Company’s
most recent consolidated balance sheet or as would be reflected on a balance
sheet prepared in accordance with GAAP on the date of such sale, 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 and with respect to which the
Company or such Restricted Subsidiary is released from further liability;


 


(B)  any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted within
180 days by the Company or such Restricted Subsidiary into cash or Cash
Equivalents, to the extent of the cash or Cash Equivalents received in that
conversion; and


 


(C)  Replacement Assets.


 


59

















 


Within 365 days after the receipt of any Net
Proceeds from an Asset Sale, the Company (or the applicable Restricted
Subsidiary, as the case may be) may apply such Net Proceeds at its option:


 


(1)
to repay, repurchase, redeem, defease or otherwise discharge any Senior Debt;


 


(2)
to acquire all or substantially all of the assets of, or any Capital Stock of,
a Permitted Business (other than through an Unrestricted Subsidiary);


 


(3)
to make a capital expenditure;


 


(4)
to acquire other assets that are not classified as current assets under GAAP
and that are used or useful in a Permitted Business; and/or


 


(5)
any combination of the foregoing clauses (1) through (4).


 


Pending the final application of any Net Proceeds, the
Company or any of its Restricted Subsidiaries may temporarily reduce revolving
credit borrowings or otherwise invest the Net Proceeds in any manner that is
not prohibited by this Indenture.


 


On the 366th day after the Asset Sale or such earlier
date, if any, as the Board of Directors of the Company or of such Restricted
Subsidiary determine not to apply or invest the Net Proceeds relating to such
Asset Sale as provided in the second paragraph of this Section 4.10, such
aggregate amount of Net Proceeds which have not been applied or invested as
provided in the second paragraph of this Section 4.10 on or before such date
will constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $15.0 million, within five days thereof (such date being an “Asset Sale Offer Trigger Date”), the
Company will make an offer (an “Asset Sale
Offer”) to all Holders and, at the option of the Company, all
holders of other Indebtedness that is pari
passu with the Notes containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem with the
proceeds of sales of assets in accordance with Section 3.09 to purchase, on a
date not less than 30 nor more than 60 days following the applicable Asset Sale
Offer Trigger Date, other than as may be required by law (the “Asset Sale Offer Payment Date”), the
maximum principal amount of Notes and, if applicable, such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
will be equal to 100% of the principal amount of the Notes and, if applicable,
such other pari passu
Indebtedness plus accrued and unpaid interest and Additional Interest, if any,
thereon to the Asset Sale Offer Payment Date, and will be payable in cash. If
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company and its Restricted Subsidiaries may use those Excess Proceeds for any
purpose not otherwise prohibited by this Indenture. If the aggregate principal
amount of Notes and, if applicable, other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on
a pro rata basis based upon the
principal amount of Notes and such other pari
passu Indebtedness tendered. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds will be reset at zero. The principal
amount of Notes and, if applicable, such other pari
passu Indebtedness to be purchased pursuant to an Asset Sale Offer
may be reduced by the principal amount of Notes acquired by the Company through
purchase or redemption (other than pursuant to a Change of Control Offer)
subsequent to the date of the Asset Sale and surrendered to the Trustee for
cancellation.


 


The Company will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent those laws and regulations are applicable
in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To
the extent that the provisions of any securities laws or regulations conflict
with the provisions of Section 3.09 hereof or this Section 4.10,


 


60

















 


the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under Section 3.09 hereof or this
Section 4.10 by virtue of such compliance.


 


Unless the Company defaults of the payment of the
repurchase price, any Note or portion thereof accepted for payment pursuant to
the Asset Sale Offer will cease to accrue interest after the Asset Sale Offer
Payment Date.  If any Asset Sale Offer
Payment Date is on or after an interest record date and on or before the
associated interest payment date, any accrued and unpaid interest and
Additional Interest, if any, due on such interest payment date will be paid to
the Person in whose name a note is registered at the close of business on such
interest record date.


 


Section 4.11                                Transactions
with Affiliates.


 


(a)  The
Company will not, and will not permit any of its Restricted Subsidiaries to,
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, contract, agreement, understanding,
loan, advance or Guarantee with, or for the benefit of, any Affiliate of the
Company (each, an “Affiliate Transaction”),
unless:


 


(1)
the Affiliate Transaction is on terms that are no less favorable to the Company
or the relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Restricted Subsidiary with
an unrelated Person; and


 


(2)
the Company delivers to the trustee:


 


(a)  with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, a resolution of the Board of Directors of the
Company set forth in an Officers’ Certificate certifying that such Affiliate
Transaction complies with clause (1) this Section 4.11(a) and that such
Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors of the Company; and


 


(b)  with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $20.0 million, an opinion as to the fairness to the Company or
such Restricted Subsidiary of such Affiliate Transaction from a financial point
of view issued by an accounting, appraisal or investment banking firm of
national standing.


 


(b)  The
following items will not be deemed to be Affiliate Transactions and, therefore,
will not be subject to the provisions of Section 4.11(a) hereof:


 


(1)  any employment agreement, employee benefit
plan, officer or director indemnification agreement or any similar arrangement
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business and payments pursuant thereto;


 


(2)
transactions between or among the Company and/or its Restricted Subsidiaries;


 


(3)
transactions with a Person (other than an Unrestricted Subsidiary of the
Company) that is an Affiliate of the Company solely because the Company owns,
directly or through a Restricted Subsidiary, an Equity Interest in, or
controls, such Person;


 


61

















 


(4)
customary loans, advances, fees and compensation paid to, and indemnities
provided on behalf of, officers, directors, employees or consultants of the
Company or any of its Restricted Subsidiaries;


 


(5)
any issuance of Equity Interests (other than Disqualified Stock) of the Company
to Affiliates of the Company;


 


(6)
Restricted Payments that do not violate Section 4.07 hereof;


 


(7)
Permitted Investments;


 


(8)
transactions with a joint venture that, taken as a whole, are in the reasonable
good faith judgment of the Board of Directors or senior management of the
Company fair and reasonable to the Company; provided
that all the outstanding ownership interests of such joint venture are owned
only by the Company, its Restricted Subsidiaries and Persons who are not
Affiliates of the Company;


 


(9)
payment of fees, expenses and indemnification amounts not in excess of the
amounts specified in, or determined pursuant to, the Management Agreement as in
effect on the date of this Indenture or any amendment, modification or
supplement thereto that is not, in the reasonable good faith judgment of the
Board of Directors or senior management of the Company, more disadvantageous to
the Company or the relevant Restricted Subsidiary in any material respect that
the Management Agreement as in effect on the date of this Indenture; provided that such amendment, modification
or supplement does not provide for a management fee in excess of the amount set
forth in the Management Agreement in effect on the date of this Indenture; and provided further that such amendment,
modification or supplement does not provide for fees or other payments, which
are, in the aggregate, in excess of the aggregate amounts set forth in the
Management Agreement in effect on the date of this Indenture;


 


(10)
transactions pursuant to any contract or agreement (other than the Management
Agreement) in effect on the date of this Indenture as the same may be amended,
modified or replaced from time to time so long as any such amendment,
modification or replacement is not, in the reasonable good faith judgment of
the Board of Directors or senior management of the Company, more
disadvantageous to the Company or its Restricted Subsidiaries than the contract
or agreement as in effect on the date of this Indenture;


 


(11)
insurance arrangements among the Company and its Subsidiaries that are not, in
the reasonable good faith judgment of the Board of Directors or senior
management of the Company, more disadvantageous to the Company or its
Restricted Subsidiaries than those that are in effect on the date of this
Indenture provided such
arrangements are conducted in the ordinary course of business consistent with
past practices;


 


(12)
payments under any tax sharing agreement or other arrangement among Parent and
other members of the affiliated group of corporations of which either is the
common parent;


 


(13)
sales of inventory or other products to any Affiliate of the Company entered
into in the ordinary course of business on terms that are no less favorable to
the Company and its Restricted Subsidiaries than those that could be obtained
at the time of such sale in arm’s length dealings with a Person who is not an
Affiliate;


 


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(14)
any transaction with a Receivables Subsidiary pursuant to a Qualified
Receivables Transaction; and


 


(15)
the Transactions, including any payments in connection therewith.


 


Section 4.12                                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 (other than Permitted Liens)
securing Indebtedness or trade payables 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 until such time as such obligations are no longer secured by a Lien.


 


Section 4.13                                Business
Activities.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in any business other than a business which,
in the reasonable good faith judgment of the Board of Directors or senior
management of the Company, is a Permitted Business, except to such extent as
would not be material to the Company and its Restricted Subsidiaries taken as a
whole.


 


Section 4.14                                Corporate
Existence.


 


Subject to Article 5 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect:


 


(1)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted 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


 


(2)
the material rights (charter and statutory), licenses and franchises of the
Company and its Restricted Subsidiaries; provided, however, 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 Restricted
Subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and its Restricted Subsidiaries, taken as a whole, and that the loss thereof
would not have a material adverse effect on the ability of the Company to
fulfill its obligations under the Notes.


 


Section 4.15                                Offer to
Repurchase Upon Change of Control.


