exv4w1



 




EXHIBIT
4.1



EXECUTION
VERSION




      




INDENTURE




Dated as of November 16, 2007,




among




MOLECULAR INSIGHT PHARMACEUTICALS, INC.,




THE GUARANTORS PARTY FROM TIME TO TIME HERETO,




as Subsidiary Guarantors,




and




THE BANK OF NEW YORK TRUST COMPANY, N.A.,




as Trustee and as Collateral Agent




Senior Secured Floating Rate Bonds due 2012




      




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	 	 	 	 	 
	Section 1.02. Rules of Construction
	 	 	23	 
	 	 	 	 	 
	ARTICLE TWO THE BONDS
	 	 	23	 
	 	 	 	 	 
	Section 2.01. Form and Dating
	 	 	23	 
	 	 	 	 	 
	Section 2.02. Execution and Authentication; Aggregate Principal Amount; PIK Bonds
	 	 	24	 
	 	 	 	 	 
	Section 2.03. Registrar and Paying Agent
	 	 	25	 
	 	 	 	 	 
	Section 2.04. Obligations of Paying Agent
	 	 	26	 
	 	 	 	 	 
	Section 2.05. Holder Lists
	 	 	26	 
	 	 	 	 	 
	Section 2.06. Transfer and Exchange
	 	 	26	 
	 	 	 	 	 
	Section 2.07. Replacement Bonds
	 	 	27	 
	 	 	 	 	 
	Section 2.08. Outstanding Bonds
	 	 	27	 
	 	 	 	 	 
	Section 2.09. Treasury Bonds; When Bonds Are Disregarded
	 	 	27	 
	 	 	 	 	 
	Section 2.10. Temporary Bonds
	 	 	28	 
	 	 	 	 	 
	Section 2.11. Cancellation
	 	 	28	 
	 	 	 	 	 
	Section 2.12. CUSIP Numbers
	 	 	28	 
	 	 	 	 	 
	Section 2.13. Deposit of Moneys
	 	 	28	 
	 	 	 	 	 
	Section 2.14. Book-Entry Provisions for Global Bonds
	 	 	29	 
	 	 	 	 	 
	Section 2.15. Special Transfer Provisions
	 	 	30	 
	 	 	 	 	 
	Section 2.16. Transfers of Global Bonds and Physical Bonds
	 	 	32	 
	 	 	 	 	 
	Section 2.17. Contingent Payment Debt Instrument Status
	 	 	32	 
	 	 	 	 	 
	ARTICLE THREE REDEMPTION
	 	 	33	 
	 	 	 	 	 
	Section 3.01. Mandatory Redemption and Optional Redemption
	 	 	33	 
	 	 	 	 	 
	Section 3.02. Selection of Bonds To Be Redeemed
	 	 	35	 
	 	 	 	 	 
	Section 3.03. Notice of Redemption
	 	 	35	 
	 	 	 	 	 
	Section 3.04. Effect of Notice of Redemption
	 	 	36	 
	 	 	 	 	 
	Section 3.05. Deposit of Redemption Price
	 	 	36	 
	 	 	 	 	 
	Section 3.06. Bonds Redeemed in Part
	 	 	36	 
	 	 	 	 	 
	ARTICLE FOUR COVENANTS
	 	 	37	 
	 	 	 	 	 
	Section 4.01. Payment of Bonds
	 	 	37	 
	 	 	 	 	 
	Section 4.02. Maintenance of Office or Agency
	 	 	37	 
	 	 	 	 	 
	Section 4.03. Financial Statements and Other Information
	 	 	37	 
	 	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	ii
	 	 	 	 






 









 






TABLE
OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	 	 	 
	 	 	Page	 
	 	 	 	 	 
	Section 4.04. Notices
	 	 	41	 
	 	 	 	 	 
	Section 4.05. Payment of Material Obligations, Liabilities, Taxes and Other Claims
	 	 	41	 
	 	 	 	 	 
	Section 4.06. Corporate Existence
	 	 	42	 
	 	 	 	 	 
	Section 4.07. Maintenance of Properties and Insurance; Compliance with Laws
	 	 	42	 
	 	 	 	 	 
	Section 4.08. Books and Records
	 	 	42	 
	 	 	 	 	 
	Section 4.09. Waiver of Stay, Extension or Usury Laws
	 	 	42	 
	 	 	 	 	 
	Section 4.10. Use of Proceeds
	 	 	43	 
	 	 	 	 	 
	Section 4.11. Covenant to Guarantee Obligations and Give Security
	 	 	43	 
	 	 	 	 	 
	Section 4.12. Inspection Rights
	 	 	44	 
	 	 	 	 	 
	Section 4.13. Further Assurances
	 	 	44	 
	 	 	 	 	 
	Section 4.14. Material Contracts
	 	 	44	 
	 	 	 	 	 
	Section 4.15. Cash Management System
	 	 	44	 
	 	 	 	 	 
	Section 4.16. [Reserved]
	 	 	45	 
	 	 	 	 	 
	Section 4.17. Limitation on Incurrence of Additional Indebtedness
	 	 	45	 
	 	 	 	 	 
	Section 4.18. Limitation on Liens
	 	 	45	 
	 	 	 	 	 
	Section 4.19. Limitation on Investments
	 	 	45	 
	 	 	 	 	 
	Section 4.20. Limitation on Fundamental Changes
	 	 	45	 
	 	 	 	 	 
	Section 4.21. Limitation on Dispositions
	 	 	46	 
	 	 	 	 	 
	Section 4.22. Limitation on Restricted Payments
	 	 	46	 
	 	 	 	 	 
	Section 4.23. Limitation on Affiliate Transactions
	 	 	46	 
	 	 	 	 	 
	Section 4.24. Limitation on Burdensome Restrictions
	 	 	47	 
	 	 	 	 	 
	Section 4.25. Margin Stock
	 	 	47	 
	 	 	 	 	 
	Section 4.26. Change in the Nature of the Business
	 	 	47	 
	 	 	 	 	 
	Section 4.27. Amendments to Organizational Documents
	 	 	47	 
	 	 	 	 	 
	Section 4.28. Accounting Changes
	 	 	47	 
	 	 	 	 	 
	Section 4.29. Prepayment, etc. of Indebtedness
	 	 	47	 
	 	 	 	 	 
	Section 4.30. Amendment, etc. of Related Documents and Indebtedness
	 	 	48	 
	 	 	 	 	 
	Section 4.31. Additional Subsidiary Guarantees
	 	 	48	 
	 	 	 	 	 
	Section 4.32. Impairment of Security Interest
	 	 	49	 
	 	 	 	 	 
	Section 4.33. Real Estate Mortgages and Filings
	 	 	49	 
	 	 	 	 	 
	Section 4.34. Landlord, Bailee and Consignee Waivers
	 	 	50	 
	 	 	 	 	 
	Section 4.35. Payments for Consent
	 	 	51	 
	 	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	iii
	 	 	 	 






 









 






TABLE
OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	 	 	 
	 	 	Page	 
	 	 	 	 	 
	Section 4.36. Products
	 	 	51	 
	 	 	 	 	 
	Section 4.37. Financial Covenants
	 	 	51	 
	 	 	 	 	 
	Section 4.38. Subsidiaries
	 	 	53	 
	 	 	 	 	 
	ARTICLE FIVE DEFAULT AND REMEDIES
	 	 	53	 
	 	 	 	 	 
	Section 5.01. Events of Default
	 	 	53	 
	 	 	 	 	 
	Section 5.02. Acceleration
	 	 	55	 
	 	 	 	 	 
	Section 5.03. Other Remedies
	 	 	56	 
	 	 	 	 	 
	Section 5.04. Waiver of Past Defaults
	 	 	56	 
	 	 	 	 	 
	Section 5.05. Control by Majority
	 	 	57	 
	 	 	 	 	 
	Section 5.06. Limitation on Suits
	 	 	57	 
	 	 	 	 	 
	Section 5.07. Rights of Holders To Receive Payment
	 	 	57	 
	 	 	 	 	 
	Section 5.08. Collection Suit by Trustee or Collateral Agent
	 	 	57	 
	 	 	 	 	 
	Section 5.09. Trustee May File Proofs of Claim
	 	 	58	 
	 	 	 	 	 
	Section 5.10. Priorities
	 	 	58	 
	 	 	 	 	 
	Section 5.11. Undertaking for Costs
	 	 	59	 
	 	 	 	 	 
	Section 5.12. Restoration of Rights and Remedies
	 	 	59	 
	 	 	 	 	 
	ARTICLE SIX TRUSTEE
	 	 	59	 
	 	 	 	 	 
	Section 6.01. Duties of Trustee
	 	 	59	 
	 	 	 	 	 
	Section 6.02. Rights of Trustee and Collateral Agent
	 	 	60	 
	 	 	 	 	 
	Section 6.03. Individual Rights of Trustee
	 	 	62	 
	 	 	 	 	 
	Section 6.04. Disclaimer for Trustee and Collateral Agent
	 	 	62	 
	 	 	 	 	 
	Section 6.05. Notice of Default
	 	 	63	 
	 	 	 	 	 
	Section 6.06. Reports by Trustee to Holders
	 	 	63	 
	 	 	 	 	 
	Section 6.07. Compensation and Indemnity
	 	 	64	 
	 	 	 	 	 
	Section 6.08. Replacement of Trustee
	 	 	65	 
	 	 	 	 	 
	Section 6.09. Successor Trustee by Merger, Etc
	 	 	66	 
	 	 	 	 	 
	Section 6.10. Eligibility; Disqualification
	 	 	66	 
	 	 	 	 	 
	Section 6.11. Preferential Collection of Claims Against Company
	 	 	66	 
	 	 	 	 	 
	Section 6.12. Trustee as Paying Agent and Collateral Agent
	 	 	66	 
	 	 	 	 	 
	Section 6.13. Co-Trustees, Co-Collateral Agent and Separate Trustees and Collateral Agent
	 	 	67	 
	 	 	 	 	 
	Section 6.14. Form of Documents Delivered to Trustee
	 	 	68	 
	 	 	 	 	 
	ARTICLE SEVEN SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	68	 
	 	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	iv
	 	 	 	 






 









 






TABLE
OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	 	 	 
	 	 	Page	 
	 	 	 	 	 
	Section 7.01. Legal Defeasance and Covenant Defeasance
	 	 	68	 
	 	 	 	 	 
	Section 7.02. Satisfaction and Discharge
	 	 	71	 
	 	 	 	 	 
	Section 7.03. Survival of Certain Obligations
	 	 	71	 
	 	 	 	 	 
	Section 7.04. Acknowledgment of Discharge by Trustee
	 	 	71	 
	 	 	 	 	 
	Section 7.05. Application of Trust Moneys
	 	 	72	 
	 	 	 	 	 
	Section 7.06. Repayment to the Company; Unclaimed Money
	 	 	72	 
	 	 	 	 	 
	Section 7.07. Reinstatement
	 	 	72	 
	 	 	 	 	 
	Section 7.08. Recording and Opinions
	 	 	73	 
	 	 	 	 	 
	Section 7.09. Release of Collateral
	 	 	73	 
	 	 	 	 	 
	ARTICLE EIGHT AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	74	 
	 	 	 	 	 
	Section 8.01. Without Consent of Holders
	 	 	74	 
	 	 	 	 	 
	Section 8.02. With Consent of Holders
	 	 	75	 
	 	 	 	 	 
	Section 8.03. Compliance with TIA
	 	 	76	 
	 	 	 	 	 
	Section 8.04. Revocation and Effect of Consents
	 	 	76	 
	 	 	 	 	 
	Section 8.05. Notation on or Exchange of Bonds
	 	 	77	 
	 	 	 	 	 
	Section 8.06. Trustee to Sign Amendments, etc
	 	 	77	 
	 	 	 	 	 
	Section 8.07. Conformity with Trust Indenture Act
	 	 	77	 
	 	 	 	 	 
	ARTICLE NINE SUBSIDIARY GUARANTEE
	 	 	77	 
	 	 	 	 	 
	Section 9.01. Subsidiary Guarantee
	 	 	77	 
	 	 	 	 	 
	Section 9.02. Release of a Subsidiary Guarantor
	 	 	78	 
	 	 	 	 	 
	Section 9.03. Limitation of Subsidiary Guarantor’s Liability
	 	 	79	 
	 	 	 	 	 
	Section 9.04. Contribution
	 	 	79	 
	 	 	 	 	 
	Section 9.05. Waiver of Subrogation
	 	 	79	 
	 	 	 	 	 
	Section 9.06. Waiver of Stay, Extension or Usury Laws
	 	 	79	 
	 	 	 	 	 
	ARTICLE TEN MISCELLANEOUS
	 	 	80	 
	 	 	 	 	 
	Section 10.01. Intentionally Omitted
	 	 	80	 
	 	 	 	 	 
	Section 10.02. Notices
	 	 	80	 
	 	 	 	 	 
	Section 10.03. Communications by Holders with Other Holders
	 	 	81	 
	 	 	 	 	 
	Section 10.04. Certificate and Opinion as to Conditions Precedent
	 	 	81	 
	 	 	 	 	 
	Section 10.05. Statements Required in Certificate or Opinion
	 	 	81	 
	 	 	 	 	 
	Section 10.06. Rules by Trustee, Paying Agent, Registrar
	 	 	82	 
	 	 	 	 	 
	Section 10.07. Legal Holidays
	 	 	82	 
	 	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	v
	 	 	 	 






 









 






TABLE
OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	 	 	 
	 	 	Page	 
	 	 	 	 	 
	Section 10.08. Governing Law; Submission to Jurisdiction
	 	 	82	 
	 	 	 	 	 
	Section 10.09. No Adverse Interpretation of Other Agreements
	 	 	82	 
	 	 	 	 	 
	Section 10.10. No Recourse Against Others
	 	 	82	 
	 	 	 	 	 
	Section 10.11. Successors
	 	 	82	 
	 	 	 	 	 
	Section 10.12. Duplicate Originals
	 	 	82	 
	 	 	 	 	 
	Section 10.13. Severability
	 	 	83	 
	 	 	 	 	 
	Section 10.14. Waiver of Jury Trial
	 	 	83	 
	 	 	 	 	 
	Section 10.15. Authorization of Actions To Be Taken by the Collateral Agent
under the Financing Documents
	 	 	83	 
	 	 	 	 	 
	Section 10.16. Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents
	 	 	83	 






	 	 	 	 	 	 	 
	Schedule I

	 	-
	 	Existing Indebtedness
	 	I-1
	Schedule II

	 	 	 	Existing Investments
	 	II-1
	Schedule III

	 	 	 	Existing Liens
	 	III-1

	Schedule IV

	 	 	 	Existing Burdensome Restrictions
	 	IV-1
	Schedule V

	 	 	 	Primary Product Adjustment Amounts
	 	V-1
	 
	Exhibit A

	 	-
	 	Form of Bond
	 	A

	Exhibit B

	 	-
	 	Form of Global Legend
	 	B

	Exhibit C
Exhibit D
Exhibit E

	 	-

-
	 	Form of Certificate To Be Delivered in Connection with Transfers to
Non-QIB Accredited Investors 

Form of Certificate To Be Delivered in Connection with Transfers
Pursuant to Regulation S 

Subordination Terms
	 	C

D

E

	Exhibit F

	 	-
	 	Form of Landlord Waiver
	 	F

	Exhibit G

	 	-
	 	Form of Bailee Waiver
	 	G

	Exhibit H

	 	-
	 	Form of Consignee Waiver
	 	H

	Exhibit I

	 	-
	 	Form of Control Agreements
	 	I





NOTE: This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture.




      



     vi



 








 





     INDENTURE, dated as of November 16, 2007 (this “Indenture”), among MOLECULAR INSIGHT
PHARMACEUTICALS, INC., a Massachusetts corporation (the “Company”), the SUBSIDIARY
GUARANTORS (as herein defined) party from time to time hereto and THE BANK OF NEW YORK TRUST
COMPANY, N.A., a national banking association, as Trustee (in such capacity, the “Trustee”)
and Collateral Agent (in such capacity, the “Collateral Agent”).



RECITALS:




     WHEREAS, the Company has duly authorized the creation of its Senior Secured Floating Rate
Bonds due 2012 and, to provide therefor, the Company and the Subsidiary Guarantors have duly
authorized the execution and delivery of this Indenture; and



     WHEREAS, all things necessary to make the Senior Secured Floating Rate Bonds due 2012, when
duly issued and executed by the Company, as applicable, and authenticated and delivered hereunder,
the valid obligations of the Company and to make this Indenture a valid and binding agreement of
each of the Company and the Subsidiary Guarantors, have been done;



     NOW, THEREFORE, each party hereto agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders:



ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01. Definitions.



     “144A Global Bonds” has the meaning set forth in Section 2.01.



     “Acceleration Notice” has the meaning set forth in Section 5.02(a).



     “Acquisition Consideration” means, for any acquisition, the purchase consideration
for such acquisition, whether paid in cash or by exchange of Equity Interests or of properties or
otherwise and whether payable at or prior to the consummation of such acquisition or deferred for
payment at any future time, whether or not any such future payment is subject to the occurrence of
any contingency, and includes any and all payments representing the purchase price and any
assumptions of Indebtedness, “earn-outs” and other agreements to make any payment the amount of
which is, or the terms of payment of which are, in any respect subject to or contingent upon the
revenues, income, cash flow or profits (or the like) of any Person or business; provided, however,
that “Acquisition Consideration” shall not include royalties paid or payable by the Company or any
Subsidiary in respect of any Product under any in-bound licensing agreement, except to the extent
the exclusion of such royalties would reduce the Acquisition Consideration below the Fair Market
Value for such acquisition.



     “Affiliate” means , with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



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



 









 





     “Agent Members” has the meaning set forth in Section 2.14(a) and means a
Person who has an account with DTC, Euroclear or Clearstream, respectively (and with respect to
DTC, shall include Euroclear and Clearstream).



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



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease or similar payments under the relevant
lease or other applicable agreement or instrument that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.



     “Authenticating Agent” has the meaning set forth in Section 2.02.



     “Bankruptcy Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Board of Directors” means, as to any Person, the board of directors or similar
governing body of such Person or any duly authorized committee thereof.



     “Board Resolution” means, with respect to any Person, a copy of a resolution certified
by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.



     “Bonds” means the Original Bonds and the PIK Bonds.



     “Business” shall mean the research, development and, upon receipt of all necessary
governmental approvals and authorizations, distribution, marketing, sale, license or other
commercial exploitation of the Primary Products and any other biopharmaceutical product candidates
developed by the Company.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of
New York or the state where the Corporate Trust Office is located .



     “Calculation Agency Agreement” means the Calculation Agency Agreement dated as of the
Issue Date between the Company and the Calculation Agent.



     “Calculation Agent” means The Bank of New York Trust Company, N.A., in its capacity as
calculation agent under the Calculation Agency Agreement, and its successors.



     “Calculation Date” means each March 31, June 30, September 30 and December 31 of each
year, starting on December 31, 2007.



2









 





     “Calculation Period” means, on any Calculation Date, the most recently completed four
fiscal quarters of the Company or, if fewer than four consecutive fiscal quarters of the Company
have been completed since the Issue Date, the fiscal quarters of the Company that have been
completed since the Issue Date.



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations)
and maintenance, refurbishment or upgrading equipment, machinery, fixed assets and real property
improvements which under GAAP would be regarded as capital expenditure. For purposes of this
definition, the purchase price of equipment that is purchased simultaneously with the trade in of
existing equipment or with insurance proceeds shall be included in Capital Expenditures only to the
extent of the gross amount by which such purchase price exceeds the credit granted by the seller of
such equipment for the equipment being traded in at such time or the amount of such insurance
proceeds, as the case may be.



     “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.



     “Cash Equivalents” means:




          (1) marketable direct obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one year from the date of
acquisition thereof;




          (2) marketable direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s;




          (3) commercial paper maturing no more than one year from the date of creation thereof
and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1
from Moody’s;




          (4) time deposits, certificates of deposit or bankers’ acceptances maturing within one
year from the date of acquisition thereof issued by any bank organized under the laws of the
United States of America or any state thereof or the District of Columbia or any U.S. branch
of a foreign bank having at the date of acquisition thereof combined net capital and surplus
of not less than $250.0 million;




          (5) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (1) above entered into with any bank
meeting the qualifications specified in clause (4) above;




          (6) demand deposits, including interest-bearing money market accounts, trust funds,
trust accounts, interest-bearing deposits of depositary institutions, including the Trustee
or any of its Affiliates, so long as the long-term senior, unsecured ratings by S&P and
Moody’s of such depositary institution are AA (or the equivalent) or higher; and




          (7) investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (1) through (5) above.