 


(a)  Upon the
occurrence of a Change of Control, the Company will make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal
to $1,000 or an integral multiple of $1,000) of that Holder’s Notes at a
purchase price in cash equal to 101% of the of the aggregate principal amount
thereof, plus accrued and unpaid interest and Additional Interest, if any,
thereon, to the Change of Control Payment Date (the “Change of Control Payment”). Within 60 days following
any Change of Control, the Company will mail, or will cause to be mailed, a
notice to each Holder offering to repurchase Notes and stating:


 


(1)
that the Change of Control Offer is being made pursuant to this Section 4.15
and that all Notes tendered will be accepted for payment;


 


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(2)
the purchase price and the purchase date, which shall be no earlier than 30
days and no later than 60 days from the date such notice is mailed, other than
as may be required by law (the “Change of Control Payment Date”);


 


(3)
that any Note not tendered will continue to accrue interest;


 


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


 


(5)
Holders electing to have all or any part of their Notes repurchased pursuant to
a Change of Control Offer will be required to surrender such Notes, with the
form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes
completed, to the paying agent at the address specified in the notice prior to
the close of business on the third Business Day prior to the Change of Control
Payment Date;


 


(6)
that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and


 


(7)
that Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof.


 


The Company will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent those laws and regulations are applicable
in connection with the repurchase of the Notes as a result of a Change of
Control. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.15, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.15 by virtue of
such compliance.


 


(b)  On the
Change of Control Payment Date, the Company will, to the extent lawful:


 


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


 


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


 


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


 


The Paying Agent will promptly mail (but in any case
not later than five days after the Change of Control Payment Date) to each
Holder of Notes properly tendered the Change of Control Payment for such Notes,
and the Trustee will promptly authenticate and mail (or cause to be transferred
by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any.  The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.


 


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(c) 
Notwithstanding anything to the contrary in this Section 4.15, the
Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in this
Section 4.15 and purchases all Notes properly tendered and not withdrawn under
the Change of Control Offer, or (2) notice of redemption has been given
pursuant to Section 3.07 hereof, unless and until there is a default in payment
of the applicable redemption price.


 


(d)  Unless the
Company defaults in the payment of the Change of Control Payment, all Notes
accepted for payment pursuant to the Change of Control Offer will cease to
accrue interest after the Change of Control Payment Date.  If any Change of Control Payment Date is on
or after an interest record date and on or before the associated interest
payment date, any accrued and unpaid interest and Additional Interest, if any,
due on such interest payment date will be paid to the Person in whose name a
note is registered at the close of business on such interest record date.


 


Section 4.16                                No Layering
of Debt.


 


The Company will not incur, create, issue, assume,
Guarantee or otherwise become liable for any Indebtedness that is contractually
subordinate or junior in right of payment to any Senior Debt of the Company and
senior in right of payment to the Notes. No Guarantor will incur, create,
issue, assume, Guarantee or otherwise become liable for any Indebtedness that
is contractually subordinate or junior in right of payment to the Senior Debt
of such Guarantor and senior in right of payment to such Guarantor’s Note
Guarantee. No such Indebtedness will be considered to be senior by virtue of
being secured on a first or junior priority basis.


 


Section 4.17                                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; provided that the Company or any
Restricted Subsidiary may enter into a sale and leaseback transaction if:


 


(1)                                  (a) the Company or that Restricted
Subsidiary, as applicable, could have (i) incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and leaseback
transaction under the Fixed Charge Coverage Ratio test in the first paragraph
of Section 4.09(a) hereof and (ii) incurred a Lien to secure such
Indebtedness pursuant to the provisions of Section 4.12 hereof;


 


(b)  the gross cash proceeds of that sale and
leaseback transaction are at least equal to the Fair Market Value, as
determined in good faith by the Company, of the property that is the subject of
that sale and leaseback transaction; and


 


(c)  the transfer of assets in that sale and
leaseback transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with Section 4.10;


 


(2)
The Company or any of its Restricted Subsidiaries is entering into such sale
and leaseback transaction in order to extend, refinance, renew, replace,
defease or refund any sale and leaseback transaction existing on the date of
this Indenture; provided that
such sale and leaseback transaction constitutes a Permitted Sale and Leaseback
Transaction; or


 


(3)
the Attributable Debt associated with such sale and leaseback transaction, when
taken together with the Attributable Debt with respect to all other sale and
leaseback transactions made


 


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pursuant to this clause (3)
since the date of this Indenture does not exceed $5.0 million at any one
time outstanding.


 


Section 4.18                                Additional
Note Guarantees.


 


If the Company or any of its Restricted Subsidiaries
acquires or creates another Domestic Subsidiary after the date of this
Indenture, then that newly acquired or created Domestic Subsidiary (other than
a Receivables Subsidiary) will become a Guarantor and execute a supplemental
indenture and deliver an opinion of counsel satisfactory to the trustee; provided that any Domestic Subsidiary that
constitutes an Immaterial Subsidiary need not become a Guarantor until such
time as it ceases to be an Immaterial Subsidiary. The form of such Note
Guarantee is attached as Exhibit E hereto.


 


Section 4.19                                Designation
of Restricted and Unrestricted Subsidiaries.


 


The Board of Directors of
the Company may designate any Restricted Subsidiary to be an Unrestricted
Subsidiary if that designation would not cause a Default. If a Restricted
Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair
Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary designated as an Unrestricted
Subsidiary will be deemed to be an Investment made as of the time of the
designation. That designation will only be permitted if the Investment would be
permitted at that time and if the Subsidiary designated as an Unrestricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.


 


Any designation of a
Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to
the Trustee by filing with the Trustee a certified copy of a resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.07.  If, at any time, any Unrestricted Subsidiary
would fail to meet the preceding requirements as an Unrestricted Subsidiary,
the Company will be in default of such provisions in this Indenture. The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company; provided that such designation will be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and
such designation will only be permitted if (1) such Indebtedness is
permitted under Section 4.09 hereof, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference period;
and (2) no Default or Event of Default would be in existence following
such designation.


 


ARTICLE 5

SUCCESSORS


 


Section 5.01                                Merger,
Consolidation, or Sale of Assets.


 


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


 


(1)
either: (a) the Company is the surviving corporation; or (b) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition has been made is a corporation


 


66

















 


organized
or existing under the laws of the United States, any state of the United States
or the District of Columbia;


 


(2)
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or the Person to which such sale, assignment, transfer,
lease, conveyance or other disposition has been made assumes all the
obligations of the Company under the Notes, this Indenture and the applicable
Registration Rights Agreement pursuant to agreements reasonably satisfactory to
the Trustee;


 


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


 


(4)
the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or other disposition has been made (a) would,
on the date of such transaction after giving pro forma effect thereto and any
related financing transactions as if the same had occurred at the beginning of
the applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a) hereof or (b) would (together with Restricted
Subsidiaries of the Company) have a higher Fixed Charge Coverage Ratio
immediately after such transaction (after giving pro forma effect to the
transaction as if it had occurred at the beginning of the applicable
four-quarter period) than the Fixed Charge Coverage Ratio of the Company and
its Restricted Subsidiaries immediately prior to the transaction.


 


In the event of any transaction (other than a lease)
described in and complying with the conditions listed in the immediately
preceding paragraph in which the Company is not the surviving Person, such
surviving Person or transferee shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under, and the Company shall
be discharged from its Obligations under, this Indenture, the Notes and the
applicable Registration Rights Agreement, with the same effect as if such
successor Person had been named as the Company herein or therein.


 


This Section 5.01 will not apply to:


 


(1) a merger of the
Company with an Affiliate solely for the purpose of reincorporating the Company
in another jurisdiction; or


 


(2) any consolidation or
merger, or any sale, assignment, transfer, conveyance, lease or other
disposition of assets between or among the Company and its Restricted
Subsidiaries.


 


Section 5.02                                Successor
Corporation Substituted.


 


Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the properties or assets of the Company in a transaction
that is subject to, and that complies with the provisions of, Section 5.01
hereof, the successor Person formed by such consolidation or into or with which
the Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition, the provisions of
this Indenture referring to the “Company” shall refer instead to the successor
Person and not to the Company), and may 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. 
Upon such succession and substitution, the Company and each Guarantor
that remains a


 


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Subsidiary of the
Company shall be released and discharged from all of their respective
obligations under this Indenture, the Notes and Note Guarantees.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01                                Events of
Default.


 


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


 


(1)
default for 30 days in the payment when due of interest on, or Additional
Interest, if any, with respect to, the Notes, whether or not prohibited by the
subordination provisions of this Indenture;


 


(2)
default in the payment when due (at maturity, upon redemption or otherwise) of
the principal of, or premium, if any, on, the Notes, whether or not prohibited
by the subordination provisions of this Indenture;


 


(3)
failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Section 4.15 hereof;


 


(4)
failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Sections 4.07, 4.09 or 4.10 hereof for 30 days after the
Company receives written notice specifying such failure from the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding;


 


(5)
failure by the Company or any of its Restricted Subsidiaries to comply with any
of the other agreements in this Indenture for 60 days after the Company
receives written notice specifying such failure from the Trustee or the Holders
of at least 25% in aggregate principal amount of the Notes then outstanding;


 


(6)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Restricted Subsidiaries (or the payment
of which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or Guarantee now exists, or is created after the date
of this Indenture, if that default:


 


(A)  is caused by a failure to pay principal when
due at final maturity of such Indebtedness (a “Payment
Default”); or


 


(B)  results in the acceleration of such
Indebtedness prior to its express maturity, and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated aggregates $20.0 million or more
at any one time;


 


(7)
failure by the Company or any of its Restricted Subsidiaries to pay final and
non-appealable judgments (other than any such judgments covered by insurance)
entered by a court or courts of competent jurisdiction aggregating in excess of
$20.0 million at any one time, which judgments are not paid, discharged or
stayed for a period of 60 days;


 


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(8)
the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary pursuant to or within the meaning of 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;


 


(9)
a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:


 


(A)  is for relief against the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary in an involuntary
case;


 


(B)  appoints a custodian of the Company or any
of its Restricted Subsidiaries that is a Significant Subsidiary or for all or
substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary; or


 


(C)  orders the liquidation of the Company or any
of its Restricted Subsidiaries that is a Significant Subsidiary;


 


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


 


(10)
except as permitted by this Indenture, any Note Guarantee of any Significant
Subsidiary of the Company is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and
effect, or any Significant Subsidiary of the Company which is a Guarantor
denies or disaffirms its obligations under its Note Guarantee.


 


Section 6.02                                Acceleration.


 


In the case of an Event of Default specified in clause
(8) or (9) of Section 6.01 hereof, with respect to the Company or any
Restricted Subsidiary of the Company that is a Significant Subsidiary, all
outstanding Notes will become due and payable immediately without further
action or notice.  If any other Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately by delivery of written notice thereof
to the Company; provided that so long as any Indebtedness permitted to be
incurred pursuant to the Credit Agreement is outstanding, such acceleration
will not be effective until the earlier of (1) the acceleration of such
Indebtedness under the Credit Agreement or (2) five Business Days after receipt
by the Company and the administrative agent under the Credit Agreement of
written notice of such acceleration.


 


Upon any such declaration, the Notes shall become due
and payable immediately.


 


The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may, on
behalf of all of the Holders, rescind an acceleration and its consequences, if


 


69

















 


the rescission
would not conflict with any judgment or decree and if all existing Events of
Default (except nonpayment of principal, interest or premium or Additional
Interest, if any, that has become due solely because of the acceleration) have
been cured or waived.


 


In the event of a declaration of acceleration of the
Notes because of an Event of Default described in Section 6.01(6)(B) above has
occurred and is continuing, the declaration of acceleration of the Notes shall
be automatically annulled if the payment default or other default triggering
such Event of Default pursuant to Section 6.01(6)(B) shall be remedied or cured
by the Company or a Restricted Subsidiary of the Company or waived by the
holders of the relevant Indebtedness within 60 days after the declaration
of acceleration with respect thereto and if (a) the annulment of the
acceleration of the Notes would not conflict with any judgment or decree of a
court of competent jurisdiction and (b) all existing Events of Default,
except nonpayment of principal, premium or interest on the Notes that became
due solely because of the acceleration of the Notes, have been cured or waived.


 


Section 6.03                                Other
Remedies.


 


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


 


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


 


Section 6.04                                Waiver of
Past Defaults.


 


Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium and Additional Interest, if
any, or interest on, the Notes; provided, however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration. 
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.


 


Section 6.05                                Control by
Majority.


 


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


 


Section 6.06                                Limitation
on Suits.


 


No Holder may pursue a remedy with respect to this
Indenture or the Notes unless:


 


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


 


(2)
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes have previously made a written request to the Trustee to pursue the
remedy;


 


(3)
such Holder or Holders offer and, if requested, provide to the Trustee security
or indemnity reasonably satisfactory to the Trustee against any loss, liability
or expense;


 


(4)
the Trustee does not comply with the request within 60 days after receipt of
the request and the offer of security or indemnity; and


 


(5)
during such 60-day period, Holders of a majority in aggregate principal amount
of the then outstanding Notes do not give the Trustee a direction inconsistent
with such request.


 


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


 


Section 6.07                                Rights of
Holders to Receive Payment.


 


Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of principal, premium and
Additional Interest, if any, and interest on the Note, on or after the
respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.


 


Section 6.08                                Collection
Suit by Trustee.


 


If an Event of Default specified in Section 6.01(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 Company
for the whole amount of principal of, premium and Additional Interest, if any,
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 6.09                                Trustee May
File Proofs of Claim.


 


The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof.  To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other


 


71

















 


properties that
the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


Section 6.10                                Priorities.


 


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


 


First:                                 to
the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof;


 


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


 


Third:                             to
the Company or to such party as a court of competent jurisdiction shall direct.


 


The Trustee, upon prior written notice to the Company
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 of a Note pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate
principal amount of the then outstanding Notes.


 


ARTICLE 7

TRUSTEE


 


Section 7.01                                Duties of
Trustee.


 


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


 


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


 


(1)
the duties of the Trustee will be determined solely by the express provisions
of this Indenture and the Trustee need perform only those duties that are specifically
set forth in this


 


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Indenture
and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and


 


(2)
in the absence of bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. 
However, the Trustee will examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.02                                Rights of
Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.03                                Individual
Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the
Company or any Affiliate of the Company with the same rights it would have if
it were not Trustee.  However, in the
event that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as trustee
(if this Indenture has been qualified under the TIA) 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 7.04                                Trustee’s
Disclaimer.


 


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


 


Section 7.05                                Notice of
Defaults.


 


If a Default or Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee will mail to Holders
a notice of the Default or Event of Default within 90 days after it
occurs.  Except in the case of a Default
or Event of Default in payment of principal of, premium or Additional Interest,
if any, or interest on, any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders.


 


Section 7.06                                Reports by
Trustee to Holders of the Notes.


 


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


 


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


 


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Section 7.07                                Compensation
and Indemnity.


 


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


 


(b)  The
Company and the Guarantors will indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company and the
Guarantors (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company, the Guarantors, any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except, in each case, to the extent any such
loss, liability or expense may be attributable to its gross negligence or bad
faith.  The Trustee will notify the Company
promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the
Company will not relieve the Company or any of the Guarantors of their
obligations hereunder.  The Company or
such Guarantor will defend the claim and the Trustee will cooperate in the
defense.  The Trustee may have separate
counsel and the Company will pay the reasonable fees and expenses of such
counsel.  Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.


 


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


 


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


 


(e)  When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(7) or (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.


 


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


 


Section 7.08                                Replacement
of Trustee.


 


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


 


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


 


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


 


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


 


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


 


(4)
the Trustee becomes incapable of acting.


 


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


 


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


 


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


 


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


 


Section 7.09                                Successor
Trustee by Merger, etc.


 


If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, or transfers its rights and obligations as Trustee under
this Indenture to an Affiliate, the successor corporation without any further
act will be the successor Trustee.


 


Section 7.10                                Eligibility;
Disqualification.


 


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


 


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


 


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Section 7.11                                Preferential
Collection of Claims Against Company.


 


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


 


ARTICLE 8

LEGAL DEFEASANCE AND COVENANT
DEFEASANCE


 


Section 8.01                                Option to
Effect Legal Defeasance or Covenant Defeasance.


 


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


 


Section 8.02                                Legal
Defeasance and Discharge.


 


Upon the Company’s exercise under Section 8.01 hereof
of the option applicable to this Section 8.02, the Company and each of the
Guarantors will, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from their obligations
with respect to all outstanding Notes (including the Note Guarantees) on the
date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”).  For this
purpose, Legal Defeasance means that the Company and the Guarantors will be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes (including the Note Guarantees), which will thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in clauses (1) and (2) below, and
to have satisfied all their other obligations under such Notes, the Note
Guarantees and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following provisions which will survive until otherwise
terminated or discharged hereunder:


 


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


 


(2)
the Company’s obligations with respect to such Notes under Article 2 and
Section 4.02 hereof;


 


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


 


(4)
this Article 8.


 


Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.


 


Section 8.03                                Covenant
Defeasance.


 


Upon the Company’s exercise under Section 8.01 hereof
of the option applicable to this Section 8.03, the Company and each of the
Guarantors will, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from each of their obligations under the
covenants contained in Sections 4.03, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.14 (except with respect to the corporate existence of the Company),
4.15, 4.16,
4.17, 4.18 and 4.19 hereof and clause (4) of Section 5.01 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 hereof


 


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are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes will thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but will continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes will not
be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes and Note Guarantees, the Company and the Guarantors may
omit to comply with and will have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply will not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes and Note
Guarantees will be unaffected thereby. 
In addition, upon the Company’s exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(7)
and Section 6.10(10) hereof will not constitute Events of Default.


 


Section 8.04                                Conditions
to Legal or Covenant Defeasance.


 


In order to exercise either Legal Defeasance or
Covenant Defeasance under either Section 8.02 or 8.03 hereof:


 


(1)
the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized investment bank, appraisal firm, or firm
of independent public accountants, to pay the principal of, premium and
Additional Interest, if any, and interest on, the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Notes are being defeased
to such stated date for payment or to a particular redemption date;


 


(2)
in the case of an election under Section 8.02 hereof, the Company must deliver
to the Trustee an Opinion of Counsel confirming that:


 


(A)  the Company 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 federal income tax law,


 


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


 


(3)
in the case of an election under Section 8.03 hereof, the Company must deliver
to the Trustee an Opinion of Counsel confirming that, subject to customary
assumptions and exclusions,  the Holders
of the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on


 


78

















 


the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;


 


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


 


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


 


(6)
the Company must deliver to the Trustee an Officers’ Certificate stating that
the deposit was not made by the Company with the intent of preferring the
Holders of Notes over the other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding any creditors of the Company or
others; and


 


(7)
the Company must deliver to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.


 


Section 8.05                                Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.


 


Subject to Section 8.06 hereof, all money and
non-callable Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of
this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes will be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium and Additional Interest, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.


 


The Company will pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04 hereof or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.


 


Notwithstanding anything in this Article 8 to the
contrary, the Trustee will deliver or pay to the Company from time to time upon
the request of the Company any money or non-callable Government Securities held
by it as provided in Section 8.04 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 8.04(1) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.