3









 





     “Change of Control” means an event or series of events by which any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
but excluding any employee benefit plan of such person or its subsidiaries, any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan)
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time (such right, an “option right”)), directly or
indirectly, of 30% or more of the equity securities of the Company entitled to vote for members of
the board of directors or equivalent governing body of the Company on a fully-diluted basis (and
taking into account, without duplication, all such securities that such person or group has the
right to acquire pursuant to any option right).



     “Clearstream” means Clearstream Banking, societe anonyme, and its successors.



     “Code” means the Internal Revenue Code of 1986, as amended, or any successor statute
or statutes thereto.



     “Collateral” shall mean collateral as such term is defined in the Security Agreement,
all property mortgaged under the Mortgages and any other property, whether now owned or hereafter
acquired, upon which a Lien securing the Obligations is granted or purported to be granted under
any Collateral Document.



     “Collateral Agent” has the meaning set forth in the preamble to this Indenture and any
successor under this Indenture.



     “Collateral Documents” means, collectively, the Security Agreement and each Mortgage,
in each case, as the same may be in force from time to time.



     “Common Stock” means the common stock of the Company, par value $0.01 per share.



     “Company” has the meaning set forth in the preamble to this Indenture or any successor
under this Indenture.



     “Consolidated Amortization and Depreciation Expense” means, for any period, all
depreciation and amortization expenses of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.



     “Consolidated EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Company and its Subsidiaries for the most recently completed
Calculation Period plus (a) the following to the extent deducted in determining such Consolidated
Net Income: (i) Consolidated Interest Expense for such period, (ii) Consolidated Tax Expense for
such period, (iii) Consolidated Amortization and Depreciation Expense for such period, and (iv) the
aggregate amount of all other non-recurring expenses and recurring compensation expenses reducing
such Consolidated Net Income which do not represent a cash item in such period or any future period
(in each case of or by the Company and its Subsidiaries for such Calculation Period), and minus (b)
the following to the extent included in calculating such Consolidated Net Income: (i) Consolidated
Tax Credits for such period and (ii) the aggregate amount of all non-cash items increasing
Consolidated Net Income (in each case of or by the Company and its Subsidiaries for such
Calculation Period).



     “Consolidated Interest Expense” means, for any period, the sum of (a) all interest,
premium payments, debt discount, fees, charges and related expenses in connection with borrowed
money



4









 




(including, without duplication, capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in accordance with GAAP
and (b) the portion of rent expense under Capitalized Leases that is treated as interest in
accordance with GAAP, in each case, of or by the Company and its Subsidiaries on a consolidated
basis for such period.




     “Consolidated Net Income” means, at any date of determination, the net income of the
Company and its Subsidiaries (excluding extraordinary gains and extraordinary losses) determined on
a consolidated basis in accordance with GAAP for the most recently completed Calculation Period.



     “Consolidated Tax Credits” means, for any period, the Federal, state, local and
foreign income tax credits of the Company and its Subsidiaries, for such period, determined on a
consolidated basis in accordance with GAAP.



     “Consolidated Tax Expense” means, for any period, the aggregate Federal, state, local
and foreign income taxes of the Company and its Subsidiaries payable for such period, determined on
a consolidated basis in accordance with GAAP.



     “Contractual Obligation” means, as to any Person, any provision of any agreement,
instrument or other undertaking to which such Person is a party or by which it or any of its
property is bound.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



     “Control
Account” has the meaning set forth in Section 4.15(a).





     “Control Agreement” means
each tri-party deposit account, securities account or
commodities account control agreement by and among the Company or the applicable Subsidiary, the
Collateral Agent and the bank, securities intermediary or commodities intermediary, and each (x) in
form and substance substantially similar to the form attached as Exhibit I or (y) in form
and substance approved by the Collateral Agent in its sole discretion (in accordance with
Section 6.02(m) hereof), and in any event providing to the Collateral Agent “control” of
such deposit account, securities account or commodities account within the meaning of Articles 8
and 9 of the UCC; provided that in no event shall the Collateral Agent be required to indemnify the
Company or any bank, securities intermediary or commodities intermediary pursuant thereto.



     “Corporate Trust Office” shall be the office at the address specified in Section
10.02 hereof, or such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by notice to the
Holders and the Company).



     “Covenant Defeasance” has the meaning set forth in Section 7.01(c).



     “CUSIP number” has the meaning set forth in Section 2.12.



     “Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.



     “Default” means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.



     “Disposition” or “Dispose” means the direct or indirect sale, transfer,
license, lease or other disposition (including any sale and leaseback transaction and any
expropriation or other compulsory



5









 







disposition) of any property (including tangible and intangible) by any Person (or the
granting of any option or other right to do any of the foregoing), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.



     “Dividend” with respect to any Person means any dividend on or return of equity
capital by such Person to the holders of its Equity Interests or any other distribution, payment or
delivery of property or cash by such Person to the holders of its Equity Interests as such, or any
redemption, retirement, purchase or other acquisition, directly or indirectly, by such person for
consideration of any of its Equity Interests outstanding (or any options or warrants issued by such
Person with respect to its Equity Interests), or the setting aside of any funds for any of the
foregoing purposes, or the purchase or other acquisition for consideration by any Subsidiary of
such person of any of the Equity Interests of such Person outstanding (or any options or warrants
issued by such person with respect to its Equity Interests).



     “DTC” means The Depository Trust Company, its nominees and successors.



     “ENSR Reliance Letter” means the reliance letter dated as of November 16, 2007 between
ENSR Corporation and the Collateral Agent.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, options or other rights for the purchase or acquisition from such Person of such
shares (or such other interests), and all of the other ownership or profit interests in such Person
(including partnership, membership or trust interests therein), whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other interests are outstanding on any
date of determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute or statutes thereto.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the




6












 




appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA with respect to a Pension Plan, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.




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



     “Event of Default” has the meaning set forth in Section 5.01.



     “Excess Free Cash Flow” means, for any Excess Free Cash Flow Period, without
duplication, (a) Consolidated EBITDA for such period, minus (b) Consolidated Tax Expense actually
paid in cash by the Company and its Subsidiaries (net of any refunds received) during such period,
minus (c) Consolidated Interest Expense actually paid in cash by the Company and its Subsidiaries
during such period, minus (d) the amount of Capital Expenditures during such period (other than
Capital Expenditures to the extent funded by (x) capital contributions or (y) cash proceeds from
Dispositions not applied as a redemption of the Bonds in accordance with Section 3.01(a)),
minus (e) to the extent otherwise included in Consolidated EBITDA, any upfront fees received during
such period in connection with the out-bound licensing of any Product permitted hereunder, plus (or
minus) (f) any net cash gains received (or net cash losses incurred) by the Company and its
Subsidiaries in respect of any non-recurring item during such period (other than any net gains
permitted to be applied for another purpose hereunder in lieu of a mandatory redemption of the
Bonds in accordance with Section 3.01(a)), plus (g) any net cash gains received by the
Company and its Subsidiaries in respect of any non-recurring item during any prior Excess Free Cash
Flow Period and permitted to be applied for another purpose hereunder in lieu of a mandatory
redemption of the Bonds in accordance with Section 3.01(a), but not applied within the
required time period, which period ended during such Excess Free Cash Flow Period, plus (in the
case of a decrease) and minus (in the case of an increase) (h) the change in the average Working
Capital of the Company and its Subsidiaries for such period, plus (i) interest income received by
the Company and its Subsidiaries during such period.



     “Excess Free Cash Flow Period” shall mean the fiscal year commencing January 1, 2009
and each fiscal year thereafter.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute or statutes thereto, and the rules and regulations of the SEC promulgated thereunder.



     “Extraordinary Receipt” means any cash received by or paid to or for the account of
any Person not in the ordinary course of business, including tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption insurance to the extent such
proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu
thereof), indemnity payments and any purchase price adjustments and any arbitration award, judgment
or settlement of a legal claim; provided, however, that an Extraordinary Receipt shall not include
cash receipts from proceeds of insurance, condemnation awards (or payments in lieu thereof) or
indemnity payments to the extent that such proceeds, awards or payments (a) in respect of loss or
damage to equipment, fixed assets or real property are applied (or in respect of which expenditures
were previously incurred) to replace or repair the equipment, fixed assets or real property in
respect of which such proceeds were received in accordance with the terms of Section
3.01(a) or (b) are received by any Person in respect of any third party claim against
such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim
and the costs and expenses of such Person with respect thereto.



     “Fair Market Value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s length, free market transaction, for cash, between a willing seller
and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value shall be determined by the Board of Directors of the Company acting
in good faith and



7









 







shall be evidenced by a Board Resolution of the Board of Directors of the Company delivered to
the Trustee.



     “Financial Officer” of any Person shall mean the chief financial officer, principal
accounting officer, treasurer or controller of such Person.



     “Financing Documents” means, collectively, this Indenture, the Bonds, the Purchase
Agreements, any Subsidiary Guarantee, the Collateral Documents and the Calculation Agency
Agreement.



     “GAAP” means accounting principles generally accepted in the United States 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 may be approved by a
significant segment of the accounting profession of the United States, which are in effect as of
the Issue Date.



     “Global Bonds” means, collectively, the 144A Global Bonds, the IAI Global Bonds and
the Regulation S Global Bonds, as applicable.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, (a) any obligation, agreement, understanding or
arrangement of such Person guaranteeing or intended to guarantee any Indebtedness, leases or other
obligation (“primary obligations”) payable or performable by another Person (“primary
obligor”) in any manner, whether directly or indirectly, including any obligation of such
Person, whether or not contingent, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) any such primary obligation, (ii) to purchase or lease property, securities
or services for the purpose of assuring the obligee in respect of any such primary obligation of
the payment or performance of such primary obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay any such primary obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in respect of any such
primary obligation of the payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any
primary obligation of any other Person, whether or not such primary obligation is assumed by such
Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any
such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount set forth in the written agreement evidencing such Guarantee or, in the absence
of a written agreement, the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.



     “Holder” means the Person in whose name a Bond is registered on the registrar’s books.



     “IAI Global Bonds” has the meaning set forth in Section 2.01.



     “incur” has the meaning set forth in Section 4.17.



8









 





     “Indebtedness” means, as to any Person, without duplication, all of the following,
whether or not included as indebtedness or liabilities in accordance with GAAP:




(a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;




(b) the maximum amount of all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;




(c) net obligations of such Person under any interest, currency or other swap
transaction;




(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and
not past due for more than 60 days after the date on which such trade account was
created);




(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse;




(f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic
Lease Obligations of such Person and all Synthetic Debt of such Person;




(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other
Person or any warrant, right or option to acquire such Equity Interest, valued, in
the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and




(h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venture partner, unless
such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation
under any interest, currency or other swap or hedge transaction on any date shall be deemed to be
the Swap Termination Value thereof as of such date.



     Notwithstanding the foregoing, it is understood and agreed that Indebtedness shall not include
obligations under agreements providing for the adjustment of the purchase price, working capital or
similar adjustments in connection with any Investment or Disposition permitted under this Indenture
to the extent that such obligations are contingent.



     “Indemnified Party” has the meaning set forth in Section 6.07.



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



9









 





     “Institutional Accredited Investor” means an institution that is an “accredited
investor” as that term is defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.



     “Intellectual Property” has the meaning set forth in the Security Agreement.



     “Interest Payment Date” means February 1, May 1, August 1 and November 1, commencing
February 1, 2008.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or interest in, another Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of another
Person that constitute a business unit or all or a substantial part of the business of, such
Person. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



     “Issue Date” means November 16, 2007.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “Legal Defeasance” has the meaning set forth in Section 7.01(b).



     “Legal Holiday” has the meaning set forth in Section 10.07.



     “Leverage Ratio” means, as of any date of determination, the ratio of (a) Indebtedness
of the Company and its Subsidiaries as of such date to (b) Consolidated EBITDA as of such date.



     “Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof and any agreement to give any security interest).



     “Margin Stock” has the meaning specified in Regulation U.



     “Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance, properties or prospects of the Company
and its Subsidiaries, taken as a whole, (b) the ability of the Company or any Subsidiary Guarantor
to perform its obligations under the Financing Documents, (c) the rights and remedies of the
Trustee and the Holders under the Financing Documents or (d) the legality, validity, binding effect
or enforceability against the Company or any Subsidiary Guarantor of any Financing Document to
which it is a party.



     “Material Contract” means, with respect to any Person, each contract to which such
Person is a party (other than the Financing Documents) for which (a) aggregate payments exceed
$1,000,000 per year or $5,000,000 in the aggregate or (b) breach, nonperformance, cancellation or
failure to renew could reasonably be expected to have a Material Adverse Effect, or (c) has a Fair
Market Value in excess of $1,000,000 in the aggregate and relates to a Primary Product.



10









 





     “Material Event” means an event that by its scope or need for regulatory approval
cannot reasonably be corrected in 6 months.



     “Maturity Date” means November 16, 2012.



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



     “Mortgages” means the mortgages, deeds of trust, deeds to secure Indebtedness or other
similar documents granting Liens on the Premises, as well as the other Collateral secured by and
described in such mortgages, deeds of trust, deeds to secure Indebtedness or other similar
documents, as each may be amended or supplemented from time to time in accordance with its terms.



     “Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Cash Proceeds” means:




(1) with respect to any Disposition by the Company or any of its Subsidiaries, or
any Extraordinary Receipt received or paid to the account of the Company or any of
its Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents
actually received in connection with such transaction (including any cash or Cash
Equivalents received by way of deferred payment pursuant to, or by monetization of,
a note receivable or otherwise, but only as and when so received, but excluding any
cash or Cash Equivalents used to satisfy termination payments under a Capitalized
Lease) over (ii) the sum of (A) all fees and out-of-pocket expenses (including
underwriting discounts, commissions, brokerage fees and collection expenses)
incurred by the Company or such Subsidiary in connection with such transaction, (B)
taxes reasonably estimated to be actually payable within two years of the date of
the relevant transaction as a result of any gain recognized in connection therewith
or otherwise in respect of such transaction, (C) in the case of a Disposition,
payment of the outstanding principal amount of, premium or penalty, if any, and
interest on any Indebtedness (other than the Bonds) that is secured by a Lien on the
assets in question and that is required to be repaid under the terms thereof as a
result of such Disposition, (D) reasonable amounts to be provided as a reserve, in
accordance with GAAP, against any liabilities associated with such transaction, and
(E) any amounts required to be deposited into escrow in connection with the closing
of such Disposition (until any such amounts are released therefrom to Company or any
of its Subsidiaries); and




(2) with respect to any incurrence or issuance of Indebtedness or the issuance of
equity by the Company or any of its Subsidiaries, the excess of (i) the sum of the
cash and Cash Equivalents actually received in connection with such transaction over
(ii) the underwriting discounts and commissions or similar payments, and all other
fees and out-of-pocket expenses, incurred by the Company or such Subsidiary in
connection therewith.



     “Non-Material Subsidiary” means, at any time, any Subsidiary or group of Subsidiaries
of the Company having assets in an amount lower than 2.5%, on an individual basis, or 5%, taken
together as a group, of the amount of total consolidated assets of the Company and its Subsidiaries
or revenues in an amount lower than 2.5%, on an individual basis, or 5%, taken together as a group,
of the amount of total



11









 







consolidated revenues of the Company and its Subsidiaries, in each case, for the most recently
completed four fiscal quarters of the Company or, if fewer than four consecutive fiscal quarters of
the Company have been completed since the Issue Date, the fiscal quarters of the Company that have
been completed since the Issue Date.



     “Non-Primary Product” means a Product that is not a Primary Product.



     “Non-U.S. Person” means a Person who is not a U.S. person, as defined in Regulation S.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Company or Subsidiary Guarantors arising under any Financing Document or
otherwise with respect to any Bonds, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against the Company or
Subsidiary Guarantors or any Affiliate thereof of any proceeding under any Bankruptcy Laws naming
such Person as the debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.



     “Officer” means the Chief Executive Officer, the President, any Financial Officer or
any Vice President of the Company.



     “Officers’ Certificate” means a certificate signed by two Officers of the Company, at
least one of whom shall be a Financial Officer of the Company, and delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of internal or external counsel to the
Company who shall be reasonably acceptable to the Trustee and/or the Collateral Agent, as
applicable, complying with the requirements of Sections 10.04 and 10.05, as they
relate to the giving of an Opinion of Counsel.



     “Organizational Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and the operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership,
joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.



     “Original Bonds” means the $150,000,000 aggregate principal amount of the Company’s
Senior Secured Floating Rate Bonds due 2012.



     “Paying Agent” has the meaning set forth in Section 2.03.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



12









 





     “Permitted Dispositions” means, without duplication, each of the following:




     (1) Dispositions of obsolete, worn out or surplus property or inventory, whether now
owned or hereafter acquired, in the ordinary course of business;




     (2) Dispositions of inventory in the ordinary course of business;




     (3) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the Acquisition Consideration of similar replacement property
or (ii) the proceeds of such Disposition are promptly applied to the Acquisition
Consideration of such replacement property;




     (4) Dispositions of property by any Subsidiary to the Company or to a wholly-owned
Subsidiary; provided that (i) if the transferor of such property is a Subsidiary Guarantor,
the transferee thereof must either be the Company or a Subsidiary Guarantor and (ii) the
Lien of the Collateral Agent granted over such property shall remain in effect;




     (5) Dispositions constituting the making of Permitted Investments;




     (6) Dispositions permitted by Section 4.20;




     (7) Dispositions to the extent constituting a Restricted Payment permitted by
Section 4.22 and Liens permitted by Section 4.18;




     (8) leases, subleases, licenses or sublicenses of property (other than Intellectual
Property) in the ordinary course of business and which do not materially interfere with the
value of such property or with the Company’s ability or the ability of any of its
Subsidiaries to operate its business;




     (9) transfers of property subject to any condemnation or eminent domain (or deed in
lieu thereof) upon receipt of the casualty proceeds of such event;




     (10) Dispositions in the ordinary course of business consisting of the abandonment of
Intellectual Property which, in the reasonable good faith determination of the Company, is
not material to the conduct of the business of the Company and its Subsidiaries, taken as a
whole;




     (11) Dispositions consisting of out-bound licensing arrangements solely with respect to
a Non-Primary Product, and Dispositions consisting of out-bound licensing arrangements in
which a Primary Product is licensed for sale only outside of the United States, in each
case, consistent with the Company’s past practices and in accordance with its business
plans;




     (12) Dispositions of overdue accounts receivable arising in the ordinary course of
business, but only in connection with the collection or compromise thereof and consistent
with the Company’s past practices;




     (13) Dispositions of Permitted Investments of the type described under clause (10) of
the definition thereof;




     (14) Dispositions of Investments in Cash Equivalents for cash or Cash Equivalents in
the ordinary course of business;



13









 






     (15) Dispositions consisting of a sale of a Non-Primary Product; and




     (16) other Dispositions (other than a Disposition of a Primary Product) in aggregate
amount not in excess of $1,000,000 in any consecutive 12 month period, provided that such
Disposition proceeds shall be used to repay the Bonds in accordance with Section
3.01(a) and proceeds shall be held as cash collateral as required by Section
3.01(c).