 


Section 8.06                                Repayment to
Company.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal
of, premium or Additional Interest, if any, or interest on, any Note and
remaining unclaimed for two years after such principal, premium or Additional
Interest, if any, or


 


79

















 


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


 


Section 8.07                                Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any
U.S. dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s and the Guarantors’
obligations under this Indenture and the Notes and the Note Guarantees will be
revived and reinstated as though no deposit had occurred pursuant to Section
8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided, however, that, if the Company makes any payment of
principal of, premium or Additional Interest, if any, or interest on, any Note
following the reinstatement of its obligations, the Company will be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.


 


ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01                                Without
Consent of Holders.


 


Notwithstanding Section 9.02 of this Indenture, the
Company, the Guarantors and the Trustee may amend or supplement this Indenture
or the Notes or the Note Guarantees without the consent of any Holder:


 


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


 


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


 


(3)
to provide for the assumption of the Company’s or a Guarantor’s obligations to
the Holders of the Notes and Note Guarantees by a successor to the Company or
such Guarantor pursuant to Article 5 or Article 11 hereof;


 


(4)
to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights
hereunder of any Holder;


 


(5)
to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;


 


(6)
to conform the text of this Indenture, the Note Guarantees or the Notes to any
provision of the “Description of Notes” section of the Company’s Offering
Circular dated March 3, 2004, relating to the initial offering of the Notes, to
the extent that such provision in that “Description of Notes” was intended to
be a verbatim recitation of a provision of this Indenture, the Note Guarantees
or the Notes;


 


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(7)
to provide for the issuance of Additional Notes in accordance with the
limitations set forth in this Indenture as of the date hereof; or


 


(8)
to allow any Guarantor to execute a supplemental indenture and/or a Note
Guarantee with respect to the Notes.


 


Upon the request of the Company accompanied by an
Officers’ Certificate authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee will join with the Company and
the Guarantors in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee will not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.


 


Section 9.02                                With Consent
of Holders.


 


Except as provided in Section 9.01 or below in this
Section 9.02, the Company and the Trustee may amend or supplement this
Indenture (including, without limitation, Section 4.10 and 4.15 hereof) and the
Notes and the Note Guarantees with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
(including, without limitation, Additional Notes, if any) voting as a single
class (including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, premium
or Additional Interest, if any, or interest on, the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes or the Note Guarantees may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes (including, without limitation, Additional
Notes, if any) voting as a single class (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes).  Section 2.08
hereof shall determine which Notes are considered to be “outstanding” for
purposes of this Section 9.02.


 


Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee will join with the Company and the Guarantors
in the execution of such amended or supplemental indenture unless such amended
or supplemental indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but will not be obligated to, enter into such amended or
supplemental Indenture.


 


It is not be necessary for the consent of the Holders
of Notes under this Section 9.02 to approve the particular form of any proposed
amendment, supplement or waiver, but it is sufficient if such consent approves
the substance thereof.


 


After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company will mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver.  Any failure of the Company to
mail such notice, or any defect therein, will not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or waiver.  Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes or
the Note Guarantees.  However,


 


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without the
consent of each Holder affected, an amendment, supplement or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):


 


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


 


(2)
reduce the principal of or change the fixed maturity of any Note or alter or
waive any of the provisions with respect to the redemption of the Notes (other
than with respect to Sections 4.10 and 4.15 hereof);


 


(3)
reduce the rate of or extend the time for payment of interest, including
default interest, on any Note;


 


(4)
waive a Default or Event of Default in the payment of principal of, or premium
or Additional Interest, if any, or interest on, the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration);


 


(5)
make any Note payable in money other than that stated in the Notes;


 


(6)
make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders to receive payments of principal of, or
interest or premium or Additional Interest, if any, on, the Notes;


 


(7)
waive a redemption payment with respect to any Note (other than a payment
required by Sections 4.10 or 4.15 hereof);


 


(8)
release any Guarantor from any of its obligations under its Note Guarantee or
this Indenture, except in accordance with the terms of this Indenture; or


 


(9)
make any change in the preceding amendment and waiver provisions.


 


In addition, any amendment to, or waiver of, the
provisions of this Indenture relating to subordination provided for in Article
10 that adversely affects the rights of the Holders will require the consent of
the Holders of at least 75% in aggregate principal amount of Notes then
outstanding.


 


Section 9.03                                Compliance
with Trust Indenture Act.


 


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


 


Section 9.04                                Revocation
and Effect of Consents.


 


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


 


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The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver, which record date shall be either
(i) at least thirty (30) days prior to the first solicitation of such
consent or (ii) the date of the most recent list furnished to the Trustee under
Section 2.05.  If a record date is
fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date.  No such consent
shall be valid or effective for more than ninety (90) days after such record
date.


 


After an amendment, supplement or waiver becomes
effective, it shall bind every Holder unless it makes a change described in any
of clauses (1) through (9) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Note who has consented to
it and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder’s Note.


 


Section 9.05                                Notation on
or Exchange of Notes.


 


The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated.  The Company in exchange for all Notes may
issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.


 


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


 


Section 9.06                                Trustee to
Sign Amendments, etc.


 


The Trustee will sign any amended or supplemental
indenture or waiver authorized pursuant to this Article 9; provided, that, the
Trustee may, but shall not be obligated to, execute any such amended or
supplemental indenture or waiver which adversely affect the rights, duties,
liabilities or immunities of the Trustee under this Indenture.  In executing any amended or supplemental
indenture or waiver, the Trustee will be entitled to receive and (subject to
Section 7.01 hereof) will be fully protected in relying upon, in addition to
the documents required by Section 13.04 hereof, an Officers’ Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture or waiver is authorized or permitted by this Indenture.


 


ARTICLE 10

SUBORDINATION


 


Section 10.01                          Agreement to
Subordinate.


 


The Company agrees, and each Holder by accepting a
Note agrees, that the Indebtedness evidenced by the Notes is subordinated in
right of payment, to the extent and in the manner provided in this Article 10,
to the prior payment in full of all Senior Debt (whether outstanding on the
date hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Debt.


 


Section 10.02                          Liquidation;
Dissolution; Bankruptcy.


 


Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company


 


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or its property,
in an assignment for the benefit of creditors or any marshaling of the
Company’s assets and liabilities:


 


(1)
holders of Senior Debt will be entitled to receive payment in full of all
Obligations due in respect of such Senior Debt (including interest after the
commencement of any bankruptcy proceeding at the rate specified in the
applicable Senior Debt) and all outstanding letters of credit under the Credit
Facilities shall either have been terminated or cash collateralized in
accordance with the terms thereof before the Holders will be entitled to
receive any payment on, or distribution with respect to, the Notes (except that
Holders may receive and retain Permitted Junior Securities and payments made
from any defeasance trust created pursuant to Section 8.01 and Section 12.01
hereof); and


 


(2)
until all Obligations with respect to Senior Debt (as provided in clause (1)
above) are paid in full, any distribution to which Holders would be entitled
but for this Article 10 will be made to holders of Senior Debt (except that
Holders may receive and retain Permitted Junior Securities and payments made
from any defeasance trust created pursuant to Section 8.01 and Section 12.01
hereof), as their interests may appear.


 


Section 10.03                          Default on
Designated Senior Debt.


 


(a)  The
Company may not make any payment or distribution in respect of principal,
interest, premium or Additional Interest, if any, or other amounts on the Notes
or make any deposit pursuant to Section 8.01 and Section 12.01 (except in
Permitted Junior Securities or from any defeasance trust created pursuant to
Section 8.01 and Section 12.01 hereof) and may not otherwise purchase, redeem
or otherwise retire any Notes 
(collectively, “Pay the Notes”)
if:


 


(1)
a payment default on Designated Senior Debt occurs and is continuing beyond any
applicable grace period; or


 


(2)
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 Company of the holders of any such
Designated Senior Deb (a “nonpayment
default”).


 


If the Trustee receives any such Payment Blockage
Notice, no subsequent Payment Blockage Notice will be effective for purposes of
this Section 10.03 unless and until at least 360 days have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice.


 


No nonpayment default that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the Trustee may be,
or may be made, the basis for a subsequent Payment Blockage Notice unless such
default has have been cured or waived for a period of not less than 90 days (it
being understood that any subsequent action, or any breach of any covenant for
a period commencing after the date of receipt by the trustee of such Payment
Blockage Notice, that, in either case, would give rise to such a default
pursuant to any provisions under which a default previously existed or was
continuing shall constitute a new default for this purpose).


 


(b)  The
Company may and will resume payments on and distributions in respect of the
Notes and may acquire them upon the earlier of:


 


(1)
in the case of a payment default with respect to any Designated Senior Debt of
the Company, upon the date upon which such default is cured or waived, or


 


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(2)
in the case of a nonpayment default, upon the earlier of the date on which such
nonpayment default is cured or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received by the Trustee, unless the maturity of any
Designated Senior Debt has been accelerated,


 


Section 10.04                          Acceleration
of Notes.


 


If payment of the Notes is accelerated because of an
Event of Default, the Company will promptly notify holders of Senior Debt of
the acceleration.


 


Section 10.05                          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 any defeasance trust created pursuant to Section 8.01
and Section 12.02 hereof) at a time when the Trustee or such Holder has actual
knowledge or has received notice that such payment is prohibited by this
Article 10, the Trustee or such Holder, as the case may be, will hold such
payment in trust for the benefit of the holders of Senior Debt.  Upon written request of the holders of
Senior Debt, the Trustee or such Holder, as the case may be, will promptly
deliver all such amounts in trust to the holders of Senior Debt or their
Representative.


 


With respect to the holders of Senior Debt, the
Trustee undertakes to perform only those obligations on the part of the Trustee
as are specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt will be read into this
Indenture against the Trustee.  The
Trustee will not be deemed to owe any fiduciary duty to the holders of Senior
Debt, and will not be liable to any such holders if the Trustee pays over or
distributes to or on behalf of Holders or the Company or any other Person money
or assets to which any holders of Senior Debt are then entitled by virtue of
this Article 10, except if such payment is made as a result of the willful misconduct
or gross negligence of the Trustee.


 


Section 10.06                          Notice by
Company.


 


The Company will promptly notify the Trustee and the
Paying Agent of any facts known to the Company that would cause a payment of
any Obligations with respect to the Notes to violate this Article 10, but
failure to give such notice will not affect the subordination of the Notes to
the Senior Debt as provided in this Article 10.


 


Section 10.07                          Subrogation.


 


After all Senior Debt is paid in full and until the
Notes are paid in full, Holders will be subrogated (equally and ratably with
all other Indebtedness 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 have been
applied to the payment of Senior Debt. 
A distribution made under this Article 10 to holders of Senior Debt that
otherwise would have been made to Holders is not, as between the Company and
Holders, a payment by the Company on the Notes.


 


Section 10.08                          Relative
Rights.


 


This Article 10 defines the relative rights of Holders
and holders of Senior Debt.  Nothing in
this Indenture will:


 


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(1)
impair, as between the Company and Holders, the obligation of the Company,
which is absolute and unconditional, to pay principal of, premium and interest
and Additional Interest, if any, on, the Notes in accordance with their terms;


 


(2)
affect the relative rights of Holders and creditors of the Company other than
their rights in relation to holders of Senior Debt; or


 


(3)
prevent the Trustee or any Holder of Notes from exercising its available
remedies upon a Default or Event of Default, subject to the rights of holders
and owners of Senior Debt to receive distributions and payments otherwise
payable to Holders.


 


If the Company fails because of this Article 10 to pay
principal of, premium 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 10.09                          Subordination
May Not Be Impaired by Company.


 


No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes may 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 10.10                          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 10, the Trustee and the Holders will 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
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 Indebtedness 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 10.


 


Section 10.11                          Rights of
Trustee and Paying Agent.


 


Notwithstanding the provisions of Section 10.3, the
Trustee and the Paying Agent will 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 has received at its Corporate
Trust Office at least two 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 10. 
Only the Company, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Debt may give the notice; provided, however, that, if an issue of
Senior Debt has a Representative, only such Representative (and not a holder of
such Senior Debt) may give such notice.


 


Nothing in this Article 10 will impair the claims of,
or payments to, the Trustee under or pursuant to Section 7.07 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.


 


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Section 10.12                          Authorization
to Effect Subordination.


 


Each Holder, 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 10, 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 6.09 hereof
at least 30 days before the expiration of the time to file such claim, the
Representatives are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.


 


Section 10.13                          Amendments.


 


The provisions of this Article 10 may not be amended
or modified without the written consent of the holders of all Senior Debt.  In addition, any amendment to, or waiver of,
the provisions of this Article 10 that adversely affects the rights of the
Holders of the Notes will require the consent of the Holders of at least 75% in
aggregate principal amount of Notes then outstanding.


 


ARTICLE 11

NOTE GUARANTEES


 


Section 11.01                          Guarantee.


 


(a)  Subject to
this Article 11, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:


 


(1)  the principal of, premium and Additional
Interest, if any, and interest on, the Notes will be promptly paid in full when
due, subject to applicable grace periods, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on, if any, the Notes, if lawful, and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and


 


(2)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
applicable grace periods, whether at stated maturity, by acceleration or
otherwise.


 


Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors will be
jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.


 


(b)  The
Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. 
Each Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Note


 


87

















 


Guarantee
will not be discharged except by complete performance of the obligations
contained in the Notes and this Indenture.


 


(c)  If any
Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the
extent theretofore discharged, will be reinstated in full force and effect.


 


(d)  Each
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article 6 hereof for the purposes of a Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (2) in the event of any declaration
of acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee.  The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantee.


 


Section 11.02                          Subordination
of Note Guarantee.


 


The Obligations of each Guarantor under its Note
Guarantee pursuant to this Article 11 will be junior and subordinated to the
Senior Debt of such Guarantor on the same basis as the Notes are junior and
subordinated to Senior Debt of the Company. 
For the purposes of the foregoing sentence, the Trustee and the Holders
will have the right to receive and/or retain payments by any of the Guarantors
only at such times as they may receive and/or retain payments in respect of the
Notes pursuant to this Indenture, including Article 10  hereof.


 


Section 11.03                          Limitation
on Guarantor Liability.


 


Each Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Note Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Note Guarantee. 
To effectuate the foregoing intention, the Trustee, the Holders and the
Guarantors hereby irrevocably agree that the obligations of such Guarantor will
be limited to the maximum amount that will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor that
are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
this Article 11, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.


 


Section 11.04                          Execution
and Delivery of Note Guarantee.


 


To evidence its Note Guarantee set forth in Section
11.01 hereof, each Guarantor hereby agrees that a notation of such Note
Guarantee substantially in the form attached as Exhibit E hereto will be
endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture will be executed on behalf of
such Guarantor by one of its Officers.


 


88

















 


Each Guarantor hereby agrees that its Note Guarantee
set forth in Section 11.01 hereof will remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note
Guarantee.


 


If an Officer whose signature is on this Indenture or
on the Note Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Note Guarantee is endorsed, the Note
Guarantee will be valid nevertheless.


 


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


 


In the event that the Company or any of its Restricted
Subsidiaries creates or acquires any Domestic Subsidiary after the date of this
Indenture, if required by Section 4.18 hereof, the Company will cause such
Domestic Subsidiary to comply with the provisions of Section 4.18 hereof and
this Article 11, to the extent applicable.


 


Section 11.05                          Guarantors
May Consolidate, etc., on Certain Terms.


 


Except as otherwise provided in Section 11.05 hereof,
no Guarantor (other than a Guarantor whose Note Guarantee is to be released in
accordance with Section 11.06) may sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other
than the Company or another Guarantor, unless:


 


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


 


(2)
either:


 


(a)  subject to Section 11.05 hereof, the Person
acquiring the property in any such sale or disposition or the Person formed by
or surviving any such consolidation or merger (if other than the Guarantor)
unconditionally assumes all the obligations of that Guarantor under this
Indenture, its Note Guarantee and the applicable Registration Rights Agreement
on the terms set forth herein or therein, pursuant to a supplemental indenture
in form and substance reasonably satisfactory to the Trustee; or


 


(b)  the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this
Indenture, including without limitation, Section 4.10 hereof.


 


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 endorsed upon the Notes 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 will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.  Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee.  All the Note Guarantees so issued will 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 of such Note Guarantees had been issued at the
date of the execution hereof.


 


89

















 


Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses 2(a) and (b) above, nothing contained in this Indenture
or in any of the Notes will prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or will prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.


 


Section 11.06                          Releases.


 


Each Guarantor will be released and relieved of any
obligations under its Note Guarantee:


 


(a)  upon any
sale or other disposition of all or substantially all of the assets of that
Guarantor, by way of merger, consolidation or otherwise, to a Person that is
not (either before or after giving effect to such transaction) the Company or a
Restricted Subsidiary; provided that the Net Proceeds of such
sale or other disposition are applied in accordance with the applicable
provisions of this Indenture, including without limitation Section 4.10 hereof;


 


(b)  upon
either (A) a sale or other disposition of all of the Capital Stock of that
Guarantor to a Person that is not (either before or after giving effect to such
transaction) the Company or a Restricted Subsidiary, or (B) any sale of or
other disposition of any Capital Stock of that Guarantor to any Person that
results in (i) the Guarantor ceasing to be a Subsidiary of the Company or (ii)
becoming a Subsidiary of an Unrestricted Subsidiary; provided that, in each case, the Net Proceeds of such sale
or other disposition are applied in accordance with the applicable provisions
of this Indenture, including without limitation Section 4.10 hereof;


 


(c)  upon
designation of such Guarantor as an Unrestricted Subsidiary in accordance with
the terms of this Indenture; or


 


(d)  upon a
Legal Defeasance in accordance with Article 8 hereof or satisfaction and discharge
of this Indenture in accordance with Article 11 hereof.


 


If any of the events specified in the foregoing
clauses (a) through (d) shall occur, upon delivery by the Company to the
Trustee of an Officers’ Certificate and an Opinion of Counsel certifying as to
compliance with this Section 11.06, the Trustee will execute any documents
reasonably required in order to evidence the release of the applicable
Guarantor from its obligations under its Note Guarantee.  Any Guarantor not released from its
obligations under its Note Guarantee as provided in this Section 11.06 will
remain liable for the full amount of principal of and interest and premium and
Additional Interest, if any, on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article 11.


 


ARTICLE 12

SATISFACTION AND DISCHARGE


 


Section 12.01                          
Satisfaction and Discharge.