     “Permitted Indebtedness” means, without duplication, each of the following:




     (1) Indebtedness represented by (x) the Original Bonds in an aggregate outstanding
principal amount not to exceed the sum of $150,000,000 and the aggregate amount of PIK Bonds
and (y) the related Subsidiary Guarantees;




     (2) Indebtedness outstanding on the date hereof and listed on Schedule I and
any refinancings, refundings, renewals or extensions thereof; provided that (i) any such
refinancing or renewed Indebtedness is in an aggregate principal amount not greater than the
aggregate principal amount of the Indebtedness being refinanced or renewed, plus, any
accrued and unpaid interest thereon, the amount of any premiums required to be paid thereon
and reasonable fees and expenses associated therewith and (ii) the terms relating to
principal amount, amortization, maturity (no sooner than the original maturity), collateral
(no different in scope or seniority than the original collateral) (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing, refunding,
renewing or extending Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect to the Company
and its Subsidiaries and the Holders than the terms of any agreement or instrument governing
the Indebtedness being refinanced, refunded, renewed or extended and the interest rate
applicable to any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;




     (3) [Reserved];




     (4) Indebtedness of a Subsidiary of the Company owed to the Company or a wholly-owned
Subsidiary of the Company, which Indebtedness shall (i) constitute “Pledged Debt” under the
Security Agreement, (ii) be subordinated in right of payment to the indefeasible payment in
full of Indebtedness under the Subsidiary Guarantees on terms no less favorable to the
Secured Parties than the terms set forth in Exhibit E, and (iii) be otherwise
permitted under the provisions of Section 4.19;




     (5) Guarantees of the Company or any of its Subsidiaries in respect of Indebtedness
otherwise permitted hereunder;




     (6) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and
purchase money obligations for fixed or capital assets within the limitations set forth in
clause (9) of the definition of Permitted Liens; provided, however, that the aggregate
principal amount of all such Indebtedness at any one time outstanding shall not exceed
$2,000,000 in any year or $5,000,000 in the aggregate, excluding up to $10,000,000 in
principal amount of such Indebtedness incurred to finance the purchase of a cyclotron;




     (7) Indebtedness of any Person that becomes a Subsidiary of the Company after the Issue
Date in accordance with the terms of Section 4.19, which Indebtedness is existing at
the time such Person becomes a Subsidiary of the Company (other than Indebtedness incurred
solely in contemplation of such Person’s becoming a Subsidiary of the Company); provided,
however,



14









 







that the aggregate principal amount of all such Indebtedness for all such Persons at
any one time outstanding shall not exceed $1,000,000;




     (8) unsecured Third Party Subordinated Indebtedness; and




     (9) other Indebtedness of the Company and its Subsidiaries in an aggregate principal
amount at any time outstanding not to exceed $2,000,000.



     “Permitted Investments” means:




     (1) Investments existing on the Issue Date (other than those referred to in clause (4)
of this definition) and set forth on Schedule II;




     (2) Investments held by the Company or any of its Subsidiaries in the form of cash or
Cash Equivalents;




     (3) loans and advances to directors, officers and employees of the Company or any of
its Subsidiaries in an aggregate amount not to exceed $250,000 at any time outstanding, for
travel, entertainment, relocation and analogous ordinary business purposes;




     (4) Investments by the Company in its Subsidiaries not to exceed such Investments
outstanding on the Issue Date unless, prior to any additional Investment, such Subsidiary
has complied with the requirements of Section 4.31 and has become a Subsidiary
Guarantor (as if, in the case of any Subsidiary existing on the Closing Date, such
Subsidiary was acquired or created after the Issue Date);




     (5) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;




     (6) Guarantees permitted by Section 4.17;




     (7) [Reserved];




     (8) acquisition of any Person, the Acquisition Consideration for which, considered with
the Acquisition Consideration for all acquisitions of assets permitted under Section
4.36, is not in excess of $5,000,000 in any single transaction or series of related
transactions, $10,000,000 in any fiscal year or, in the aggregate from the Issue Date, (x)
$15,000,000 plus (y) the lesser of (i) the aggregate amount of Net Cash Proceeds from the
sale or issuance of Equity Interests in the Company minus the aggregate amounts paid to
redeem Bonds pursuant to Section 3.01(a)(iii) and (ii) $15,000,000; provided such
Person complies with Section 4.31;




     (9) Investments consisting of (i) any deferred portion of the sales price or (ii)
non-cash consideration, in each case, received by the Company or any of its Subsidiaries in
connection with any Permitted Disposition;




     (10) Investments in Joint Ventures consistent with the Company’s past practices and in
accordance with its business plan in an aggregate amount not to exceed $1,000,000 at any
time outstanding;



15









 






     (11) Investments in the ordinary course of business consisting of (i) endorsements for
collection or deposit or (ii) customary trade arrangements with customers payable in the
ordinary course of business; and




     (12) advances of payroll payments in the ordinary course of business in an aggregate
amount not to exceed $250,000 at any time outstanding.



     “Permitted Liens” means the following types of Liens:




     (1) Liens granted pursuant to any Financing Document;




     (2) Liens existing on the Issue Date and listed on Schedule III and any Lien
granted as a replacement or substitute therefor, provided that any such replacement or
substitute Lien (i) does not encumber any property other than the property subject thereto
on the Issue Date, (ii) except as permitted by clause (2) of the definition of Permitted
Indebtedness, does not secure an aggregate amount of Indebtedness, if any, greater than that
secured on the Issue Date, (iii) the direct or any contingent obligor with respect thereto
is not changed, and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by clause (2) of the definition of Permitted Indebtedness;




     (3) Liens for taxes not yet due and payable or which are being contested in good faith
and by appropriate proceedings diligently conducted for which adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with GAAP, which
proceedings (or orders entered in connection with such proceedings) have the effect of
preventing the forfeiture or sale of the property subject to any such Lien;




     (4) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar
Liens arising in the ordinary course of business which are not overdue for a period of more
than 30 days or which are being contested in good faith and by appropriate proceedings
diligently conducted for which adequate reserves with respect thereto are maintained on the
books of the applicable Person, which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of the property subject to
any such Lien;




     (5) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;




     (6) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;




     (7) easements, rights-of-way, restrictions (including zoning restrictions), covenants,
licenses, municipal site plan and development agreements, encroachments, protrusions and
other similar charges or encumbrances, and minor title deficiencies affecting real property
which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value or marketability of the property subject thereto or
materially interfere with the ordinary conduct of the business of the applicable Person;




     (8) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 5.01(7);



16









 






     (9) Liens securing Permitted Indebtedness of a type described in clause (6) of the
definition thereof; provided that (i) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and (ii) the Indebtedness secured
thereby does not exceed the cost or Fair Market Value, whichever is lower, of the property
being acquired on the date of acquisition;




     (10) Liens on property of a Person existing at the time such property or such Person is
acquired or is merged with or into or consolidated with any Subsidiary of the Company or
becomes a Subsidiary of the Company; provided that such Liens were not created in
contemplation of such acquisition, merger, consolidation or Investment and do not extend to
any assets other than those of the Person merged into or consolidated with such Subsidiary
or acquired by such Subsidiary;




     (11) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in
the ordinary course of business in accordance with its past practices;




     (12) Liens arising from filing UCC financing statements relating solely to leases not
prohibited by this Indenture;




     (13) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods by the Company
or any of its Subsidiaries in the ordinary course of business;




     (14) Liens (i)(x) on advances of cash or Cash Equivalents in favor of the seller of any
property to be acquired in an Investment permitted pursuant to Section 4.19 to be
applied against the Acquisition Consideration for such Investment and (y) consisting of an
agreement to dispose of any property in a Disposition permitted under Section 4.21
and (ii) consisting of earnest money deposits of cash or Cash Equivalents made by the
Company or any of its Subsidiaries in connection with any letter of intent or purchase
agreement in respect of an Investment permitted pursuant to Section 4.19; provided
that the aggregate amount of assets of the Company or any of its Subsidiaries subject to
such Liens at any time outstanding does not exceed $1,000,000; and




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



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



     “Physical Bonds” has the meaning set forth in Section 2.14(b).



     “PIK Bonds” means the Company’s Senior Secured Floating Rate Bonds due 2012, issued
pursuant to Section 2.02(c)(ii).



     “Placement Agent” means Morgan Stanley & Co. Incorporated.



17









 





     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Company or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate (other than a Multiemployer Plan).



     “Pledged Equity” shall have the meaning specified in the Security Agreement.



     “Premises” has the meaning set forth in Section 4.33.



     “Primary Product” means those patents, trade secrets and other tangible and intangible
property that relate to any of the product candidates as the date hereof known as Zemiva, Azedra,
and Onalta.



     “Private Placement Legend” means the legend set forth on the Bonds in the form set
forth in Exhibit A.



     “Product” means the Primary Products and each other product candidate for which the
Company owns or licenses the patents or other intellectual property rights related thereto.



     “Product MAE” means, with respect to any Product,




     (i) the Company has abandoned the development of the Product for more than 5
consecutive days or has otherwise suspended development activity and/or clinical trials for
such Product for more than 60 days within any 24 consecutive months,




     (ii) the applicable Governmental Authority responsible for approving the Product for
commercial use in the United States has denied final approval,




     (iii) the applicable Governmental Authority only approves the Product for uses
materially different from the requested approvals described in the business plan delivered
on the Issue Date and the targeted sale potential, in dollars, of such uses represent less
than 65% of the targeted sale potential, in dollars, of such requested approvals in the
reasonable judgment of LEK Consulting, or, after approval of the Product, any applicable
Governmental Authority requires any re-labeling or the addition of a “black box” to the
label for the Product that limits the use of the Product for indications for which the
Product was originally approved,




     (iv) a written order from the United States Food and Drug Administration or the United
States Drug Enforcement Agency that results in the Product being suspended or withdrawn from
being sold commercially for more than 6 months; provided if a Material Event has occurred
then such 6 month period shall not apply and the Product MAE shall be immediate,




     (v) a written order from the United States Food and Drug Administration that results in
suspension of the manufacture of the Product for more than 6 months; provided if a Material
Event has occurred then such 6 month period shall not apply and the Product MAE shall be
immediate,




     (vi) after approval of the Product and commencement of commercial sales thereof, a
written order from the United States Food and Drug Administration or peer reviewed medical
or scientific publication that results in the reduction in sales by more than 35% of such
Product as set forth in the business plan delivered on the Issue Date for the period of 3
months after such order or publication,



18









 






     (vii) the Company publicly announces that it will cease to make the Product available
for commercial sale (unless the Product has been sold, licensed or otherwise partnered with
another pharmaceutical company that will continue to make the Product for commercial sale),




     (viii) one or more of the applicable license agreements governing intellectual property
necessary for the Company’s production or sale of such Product has been terminated or is
otherwise no longer in effect, such that the Company is precluded from making or
distributing the Product,




     (ix) such Product is found to infringe on the intellectual property rights of others as
determined by order of a court of competent jurisdiction or binding arbitration and such
order has not been vacated within 30 days thereafter,




     (x) changes in Law (including regulations affecting the administration of public or
private health insurance) which specifically targets and adversely affects the prospects of
the Product, or




     (xi) changes in Law that limit in a material adverse manner the Company’s rights in the
Product,


and, in the case of any events described in clauses (iii), (vi), (ix), (x) or (xi), individually or
in the aggregate, has a material and adverse impact on the economic viability of the Product as
determined by LEK Consulting, using a valuation methodology similar in form and scope to the
valuation delivered to the Holders prior to the closing date. The Collateral Agent shall, upon
receipt of notice that one of the foregoing events has occurred, shall request the valuation by LEK
Consulting or such other firm as selected pursuant to the immediately succeeding paragraph, and
shall request that the valuation be completed within 45 days. If LEK Consulting is not available
or declines to perform such valuation within such period, the Holders of a majority in principal
amount of the Bonds shall present three firms to the Company for approval. If the Company does not
approve one of such firms within 5 Business Days, the Holders of a majority in principal amount of
the Bonds may select one of the presented firms to perform the valuation and notify the Collateral
Agent thereof. If the Company fails to provide information reasonably requested by LEK Consulting
or another third party valuation firm selected in the manner set forth above within 5 Business Days
of the request for such information, then the events leading to such request for information will
be deemed to constitute a Product MAE with respect to the applicable Product.




     “Product MAE Expenses” has the meaning set forth in the definition of “Projected
Product Expenses”.



     “Projected Product Expenses” means, with respect to a Primary Product as to which a
Product MAE has occurred, the aggregate projected expenses for such Primary Product calculated from
the forecast delivered to the Holders on the Issue Date for the period commencing on the first day
of such Product MAE and ending on the last day of the fiscal quarter immediately preceding the
fiscal quarter in which the Company forecasted such Primary Product to generate positive
net contribution as set forth on the forecast delivered to the Holders on the Issue Date;
provided that the following expenses (“Product MAE Expenses”) shall be excluded:
(1) expenses incurred under a contract that cannot be terminated immediately upon a Product MAE for
the shorter of (i) 180 days and (ii) the date on which such contract can be terminated by the
Company, and (2) expenses incurred in connection with the Company’s response to or the Company’s
efforts to cure the event which resulted in a Product MAE, provided however the sum
of items (1) and (2) shall not exceed the projected operating expenses (excluding Capital



19









 







Expenditures) calculated from the forecast delivered on the Issue Date for the 3 month period
immediately following such event date.



     “Purchase Agreements” means the purchase agreements, dated as of the Issue Date, among
the Company, the Subsidiary Guarantors and the initial purchasers of the Original Bonds and the
Warrants, as amended or supplemented from time to time in accordance with its terms.



     “Redemption Collateral Account” has the meaning set forth in Section
3.01(a)(vi).



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



     “Record Date” means any of the Record Dates specified in the Bonds, whether or not a
Legal Holiday.



     “Redemption Date” means, when used with respect to any Bond to be redeemed, the date
fixed for redemption pursuant to this Indenture and the Bonds.



     “Redemption Price” means, when used with respect to any Bond to be redeemed, the price
fixed for redemption pursuant to this Indenture and the Bonds.



     “Register” has the meaning set forth in Section 2.03.



     “Registrar” has the meaning set forth in Section 2.03.



     “Registration Rights Agreement” means the Amended and Restated Registration Rights
Agreement, dated as of November 16, 2007, by and among the Company, certain holders of capital
stock as named therein and the initial Warrant Holders.



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



     “Regulation S Global Bonds” has the meaning set forth in Section 2.01.



     “Related Documents” means the Registration Rights Agreement and Warrants.



     “Reportable Event” means a reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Pension Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC.



     “Restricted Payment” means, with respect to any Person, any dividend or other
distribution (whether in cash, securities or other property) with respect to any capital stock or
other Equity Interest of such Person, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other
Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or
members (or the equivalent of any thereof), or any option, warrant or other right to acquire any
such dividend or other distribution or payment.



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



     “Restricted Security” has the meaning assigned to such term in Rule 144(a)(3) under
the Securities Act; provided that the Trustee shall be entitled to request and conclusively rely on
an Opinion of Counsel with respect to whether any Bond constitutes a Restricted Security.



20









 





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



     “S&P” means Standard & Poor’s Ratings Group and its successors.



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



     “Secured Parties” has the meaning set forth in the Security Agreement.



     “Securities Account” has the meaning set forth in Section 4.15(b).



     “Securities Act” means the Securities Act of 1933, as amended, or any successor
statute or statutes thereto, and the rules and regulations of the SEC promulgated thereunder.



     “Security Agreement” means the Pledge and Security Agreement, dated as of the Issue
Date, made by the Company and the Subsidiary Guarantors in favor of the Collateral Agent, as
amended or supplemented from time to time in accordance with its terms.



     “Shortfall” means, with respect to any Interest Payment Date, the difference, if any,
between the accrued and unpaid interest due on the Bonds on such Interest Payment Date and the
payment, if any, in U.S. Legal Tender received by the Trustee from the Company or any Subsidiary
Guarantor in respect of such interest on or prior to such Interest Payment Date.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Company.



     “Subsidiary Guarantee” has the meaning set forth in Section 9.01.



     “Subsidiary Guarantor” means each of the Company’s Subsidiaries that executes a
supplemental indenture in which such Subsidiary agrees to be bound by the terms of this Indenture
as a “Subsidiary Guarantor”; provided that any Person constituting a “Subsidiary Guarantor” as
described above shall cease to constitute a Subsidiary Guarantor when its respective Subsidiary
Guarantee is released in accordance with the terms of this Indenture.



     “Swap Termination Value” means, in respect of each interest, currency or other swap or
hedge transaction, an amount equal to the net amount, if any, that would be payable in accordance
with the terms of such swap transaction to the applicable counterparty by the Company or Subsidiary
Guarantor upon the early unwind of such swap transaction, as if the Company or Subsidiary Guarantor
was the sole “Affected Party” (as defined in such swap transaction).



     “Synthetic Debt” means, with respect to any Person as of any date of determination
thereof, all obligations of such Person in respect of transactions entered into by such Person that
are intended to function primarily as a borrowing of funds but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP.



21









 





     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Bankruptcy Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).



     “Third Party Subordinated Indebtedness” shall mean Indebtedness of the Company or any
Subsidiary Guarantor, owed to any Person other than an Affiliate of the Company, that is by its
terms subordinated in right of payment to the indefeasible payment in full of the Obligations of
the Company or any Subsidiary Guarantor on terms no less favorable to the Secured Parties than the
terms set forth in Exhibit E.



     “Threshold Amount” means $2,500,000.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. SS 77aaa-77bbbb), as amended,
or any successor statute or statutes thereto, and the rules and regulations of the SEC promulgated
thereunder.



     “Trustee” has the meaning set forth in the preamble to this Indenture and any
successor under this Indenture.



     “Trust Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee with direct responsibility for the administration of this
Indenture, or any other officer to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject.



     “UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority of any
security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as
in effect from time to time in such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection or priority.



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



     “U.S. Legal Tender” means such coin or currency of the United States which, as at the
time of payment, shall be immediately available legal tender for the payment of public and private
debts.



     “Warrant” means common stock purchase warrants that entitle the holders thereof,
subject to certain conditions set forth therein, to purchase 6,021,247 shares of the Common Stock
at an exercise price of $5.87 per share, subject to adjustment.



     “Warrant Holder” means the holder of any Warrants.



     “Working Capital” means, assets which may be properly classified as current assets in
accordance with GAAP (other than cash and Cash Equivalents) minus liabilities which may be properly
classified as current liabilities in accordance with GAAP (other than (i) the current portions of
Indebtedness for borrowed money and obligations under Capitalized Leases and (ii) current
liabilities in connection with



22









 







deferred consideration obligations and escrow obligations incurred in connection with any
acquisition permitted under this Indenture).



     Section 1.02. 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 words in the plural include the
singular;




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




     (6) when the words “includes” or “including” are used herein, they shall be deemed to
be followed by the words “without limitation”;




     (7) all references to Sections, Articles, Schedules or Exhibits refer to Sections,
Articles, Schedules or Exhibits of this Indenture unless otherwise indicated;




     (8) unless otherwise defined, terms for which meanings are provided in this Indenture
shall have such meanings when used in each other Financing Document;




     (9) any definition of or reference to any agreement, instrument or other document
(including any organizational document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set
forth herein or in any other Financing Document); and




     (10) any reference herein to any Person shall be construed to include such Person’s
successors and assigns.



ARTICLE TWO




THE BONDS




     Section 2.01. Form and Dating.



     The Bonds and the Trustee’s certificate of authentication thereon shall be substantially in
the form of Exhibit A hereto (with such appropriate insertions or variations, in the case
of any PIK Bonds, as are required or permitted by the Trustee). The Bonds may have notations,
legends or endorsements required by law, stock exchange rule or DTC rule or usage. The Company and
the Trustee shall approve the form of the Bonds and any notation, legend or endorsement on them.
Each Bond shall be dated the date of its authentication.




23












 





     The terms and provisions contained in the form of the Bonds annexed hereto as Exhibit
A shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound thereby upon
authentication thereof pursuant to this Indenture.



     Bonds offered and sold to QIBs shall be issued initially in the form of one or more permanent
global bonds in registered form, substantially in the form set forth in Exhibit A (the
“144A Global Bonds”), deposited with the Trustee, as custodian for DTC, and registered in
the name of DTC or the nominee of DTC, duly executed by the Company and authenticated by the
Trustee as hereinafter provided and shall bear the legend set forth in Exhibit B.



     Bonds offered and sold to Institutional Accredited Investors shall be issued initially in the
form of one or more permanent global bonds in registered form, substantially in the form set forth
in Exhibit A (the “IAI Global Bonds”), deposited with the Trustee, as custodian for
DTC, and registered in the name of DTC or the nominee of DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided and shall bear the legend set forth in
Exhibit B.



     Bonds offered and sold in offshore transactions in reliance on Regulation S shall be issued
initially in the form of one or more permanent global bonds in registered form, substantially in
the form set forth in Exhibit A, deposited with the Trustee (the “Regulation S Global
Bonds”), as custodian for DTC, and registered in the name of DTC or the nominee of DTC
initially 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 and shall bear the
legend set forth in Exhibit B.



     The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions
Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and
“Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the
Regulation S Global Bond that are held by participants through Euroclear or Clearstream.



     The aggregate principal amount of any Global Bond may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for DTC, as hereinafter
provided.



     The definitive Bonds shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by the rules of any
securities exchange on which the Bonds may be listed, all as determined by the Officer executing
such Bonds, as evidenced by their execution of such Bonds.



     Section 2.02. Execution and Authentication; Aggregate Principal Amount; PIK Bonds.