 


This Indenture will be discharged and will cease to be
of further effect as to all Notes issued hereunder, when:


 


(1)
either:


 


(a)  all Notes that have been authenticated,
except lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been


 


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deposited
in trust and thereafter repaid to the Company, have been delivered to the
Trustee for cancellation; or


 


(b)  all Notes that have not been delivered to
the Trustee for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become due and payable
within one year and the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient,
without consideration of any reinvestment of interest, to pay and discharge the
entire Indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium and Additional Interest, if any, and accrued interest to
the date of maturity or redemption;


 


(2)
no Default or Event of Default has occurred and is continuing on the date of
such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) and the deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;


 


(3)
the Company or any Guarantor has paid or caused to be paid all sums payable by
it under this Indenture; and


 


(4)
the Company 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.


 


In addition, the Company must deliver an Officers’
Certificate and an Opinion of Counsel to the Trustee stating that all
conditions precedent to satisfaction and discharge have been satisfied.


 


Notwithstanding the satisfaction and discharge of this
Indenture, if money has been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section 12.01, the provisions of Sections 12.02 and
8.06 hereof will survive.  In addition,
nothing in this Section 12.01 will be deemed to discharge those provisions of
Section 7.07 hereof, that, by their terms, survive the satisfaction and
discharge of this Indenture.


 


Section 12.02                           Application
of Trust Money.


 


Subject to the provisions of Section 8.06 hereof, all
money and non-callable Government Securities deposited with the Trustee
pursuant to Section 12.01 hereof shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium and Additional Interest, if any) and
interest for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent
required by law.


 


If the Trustee or Paying Agent is unable to apply any
money or Government Securities in accordance with Section 12.01 hereof by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s and any Guarantor’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.01 hereof; provided that if the Company has made any
payment of principal of, premium or Additional Interest, if any, or interest


 


91

















 


on, any Notes
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.


 


ARTICLE 13

MISCELLANEOUS


 


Section 13.01                          Trust
Indenture Act Controls.


 


If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by TIA §318(c), the imposed duties will
control.  Any provision of the TIA which
is required to be included in a qualified indenture, but not expressly included
herein, shall be deemed to be included by this reference.


 


Section 13.02                          Notices.


 


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


 


If to the Company and/or any Guarantor:


 


True Temper Sports, Inc.


8275 Tournament Drive, Suite 200


Memphis, Tennessee 38125


Facsimile No.: (901) 746-2162


Attention: Chief Financial Officer


 


With a copy to:

Mayer, Brown, Rowe & Maw LLP

1675 Broadway


New York, NY 10019


Facsimile No.: 
(212) 262-1910

Attention:  Thomas M. Vitale


 


If to the Trustee:

The Bank of New York

100 Ashford Center North, Suite 520


Atlanta, GA  30338


Facsimile No.: 
(770) 698-5195

Attention:  Barbara Royal


 


The Company, any Guarantor or the Trustee, by notice
to the others, may designate additional or different addresses for subsequent
notices or communications.


 


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


 


92

















 


Any notice or communication to a Holder will be mailed
by first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar.  Any
notice or communication will also be so mailed to any Person described in TIA
§ 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to a Holder or any
defect in it will not affect its sufficiency with respect to other Holders.


 


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


 


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


 


Section 13.03                          
Communication by Holders with Other Holders.


 


Holders may communicate pursuant to TIA § 312(b)
with other Holders with respect to their rights under this Indenture or the
Notes.  The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA § 312(c).


 


Section 13.04                           Certificate
and Opinion as to Conditions Precedent.


 


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


 


(1)
an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 13.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants to be performed by the Company and its Subsidiaries, if any, provided
for in this Indenture relating to the proposed action have been satisfied; and


 


(2)
an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 13.05 hereof)
stating that, in the opinion of such counsel, all such conditions precedent and
covenants to be performed by the Company and its Subsidiaries have been
satisfied.


 


Section 13.05                           Statements
Required in Certificate or Opinion.


 


Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA § 314(a)(4) or the Officers’
Certificate required by Section 4.04) and must include:


 


(1)
a statement that the Person making such certificate or opinion has read such
covenant or condition;


 


(2)
a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;


 


(3)
a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and


 


93

















 


(4)
a statement as to whether or not, in the opinion of such Person, such condition
or covenant has been satisfied.


 


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


 


Section 13.06                          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 13.07                          No Personal
Liability of Directors, Officers, Employees and Stockholders.


 


No past, present or future director, officer,
employee, incorporator or stockholder of the Company or any Guarantor, as such,
will have any liability for any obligations of the Company or the Guarantors
under the Notes, this Indenture, the Note Guarantees or for any claim based on,
in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note waives and
releases all such liability.  The waiver
and release are part of the consideration for issuance of the Notes.  The waiver may not be effective to waive
liabilities under the federal securities laws.


 


Section 13.08                          Governing
Law.


 


THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


Section 13.09                          No Adverse
Interpretation of Other Agreements.


 


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


 


Section 13.10                          Successors.


 


All agreements of the Company in this Indenture and
the Notes will bind its successors.  All
agreements of the Trustee in this Indenture will bind its successors.  All agreements of each Guarantor in this
Indenture will bind its successors, except as otherwise provided in Section
11.06 hereof.


 


Section 13.11                          Severability.


 


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


 


Section 13.12                          Counterpart
Originals.


 


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


 


94

















 


Section 13.13                          Legal
Holidays.


 


If any payment date is a Legal Holiday, payment may be
made at the place of payment on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.


 


Section 13.14                          Table of
Contents, Headings, etc.


 


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


 


[Signatures
on following page]


 


95

















 


SIGNATURES


 


 


	
  Dated as of March 15,
  2004

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  True Temper Sports, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Fred H. Geyer

  
	
   

  	
   

  	
   

  	
  Name: Fred H. Geyer

  
	
   

  	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  El Cajon Equipment
  Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Fred H. Geyer

  
	
   

  	
   

  	
   

  	
  Name: Fred H. Geyer

  
	
   

  	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  True Temper Sports, PRC
  Holdings, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Fred H. Geyer

  
	
   

  	
   

  	
   

  	
  Name: Fred H. Geyer

  
	
   

  	
   

  	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Bank of New York

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Patricia Gallagher

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


96

















 


EXHIBIT
A


 


[Face of Note]


 


CUSIP/CINS                      


 


83/8%
Senior Subordinated Notes due 2011


 


	
  No.

  	
  $          

  



TRUE
TEMPER SPORTS, INC.


 


promises to pay to CEDE & CO. or registered
assigns, 


 


the principal sum of
                                                                                                                                               DOLLARS
on September 15, 2011.


 


Interest Payment Dates:  Interest will be payable semi-annually in cash in arrears on
March 15 and September 15 of each year, commencing on September 15, 2004


 


Record Dates: 
March 1 and September 1


 


Dated:  March
15, 2004


 


 


	
   

  	
  TRUE TEMPER SPORTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the Notes referred to

in the within-mentioned Indenture:


 


 


	
  THE BANK OF NEW YORK,

  as Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


A-1

















 


[Back
of Note]


83/8%
Senior Subordinated Notes due 2011


 


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


 


[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]


 


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


 


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


 


(1)
Interest. 
True Temper Sports, Inc., a Delaware corporation (the “Company”), promises to pay interest on the
principal amount of this Note at 83/8% per annum from March 15, 2004  until maturity and shall pay the Additional
Interest, if any, payable pursuant to the of the Registration Rights Agreement
referred to below.  The Company will pay
interest and Additional Interest, if any, semi-annually in arrears on March 15
and September 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each, an “Interest
Payment Date”).  Interest on
the Notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be September 15, 2004. 
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any, (without regard to
any applicable grace periods) from time to time on demand at the same rate to
the extent lawful.  Interest will be
computed on the basis of a 360-day year of twelve 30-day months.


 


(2)
Method of Payment.  The Company will pay interest on the Notes (except defaulted
interest) and Additional Interest, if any, to the Persons who are registered
Holders at the close of business on the March 1 or September 1 next preceding
the Interest Payment Date, even if such Notes are canceled after such record
date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest.  The Notes will be payable as to principal,
premium and Additional Interest, if any, and interest at the office or agency
of the Company maintained for such purpose within or without the City and State
of New York, or, at the option of the Company, payment of interest and
Additional Interest, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that payment by
wire transfer of immediately available funds will be required with respect to
principal of and interest, premium and Additional Interest, if any, on, all
Global Notes and all other Notes the Holders of which will have provided wire
transfer instructions to the Company or the Paying Agent.  Such payment will be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


(3)
Paying Agent and Registrar.  Initially, The Bank of New York, the Trustee
under the Indenture, will act as Paying Agent and Registrar.  The Company may change any Paying


 


A-2

















 


Agent or
Registrar without notice to any Holder. 
The Company or any of its Subsidiaries may act in any such capacity.


 


(4)
Indenture. 
The Company issued the Notes under an Indenture dated as of March 15,
2004 (the “Indenture”) among the
Company, the Guarantors and the Trustee. 
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the TIA.  The Notes are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of such terms.  To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. 
The Notes are senior subordinated unsecured obligations of the Company.


 


(5)
Optional Redemption.