     (a) An Officer (who shall have been duly authorized by all requisite corporate actions) shall
sign the Bonds for the Company by manual or facsimile signature. If an Officer whose signature is
on a Bond was an Officer at the time of such execution but no longer holds that office or position
at the time the Trustee authenticates the Bond, the Bond shall nevertheless be valid. A Bond shall
not be valid until an authorized signatory of the Trustee manually signs the certificate of
authentication on the Bond. The signature shall be conclusive evidence that the Bond has been
authenticated under this Indenture.



     (b) The Trustee may appoint an authenticating agent (the “Authenticating Agent”)
reasonably acceptable to the Company to authenticate the Bonds. Unless otherwise provided in the
appointment, an Authenticating Agent may authenticate the Bonds whenever the Trustee may do so.



24









 




Each reference in this Indenture to authentication by the Trustee includes authentication by
such Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with
the Company and Affiliates of the Company.




     (c) (i) The Trustee shall authenticate Original Bonds, for original issue on the Issue Date,
in an aggregate principal amount not to exceed $150,000,000, upon a written order of the Company in
the form of an Officers’ Certificate and receipt of an Opinion of Counsel addressed to the Trustee
covering such matters as the Trustee reasonably requests, including an opinion relating to the
validity and enforceability of the Financing Documents against the Company and the Subsidiary
Guarantors, as applicable. In addition, each such Officers’ Certificate shall specify the amount
of Original Bonds to be authenticated and the date on which the Original Bonds are to be
authenticated.




     (ii) If a Shortfall exists on any Interest Payment Date (other than any Interest
Payment Date that is also a Redemption Date) between and including November 16, 2007 and
November 16, 2010, such Shortfall shall be payable through the issuance of PIK Bonds in an
aggregate principal amount equal to such Shortfall. Upon the delivery of the Officers’
Certificate specified in clause (x) of Section 2.13, the Company may so issue, and
if so issued, the Trustee shall authenticate, as necessary, such PIK Bonds without the
consent of any Holder, in which case the aggregate principal amount of the Original Bonds
would be increased in the amount of such PIK Bonds. Any PIK Bond shall be designated
generally as a Bond for all purposes under this Indenture. Any PIK Bond issued pursuant to
this Section 2.02(c)(ii) shall be part of the same class, and shall have the same
terms and rights, as the Original Bonds, except that interest on such PIK Bond shall begin
to accrue from the date of issuance of such PIK Bond rather than the Issue Date. To the
extent that the principal amount of any PIK Bonds to be issued would not be in an integral
multiple of $1.00, the principal amount of such PIK Bonds shall be increased to the next
highest integral multiple of $1.00 if the excess over the closes integral multiple of $1.00
is $0.50 or more, but any such excess of less than $0.50 shall be extinguished. The payment
of any Obligation by the issuance of any PIK Bond shall not otherwise be permitted.



     (d) The Bonds shall be issuable in fully registered form only (for purposes of registration of
transfer as described in Section 2.03 below), without coupons, in denominations of, with
respect to the Original Bonds, $100,000 in principal amount and in $1,000 multiples thereof, and
with respect to the PIK Bonds $1.00 in principal amount and in $1.00 multiples thereof.



     Section 2.03. Registrar and Paying Agent.



     The Company shall maintain an office or agency, which shall initially be the Corporate Trust
Office, where (a) Bonds may be presented or surrendered for registration of transfer or for
exchange (the “Registrar”), (b) Bonds may be presented or surrendered for payment (the
“Paying Agent”) and (c) notices and demands to or upon the Company in respect of the Bonds
and this Indenture may be served. The Registrar shall keep a register of the Bonds in which the
Registrar shall register the transfer and exchange of the Bonds (the “Register”). The
Company, upon prior written notice to the Trustee, may have one or more co-Registrars and one or
more additional Paying Agents reasonably acceptable to the Trustee. The term “Paying Agent”
includes any additional Paying Agent. Neither the Company nor any Affiliate of the Company may act
as Paying Agent.



     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, which agreement shall incorporate the provisions of the TIA and implement the
provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee in
writing, in advance, of the name and address of any such Agent and such Agent shall otherwise be
reasonably satisfactory to



25









 







the Trustee. If the Company fails to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such.



     The Company initially appoints the Trustee, as Registrar, Paying Agent and agent for service
of demands and notices in connection with the Bonds. The Paying Agent or the Registrar may resign
upon thirty (30) days’ written notice to the Company.



     Section 2.04. Obligations of Paying Agent.



     The Company shall require each Paying Agent other than the Trustee to agree in writing that
such Paying Agent shall hold separate and apart from, and not commingle with any other properties,
for the benefit of the Holders or the Trustee, all assets held by the Paying Agent for the payment
of principal of, or interest on, the Bonds (whether such assets have been distributed to it by the
Company or any other obligor on the Bonds), and the Company and the Paying Agent shall notify the
Trustee in writing of any Default by the Company (or any other obligor on the Bonds) in making any
such payment. The Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any assets distributed.
Upon receipt by the Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.



     Section 2.05. Holder Lists.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of the Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee before each Record Date and at such other times as the Trustee
may request in writing a list as of such date and in such form as the Trustee may reasonably
request of the names and addresses of the Holders, which list may be conclusively relied upon by
the Trustee.



     Section 2.06. Transfer and Exchange.



     Subject to the provisions of Sections 2.14 and 2.15, when Bonds are presented
to the Registrar or a co-Registrar with a request to register the transfer of such Bonds or to
exchange such Bonds for an equal principal amount of Bonds of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as requested; provided,
however, that the Bonds presented or surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing and such other documents as the Registrar or co-Registrar may reasonably
require. To permit registrations of transfers and exchanges, the Company shall issue and the
Trustee shall authenticate Bonds at the Registrar’s or co-Registrar’s written request. No service
charge shall be made for any registration of transfer or exchange, but the Company or the Trustee
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 exchanges or transfers pursuant to Section 2.10 or 3.06, in which
event the Company shall be responsible for the payment of such taxes).



     The Registrar or co-Registrar shall not be required to register the transfer or exchange of
any Bond (i) during a period beginning at the opening of business fifteen (15) days before the
mailing of a notice of redemption of Bonds and ending at the close of business on the day of such
mailing and



26









 







(ii) selected for redemption in whole or in part pursuant to Article Three, except the
unredeemed portion of any Bond being redeemed in part.



     Any Holder of a Global Bond shall, by acceptance of such Global Bond, agree that transfers of
beneficial interests in such Global Bond may be effected only through DTC, in accordance with this
Indenture and the Applicable Procedures.



     Section 2.07. Replacement Bonds.



     If a mutilated Bond is surrendered to the Trustee or if the Holder of a Bond claims in writing
that the Bond has been lost, destroyed or wrongfully taken, then, in the absence of written notice
to the Company upon its request or the Trustee that such Bond has been acquired by a protected
purchaser, the Company shall issue and the Trustee shall authenticate a replacement Bond of like
tenor and principal amount and bearing a number not contemporaneously outstanding if the Trustee’s
requirements are met. Except with respect to mutilated Bonds, if required by the Trustee or the
Company, such Holder must provide an affidavit of lost certificate and an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to protect the Company,
the Trustee or any Agent from any loss which any of them may suffer if a Bond is replaced. The
Company may charge such Holder for its reasonable out-of-pocket expenses in replacing a Bond,
including reasonable fees and expenses of its counsel and of the Trustee and its counsel. In case
any mutilated, lost, destroyed or wrongfully taken Bond has become or is about to become due and
payable, the Company in its discretion may pay such Bond instead of issuing a new Bond in
replacement thereof. Every replacement Bond shall constitute an additional obligation of the
Company, entitled to the benefits of this Indenture.



     Section 2.08. Outstanding Bonds.



     Bonds outstanding at any time are all the Bonds that have been authenticated by the Trustee
except those cancelled by it, those delivered to it for cancellation and those described in this
Section 2.08 as not outstanding. Subject to the provisions of Section 2.09, a Bond
does not cease to be outstanding because the Company or any of its Affiliates holds the Bond.



     If a Bond is replaced pursuant to Section 2.07 (other than a mutilated Bond
surrendered for replacement), it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Bond is held by a protected purchaser for value. A mutilated
Bond ceases to be outstanding upon surrender of such Bond and replacement thereof pursuant to
Section 2.07.



     If on a Redemption Date or the Maturity Date the Paying Agent holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal of, and premium, if any, and interest
due on, the Bonds payable on that date and is not prohibited from paying such amounts to the
Holders thereof pursuant to the terms of this Indenture, then on and after that date such Bonds
cease to be outstanding and interest on such Bonds ceases to accrue.



     Section 2.09. Treasury Bonds; When Bonds Are Disregarded.



     In determining whether the Holders of the required principal amount of Bonds have concurred in
any direction, waiver, consent or notice, Bonds owned by the Company or any of its Affiliates shall
be considered as though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only
Bonds which a Trust Officer of the Trustee actually knows are so owned shall be so considered.
Bonds so owned which have been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such
Bonds and that the pledgee is not the



27









 







Company or any other obligor upon the Bonds or any Affiliate of the Company or of such other
obligor. The Company shall notify the Trustee, in writing (which notice shall constitute actual
notice for purposes of the foregoing sentence), when it or any of its Affiliates repurchases or
otherwise acquires Bonds, of the aggregate principal amount of such Bonds so repurchased or
otherwise acquired.



     Section 2.10. Temporary Bonds.



     Until definitive Bonds are ready for delivery, the Company may prepare and execute and the
Trustee shall authenticate temporary Bonds upon receipt of a written order of the Company in the
form of an Officers’ Certificate. The Officers’ Certificate shall specify the amount of temporary
Bonds to be authenticated and the date on which the temporary Bonds are to be authenticated.
Temporary Bonds shall be substantially in the form of definitive Bonds but may have variations that
the Company considers appropriate for temporary Bonds. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.02 definitive Bonds in exchange for temporary Bonds. Until so
exchanged, the temporary Bonds shall be entitled to the same benefits under this Indenture as
definitive Bonds.



     Section 2.11. Cancellation.



     The Company at any time may deliver Bonds previously authenticated hereunder which the Company
has acquired in any lawful manner, to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Bonds surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel all Bonds surrendered for transfer, exchange, payment or cancellation. Subject
to Section 2.07, the Company may not issue new Bonds to replace Bonds that it has paid or
delivered to the Trustee for cancellation. If the Company shall acquire any of the Bonds, such
acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by
such Bonds unless and until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11. The Trustee shall dispose of all cancelled Bonds in accordance with
customary procedures or, subject to the requirements of law, at the written request of the Company,
shall return the same to the Company.



     Section 2.12. CUSIP Numbers.



     A “CUSIP” number shall be printed on the Bonds, and the Trustee shall use the CUSIP
number in notices of redemption, purchase or exchange as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Bonds and that reliance may be placed only on the
other identification numbers printed on the Bonds. The Company shall promptly notify the Trustee
in writing of any change in any CUSIP number relating to the Bonds.



     Section 2.13. Deposit of Moneys.



     Prior to 10:00 a.m. New York City time on each Interest Payment Date and the Maturity Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to make cash payments
due on such Interest Payment Date or the Maturity Date, as the case may be. To the extent that
such deposit is insufficient to make such cash payments, the Company shall provide the Trustee an
Officers’ Certificate instructing the Trustee as to (x) if such insufficiency occurs or exists on
an Interest Payment Date between and including November 16, 2007 and November 16, 2010, the amount
of the Shortfall and ordering the Trustee to authenticate PIK Bonds in an aggregate principal
amount equal to such Shortfall in accordance with Section 2.02(c)(ii) and (y) otherwise,
the amount and recipient of payments pursuant



28









 







to Section 4.01 as to which the Trustee shall be entitled to rely solely thereupon
without further investigation.



     Section 2.14. Book-Entry Provisions for Global Bonds.



     (a) The Global Bonds initially shall (i) be registered in the name of DTC or the nominee of
DTC, (ii) be delivered to the Trustee as custodian for DTC and (iii) bear legends as set forth in
Exhibit B.



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



     (b) Transfers of the Global Bonds shall be limited to transfers in whole, but not in part, to
DTC, its successors or their respective nominees. Interests of beneficial owners in the Global
Bonds may be transferred or exchanged in accordance with the Applicable Procedures of DTC and the
provisions of Section 2.15; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation S Global Bonds may not be
made to a U.S. Person or for the account or benefit of a U.S. Person (except to a QIB or an
Institutional Accredited Investor in a transaction exempt from registration under the Securities
Act). In addition, Bonds in the form of certificated Bonds in registered form in substantially the
form set forth in Exhibit A hereto (the “Physical Bonds”) shall be transferred to
all beneficial owners in exchange for their beneficial interests in the Global Bonds if (i) DTC
notifies the Company that it is unwilling or unable to continue as depository for the Global Bonds
and a successor depository is not appointed by the Company within ninety (90) days of such notice
or (ii) an Event of Default has occurred and is continuing and the Registrar has received a request
from DTC to issue Physical Bonds.



     (c) Any beneficial interest in one of the Global Bonds that is transferred to a person who
takes delivery in the form of an interest in another Global Bond shall, upon transfer, cease to be
an interest in such Global Bond and become a beneficial interest in such other Global Bond and,
accordingly, shall thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to a beneficial interest in such other Global Bonds for as long as it remains such an
interest.



     (d) In connection with the transfer of an entire Global Bond to beneficial owners pursuant to
clause (b) of this Section 2.14, the Global Bonds shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by DTC in exchange for its beneficial interest in
the Global Bonds, an equal aggregate principal amount of Physical Bonds of authorized
denominations.



     (e) Any Physical Bond constituting a Restricted Security delivered in exchange for an interest
in a Global Bond pursuant to clause (b) or (c) shall, except as otherwise provided
by clause (c) of Section 2.15, bear the legend regarding transfer restrictions
applicable to the Physical Bonds set forth in Exhibit A.



     (f) The Holder of a Global Bond may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Bonds.



29









 





     Section 2.15. Special Transfer Provisions.



     (a) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S. Persons. The
following provisions shall apply with respect to the registration of any proposed transfer of a
Bond constituting a Restricted Security (or a beneficial interest therein) to any Institutional
Accredited Investor which is not a QIB or to any Non-U.S. Person:




     (i) the Registrar shall register the transfer of any Physical Bond constituting a
Restricted Security, whether or not such Bond bears the Private Placement Legend, if (x) in
the case of a transfer to an Institutional Accredited Investor which is not a QIB (excluding
Non-U.S. Persons), the proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto or (y) in the case of a transfer to a
Non-U.S. Person, the proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto, whereupon the Registrar shall reflect
on its books and records the date and the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Bonds of like tenor and principal amount; or




     (ii) if the proposed transferor is an Agent Member holding a beneficial interest in a
Global Bond and the proposed transferee is an Agent Member who will hold a beneficial
interest in a Global Bond, the Registrar shall register such transfer upon receipt of (x)
the certificate, if any, required by clause (i) above and (y) instructions given in
accordance with the Applicable Procedures and the Registrar’s procedures, whereupon the
Registrar shall reflect on its books and records the date and a decrease in the principal
amount of the Global Bond in an amount equal to the principal amount of the beneficial
interest in the Global Bond to be transferred and a corresponding increase in the Global
Bond to which such beneficial interest is transferred; or




     (iii) if the proposed transferor is an Agent Member holding a beneficial interest in a
Global Bond and the proposed transferee’s interest will be evidenced by a Physical Bond, the
Registrar shall register such transfer upon receipt of (x) the certificate, if any, required
by clause (i) above and (y) instructions given in accordance with the Applicable
Procedures and the Registrar’s procedures, whereupon the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the Global Bond in an
amount equal to the principal amount of the beneficial interest in the Global Bond to be
transferred, and the Company shall execute and the Trustee shall authenticate and deliver
one or more Physical Bonds of like tenor and principal amount; or




     (iv) if the proposed transferee is an Agent Member and the Bonds to be transferred
consist of Physical Bonds which after transfer are to be evidenced by a beneficial interest
in a Global Bond, the Registrar shall register such transfer upon receipt of (x) the
certificate, if any, required by clause (i) above and (y) instructions given in
accordance with the Applicable Procedures and the Registrar’s procedures, whereupon the
Registrar shall reflect on its books and records the date and an increase in the principal
amount of such Global Bond in an amount equal to the principal amount of the Physical Bonds
to be transferred and the Trustee shall cancel the Physical Bonds so transferred.



     (b) Transfers to QIBs. The following provisions shall apply with respect to the
registration of any proposed transfer of a Bond constituting a Restricted Security to a QIB
(excluding transfers to Non-U.S. Persons):




     (i) The Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on the form of Bond stating, or has



30









 







otherwise advised the Company and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Bond stating, or has otherwise advised the Company
and the Registrar in writing, that it is purchasing the Bond for its own account or an
account with respect to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration provided by Rule
144A.




     (ii) Subject to compliance with clause (i), if the proposed transferee is an
Agent Member, and the Bonds to be transferred consist of Physical Bonds which after transfer
are to be evidenced by a beneficial interest in the Rule 144A Global Bond, upon receipt by
the Registrar of instructions given in accordance with the Applicable Procedures and the
Registrar’s procedures, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Bond in an amount equal to the principal
amount of the Physical Bonds to be transferred, and the Trustee shall cancel the Physical
Bonds so transferred.




     (iii) Subject to compliance with clause (i), if the Bonds to be transferred
consist of Physical Bonds, the Registrar shall reflect on its books and records the date and
the Company shall execute and the Trustee shall authenticate and deliver one or more
Physical Bonds of like tenor and principal amount.




     (iv) Subject to compliance with clause (i), if the proposed transferor is an
Agent Member holding a beneficial interest in Global Bond and the proposed transferee is an
Agent Member who will hold a beneficial interest in a Rule 144A Global Bond, the Registrar
shall reflect on its books and records the date and a decrease in the principal amount of
the relevant Global Bond in an amount equal to the principal amount of the beneficial
interest in such Global Bond to be transferred and a corresponding increase in the Rule 144A
Global Bond to which such beneficial interest is transferred.




     (v) Subject to compliance with clause (i), if the proposed transferor is an Agent
Member holding a beneficial interest in a Global Bond and the proposed transferee’s interest
will be evidenced by a Physical Bond, the Registrar shall register such reflect on its books
and records the date and a decrease in the principal amount of the relevant Global Bond in
an amount equal to the principal amount of the beneficial interest in such Global Bond to be
transferred, and the Company shall execute and the Trustee shall authenticate and deliver
one or more Physical Bonds of like tenor and principal amount.



     (c) Private Placement Legend. Upon the transfer, exchange or replacement of Bonds not
bearing the Private Placement Legend, the Registrar shall deliver Bonds that do not bear the
Private Placement Legend. Upon the registration of transfer, exchange or replacement of Bonds
bearing the Private Placement Legend, the Registrar shall deliver only Bonds that bear the Private
Placement Legend unless there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the provisions of the
Securities Act. The Registrar shall not register a transfer of any Bond unless such transfer
complies with the restrictions on transfer of such Bond set forth in this Indenture. In connection
with any transfer of Bonds, each Holder agrees by its acceptance of the Bonds to furnish the
Registrar or the Company such certifications, legal opinions or other information as either of them
may reasonably require to confirm that such transfer is being made pursuant to an



31









 







exemption from, or a transaction not subject to, the registration requirements of the
Securities Act; provided that the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such certifications,
legal opinions or other information.



     (d) General. By its acceptance of any Bond bearing the Private Placement Legend, each
Holder of such a Bond acknowledges the restrictions on transfer of such Bond set forth in this
Indenture and in the Private Placement Legend and agrees that it shall transfer such Bond only as
provided in this Indenture.



     The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to Section 2.14 or this Section 2.15. The Company shall have the
right to inspect and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the Registrar.



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



     Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not
taken by DTC.



     Section 2.16. Transfers of Global Bonds and Physical Bonds.



     A transfer of a Global Bond or a Physical Bond (including the right to receive principal and
interest payable thereon) may be made only by the Registrar’s entering the transfer in the
Register. Prior to such entry, the Company shall treat the person in whose name such Bond is
registered as the owner of the Bond for all purposes.



     Section 2.17.
Contingent Payment Debt Instrument Status.



     Each Holder, by its acceptance of a Bond, agrees (i) that for U.S. federal income tax
purposes, the Bonds will be treated as indebtedness subject to the U.S. Treasury regulations
governing contingent payment debt instruments, (ii) that the Holders will report original issue
discount and interest on the Bonds in accordance with the Company’s determination of both the
“comparable yield” and the “projected payment schedule,” and (iii) that the Holders will be bound
by the Company’s application of the U.S. Treasury regulations that govern contingent payment debt
instruments. For this purpose, the “comparable yield” for the Bonds and the “projected payment
schedule” may be obtained by contacting the Company at the address set forth in Section
10.02.



32









 





ARTICLE THREE




REDEMPTION




     Section 3.01. Mandatory Redemption and Optional Redemption.



     (a) On the date specified below or, if not so specified, within forty-five (45) days after the
occurrence of any of the following events, the Company shall redeem the Bonds at the Redemption
Price specified therefor pursuant to Section 7 of the Bonds in the amount of the Net Cash
Proceeds, Projected Product Expenses or Excess Free Cash Flow specified below in connection with
each such event, and furnish, at least thirty (30) days before the Redemption Date, to the Trustee
and Paying Agent an Officers’ Certificate setting forth the Redemption Date and the principal
amount of the Bonds to be redeemed and the Section of this Indenture or the Section of Bonds
pursuant to which the redemption shall occur:




     (i) upon (x) any Disposition by the Company or any of its Subsidiaries of any asset or
property (other than any Permitted Disposition of the type described in clauses (1), (2),
(3), (4), (5), (7), (8), (11), (14) and (15) of the definition thereof or any Disposition of
the type described in clause (y) or (z) of this subclause (i)) which results in the
realization by such Person of Net Cash Proceeds in excess of $1,000,000 in the aggregate,
(y) any Disposition by the Company or any of its Subsidiaries consisting of a sale of any
Non-Primary Product which results in the realization by such Person of Net Cash Proceeds in
excess of $1,000,000 in any fiscal year or $3,000,000 in the aggregate, or (z) the
Disposition by the Company or any of its Subsidiaries of any Product consisting of outbound
licensing arrangements which results in the realization by such Person of Net Cash Proceeds
in the form of upfront fees in excess of $5,000,000 in any fiscal year or $15,000,000 in the
aggregate, in each case, all Net Cash Proceeds resulting therefrom;




     (ii) upon the incurrence or issuance by the Company or any of its Subsidiaries of any
Indebtedness (other than Permitted Indebtedness except Third Party Subordinated
Indebtedness), the Net Cash Proceeds received therefrom; and upon the incurrence or issuance
of Third Party Subordinated Indebtedness, if the aggregate Net Cash Proceeds of such Third
Party Subordinated Indebtedness, together with the aggregate Net Cash Proceeds received from
the sale or issuance of any Equity Interests in the Company exceeds, for the period from the
Issue Date to November 16, 2009, $5,000,000 in the aggregate, 50% of the amount of such
excess and for the period thereafter, $25,000,000 in the aggregate, 25% of such excess;




     (iii) upon the sale or issuance by the Company of any Equity Interests in the Company
(other than any issuance made pursuant to and in accordance with the Related Documents and
the exercise of any option that is authorized or outstanding as of the Issue Date to
purchase Common Stock), if the aggregate Net Cash Proceeds of such Equity Interests,
together with the aggregate Net Cash Proceeds received from the incurrence or issuance by
the Company or any of its Subsidiaries of Third Party Subordinated Indebtedness, exceeds ,
for the period from the Issue Date to November 16, 2009, $5,000,000 in the aggregate, 50%
of the amount of such excess and for the period thereafter, $25,000,000 in the aggregate,
25% of such excess;




     (iv) upon any Extraordinary Receipt received by or paid to or for the account of the
Company or any of its Subsidiaries, and not otherwise included in clause (i), (ii) or (iii)
of this Section 3.01(a), all Net Cash Proceeds received therefrom; provided,
however, that with respect to any proceeds of insurance, condemnation awards (or payments in
lieu thereof) or indemnity payments, at the election of the Company (as notified by the
Company to the Collateral Agent on



33









 







or prior to the date of receipt of such insurance proceeds, condemnation awards or
indemnity payments), and so long as no Event of Default shall have occurred and be
continuing, the Company or such Subsidiary may apply all or any portion of such Net Cash
Proceeds within 180 days after the receipt of such proceeds to replace or repair the
equipment, fixed assets or real property in respect of which such proceeds were received;
and provided, further, however, that any Net Cash Proceeds not so applied within 180 days
after the receipt thereof shall be applied in any event to the redemption of the Bonds as
set forth in this Section 3.01(a);




     (v) on May 1, 2010, if the Excess Free Cash Flow for the preceding Excess Free Cash
Flow Period exceeded $2,500,000, 25% of the first $10,000,000 of such Excess Free Cash Flow
and 75% of the remainder of such Excess Free Cash Flow and on May 1 of each year thereafter,
the Excess Free Cash Flow for the preceding Excess Free Cash Flow Period exceeded
$2,500,000, 75% of such Excess Free Cash Flow; provided that, if an Event of Default shall
exist on the Redemption Date, the Company shall redeem an aggregate principal amount of
Bonds equal to 100% of the Excess Free Cash Flow during such Excess Free Cash Flow Period on
such Redemption Date; or




     (vi) within ten Business Days of the occurrence of a Product MAE with respect to any
Primary Product, the Projected Product Expenses with respect to such Primary Product,
provided, however, that the Company may elect (as notified by the Company to the Collateral
Agent on or promptly after the date of such Product MAE) to deposit such Projected Product
Expenses into a cash collateral account (the “Redemption Collateral Account”) with
the Collateral Agent over which the Collateral Agent has a first priority perfected security
interest in favor of the Secured Parties, and may, but only with the approval of Holders of
at least 51% in aggregate principal amount of the then outstanding Bonds and so long as no
Event of Default shall have occurred and be continuing, invest all or any portion of such
Projected Product Expenses within 180 days after the occurrence of such Product MAE in
another Product; and provided, further, however, that any Projected Product Expenses not so
applied within 180 days after the occurrence of such Product MAE shall be applied to the
redemption of the Bonds.



     (b) The Company may, at its option, redeem the Bonds, in whole or in part, at specified times
and under specified conditions, as set forth in Section 6 of the Bonds. If the Company
elects to redeem Bonds pursuant to Section 6 of the Bonds, it shall, at least thirty (30)
days (or such shorter period as the Trustee may agree) before the Redemption Date, furnish to the
Trustee and Paying Agent an Officers’ Certificate setting forth the Redemption Date and the
principal amount of the Bonds to be redeemed and the Section of this Indenture or the Section of
Bonds pursuant to which the redemption shall occur.



     (c) Any Net Cash Proceeds permitted to be reinvested pursuant to clause (iv) of Section
3.01(a) shall, pending reinvestment, be held in a cash collateral account with the Collateral
Agent over which the Collateral Agent has a first priority perfected security interest in favor of
the Secured Parties, and any Net Cash Proceeds or Excess Free Cash Flow required to be used to
redeem the Bonds pursuant to clauses (i), (ii), (iii), (iv) or (v) of this Section 3.01(a)
may be deposited with the Collateral Agent, which Net Cash Proceeds or Excess Free Cash Flow shall
be held in a deposit account over which the Collateral Agent shall hold a first priority perfected
security interest and applied to redeem an aggregate principal amount of Bonds equal to such Net
Cash Proceeds or Excess Free Cash Flow on the Redemption Date.



     (d) Each Officers’ Certificate provided for in this Section 3.01 shall be accompanied
by an Opinion of Counsel stating that such redemption complies with the conditions contained herein
and in the Bonds.



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     Section 3.02. Selection of Bonds To Be Redeemed.



     If fewer than all of the Bonds are to be redeemed pursuant to Section 3.01 of the
Indenture or Section 6 of the Bonds, the selection of the Bonds for redemption will be made
by the Trustee on a pro rata basis, by lot or by such method as the Trustee may reasonably
determine is fair and appropriate (subject to the procedures of DTC); provided that no partial
redemption will reduce the principal amount of a Bond not redeemed to less than $100,000.



     The Trustee shall make the selection from the Bonds outstanding and not previously called for
redemption and shall promptly notify the Company in writing of the Bonds selected for redemption
and, in the case of any Bond selected for partial redemption, the principal amount at maturity
thereof, to be redeemed. If less than all of the Bonds are to be redeemed at any time, the Trustee
will select Bonds for redemption on a pro rata basis unless otherwise required by law or applicable
stock exchange requirements. Bonds in denominations of $100,000 in principal amount at maturity
may be redeemed only in whole. The Trustee may select for redemption portions (equal to $100,000
in principal amount at maturity or any integral multiple thereof) of the principal of Bonds that
have denominations larger than $100,000. Provisions of this Indenture that apply to Bonds called
for redemption also apply to portions of Bonds called for redemption.



     Section 3.03. Notice of Redemption.



     At least twenty (20) days but not more than sixty (60) days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption by first class mail, postage
prepaid, to each Holder whose Bonds are to be redeemed at its registered address, with a copy to
the Trustee and any Paying Agent. At the Company’s written request, the Trustee shall give the
notice of redemption in the Company’s name and at the Company’s expense. Failure to give notice of
redemption, or any defect therein to any Holder of any Bond selected for redemption shall not
impair or affect the validity of the redemption of any other Bond.



     Each notice of redemption shall identify the Bonds to be redeemed and shall state:




     (1) the Redemption Date;




     (2) the Redemption Price and the amount of accrued interest to be paid;




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




     (4) the CUSIP number;




     (5) the section of the Bonds or the section of this Indenture pursuant to which such
redemption is being made;




     (6) the place where such Bonds called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price plus accrued interest;




     (7) that, unless the Company fails to deposit with the Paying Agent funds in
satisfaction of the applicable redemption price, interest on Bonds called for redemption
ceases to accrue on and after the Redemption Date in accordance with Section 3.05,
and the only remaining right of the Holders of such Bonds is to receive payment of the
Redemption Price plus accrued interest upon surrender to the Paying Agent of the Bonds
redeemed;



35









 






     (8) if any Bond is being redeemed in part, the portion of the principal amount of such
Bond to be redeemed and that, after the Redemption Date, and upon surrender of such Bond, a
new Bond or Bonds in the aggregate principal amount equal to the unredeemed portion thereof
shall be issued; and




     (9) if fewer than all the Bonds are to be redeemed, the identification of the
particular Bonds (or portion thereof) to be redeemed, as well as the aggregate principal
amount of Bonds to be redeemed and the aggregate principal amount of Bonds to be outstanding
after such partial redemption.



     If any of the Bonds to be redeemed is in the form of a Global Bond, then the Company shall
modify such notice to the extent necessary to accord with the procedures of DTC applicable to
redemption.



     Section 3.04. Effect of Notice of Redemption.



     Once notice of redemption is mailed in accordance with Section 3.03, Bonds or portions
thereof called for redemption shall become irrevocably due and payable on the Redemption Date and
at the Redemption Price plus accrued interest. Upon surrender to the Trustee or Paying Agent, such
Bonds or portions thereof called for redemption shall be paid at the Redemption Price plus accrued
interest thereon to the Redemption Date, but installments of interest, the maturity of which is on
or prior to the Redemption Date, shall be payable to Holders of record at the close of business on
the relevant Record Dates referred to in the Bonds.



     Section 3.05. Deposit of Redemption Price.



     Not later than 10:00 a.m. local time in the place of payment on the Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption
Price of, plus accrued interest on, all Bonds or portions thereof to be redeemed on that date.



     The Paying Agent shall promptly return to the Company any U.S. Legal Tender so deposited which
is not required for that purpose, except with respect to monies owed as obligations to the Trustee
pursuant to Article Six.



     If the Company complies with the preceding paragraph, then, unless the Company defaults in the
payment of such Redemption Price together with accrued and unpaid interest on the Bonds to be
redeemed, interest on the Bonds to be redeemed shall cease to accrue on and after the applicable
Redemption Date, whether or not such Bonds are presented for payment..



     Section 3.06. Bonds Redeemed in Part.



     Upon surrender of a Bond that is to be redeemed in part, the Company shall issue and the
Trustee shall authenticate for the Holder at the expense of the Company a new Bond or Bonds equal
in principal amount to the unredeemed portion of the Bond surrendered.



36









 





ARTICLE FOUR




COVENANTS




     Section 4.01. Payment of Bonds.



     The Company shall pay the principal of, and premium, if any, and interest on, the Bonds on the
dates and in the manner provided in the Bonds and in this Indenture. An installment of principal
of, and premium, if any, and interest on, the Bonds shall be considered paid on the date it is due
if the Trustee or Paying Agent (other than the Company or an Affiliate of the Company) holds on
that date U.S. Legal Tender designated for and sufficient to pay the installment in full and is not
prohibited from paying such amounts to the Holders of the Bonds pursuant to the terms of this
Indenture. The Company shall pay interest on overdue principal at 2% per annum in excess of the
rate per annum set forth in the Bonds, and it shall pay interest on other overdue amounts at the
same rate, to the extent lawful.



     Section 4.02. Maintenance of Office or Agency.



     The Company shall maintain the office or agency required under Section 2.03. The
Company shall give prior 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 shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.



     Section 4.03. Financial Statements and Other Information.



     The Company shall deliver to the Trustee and, solely with respect to the information described
in clause (k) hereof, the Holders, any Person holding a beneficial interest in the Bonds and
prospective purchasers of the Bonds or a beneficial interest therein described therein:



     (a) Annual Financials. As soon as available, but in any event within 120 days (or
such earlier date on which the Company is required to file a Form 10-K under the Exchange Act, if
applicable) after the end of each fiscal year of the Company, beginning with the fiscal year ended
December 31, 2007, a consolidated and consolidating balance sheet of the Company and its
Subsidiaries as of the end of such fiscal year, and the related consolidated and consolidating
statements of income, cash flows and shareholders’ equity for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all prepared in accordance
with GAAP, with such consolidated statements to be audited and accompanied by (i) a report and
opinion of the Company’s independent certified public accountants of recognized national standing
(which report and opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit),
stating that such financial statements fairly present, in all material respects, the consolidated
financial condition, results of operations and cash flows of the Company as of the dates and for
the periods specified in accordance with GAAP and (ii) if and only if the Company is required to
comply with the internal control provisions pursuant to Section 404 of Sarbanes-Oxley, an
attestation report of such public accounting firm as to the Company’s internal controls pursuant to
Section 404 of Sarbanes-Oxley attesting that such internal controls meet the requirements of
Sarbanes-Oxley, and such consolidating financial statements to be certified by a Financial Officer
of the Company as fairly presenting the consolidating financial condition of the Company and its
Subsidiaries, along with a certification that no Default then exists;



37









 





     (b) Quarterly Financials. As soon as available, but in any event within 60 days (or
such earlier date on which the Company is required to file a Form 10-Q under the Exchange Act, if
applicable) after the end of each of the first three fiscal quarters of each fiscal year of the
Company, beginning with the fiscal quarter ended September 30, 2007, a consolidated and
consolidating balance sheet of the Company and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income, cash flows and shareholders’ equity for
such fiscal quarter and for the then elapsed portion of the Company’s fiscal year, setting forth in
each case in comparative form the figures for the comparable periods in the previous fiscal year,
all prepared in accordance with GAAP, such consolidated and consolidating statements to be
certified by a Financial Officer of the Company as fairly presenting, in all material respects, the
consolidated and consolidating financial condition, results of operations and cash flows of the
Company and its Subsidiaries as of the date and for the periods specified in accordance with GAAP
consistently applied, and on a basis consistent with audited financial statements referred to in
clause (a) of this Section, subject to normal year-end audit adjustments and the absence of
footnotes, along with a certification that no Default then exists;



     (c) Monthly Financials. As soon as available, but in any event within 30 days after
the end of each fiscal month (or 45 days after the end of any month ending a fiscal quarter) of
each fiscal year of the Company, beginning with the fiscal month ended October 31, 2007, a
consolidated and consolidating balance sheet of the Company and its Subsidiaries as at the end of
such fiscal month, and the related consolidated statements of income, cash flows and shareholders’
equity for such fiscal month and for the then elapsed portion of the Company’s fiscal year, setting
forth in each case in comparative form the figures for the comparable periods in the previous
fiscal year, all prepared in accordance with GAAP, such consolidated and consolidating statements
to be certified by a Financial Officer of the Company as fairly presenting, in all material
respects, the consolidated and consolidating financial condition, results of operations and cash
flows of the Company and its Subsidiaries as of the date and for the periods specified in
accordance with GAAP consistently applied, and on a basis consistent with audited financial
statements referred to in clause (a) of this Section, subject to normal year-end audit adjustments
and the absence of footnotes, along with a certification that no Default then exists;



     (d) Annual Business Plan. As soon as available, but in any event within 30 days after
the end of each fiscal year of the Company, beginning with the fiscal year ended December 31, 2007,
a copy of the Company’s annual business plan prepared by the management of the Company in scope and
detail substantially similar to the business plan delivered pursuant to Section 6.12 of the
Purchase Agreements;



     (e) Certificates; Other Information. The following additional items:




     (i) concurrently with the delivery of the financial statements referred to in (a) and
(b), beginning with the fiscal quarter ended September 30, 2007, an Officers’ Certificate
certifying that (A) a review of the activities of the Company and its Subsidiaries during
the preceding fiscal year has been made under the supervision of each Officer signing such
certificate with a view to determining whether the Company and its Subsidiaries have kept,
observed, performed and fulfilled their obligations under this Indenture and the other
Financing Documents, (B) the representations and warranties of the Company and each of its
Subsidiaries contained in the Purchase Agreements or any other Financing Document, or which
are contained in any document furnished at any time under or in connection herewith or
therewith, are true and correct in all material respects on and as of the date of such
certificate, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of such earlier
date, and except that for purposes of this Section 4.03(e)(i), the representations
and warranties relating to financial statements shall be deemed to refer to the most recent
financial statements furnished pursuant to Section 4.03(a) and Section
4.03(b), respectively, and (C) to the best of each such Officer’s actual knowledge the
Company and its




38












 






     Subsidiaries during such preceding fiscal year have kept, observed, performed and
fulfilled each and every condition and covenant under this Indenture and the other Financing
Documents and at the date of such certificate there is no Default or Event of Default that
has occurred and is continuing or, if either such Officer does know of such Default or Event
of Default, such Officer shall include in such certificate a description of the Default or
Event of Default and its status with particularity;




     (ii) during any Default, promptly upon the reasonable request by the Trustee, copies of
any detailed audit reports, management letters or recommendations submitted to the Board of
Directors (or the audit committee thereof) of the Company or any of its Subsidiaries by
independent accountants in connection with the accounts or books of the Company or any of
its Subsidiaries, or any audit of any of them;




     (iii) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the Company or the stockholders
of the Company, and copies of all periodic and other reports, registration statements and
other materials filed by the Company or any of its Subsidiaries with the SEC, any national
securities exchange, or any Governmental Authority or securities exchange in any applicable
non-U.S jurisdiction, and in any case not otherwise required to be delivered to the Trustee
pursuant hereto;




     (iv) not later than five Business Days after receipt thereof by the Company or any of
its Subsidiaries, copies of all notices, requests and other documents (including amendments,
waivers and other modifications) so received under or pursuant to any Related Document or
instrument, indenture, loan or credit or similar agreement regarding or related to any
breach or default by any party thereto or any other event that could reasonably be expected
to materially impair the value of the interests or the rights of the Company or any of its
Subsidiaries or otherwise have a Material Adverse Effect and, after any Default, promptly
upon request by the Trustee, such information and reports regarding the Related Documents
and such instruments, indentures and loan and credit and similar agreements as the Trustee
may reasonably request; and




     (v) not later than five Business Days after the Company becomes aware of the assertion
or occurrence thereof, notice of any action or proceeding against or of any noncompliance by
the Company or any of its Subsidiaries with any Environmental Law or Environmental Permit
that could reasonably be expected to have a Material Adverse Effect;



     (f) Updates as to Real Property. As soon as available, but in any event within 30
days after the end of each fiscal year of the Company, (i) a report supplementing Schedules
5.20(c), 5.20(d)(i) and 5.20(d)(ii) of the Purchase Agreements, including any identification of all
owned and leased real property disposed of by the Company or any of its Subsidiaries during such
fiscal year, a list and description (including the street address, county or other relevant
jurisdiction, state, record owner, book value thereof and in the cases of leases of property,
lessor, lessee, expiration date and annual rental cost thereof) of all real property acquired or
leased during such fiscal year and a description of such other changes in the information included
in such Schedules as may be necessary for such Schedules to be accurate and complete and (ii) a
report supplementing Schedules 5.13 and 5.20(c) of the Purchase Agreements containing a description
of all changed in the information included in such Schedules as may be necessary for such Schedules
to be accurate and complete;



     (g) Forecasts. As soon as available, but in any event within 30 days after the end of
each fiscal year of the Company, beginning with the fiscal year ended December 31, 2007, and within
five days of any material revision thereof, five-year forecasts prepared by the Company, in form,
scope and detail similar to the forecast delivered pursuant to Section 6.18 of the Purchase
Agreements, of



39









 




consolidated balance sheets, income statements and cash flow statements, including details
with respect to forecasted expenditures for each Primary Product for the periods covered by such
forecast, on a monthly basis for the first twelve months following the Issue Date and on an annual
basis thereafter while the Bonds are outstanding;




     (h) Operating Budget. As soon as available, but in any event within 30 days after the
end of each fiscal year of the Company, beginning with the fiscal year ended December 31, 2007, and
within five days of any material revision thereof, an annual operating budget for the Company and
its Subsidiaries in form, scope and detail similar to the operating budget delivered pursuant to
Section 6.12 of the Purchase Agreements, but to include balance sheets, statements of income and
sources and uses of cash, for (i) each quarter of such fiscal year prepared in detail and (ii) the
fiscal year, prepared in summary form, in each case, with appropriate presentation and discussion
of the principal assumptions upon which such budgets are based, accompanied by a statement of a
Financial Officer of the Company to the effect that the budget of the Company and its Subsidiaries
is based upon assumptions believed to be reasonable for the periods covered thereby, along with a
certification that no Default then exists;



     (i) Cash Balance Report. On the last 15th and the last day of each
calendar month, a copy of the bank statement setting forth the
balance in the Securities Account and each Control Account as
of the close of the previous Business Day;



     (j) Additional Information. Promptly, such additional information regarding the
business, financial, legal or corporate affairs of the Company or any of its Subsidiaries, or
compliance with the terms of the Financing Documents, as the Trustee or any Holder may from time to
time reasonably request after any Default; and



     (k) Rule 144A Information. Promptly upon the request of any Holder, any Person
holding a beneficial interest in the Bonds, or any prospective purchaser of the Bonds or a
beneficial interest therein designated by a Holder or such Person, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.