 


(a)  Except as
set forth in subparagraphs (b) and (c) of this Paragraph 5, the Company will
not have the option to redeem the Notes prior to March 15, 2008.  On or after March 15, 2008, the Company may
redeem all or a part of the Notes upon not less than 30 nor more than 60 days’
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Additional Interest, if
any, on the Notes redeemed to the applicable redemption date, if redeemed during
the twelve-month period beginning on March 15 of the years indicated below,
subject to the rights of Holders on the relevant record date to receive
interest on the relevant interest payment date:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
  104.188

  	
  %

  
	
  2009

  	
   

  	
  102.094

  	
  %

  
	
  20010 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b) 
Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time prior to March 15, 2007, the Company may on any one or more
occasions, at its option, redeem up to 35% of the aggregate principal amount of
Notes issued under this Indenture at a redemption price of 108.375% of the
principal amount, plus accrued and unpaid interest and Additional Interest, if
any, thereon to the redemption date, with the net cash proceeds of one or more
Equity Offerings or a contribution to the Company’s common equity capital made
with the net cash proceeds of a concurrent offering of Capital Stock (other
than Disqualified Stock) of the Company’s direct or indirect parent; provided that at least 65% of the
aggregate principal amount of Notes originally issued under this Indenture
(excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption and the redemption occurs
within 90 days of the date of the closing of Equity Offering or such
contribution to the Company’s common equity capital, as applicable.


 


(c) 
Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time prior to March 15, 2008, the Company may also redeem all or a part
of the Notes upon the occurrence of a Change of Control, upon not less than 30
nor more than 60 days’ prior notice (but in no event may any such
redemption occur more than 90 days after the occurrence of such Change of
Control) mailed by first-class mail to each Holder’s registered address, at a
redemption price equal to 100% of the principal amount of Notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest and Additional
Interest, if any, thereon to, the date of redemption (the “Redemption Date”), subject to the rights
of Holders on the relevant record date to receive interest due on the relevant
interest payment date.


 


(d)  Unless the
Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable
redemption date.


 


A-3

















 


(6)
Mandatory Redemption.


 


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


 


(7)
Repurchase at the Option of Holder.


 


(a)  If there is a Change of Control, the Company
will be required to make an Change of Control Offer to each Holder to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
each Holder’s Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, thereon to the Change of Control Payment Date, subject to the
rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date.  Within
60 days following any Change of Control, the Company will mail, or cause to be
mailed, a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.


 


(b)  If the Company or a Restricted Subsidiary of the
Company consummates any Asset Sales within five days of each date on which the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will make
an Asset Sale Offer to all Holders and, at the option of the Company, all
holders of other Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in the Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets pursuant to Section
3.09 of the Indenture to purchase the maximum principal amount of Notes and
such other pari
passu Indebtedness that may be purchased out of the Excess Proceeds
at an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Additional Interest, if any,
thereon to the Asset Sale Offer Payment Date, in accordance with the procedures
set forth in the Indenture.  To the
extent that the aggregate amount of Notes and other pari passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Restricted Subsidiary) may use such deficiency for any purpose
not otherwise prohibited by the Indenture. 
If the aggregate principal amount of Notes and other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata
basis based upon the principal amount of Notes and such other pari passu Indebtedness tendered.  Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of
Holder to Elect Purchase” attached to the Notes.


 


(8)
Notice of Redemption.  Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address, except that redemption notices may be
mailed more than 60 days prior to a redemption date if the notice is issued in
connection with a defeasance of the Notes or a satisfaction or discharge of the
Indenture.  Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed.


 


(9)
Denominations, Transfer, Exchange.  The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000.  The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and


 


A-4

















 


transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. 
The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part.  Also,
the Company need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.


 


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


 


(11)
Amendment, Supplement and Waiver.  Subject to certain exceptions, the Indenture
or the Notes or the Note Guarantees 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 or the Note Guarantees may be waived with the
consent of the Holders of 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).  Without the consent of any Holder of a Note,
the Indenture or the Notes or the Note Guarantees may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to provide
for the assumption of the Company’s or a Guarantor’s obligations to the Holders
of the Notes and Note Guarantees by a successor to the Company or such
Guarantor pursuant to Article 5 or Article 11 of the Indenture to make any
change that would provide any additional rights or benefits to the Holders or
that does not adversely affect the legal rights under the Indenture of any
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA, to conform the text
of the Indenture, the Note Guarantees or the Notes to any provision of the
“Description of Notes” section of the Company’s Offering Circular dated March
3, 2004, relating to the initial offering of the Notes, to the extent that such
provision in that “Description of Notes” was intended to be a verbatim
recitation of a provision of the Indenture, the Note Guarantees or the Notes,
to provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture or to allow any Guarantor to execute a
supplemental indenture to the Indenture and/or a Note Guarantee with respect to
the Notes.


 


(12)
Defaults and Remedies.  Events of Default include: 
(i) default for 30 days in the payment when due of interest on, or Additional
Interest, if any, with respect to the Notes, whether or not prohibited by the
subordination provisions of the Indenture; (ii) default in the payment when due
of the principal of, or premium, if any, on, the Notes when the same becomes
due (at maturity, upon redemption or otherwise) of principal of, or premium, if
any, on the Notes, whether or not prohibited by the subordination provisions of
the Indenture, (iii) failure by the Company or any of its Restricted
Subsidiaries to comply with Section 4.15 Indenture; (iv) failure by the Company
or any of its Restricted Subsidiaries to comply with Sections 4.07, 4.09 or
4.10 of the Indenture for 30 days after the Company receives written notice
specifying such failure from the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding; (v) failure by the
Company or any of its Restricted Subsidiaries to comply with any of the other
agreements in the Indenture for 60 days after the Company receives written
notice specifying such failure from the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding; (vi) default under
certain other agreements relating to Indebtedness of the Company which default
results in the acceleration of such Indebtedness prior to its express maturity;
(vii) certain final judgments for the payment of money that remain


 


A-5

















 


undischarged
for a period of 60 days; (viii) certain events of bankruptcy or insolvency with
respect to the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary of the Company; and (ix) except as permitted by the
Indenture, any Note Guarantee of any Significant Subsidiary of the Company is
held in any judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect or any Significant Subsidiary of the
Company which is a Guarantor denies or disaffirms its obligations under such
Guarantor’s Note Guarantee.  If any
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately by delivery of written
notice thereof to the Company; provided
that so long as any Indebtedness permitted to be incurred pursuant to the
Credit Agreement is outstanding, such acceleration will not be effective until
the earlier of (1) the acceleration of such Indebtedness under the Credit
Agreement or (2) five business days after receipt by the Company and the
administrative agent under the Credit Agreement of written notices of such
acceleration.  Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Notes will become due and payable
immediately without further action or notice. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power.  The Trustee may withhold from
Holders notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest or premium
or Additional Interest, if any,) if it determines that withholding notice is in
their interest.  The Holders of a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration and its consequences or waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest or premium or Additional Interest,
if any, on, or the principal of, the Notes. 
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required, upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.


 


(13) Subordination.  Payment of principal, interest and premium and
Additional Interest, if any, on the Notes is subordinated to the prior payment
of Senior Debt on the terms provided in the Indenture.


 


(14)  Trustee Dealings with
Company.  Subject to the TIA
and the Indenture, the Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates, as
if it were not the Trustee.


 


(15)  No Recourse Against Others.  No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any Guarantor,
as such, will have any liability for any obligations of the Company or the
Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation.  Each Holder 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 will 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-6

















 


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)  Additional Rights of Holders
of Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to
Holders under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes originally issued on the date of the Indenture will have all
the rights set forth in the Registration Rights Agreement dated as of March 15,
2004, among the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the rights
set forth in one or more registration rights agreements, if any, among the
Company, the Guarantors and the other parties thereto, relating to rights given
by the Company and the Guarantors to the purchasers of any Additional Notes.


 


(19)  CUSIP Numbers.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification numbers
placed thereon.


 


(20)
GOVERNING LAW.  THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture and/or the Registration
Rights Agreement.  Requests may be made
to:


 


True Temper
Sports, Inc.


8275 Tournament Drive,
Suite 200


Memphis, Tennessee 38125


Facsimile No.: (901)
746-2162


Attention: Chief Financial Officer


 


A-7

















 


Assignment Form


 


To assign this Note, fill in the form below:


 


(I) or (we) assign and transfer this Note to:
                                                                                             
                                                                                                        (Insert
assignee’s legal name)


 


(Insert assignee’s soc.
sec. or tax I.D. no.)


 


 


 


(Print or type assignee’s
name, address and zip code)


 


and irrevocably appoint
                                                                                                                                                                             
to transfer this Note on the books of the Company.  The agent may substitute another to act for him.


 


	
  Date: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*: 

  	
   

  	
   

  
							



 












*                                         Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-8

















 


Option of Holder to Elect Purchase


 


If you want to elect to have this Note purchased by
the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the
appropriate box below:


 




	
  Section 4.10

  	
   

  	
  Section 4.15

  






 


If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:


 


$                          


 


	
  Date: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*: 

  	
   

  	
   

  
								



 












*                                         Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-9

















 


Schedule of Exchanges of Interests in the Global Note
*


 


The following exchanges of a part of this Global Note
for an interest in another Global Note or for a Definitive Note, or exchanges
of a part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:


 


	
  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

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












*                 This
schedule should be included only if the Note is issued in global form.


 


A-10

















 


EXHIBIT B


 


FORM
OF CERTIFICATE OF TRANSFER


 


True Temper
Sports, Inc.