     Unless otherwise directed by any of the Trustee, the Holders (and holders of beneficial
interests in the Global Bonds) and the Placement Agent (collectively, the “Recipients”),
the Company shall make available to such Recipient the information required to be delivered
pursuant to this Section 4.03 (collectively, “Company Materials”) by posting the
Company Materials on IntraLinks or another similar electronic system (the “Platform”), and
the Company shall administer and maintain the Platform for the Recipients. The Company shall
maintain all Company Materials posted on the Platform for as long as the Bonds are outstanding.
The Company acknowledges and agrees that certain of the Recipients may be “public-side” Recipients
(i.e., Persons that do not wish to receive material non-public information with respect to the
Company or its securities) (each, a “Public Recipient”). The Company shall identify that
portion of the Company Materials that may be distributed to the Public Recipients and that (w) all
such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Company Materials “PUBLIC,” the Company shall be deemed to have authorized the Recipients
to treat such Company Materials as not containing any material non-public information (although it
may be sensitive and proprietary) with respect to the Company or its securities for purposes of
United States Federal and state securities laws; (y) all Company Materials marked “PUBLIC” shall be
made available by the Company to the Recipients through a portion of the Platform designated
“Public Investor;” and (z) all Company Materials that are not marked “PUBLIC” shall be made
available by the Company to the Recipients on a portion of the Platform not designated “Public
Investor.” Notwithstanding the foregoing, the Company shall be under no obligation to mark any
Company Materials “PUBLIC”.



40









 




Delivery of such reports, information and documents to the Trustee shall be for informational
purposes only and the Trustee’s receipt thereof shall not, in the absence of gross negligence, bad
faith or willful misconduct on its part, constitute constructive notice of any information
contained therein or determinable from information contained therein, including compliance by the
Company or any Subsidiary Guarantor with any covenant hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).




     Section 4.04. Notices.



     The Company shall promptly, and in any event within three Business Days after the Company
becomes aware thereof (or, in the exercise of prudent business practices, should have become aware
thereof), notify the Trustee in writing of:



     (a) the occurrence of any Default;



     (b) any matter or development that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including if reasonably expected to result in a Material Adverse Effect
(i) breach or non-performance of, or any default under, a Contractual Obligation of the Company or
any of its Subsidiaries; (ii) any dispute, litigation, investigation, proceeding or suspension
between the Company or any of its Subsidiaries, on the one hand, and any Governmental Authority, on
the other; or (iii) the commencement of, or any material development in, any litigation or
proceeding affecting the Company or any of its Subsidiaries, including pursuant to any applicable
Environmental Laws;



     (c) the occurrence of any ERISA Event;



     (d) any change in accounting policies or financial reporting practices by the Company or any
of its Subsidiaries, which results in a material change in its financial results or affects the
computation of any financial ratio or requirement set forth in any Financing Document; and



     (e) (i) the occurrence of any Disposition of property or assets for which the Company is
required to make a mandatory redemption of the Bonds pursuant to Section 3.01(a)(i), (ii)
the incurrence or issuance of any Indebtedness for which the Company is required to make a
mandatory redemption of the Bonds pursuant to Section 3.01(a)(ii), (iii) the incurrence or
issuance of any equity for which the Company is required to make a mandatory redemption of the
Bonds pursuant to Section3.01(a)(iii), and (iv) the receipt of any Extraordinary Receipt
for which the Company is required to make a mandatory redemption of the Bonds pursuant to
Section 3.01(a)(iv).


Each notice pursuant to Section 4.04(a), (b), (c), (d) or (e) shall be accompanied
by a statement of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company and its Subsidiaries, as applicable, have
taken and/or propose to take with respect thereto. Each notice pursuant to Section 4.04(a)
shall describe with particularity any and all provisions of this Indenture and any other Financing
Document that have been breached.




     Section 4.05. Payment of Material Obligations, Liabilities, Taxes and Other Claims.



     The Company shall, and shall cause each of its Subsidiaries to, pay and discharge as the same
shall become due and payable, all its material obligations and liabilities, including, in any
event, (a) all tax liabilities, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness (other
than the Bonds), as and when due and



41









 




payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.




     Section 4.06. Corporate Existence.



     The Company shall, and shall cause each of its Subsidiaries to, preserve, renew and maintain
in full force and effect its legal existence and good standing under the Laws of the jurisdiction
of its organization except in a transaction permitted by Section 4.20 or Section
4.21; and (b) take all reasonable action to obtain, preserve, renew, extend and keep in full
force and effect all rights, licenses, permits, privileges, franchises, authorizations, patents,
copyrights, trademarks, trade names and service marks necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.



     Section 4.07. Maintenance of Properties and Insurance; Compliance with Laws.



     (a) The Company shall, and shall cause each of its Subsidiaries to, (i) maintain, preserve and
protect all of its properties and equipment necessary in the operation of its business in good
working order and condition, ordinary wear and tear excepted; and (ii) make all necessary repairs
thereto and renewals, additions, improvements and replacements thereof except, in each case, where
the failure to do so could not reasonably be expected to have a Material Adverse Effect.



     (b) The Company shall, and shall cause each of its Subsidiaries to, maintain with financially
sound and reputable insurance companies not Affiliates of the Company, insurance with respect to
its properties and business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons. All such insurance shall
(a) provide that no cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by the Collateral Agent of written
notice thereof, (b) name the Collateral Agent as mortgagee (in the case of property insurance) or
additional insured on behalf of the Secured Parties (in the case of liability insurance) or loss
payee (in the case of property insurance), as applicable, and (c) include a breach of warranty
clause (provided that this clause (c) shall not be violated if the Company has not been able to
include a breach of warranty clause after the use of commercially reasonable efforts).



     (c) The Company shall, and shall cause each of its Subsidiaries to, comply with the
requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted, or (b) the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.



     Section 4.08. Books and Records.



     The Company shall, and shall cause each of its Subsidiaries to, maintain proper books of
record and account in which full, true and correct entries in conformity with GAAP consistently
applied and all requirements of Law shall be made of all financial transactions and matters
involving the assets and business of the Company or such Subsidiary, as the case may be.



     Section 4.09. Waiver of Stay, Extension or Usury Laws.



     Each of the Company and its Subsidiaries covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or



42









 




advantage of, any stay or extension law or any usury law or other Law that would prohibit or
forgive the Company or such Subsidiary, as applicable, from paying all or any portion of the
principal of, or premium, if any, or interest on, the Bonds or other amounts due under the
Financing Documents as contemplated herein or therein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage
of any such Law, and covenant that it shall not, by resort to any such Law, hinder, delay or impede
the execution of any power herein granted to the Trustee or Collateral Agent, but shall suffer and
permit the execution of every such power as though no such Law had been enacted.




     Section 4.10. Use of Proceeds.



     The Company shall use the proceeds of the issuance of the Bonds solely for (a) first, fees and
expenses incurred in connection with the issuance of the Bonds, (b) second, the repayment of
existing indebtedness of the Company and (c) after the payment in full of the items described in
clauses (a) and (b), other general corporate purposes.



     Section 4.11. Covenant to Guarantee Obligations and Give Security.



     (a) With respect to any personal property acquired by the Company or any of its Subsidiaries
after the Issue Date that is intended to be subject to the Lien created by one or more of the
Collateral Documents, but is not so subject, the Company shall, and shall cause each of its
Subsidiaries to, at its own expense and within 30 days after the acquisition thereof:




     (i) execute and deliver to the Collateral Agent a security agreement in form and
substance substantially similar to the Security Agreement (or other agreement, instrument or
document in form and substance substantially similar to any comparable Collateral Document)
or an amendment or supplement to the relevant Collateral Documents, securing payment of all
the Obligations under the Financing Documents and constituting Liens on all such property;




     (ii) take all actions necessary to cause such Lien to be duly perfected to the extent
required by such Collateral Documents, including the recording of mortgages, the filing of
UCC financing statements, the giving of notices and the endorsement of notices on title
documents as may be required by applicable Law in order to perfect and maintain the
validity, effectiveness and priority of any such Collateral Document and any of the Liens
intended to be created thereunder; and




     (iii) take such actions and execute and/or deliver to the Collateral Agent such
documents as may be required by applicable Law in order to perfect and maintain the
validity, effectiveness and priority of any such Collateral Document and any of the Liens
intended to be created on such after-acquired properties, including, if the Acquisition
Consideration of the property exceeds $1,000,000, a favorable Opinion of Counsel acceptable
to the Collateral Agent as to the matters contained in clauses (i) and (ii) above and as to
such other matters as the Collateral Agent may reasonably request.



     (b) Upon the occurrence and during the continuance of an Event of Default, the Company shall,
and shall cause its Subsidiaries to, grant a security interest in, and take all actions to perfect
such security interest, in any additional property and assets requested by the Collateral Agent in
its sole discretion.



43









 





     Section 4.12. Inspection Rights.



     The Company shall, and shall cause each of its Subsidiaries to, permit representatives and
independent contractors of the Collateral Agent to visit and inspect any of its properties, to
examine its corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances, accounts and condition with its directors,
officers, employees and advisors (including independent public accountants), all at the expense of
the Company and at reasonable times during normal business hours and upon reasonable advance notice
to the Company; provided, however, that when an Event of Default exists the Collateral Agent (or
any of its representatives or independent contractors) may do any of the foregoing at the expense
of the Company at any time during normal business hours and as often as may be desired and without
advance notice.



     Section 4.13. Further Assurances.



     The Company shall, and shall cause each of its Subsidiaries to, (a) correct any material
defect or error that may be discovered in any Financing Document or in the execution,
acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further acts, deeds,
certificates, assurances and other instruments in order to (i) as the Trustee or the Collateral
Agent may reasonably require from time to time, carry out more effectively the purposes of the
Financing Documents, (ii) subject the Company’s or any of its Subsidiaries’ properties, assets,
rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral
Documents to the fullest extent permitted by applicable Law, (iii) perfect and maintain the
validity, effectiveness and priority of any of the Collateral Documents and any of the Liens
intended to be created thereunder and (iv) subject to Section 6.02(m) hereof, as the
Trustee or the Collateral Agent may reasonably require from time to time, assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured Parties under any
Financing Document or under any other instrument executed in connection with any Financing Document
to which the Company or any of its Subsidiaries is or is to be a party,.



     Section 4.14. Material Contracts.



     The Company shall, and shall cause each of its Subsidiaries to, perform and observe all the
terms and provisions of each Material Contract to be performed or observed by it except where such
failure to perform or observe could not reasonably be expected to have a Material Adverse Effect,
and, after a Default, take all such action to such end as requested by the Collateral Agent and
make to each other party to each such Material Contract such demands and requests for information
and reports or for action as the Company or any of its Subsidiaries is entitled to make under such
Material Contract.



     Section 4.15. Cash Management System.



     (a) The Company shall, and shall cause each of its Subsidiaries to, use commercially
reasonable efforts to promptly (but in any event, within 30 days following the Issue Date)
establish, and thereafter maintain, a cash management system with accounts, subject to Control
Agreements, at banks organized under the laws of the United States of America or any state thereof
or the District of Columbia or any U.S. branch of a foreign bank having combined net capital and
surplus of not less than $250,000,000 and at all times ensure that, by entering into Control
Agreements, with respect to all applicable deposit and securities accounts maintained by the
Company and its Subsidiaries (each a “Control Account”), all cash and cash equivalents of such Persons are subject to a valid
and perfected first priority security interest in favor of the Collateral Agent for the benefit of
the Secured Parties.



44









 





     (b) The Company shall establish, and maintain, with the Collateral Agent a deposit or
securities account (which account shall be a non-interest-bearing trust account and amounts on
deposit therein may be invested in Cash Equivalents), in which the net proceeds from the issuance
and sale of the Bonds and all gross revenues of the Company and its Subsidiaries shall be
deposited, and with respect to which account, all cash and cash equivalents maintained therein are
subject to a valid and perfected first-priority security interest in favor of the Collateral Agent
for the benefit of the Secured Parties (such account, the “Securities Account”).



     (c) In the absence of written directions from the Company, the Collateral Agent shall invest
amounts in the Securities Account in The Bank of New York Cash Reserve. Neither the Collateral
Agent nor the Trustee shall be accountable for any losses resulting from the sale or depreciation
in the market value of such investment, unless such loss results from the Collateral Agent’s or the
Trustee’s gross negligence, fraud or willful misconduct.



     Section 4.16. [Reserved].



     Section 4.17. Limitation on Incurrence of Additional Indebtedness.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise,
with respect to, or otherwise become responsible for payment of (collectively, “incur”) any
Indebtedness other than Permitted Indebtedness.



     Section 4.18. Limitation on Liens.



     The Company will not, and will not cause or permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or
upon any property or assets of the Company or any of its Subsidiaries whether owned on the Issue
Date or acquired after the Issue Date, or any proceeds therefrom, or file or permit to be filed
under the UCC (or similar Law) of any jurisdiction a financing statement (or similar record) that
names the Company or any of its Subsidiaries as debtor, or assign or otherwise convey any accounts
or other right to receive income or profits, other than Permitted Liens.



     Section 4.19. Limitation on Investments.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, make or hold any Investment other than Permitted Investments. An Investment shall be
deemed to be existing or outstanding to the extent not returned in the same form as the original
Investment (or any other form with a Fair Market Value equal to such original Investment).



     Section 4.20. Limitation on Fundamental Changes.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of
(whether in one transaction or in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom, the following shall be permitted:



     (a) any Subsidiary may merge or consolidate with or into, or Dispose of all or substantially
all of its assets to (i) the Company or any Subsidiary Guarantor, provided that the Company shall
be the continuing or surviving Person in the case of any merger or consolidation involving the
Company and



45









 




Subsidiary Guarantor shall be the continuing or surviving Person and remains a wholly-owned
subsidiary of the Company in any other case, or (ii) any one or more other Subsidiaries, provided
that when any Subsidiary Guarantor is merging with another Subsidiary, such Subsidiary Guarantor
shall be the continuing or surviving Person;




     (b) any Subsidiary that is not a Subsidiary Guarantor may merge or consolidate with or into,
or Dispose of all or substantially all its assets to another Subsidiary that is not a Subsidiary
Guarantor;



     (c) any Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided that
such dissolution, liquidation or winding up, as applicable, could not be expected to have a
Material Adverse Effect; and



     (d) Investments permitted by Section 4.19.



     Section 4.21. Limitation on Dispositions.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, make any
Disposition or enter into any agreement to make any Disposition, except for Permitted Dispositions.



     Section 4.22. Limitation on Restricted Payments.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, declare or
make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at
the time of any action described below or would result therefrom:



     (a) each Subsidiary may make Restricted Payments to the Company, any Subsidiaries of the
Company that are Guarantors and any other Person that owns a direct Equity Interest in such
Subsidiary, ratably according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made; and



     (b) the Company and each Subsidiary may declare and make Dividends payable solely in the
common stock or other common Equity Interests of such Person.



     Section 4.23. Limitation on Affiliate Transactions.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, enter into
any transaction of any kind with any Affiliate of the Company, whether or not in the ordinary
course of business, other than on fair and reasonable terms substantially as favorable to the
Company or such Subsidiary as would be obtainable by the Company or such Subsidiary at the time in
a comparable arm’s length transaction with a Person other than an Affiliate, provided, that in any
event, in the case of any transaction with an Affiliate with a transaction value in excess
$1,000,000, the transaction is approved by a majority if the independent directors of the Company
and, in addition, in the case of any transaction with an Affiliate with a transaction value in
excess $5,000,000, the Company has obtained a fairness opinion in respect of such transaction from
an investment bank of recognized standing; provided that the foregoing restriction shall not apply
to transactions between or among the Company and the Subsidiary Guarantors (or any of them).



46









 





     Section 4.24. Limitation on Burdensome Restrictions.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, enter into or
permit to exist any Contractual Obligation (other than this Indenture or any other Financing
Document) that (a) limits the ability of (i) any Subsidiary of the Company to make Restricted
Payments to the Company or any Subsidiary Guarantor or to otherwise transfer property to or invest
in the Company or any Subsidiary Guarantor, except for any agreement in effect (A) on the date
hereof and set forth on Schedule IV, (B) at the time any Subsidiary becomes a Subsidiary of
the Company, so long as such agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of the Company, (ii) any Subsidiary of the Company to Guarantee the
Indebtedness of the Company or (iii) the Company or any of its Subsidiaries to create, incur,
assume or permit to exist Liens on property of such Person; provided, however, that this clause
(iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of
Permitted Indebtedness of a type described in clause (6) of the definition thereof solely to the
extent any such negative pledge relates to the property financed by or the subject of such
Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien
is granted to secure another obligation of such Person.



     Section 4.25. Margin Stock.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, use the
proceeds of the issuance of the Bonds, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry Margin Stock or to extend credit to others for the
purpose of purchasing or carrying Margin Stock or to refund Indebtedness originally incurred for
such purpose.



     Section 4.26. Change in the Nature of the Business.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, engage in any business other than the Business of the Company and its Subsidiaries or
any business substantially related or incidental thereto.



     Section 4.27. Amendments to Organizational Documents.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, amend any of its Organizational Documents in a manner that could be reasonably expected
to result in a Material Adverse Effect.



     Section 4.28. Accounting Changes.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, make any change in (a) accounting policies or reporting practices, except as required
by GAAP, or (b) fiscal year (other than change its fiscal year end to December 31).



     Section 4.29. Prepayment, etc. of Indebtedness.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any subordination terms of, any
Indebtedness, except (a) the prepayment of the Bonds in accordance with the terms thereof and of
this Indenture, (b) regularly scheduled or required repayments or redemptions of Indebtedness set
forth in Schedule I, and (c) the payment of any Indebtedness in accordance with its terms,
including the terms of any applicable subordination agreement.



47









 





     Section 4.30. Amendment, etc. of Related Documents and Indebtedness.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, (a) cancel or terminate any Related Document or consent to or accept any cancellation
or termination thereof, (b) amend, modify or change in any manner any term or condition of any
Related Document or give any consent, waiver or approval thereunder, (c) waive any default under or
any breach of any term or condition of any Related Document, (d) take any other action in
connection with any Related Document that would impair the value of the interest or rights of the
Company thereunder or that would impair the rights or interests of any Holder or (e) amend, modify
or change in any manner any term or condition of any Permitted Indebtedness of a type described in
clause (2) of the definition thereof, except for any refinancing, refunding, renewal or extension
thereof permitted by such clause, in the case of (b) through (d) other than any amendment,
modification, change, consent, waiver, approval or action in connection with any Related Document
that is not materially adverse to the interests of any Holders or that could not be reasonably
expected to result in a Material Adverse Effect.