8275 Tournament Drive,
Suite 200


Memphis, Tennessee 38125


 


The Bank of New York


100 Ashford Center North,
Suite 520


Atlanta, GA  30338


Attention: Barbara Royal


 


Re:  83/8%
Senior Subordinated Notes due 2011


 


Reference is hereby made to the Indenture, dated as of
March 15, 2004 (the “Indenture”), among True Temper Sports,
Inc., as issuer (the “Company”), the Guarantors party thereto
and The Bank of New York, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                                 ,
(the “Transferor”)
owns and proposes to transfer the Note[s] or interest in such Note[s] specified
in Annex A hereto, in the principal amount of
$                             in
such Note[s] or interests (the “Transfer”), to
                                       
(the “Transferee”),
as further specified in Annex A hereto. 
In connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.  o  Check if Transferee will take delivery of a beneficial
interest in the 144A Global Note or a Restricted Definitive Note pursuant to
Rule 144A.  The Transfer
is being effected pursuant to and in accordance with Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believes
is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A, and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note
and/or the Restricted Definitive Note and in the Indenture and under the
Securities Act.


 


2.  o  Check if Transferee will take delivery of a beneficial
interest in the Regulation S Global Note or a Restricted Definitive Note
pursuant to Regulation S. 
The Transfer is being effected pursuant to and in accordance with Rule
903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration


 


B-1

















 


requirements of
the Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser).  Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Restricted Definitive Note and in the
Indenture and under the Securities Act.


 


3.  o  Check and complete if Transferee will take delivery of
a beneficial interest in the IAI Global Note or a Restricted Definitive Note
pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S.  The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):


 


(a)                                  o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)                                 o  such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)                                  o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)                                 o  such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144,
Rule 903 or Rule 904, and the Transferor hereby further certifies that it has
not engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer
is in respect of a principal amount of Notes at the time of transfer of less than
$100,000, an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Restricted Definitive Notes and in the Indenture and under the
Securities Act.


 


4.  o  Check if Transferee will take delivery of a beneficial
interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.


 


(a)  o  Check if Transfer is pursuant to Rule 144.  (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the


 


B-2

















 


United States and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act.  Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(b)  o  Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act.  Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(c)  o  Check if Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected pursuant
to and in compliance with an exemption from the registration requirements of
the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.


 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Company.


 


	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


B-3

















 


ANNEX
A TO CERTIFICATE OF TRANSFER


 


1.                                       The
Transferor owns and proposes to transfer the following:


 


[CHECK
ONE OF (a) OR (b)]


 


(a) 
o 
a beneficial interest in the:


 


(i)                               o  144A Global Note
(CUSIP                   ),
or


 


(ii)                            o  Regulation S Global Note (CUSIP
                   ),
or


 


(iii)                         o   IAI Global Note
(CUSIP                   );
or


 


(b)  o   a Restricted Definitive Note.


 


2.                                       After
the Transfer the Transferee will hold:


 


[CHECK
ONE]


 


(a)  o   a beneficial interest in the:


 


(i)                               o  144A Global Note
(CUSIP                   ),
or


 


(ii)                            o  Regulation S Global Note
(CUSIP                   ),
or


 


(iii)                         o  IAI Global Note (CUSIP
                   );
or


 


(iv)                        o  Unrestricted Global Note
(CUSIP                   );
or


 


(b)  o  a Restricted Definitive Note; or


 


(c)  o  an Unrestricted Definitive Note,


 


in accordance with the
terms of the Indenture.


 


B-4

















 


EXHIBIT C


 


FORM
OF CERTIFICATE OF EXCHANGE


 


True Temper
Sports, Inc.


8275 Tournament Drive,
Suite 200


Memphis, Tennessee 38125


 


The Bank of New York


100 Ashford Center North,
Suite 520


Atlanta, GA  30338


Attention: Barbara Royal


 


Re:  83/8%
Senior Subordinated Notes due 2011 (CUSIP
                   )


 


Reference is hereby made to the Indenture, dated as of
March 15, 2004 (the “Indenture”), among True Temper Sports,
Inc., as issuer (the “Company”), the Guarantors party thereto
and The Bank of New York, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                               ,
(the “Owner”)
owns and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of
$                   in
such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner hereby certifies that:


 


1.                                       Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note


 


(a)  o  Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the Securities Act of 1933, as amended (the
“Securities
Act”), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.


 


(b)  o  Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


(c)  o  Check if Exchange is from Restricted Definitive Note
to beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for


 


C-1

















 


a beneficial
interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(d)  o  Check if Exchange is from Restricted Definitive Note
to Unrestricted Definitive Note. 
In connection with the Owner’s Exchange of a Restricted Definitive Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


2.                                       Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes


 


(a)  o  Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and under the Securities
Act.


 


(b)  o  Check if Exchange is from Restricted Definitive Note
to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
o 144A Global Note, o
Regulation S Global Note,  o
IAI Global Note with an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the beneficial interest issued
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.


 


C-2

















 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Company.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


C-3

















 


EXHIBIT D


 


FORM
OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


True Temper
Sports, Inc.


8275 Tournament Drive,
Suite 200


Memphis, Tennessee 38125


 


The Bank of New York


100 Ashford Center North,
Suite 520


Atlanta, GA  30338


Attention: Barbara Royal


 


Re:  83/8%
Senior Subordinated Notes due 2011


 


Reference is hereby made to the Indenture, dated as of
March 15, 2004 (the “Indenture”), among True Temper Sports,
Inc., as issuer (the “Company”), the guarantors party thereto
and The Bank of New York, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


In connection with our proposed purchase of
$                           aggregate
principal amount of:


 


(a)  o                a beneficial
interest in a Global Note, or


 


(b)  o               a Definitive Note,


 


we confirm that:


 


1.                                       We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the “Securities
Act”) or any other applicable securities law.


 


2.                                       We
understand that the offer and sale of the Notes have not been registered under
the Securities Act or any other applicable securities law, and that the Notes
and any interest therein may not be offered or sold except as permitted in the
following sentence.  We agree, on our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Notes or any interest therein, we will do so
only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule
144A under the Securities Act to a “qualified institutional buyer” (as defined
therein), (C) to an institutional “accredited investor” (as defined below)
that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you and to the Company a signed letter substantially in
the form of this letter and, if such transfer is in respect of a principal
amount of Notes, at the time of transfer of less than $100,000, an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act,
(E) pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and
we further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.


 


D-1

















 


3.                                       We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions.  We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.


 


4.                                       We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Notes, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment.


 


5.                                       We
are acquiring the Notes or beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion in each case for investment only, and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the
Securities Act.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.


 


	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Accredited Investor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


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EXHIBIT E


 


FORM
OF NOTATION OF GUARANTEE


 


For value received, each Guarantor (which term
includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and subject
to the provisions in the Indenture dated as of March 15, 2004 (the “Indenture”)
among True Temper Sports, Inc., (the “Company”), the Guarantors party thereto
and The Bank of New York, as trustee (the “Trustee”), (a) the principal of, premium
and Additional Interest, if any, and interest on, the Notes will be promptly
paid in full when due, subject to applicable grace periods, whether at
maturity, by acceleration, redemption or otherwise, and interest on overdue
principal of and interest on, if any, the Notes, if lawful, and all other
obligations of the Company to the Holders or the Trustee under the Indenture or
the Notes will be promptly paid in full or performed, all in accordance with
the terms of the Indenture and the Notes, and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, subject to applicable grace periods,
whether at stated maturity, by acceleration or otherwise.  The obligations of the Guarantors to the
Holders and to the Trustee pursuant to the Note Guarantee and the Indenture are
expressly set forth in Article 11 of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Note Guarantee.  Each Holder of a Note, by accepting the
same, (a) agrees to and shall be bound by such provisions (b) authorizes and
directs the Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose; provided,
however, that the Indebtedness evidenced by this Note Guarantee
shall cease to be so subordinated and subject in right of payment upon any
defeasance of this Note in accordance with the provisions of the Indenture.


 


Capitalized terms used but not defined herein have the
meanings given to them in the Indenture.


 


	
   

  	
  [Name of Guarantor(s)]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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EXHIBIT F


 


FORM
OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


Supplemental Indenture
(this “Supplemental
Indenture”), dated as of
                                        ,
200   , among
                                             
(the “Guaranteeing
Subsidiary”), a subsidiary of True Temper Sports, Inc. (or its
permitted successor), a Delaware corporation (the “Company”), the Company, the
other Guarantors (as defined in the Indenture referred to herein) and The Bank
of New York, as trustee under the Indenture referred to below (the “Trustee”).


 


W I T
N E S S E T H


 


WHEREAS, the Company has heretofore executed and
delivered to the Trustee an indenture (the “Indenture”), dated as of March 15, 2004
providing for the issuance of 83/8%
Senior Subordinated Notes due 2011 (the “Notes”);


 


WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note
Guarantee”); and


 


WHEREAS, pursuant to Section 9.01 of the Indenture,
the Trustee is authorized to execute and deliver this Supplemental Indenture.


 


NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders as follows:


 


1.                                       Capitalized Terms.  Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.


 


2.                                       Agreement to Guarantee.  The Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited to
Article 11 thereof.


 


4.                                       No Recourse Against Others.  No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note waives and
releases all such liability.  The waiver
and release are part of the consideration for issuance of the Notes.  Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC
that such a waiver is against public policy.


 


5.                                       NEW
YORK LAW TO GOVERN.  THE INTERNAL LAW OF
THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


F-1

















 


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


 


7.                                       Effect of Headings.  The Section headings herein are for
convenience only and shall not affect the construction hereof.


 


8.                                       The Trustee.  The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or
for or in respect of the recitals contained herein, all of which recitals are
made solely by the Guaranteeing Subsidiary and the Company.


 


F-2

















 


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


 


	
  Dated: 
                               ,
  20   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Guaranteeing Subsidiary]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [Company]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [Existing Guarantors]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [Trustee],

  as Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


F-3