     Section 4.31. Additional Subsidiary Guarantees.



     If the Company or any of its Subsidiaries acquires or creates another Subsidiary after the
Issue Date, then the Company shall cause such Subsidiary to:




     (1) execute and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Subsidiary shall unconditionally
guarantee on a senior secured basis all of the Company’s obligations under the Bonds and
this Indenture on the terms set forth in this Indenture;




     (2) (a) execute and deliver to the Collateral Agent a security agreement in form and
substance substantially similar to the Security Agreement (or other agreement, instrument or
document in form and substance substantially similar to any comparable Collateral Document)
or an amendment or supplement to the relevant Collateral Documents, granting to the
Collateral Agent, for the benefit of the Holders, a perfected security interest in (i) the
Equity Interests of such new Subsidiary and (ii) any intercompany notes or debt securities
of such new Subsidiary, in either case, that are held by the Company or any other of its
Subsidiaries, subject to Permitted Liens, and (b) deliver to the Collateral Agent any
certificates representing such Equity Interests, intercompany notes and debt securities,
together with (i) in the case of such Equity Interests, undated stock powers or instruments
of transfer, as applicable, endorsed in blank, and (ii) in the case of such intercompany
notes or debt securities, endorsed in blank, in each case executed and delivered by an
Officer of the Company or such other Subsidiary that holds such Equity Interests,
intercompany notes or debt securities, as the case may be;




     (3) take such actions necessary or as the Collateral Agent reasonably determines to be
advisable (subject to the terms of Section 6.02(m) hereof) to grant to the
Collateral Agent for the benefit of the Holders a perfected security interest in the assets
of such new Subsidiary (other than leasehold interests), subject to the Permitted Liens,
including the filing of UCC financing statements in such jurisdictions as may be required by
the Security Agreement or by law or as may be reasonably requested by the Collateral Agent;




     (4) take such further action and execute and deliver such other documents specified in
this Indenture or otherwise reasonably requested by the Trustee or the Collateral Agent
(subject to the terms of Section 6.02(m) hereof) to effectuate the foregoing; and



48









 






     (5) deliver to the Trustee an Opinion of Counsel that such supplemental indenture and
any other documents required to be delivered have been duly authorized, executed and
delivered by such Subsidiary and constitutes a valid, binding and enforceable obligation of
such Subsidiary and such other opinions regarding the perfection of such Liens in the assets
of such Subsidiary as provided for in this Indenture.


Thereafter, such Subsidiary shall be a Subsidiary Guarantor for all purposes of this Indenture.




     In addition, as promptly as practicable after such formation or acquisition, the Company
shall, at the Company’s expense, deliver, unless not required by the Collateral Agent in its sole
discretion (subject to the terms of Section 6.02(m) hereof), to the Collateral Agent with
respect to each parcel of real property owned or held by such Subsidiary title reports, surveys and
engineering, soils and other reports, and environmental assessment reports, indicating the presence
or absence of Hazardous Materials at, on or in such parcel (and, if Hazardous Materials in an
amount requiring reporting under applicable Law, further environmental assessment reports), each in
scope, form and substance reasonably satisfactory to the Collateral Agent (subject to the terms of
Section 6.02(m) hereof), provided, however, that to the extent that the Company or any of
its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real
property, such items shall, promptly after the receipt thereof, be delivered to the Collateral
Agent.



     Section 4.32. Impairment of Security Interest.



     Neither the Company nor any of its Subsidiaries will take or omit to take any action which
would adversely affect or impair in any material respect the Liens in favor of the Collateral Agent
with respect to the Collateral. Neither the Company nor any of its Subsidiaries shall grant to any
Person (other than the Collateral Agent), or permit any Person (other than the Collateral Agent) to
retain, any Lien on the Collateral other than Permitted Liens. Neither the Company nor any of its
Subsidiaries will enter into any agreement that requires the proceeds received from any sale of
Collateral to be applied to repay, redeem, defease or otherwise acquire or retire any Indebtedness
of any Person, other than as permitted by this Indenture. The Company shall, and shall cause each
Subsidiary Guarantor to, at their sole cost and expense, execute and deliver all such agreements
and instruments as the Collateral Agent or the Trustee shall reasonably request (subject to the
terms of Section 6.02(m) hereof) to more fully or accurately describe the property intended
to be Collateral or the obligations intended to be secured by the Collateral Documents. The
Company shall, and shall cause each Subsidiary Guarantor to, at their sole cost and expense, file
any such notice filings or other agreements or instruments as may be reasonably necessary or
desirable under applicable Law to perfect the Liens created by the Collateral Documents at such
times and at such places as the Collateral Agent or the Trustee may reasonably request (subject to
the terms of Section 6.02(m) hereof).



     Section 4.33. Real Estate Mortgages and Filings.



     With respect to any fee interest in any real property (individually and collectively, the
“Premises”) (a) owned by the Company or any of its Subsidiaries on the Issue Date or (b)
acquired by the Company or such Subsidiary after the Issue Date, with (i) Acquisition Consideration
or (ii) as of the Issue Date, with a Fair Market Value, of greater than $1,000,000, on the Issue
Date in the case of clause (a) and within 90 days of the acquisition thereof in the case of
clause (b):




     (1) the Company shall deliver to the Collateral Agent, as mortgagee, fully executed
counterparts of a Mortgage, each dated as of the Issue Date or the date of acquisition of
such property, as the case may be, duly executed by the Company or the applicable
Subsidiary, together with evidence of the completion (or reasonably satisfactory
arrangements for the



49









 







completion), of all recordings and filings of such Mortgage as may be necessary to
create a valid, perfected Lien against the properties purported to be covered thereby;




     (2) the Company shall deliver to the Collateral Agent mortgagee’s title insurance
policies in favor of the Collateral Agent, as mortgagee for the ratable benefit of the
Collateral Agent, the Trustee and the Holders in an amount equal to 100% of the Fair Market
Value of the Premises purported to be covered by the related Mortgage, insuring that subject
to the exceptions approved by the Collateral Agent in its reasonable discretion (in
accordance with Section 6.02(m) hereof) and noted in such title insurance policy,
title to such property is marketable and that the interest created by the Mortgage
constitutes a valid Lien thereon free and clear of all Liens, defects and encumbrances other
than Permitted Liens, and such policies shall also include, to the extent available, at
commercially reasonable rates such endorsements as the Collateral Agent (subject to the
terms of Section 6.02(m) hereof) shall reasonably request and shall be accompanied
by evidence of the payment in full of all premiums thereon; and




     (3) the Company shall deliver to the Collateral Agent, with respect to each of the
covered Premises, the most recent survey of such Premises, together with either (i) an
updated survey certification in favor of the Trustee and the Collateral Agent from the
applicable surveyor stating that, based on a visual inspection of the property, there has
been no change in the facts depicted in the survey or (ii) an affidavit and/or indemnity
from the Company and the Subsidiary Guarantors stating that to its knowledge there has been
no change in facts depicted in the survey, other than, in each case, changes that do not
materially adversely affect the use by the Company or Subsidiary Guarantor, as applicable,
of such Premises for the Company or such Subsidiary Guarantor’s business as so conducted, or
intended to be conducted, at such Premises and in each case, in form sufficient for the
title insurer issuing the title policy to remove the standard survey exception from such
policy and issue a survey endorsement to such policy.



     Section 4.34. Landlord, Bailee and Consignee Waivers.



     (a) Each of the Company and each of its Subsidiaries that is a lessee of, or becomes a lessee
of, real property on or in which it will maintain, store, hold or locate assets having an aggregate
Fair Market Value of at least $1,000,000 shall use commercially reasonable efforts to deliver to
the Collateral Agent a landlord waiver, substantially in the form of Exhibit F, executed by
the lessor of such real property, within 90 days of the Issue Date, if such real property is leased
by the Company or such Subsidiary as of the Issue Date, or otherwise within 90 days of the date
such real property is leased by the Company or such Subsidiary.



     (b) Each of the Company and each of its Subsidiaries that is a bailor of, or becomes a bailor
of, assets having an aggregate Fair Market Value of at least $1,000,000 shall use commercially
reasonable efforts to deliver to the Collateral Agent a waiver, substantially in the form of the
Exhibit G, executed by the bailee of such assets, within 90 days of the Issue Date, if such
bailee holds such assets as of the Issue Date, or otherwise within 90 days of the date such bailee
holds such assets.



     (c) Each of the Company and each of its Subsidiaries that is a consignor of, or becomes a
consignor of, assets having a Fair Market Value of at least $1,000,000 shall use commercially
reasonable efforts to deliver to the Collateral Agent a waiver, substantially in the form of the
Exhibit H, executed by the consignee of such assets, within 90 days of the Issue Date, if
such assets are consigned as of the Issue Date, or otherwise within 90 days of the date such assets
are consigned.



50









 





     Section 4.35. Payments for Consent.



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



     Section 4.36. Products.



     The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, acquire one or more Products or become party to, or bound by, one or more in-bound
licensing arrangements with respect to any Product unless (i) such acquisition is consistent with
the Company’s past practices and in accordance with its business plans, (ii) the Acquisition
Consideration therefor, considered with the Acquisition Consideration for all Permitted Investments
of the type described in clause (8) of the definition thereof, is not in excess of $5,000,000 in
any single transaction or series of related transactions, $10,000,000 in any fiscal year or, in the
aggregate from the Issue Date, (x) $15,000,000 plus (y) the lesser of (i) the aggregate amount of
Net Cash Proceeds from the sale or issuance of Equity Interests in the Company minus the aggregate
amounts paid to redeem Bonds pursuant to Section 3.01(a)(iii) and (ii) $15,000,000 and (c)
the Company delivers to the Trustee at least thirty days prior to such acquisition, an Officers’
Certificate certifying that, immediately before and immediately after giving effect to the
acquisition (including giving pro forma effect to the aggregate Acquisition Consideration paid and
payable in respect of any such acquisition), no Default shall have occurred and be continuing
including no Default under the covenants set forth in Section 4.37.



     Section 4.37. Financial Covenants.



     (a) Minimum Liquidity. The aggregate cash and Cash Equivalents on deposit in the
Securities Account and the Control Accounts (excluding the proceeds from any incurrence or issuance by the Company or any of
its Subsidiaries of Indebtedness (other than the Bonds) and any sale or issuance of Equity
Interests in the Company (except to the extent the proceeds from such sale or issuance of Equity
Interests are used to fund the Acquisition Consideration paid from
the Securities Account or any Control Account in
connection with an acquisition permitted under clause (8) of the definition of Permitted
Investments)) at any time shall not be less than (x) the sum of (i) the amount shown in the table
below for such time, (ii) if there occurs a Product MAE with respect to Zemiva, the amount shown in
the table attached as Schedule 5 under “Zemiva Adjustment Amount” based on the month on
which the Product MAE occurs and the period being tested, (iii) if there occurs a Product MAE with
respect to Azedra, the amount shown in the table attached as Schedule 5 under “Azedra
Adjustment Amount” based on the month on which the Product MAE occurs and the period being tested
and (iv) if there occurs a Product MAE with respect to Onalta, the amount shown in the table
attached as Schedule 5 under “Onalta Adjustment Amount” based on the month on which the
Product MAE occurs and the period being tested, minus (without duplication) (y) (i) the
aggregate Redemption Price paid in accordance with Section 3.01(a)(vi), (ii) the amount on
deposit in the Redemption Collateral Account, (iii) to the extent not held in the Securities
Account or any Control Account, the amount reinvested pursuant to the terms of Section 3.01(a)(vi) and (iv) in the
event of a Product MAE in respect of any Primary Product, the aggregate amount of Product MAE
Expenses made in respect of such Primary Product for the applicable period specified below:



51









 







	 	 	 
	For the period specified:	 	Minimum Amount
	 	 	($000’s)
	November 2007
	 	$****
	December 2007
	 	$****
	January 2008
	 	$****
	February 2008
	 	$****
	March 2008
	 	$****
	April 2008
	 	$****
	May 2008
	 	$****
	June 2008
	 	$****
	July 2008
	 	$****
	August 2008
	 	$****
	September 2008
	 	$****
	October 2008
	 	$****
	November 2008
	 	$****
	December 2008
	 	$****
	January 2009
	 	$****
	February 2009
	 	$****
	March 2009
	 	$****
	April 2009
	 	$****
	May 1, 2009 to
June 30, 2009
	 	$****
	July 1, 2009 to
September 31, 2009
	 	$****
	October 1, 2009 to
December 31, 2010
	 	$****
	January 1, 2010 to
March 30, 2010
	 	$****
	April 1, 2010 to
June 30, 2010
	 	$****
	July 1, 2010 to
September 30, 2010
	 	$****
	October 1, 2010 to
December 31, 2011
	 	$****
	January 1, 2011 to
March 31, 2011
	 	$****
	April 1, 2011 to
June 30, 2011
	 	$****
	July 1, 2011 to
September 30, 2011
	 	$****
	October 1, 2011 to
December 31, 2012
	 	$****
	January 1, 2012 to
March 31, 2012
	 	$****
	April 1, 2012 to
June 30, 2012
	 	$****
	July 1, 2012 to
September 30, 2012
	 	$****
	October 1, 2012 to
the Maturity Date
	 	$****







The Company hereby authorizes the Collateral Agent to disclose to the Trustee the amount on deposit
in the Securities Account and each Control Account, upon the Trustee’s request (which request shall be made upon the
reasonable request of any holder of any beneficial interest in the Bonds and may otherwise be made
by the Trustee at




 




*
Confidential treatment requested *


52









 








any time), and authorizes the Trustee to provide such information to the Holders, and the Trustee
shall provide such information to the Holders.



     (b) Maximum Capital Expenditures. The aggregate Capital Expenditures made or incurred
by the Company or any of its Subsidiaries, whether by payment in cash or the incurrence of
Indebtedness (including, for the avoidance of doubt, Permitted Indebtedness of the type described
in clause (6) of the definition thereof) or otherwise, in any fiscal year of the Company ending on
or after December 31, 2007 shall not exceed the sum of (a) the amount set forth below for such
fiscal year, (b) to the extent the Company and its Subsidiaries make or incurs Capital Expenditures
in an amount less than the amount set forth below for the immediately preceding fiscal year, the
positive difference between the amount set forth and such amount made or incurred in the
immediately preceding fiscal year, but not more than $****, and (c) in any fiscal year in
which the Company purchases a cyclotron, the Acquisition Consideration for such purchase paid in
such fiscal year not to exceed $**** in the aggregate while the Bonds are outstanding:



	 	 	 	 	 
	For the fiscal year ending:	 	Amount
	December 31, 2007

	 	$	****	 
	December 31, 2008

	 	$	****	 
	December 31, 2009

	 	$	****	 
	December 31, 2010

	 	$	****	 
	December 31, 2011

	 	$	****	 
	December 31, 2012

	 	$	****	 






     Section 4.38.
Subsidiaries.



     The Company shall not transfer any assets or property to any of its Subsidiaries or cause or
permit any of its Subsidiaries to engage in any business, conduct any operations or incur any
obligations or liabilities unless, in each case, such Subsidiary complies with the requirements of
Section 4.31 as if such Subsidiary was acquired or created after the Issue Date and has
become a Subsidiary Guarantor hereunder.



ARTICLE FIVE




DEFAULT AND REMEDIES




     Section 5.01. Events of Default. The following events are defined as “Events of Default”:




     (1) the failure to pay cash interest on any Bonds (except, in respect of any Shortfall
where PIK Bonds are issued on the applicable Interest Payment Dates) or any other amount
(other than principal for the Bonds) when the same becomes due and payable and such failure
continues for a period of two (2) Business Days or the failure to issue PIK Bonds in an
aggregate principal amount equal to the Shortfall on any Interest Payment Date between and
including November 16, 2007 and November 16, 2010 in accordance with Section
2.02(c)(ii);




     (2) the failure to pay the principal of or premium, if any, on any Bonds, when such
principal becomes due and payable, at maturity, upon redemption or otherwise;




 




*  Confidential treatment requested *


53









 






     (3) (i) a default in the observance or performance of any covenant or agreement
contained in Section 4.03, Section 4.04, Section 4.06 (with respect
to the Company’s legal existence), Section 4.11, Section 4.17 to Section
4.31 and Section 4.35 to Section 4.37 or (ii) a
default in the observance or performance of any covenant or agreement contained Section 4.03 or
Section 4.32 and such default continues for a period of ten (10) days (but with
respect to Section 4.32, such ten-day grace period shall only apply if such default
can be cured within such ten day period);




     (4) a default in the observance or performance of any covenant or agreement (not
specified in clause (3) above) contained in this Indenture or any Financing Document which
default continues for a period of thirty (30) days after the Company receives written notice
of the default from the Trustee or the Holders of at least 50% in aggregate principal amount
of the then outstanding Bonds;




     (5) any representation or warranty made in or deemed to be made in connection with any
Financing Document, or any representation, warranty, statement or information contained in
any report, certificate, financial statement or other instrument furnished in connection
with or pursuant to any Financing Document, shall prove to have been false or misleading in
any material respect when so made, deemed made or furnished;




     (6) the Company or any of its Subsidiaries (A) fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guarantee of the Company or any of its Subsidiaries having an
aggregate principal amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit arrangement) of more
than the Threshold Amount, which is not cured within cure or grace periods applicable to the
applicable Indebtedness or Guarantee or (B) fails to observe or perform any other agreement
or condition relating to any such Indebtedness or Guarantee or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event occurs, which
failure is not cured within applicable cure or grace periods and the effect of which default
or other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded;




     (7) one or more judgments or orders for the payment of money in an aggregate amount in
excess of the Threshold Amount shall have been rendered against the Company or any of its
Subsidiaries (to the extent not covered by independent third-party insurance as to which the
insurer is rated at least “A” by A.M. Best Company, has been notified of the potential claim
and does not dispute coverage), or (ii) any one or more non-monetary final judgments that
have, or could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect;




     (8) the Company or any of its Subsidiaries that is not a Non-Material Subsidiary (A)
commences a voluntary case or proceeding under any Bankruptcy Law with respect to itself,
(B) consents to the entry of an order for relief against it in an involuntary case under any
Bankruptcy Law, (C) consents to the appointment of a Custodian of it or for substantially all of
its property, (D) makes a general assignment for the benefit of its creditors, (E) takes any
corporate



54









 







     action to authorize or effect any of the foregoing, or (F) becomes unable or
admits in writing its inability or fails generally to pay its debts as they become due;




     (9) (i) a court of competent jurisdiction enters an order or decree that (A) is an
order for relief in respect of the Company or any of its Subsidiaries that is not a
Non-Material Subsidiary in an involuntary case under any Bankruptcy Law, (B) appoints a
Custodian of the Company or such Subsidiary or for substantially all of the property of the
Company or such Subsidiary, or (C) orders the winding-up or liquidation of the Company’s or
such Subsidiary’s affairs; and such order or decree shall remain unstayed and in effect for
a period of sixty (60) consecutive days; or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material part of the
property of the Company or such Subsidiary and is not released, vacated or fully bonded
within sixty (60) consecutive days after its issue or levy;




     (10) any Collateral Document at any time for any reason shall cease to be in full force
and effect in all material respects, or ceases to give the Collateral Agent the Liens,
rights, powers and privileges purported to be created thereby, superior to and prior to the
rights of all third Persons and subject to no other Liens except as expressly permitted by
the applicable Collateral Document;




     (11) any provision of any Financing Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or thereunder or
upon the satisfaction in full of all the Obligations, ceases to be in full force and effect;
or the Company or any of its Subsidiaries contests, or any other Person commences an action
or proceeding to contest, the validity or enforceability of any provision of any Financing
Document (exclusive of questions of interpretation of any provision thereof); or the Company
or any of its Subsidiaries denies that it has any or further liability or obligation under
any provision of any Financing Document, or purports to revoke, terminate or rescind any
provision of any Financing Document;




     (12) there occurs a Change of Control;




     (13) there occurs any ERISA Event that, together with all other ERISA Events that have
occurred or are occurring, could reasonably be expected to have a Material Adverse Effect;
or




     (14) the occurrence of a Product MAE with respect to a Primary Product, unless the
Company owns at least two Primary Products as to which no Product MAE has occurred.



     Section 5.02. Acceleration.



     (a) If an Event of Default (other than an Event of Default specified in Section
5.01(8) or (9) above with respect to the Company) shall occur and be continuing and has
not been waived, the Trustee may, and upon the direction of the Holders of at least 50% in
aggregate principal amount of the then outstanding Bonds, shall declare the principal of, and
premium, if any, and accrued interest on, all the Bonds to be due and payable by notice in writing
to the Company, the Trustee and the Collateral Agent specifying the Event of Default and that it is
a “notice of acceleration” (the “Acceleration Notice”), and the same shall become
immediately due and payable.



     (b) If an Event of Default specified in Section 5.01(8) or (9) above with
respect to the Company occurs and is continuing, then all unpaid principal of, and premium, if any,
and accrued and



55









 




unpaid interest on, all of the outstanding Bonds shall become and be immediately
due and payable without any declaration or other act on the part of the Trustee or any Holder.




     (c) At any time after an Acceleration Notice has been provided with respect to the Bonds as
described in Section 5.02 (a) and (b), the Holders of a majority in principal
amount of the Bonds may rescind and cancel such declaration and its consequences:




     (i) if the rescission would not conflict with any judgment or decree;




     (ii) if all existing Events of Default have been cured or waived except nonpayment of
principal of, and premium, if any, and interest on, the Bonds that has become due solely
because of the acceleration;




     (iii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest, and overdue principal and premium, if any, which has become due
otherwise than by such declaration of acceleration, has been paid;




     (iv) the Company has deposited with the Trustee a sum sufficient to pay the reasonable
compensation of the Trustee and to reimburse the reasonable expenses, disbursements and
advances of the Trustee, its agent and its counsel; and




     (v) in the event of the cure or waiver of an Event of Default of the type described in
Section 5.01(8) or (9), the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.



     (d) No such rescission shall affect any subsequent Default or impair any right consequent
thereto.



     Section 5.03. Other Remedies.



     If an Event of Default occurs and is continuing, each of the Trustee and the Collateral Agent
may pursue any available remedy by proceeding at law or in equity to collect the payment of
principal of, or premium, if any, or interest on, the Bonds or to enforce the performance of any
provision of the Bonds, this Indenture or any of the other Financing Documents.



     Each of the Trustee and the Collateral Agent may maintain a proceeding even if it does not
possess any of the Bonds or does not produce any of them in the proceeding. A delay or omission by
the Trustee, the Collateral Agent or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in
the Event of Default. No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.



     Section 5.04. Waiver of Past Defaults.



     Subject to Sections 2.09, 5.02, 5.07 and 8.02, the Holders of
a majority in principal amount of the Bonds may waive any existing Default or Event of Default and
its consequences, except (other than as provided in Section 5.02(c)) a default in the
payment of the principal of, or premium, if any, interest on, any Bonds. When a Default or Event
of Default is waived, it is cured and ceases to exist.




56












 





     Section 5.05. Control by Majority.



     Subject to Section 2.09, the Holders of a majority in principal amount of the
outstanding Bonds may direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or the Collateral Agent, as the case may be, or exercising any
trust or power conferred on the Trustee or the Collateral Agent, as the case may be, including,
without limitation, any remedies provided for in Section 5.03. Subject to Sections
6.01 and 6.02, however, the Trustee or the Collateral Agent, as the case may be, may
refuse to follow any direction (which direction, if sent to the Trustee or the Collateral Agent, as
the case may be, shall be in writing) that the Trustee or the Collateral Agent, as the case may be,
reasonably believes conflicts with any applicable Law or with any Financing Document, that the
Trustee or the Collateral Agent, as the case may be, determines may be unduly prejudicial to the
rights of another Holder, or that may subject the Trustee or the Collateral Agent, as the case may
be, to personal liability; provided that the Trustee or the Collateral Agent, as the case may be,
may take any other action deemed proper by the Trustee or the Collateral Agent, as the case may be,
which is not inconsistent with such direction (which direction, if sent to the Trustee or the
Collateral Agent, as the case may be, shall be in writing).



     Section 5.06. Limitation on Suits.



     A Holder may not pursue any remedy with respect to this Indenture or the Bonds unless:




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




     (2) subject to Section 2.09, Holders of at least 50% in principal amount of the
outstanding Bonds make a written request to the Trustee to institute proceedings in respect
of that Event of Default;




     (3) such Holders offer to the Trustee indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense to be incurred in compliance with such request;




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




     (5) during such sixty (60) day period the Holders of a majority in principal amount of
the outstanding Bonds do not give the Trustee a written direction which, in the opinion of
the Trustee, is inconsistent with the request.



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



     Section 5.07. Rights of Holders To Receive Payment.



     Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of principal of, premium, if any, and interest on, a Bond, on or after the respective due
dates expressed in such Bond, 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 5.08. Collection Suit by Trustee or Collateral Agent.



     If an Event of Default specified in Section 5.01(1) or (2) occurs and is
continuing, the Trustee or the Collateral Agent may recover judgment (i) in its own name and
(ii)(x) in the case of the Trustee, as



57









 




trustee of an express trust or (y) in the case of the Collateral Agent, as collateral agent on
behalf of each of the Secured Parties, in each case against the Company or any other obligor on the
Bonds for the whole amount of principal of, premium, if any, and accrued interest on, the Bonds,
together with interest on overdue principal and, to the extent that payment of such interest is
lawful, interest on overdue amounts at the rate set forth in Section 4.01 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, the Collateral Agent
and their respective agents and counsel and any other amounts due any such Person under the
Financing Documents and Section 6.07.




     Section 5.09. Trustee May File Proofs of Claim.



     The Trustee and the Collateral Agent are 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 or
Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, the Collateral Agent, their respective agents and counsel) and the Holders
allowed in any judicial proceedings relating to the Company or any other obligor upon the Bonds,
any of their respective creditors or any of their respective property and shall be entitled and
empowered to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee or Collateral Agent and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee or Collateral Agent any amount due to it for the reasonable compensation, expenses,
taxes, disbursements and advances of the Trustee, the Collateral Agent, their respective agents and
counsel, and any other amounts due any such Person under the Financing Documents and Section
6.07. The Company’s payment obligations under this Section 5.09 shall be secured in
accordance with the provisions of Section 6.07. Nothing herein contained shall be deemed
to authorize the Trustee or Collateral Agent to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting
the Bonds or the rights of any Holder thereof, or to authorize the Trustee or the Collateral Agent,
as the case may be, to vote in respect of the claim of any Holder in any such proceeding.



     Section 5.10. Priorities.



     If the Trustee or the Collateral Agent collects any amounts pursuant to this Article
Five, such amounts shall be applied in the following order:




     First: to the Trustee, the Collateral Agent, the Paying Agent and the Registrar for
amounts due under Section 6.07 (including payment of all compensation expense, all
liabilities incurred and all advances made by the Trustee or the Collateral Agent, as the
case may be, and the costs and expenses of collection, including fees, charges and
disbursements of counsel to such Persons (including fees and time charges for attorneys who
may be employees of any such Person);




     Second: if the Secured Parties are forced to proceed against the Company directly
without the Trustee or the Collateral Agent, to the Secured Parties for their collection
costs (including fees, charges and disbursements of counsel to the Secured Parties
(including fees and time charges for attorneys who may be employees of any Secured Party)),
ratably among them in proportion to the respective amounts described in this clause Second
payable to them;




     Third: to the Holders of the Bonds for amounts due and unpaid on the Bonds for
premium, if any, and interest, ratably, without preference or priority of any kind, ratably
in proportion to the respective amounts described in this clause Third held by them;



58









 






     Fourth: to the Holders of the Bonds for amounts due and unpaid on the Bonds for
principal, without preference or priority of any kind, ratably in proportion to the
respective amounts described in this clause Fourth held by them;




     Fifth: the payment of any other Obligations owing to the respective Secured Parties and
any interest accrued thereon; and




     Last: to the Company or any other obligor on the Bonds, as their interests may appear,
or as a court of competent jurisdiction may 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 5.10.



     Section 5.11. Undertaking for Costs.



     All parties to this Indenture agree, and each Holder by its acceptance of its Bond shall be
deemed to have agreed, that in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee or the Collateral Agent, as the case may be, for any
action taken or omitted by it as Trustee or the Collateral Agent, as the case may be, 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 5.11
does not apply to a suit by the Trustee or the Collateral Agent, as the case may be, a suit by a
Holder pursuant to Section 5.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Bonds.



     Section 5.12. Restoration of Rights and Remedies.



     If the Trustee, the Collateral Agent or any Holder has instituted any proceedings to enforce
any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee, the Collateral Agent, or to such
Holder, then and in every such case, subject to any determination in such proceeding, the Company,
the Trustee, the Collateral Agent and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the Trustee, the
Collateral Agent and the Holders shall continue as though no such proceeding has been instituted.



ARTICLE SIX




TRUSTEE




     Section 6.01. Duties of Trustee.



     The duties and responsibilities of the Trustee shall be as provided by the TIA and as set
forth herein.



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



59









 





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




     (1) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the TIA and the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or obligations shall be implied in
or 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; provided, however, in case of any such certificates or opinions furnished to the
Trustee which by the provisions hereof are furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.



     (c) Notwithstanding anything to the contrary herein contained, the Trustee may not be relieved
from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:




     (1) this clause (c) does not limit the effect of clause (b) of this
Section 6.01;




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section
5.05.



     (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any liability (financial or otherwise). The Trustee shall be under no
obligation to exercise any of its rights or powers under the Financing Documents at the request,
order or direction of any Holders unless such Holders have offered to the Trustee security and
indemnity reasonably satisfactory to the Trustee against the costs and expenses which may be
incurred by it (including repayment of its own funds) in compliance with such request, order or
direction.



     (e) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to clauses (a), (b), (c) and
(d) of this Section 6.01.



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



     Section 6.02. Rights of Trustee and Collateral Agent.



     Subject to Section 6.01:




     (a) The Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or 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.



60









 






     (b) Before the Trustee acts or refrains from acting, it may consult with counsel and
may require an Officers’ Certificate or an Opinion of Counsel, or both, which shall conform
to Sections 10.04 and 10.05. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion
of Counsel. The written advice of the Trustee’s counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in respect of any action
taken, suffered or omitted by the Trustee hereunder in good faith and in reliance thereon.




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




     (d) The Trustee shall not be liable for any action that it takes or omits to take in
good faith which it reasonably believes to be authorized or within its rights or powers
under this Indenture.




     (e) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled, upon
reasonable notice to the Company, to examine the books, records and premises of the Company,
personally or by agent or attorney and to consult with the officers and representatives of
the Company, including the Company’s accountants and attorneys. Except as expressly stated
herein to the contrary, in no event shall the Trustee have any responsibility to ascertain
whether there has been compliance with any of the covenants or provisions hereof.




     (f) The Trustee shall not be required to give any bond or surety in respect of the
performance or exercise of its powers or duties hereunder.




     (g) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer of the
Company and any resolution of the Board of Directors shall be sufficient if evidenced by a
copy of such resolution certified by an Officer of the Company to have been duly adopted and
in full force and effect on the date hereof.




     (h) The Trustee shall not be deemed to have notice or be charged with knowledge of any
Default or Event of Default unless the Trustee shall have received from the Company, any
Subsidiary Guarantor or any other obligor upon the Bonds or from any Holder written notice
thereof at its address set forth in Section 10.02 hereof, and such notice references
the Bonds and this Indenture. In the absence of any such notice, the Trustee may
conclusively assume that no such Default of Event of Default exists.




     (i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder (including, without
limitation, in its capacity as Collateral Agent and Calculation Agent), including the
Trustee’s officers, directors, agents and employees and each agent, custodian and other
Person employed to act hereunder. Such rights, privileges, protections, immunities and
benefits, including, without limitation, the right to indemnification, together with the
Trustee’s right to compensation and reimbursement expenses, shall survive the Trustee’s
resignation or removal and final payment of the Bonds.



61









 






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




     (k) The permissive right of the Trustee to take any action under the Financing
Documents shall not be construed as a duty to so act.




     (l) In the event the Trustee receives inconsistent or conflicting requests and
indemnity from two or more groups of Holders, each representing less than a majority in
aggregate principal amount of the Bonds then outstanding, the Trustee, in its sole
discretion, may determine what action, if any, shall be taken.




     (m) Notwithstanding anything to the contrary in this Indenture or any other Financing
Document (other than Section 6.01 hereof), as to the exercise by the Trustee or the
Collateral Agent of any rights or remedies under any Financing Document (including the
exercise of any discretion of such Person and the making of requests as permitted under any
Financing Document), the giving of any consent by the Trustee or the Collateral Agent under
any Financing Document (including the determination of the reasonable satisfaction of such
Person), the entry by the Trustee or the Collateral Agent into any agreement amending,
modifying, supplementing or waiving any provision of this Indenture or any other Financing
Document (other than as permitted pursuant to Section 8.01 hereof), neither the
Trustee nor the Collateral Agent shall be required to take any such action unless it shall
have been directed to do so by the Holders of at least 25% in aggregate principal amount of
the outstanding Bonds (or such other percentage expressly specified for such action in the
applicable Financing Document).




     (n) The Trustee shall not be obligated to take any remedial action with respect to an
Event of Default of the type described in clause (5) or (10) of Section 5.01, unless it has
first been notified of such event or occurrence by the Company or the Holders of at least
50% in aggregate principal amount of the outstanding Bonds.



     Section 6.03. Individual Rights of Trustee.



     The Trustee in its individual or any other capacity may become the owner or pledgee of Bonds
and may otherwise deal with the Company, any Subsidiary of the Company or its respective Affiliates
with the same rights it would have if it were not Trustee or serving in any other such capacity.
The Trustee in its individual or any other capacity may also engage in or be interested in any
financial or other transaction with the Company, any Subsidiary of the Company or its respective
Affiliates and may act as depository, trustee or agent for any committee of Holders of Bonds
secured hereby or other obligations of the Company as freely as if it were not Trustee or serving
in any other such capacity. Any Agent may do the same with like rights. However, the Trustee must
comply with Sections 6.10 and 6.11 of this Indenture.



     Section 6.04. Disclaimer for Trustee and Collateral Agent.



     Neither the Trustee nor the Collateral Agent makes any representation as to the validity,
adequacy or sufficiency of this Indenture, the Bonds or any other Financing Document, and neither
the Trustee nor the Collateral Agent shall be accountable for the Company’s use of the proceeds
from the Bonds, and neither the Trustee nor the Collateral Agent shall be responsible for any
statement of the Company or any of its Subsidiaries in this Indenture, the Bonds, any Financing
Document or any other document in



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connection with the issuance of the Bonds, other than the Trustee’s certificate of
authentication, which shall be taken as the statement of the Company, and neither the Trustee nor
the Collateral Agent assumes any responsibility for their correctness. Nothing herein, including
in the recitals hereof, shall impose on the Trustee or the Collateral Agent any obligations of the
Company or any of its Subsidiaries under any agreements, documents or instruments that are part of
the Collateral, all of which shall be retained by the Company or such Subsidiary, as applicable.




     Beyond the exercise of reasonable care in the custody thereof and the fulfillment of its
obligations under this Indenture, the Trustee shall have no duty as to any Collateral in its
possession or control or in the possession or control of any agent or bailee or any income thereon
or as to preservation of rights against prior parties or any other rights pertaining thereto. Each
of the Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the
custody of the Collateral in its possession if the Collateral is accorded treatment comparable to
that which it accords its own property.



     Neither the Trustee nor the Collateral Agent makes any representations as to, nor shall the
Trustee or the Collateral Agent be responsible for, the existence, genuineness, value, sufficiency
or condition of any of the Collateral or as to the security afforded or intended to be afforded
thereby, hereby or by any Collateral Document, or for the validity, perfection, priority or
enforceability of the Liens or security interests in any of the Collateral created or intended to
be created by any of the Collateral Documents, whether impaired by operation of law or by reason of
any action or omission to act on its part hereunder, except to the extent such action or omission
constitutes gross negligence or willful misconduct on the part of the Trustee or the Collateral
Agent, for the validity or sufficiency of the Collateral, any Collateral Documents or any agreement
or assignment contained in any thereof, for the validity of the title of the Company or any
Subsidiary Guarantor to the Collateral, for insuring the Collateral or for the payment of taxes,
charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the
Collateral.



     Section 6.05. Notice of Default.



     If a Default or an Event of Default occurs and is continuing and if a Trust Officer has actual
knowledge or has received written notice from the Company or any Holder, the Trustee shall mail to
each Holder and the Collateral Agent, with a copy to the Company, notice of the Default or Event of
Default within thirty (30) days thereof. Except in the case of a Default or an Event of Default in
payment of principal of, premium, if any, or interest on, any Bond, including an accelerated
payment, the Trustee may withhold the notice if and so long as its Board of Directors, the
executive committee of its Board of Directors or a committee of its directors and/or Trust Officers
in good faith determines that withholding the notice is in the interest of the Holders.



     Section 6.06. Reports by Trustee to Holders.



     Within sixty (60) days after each May 15, beginning with May 15, 2008, the Trustee shall, to
the extent that any of the events described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of such date that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b) and (c).



     A copy of each report at the time of its mailing to Holders shall be mailed to the Company and
filed by the Company with the SEC and each stock exchange or market, if any, on which the Bonds are
listed or quoted.



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     The Company shall promptly notify the Trustee in writing if the Bonds become listed or quoted
on any stock exchange or market and the Trustee shall comply with TIA Section 313(d) and any
delisting thereof.



     Upon request, the Trustee shall promptly deliver to any Holder or a holder of a beneficial
interest in the Bonds any information delivered to the Trustee under this Indenture.



     Section 6.07. Compensation and Indemnity.



     The Company shall pay to the Trustee, the Collateral Agent, the Paying Agent and the Registrar
(each an “Indemnified Party”) from time to time compensation for their respective services
as Trustee, Collateral Agent, Paying Agent or Registrar, as the case may be, as agreed in writing.
The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse each Indemnified Party upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by it in connection with the
performance of its duties under, as the case may be, the Financing Documents. Such expenses shall
include the reasonable fees and expenses of each of such Indemnified Party’s agents and counsel.



     The Company and the Subsidiary Guarantors, jointly and severally, hereby indemnify each
Indemnified Party and its agents, employees, stockholders and directors and officers for, and holds
each of them harmless against, any loss, cost, claim, liability or expense (including taxes)
incurred by any of them except for such actions to the extent caused by any gross negligence or
willful misconduct on the part of such Indemnified Party, arising out of or in connection with the
Financing Documents or the administration of this trust, including the reasonable costs and
expenses of enforcing this Indenture or the other Financing Documents against the Company or any
Subsidiary Guarantor (including this Section 6.07) and defending themselves against any
claim or liability in connection with the exercise or performance of any of their rights, powers or
duties hereunder or thereunder (including the reasonable fees and expenses of counsel). An
Indemnified Party shall notify the Company promptly of any claim asserted against such Indemnified
Party for which such Indemnified Party has advised the Trustee that it may seek indemnity hereunder
or under the other Financing Documents. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. At the Indemnified Party’s sole discretion, the
Company shall defend the claim and the Indemnified Party shall cooperate and may participate in the
defense; provided that any settlement of a claim shall be approved in writing by the Indemnified
Party. Alternatively, the Indemnified Party may at its option have separate counsel of its own
choosing and the Company shall pay the reasonable fees and expenses of such counsel; provided that
the Company shall not be required to pay such fees and expenses if it assumes the Indemnified
Party’s defense and there is no conflict of interest between or alternative defenses between the
Company and the Indemnified Party in connection with such defense as reasonably determined by the
Indemnified Party. The Company need not pay for any settlement made without its written consent,
which consent shall not be unreasonably withheld.



     To secure the Company’s and each Subsidiary Guarantor’s payment obligations in this
Section 6.07, each Indemnified Party shall have a lien prior to the Bonds on all monies,
property or Collateral held or collected by the Trustee, in its capacity as Trustee, except assets
or money held in trust to pay principal of or interest on particular Bonds which have been called
for redemption.



     When an Indemnified Party incurs expenses or renders services after an Event of Default
specified in Section 5.01(8) or (9) occurs, such expenses (including the reasonable
fees and expenses of its counsel) and the compensation for such services are intended to constitute
expenses of administration under any Bankruptcy Law.



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     The obligations of the Company under this Section 6.07 shall survive the satisfaction
and discharge of this Indenture, termination of the Collateral Documents or the other Financing
Documents or the resignation or removal of the Trustee, Collateral Agent, Paying Agent or the
Registrar.



     The Trustee shall comply with the provisions of TIA Section 312(b)(2) to the extent
applicable.



     “Trustee” for purposes of this Section 6.07 shall include any predecessor
Trustee; provided, however, that the bad faith, gross negligence or willful misconduct of any
Trustee hereunder shall not affect the rights of any other Trustee hereunder.



     Section 6.08. Replacement of Trustee.



     The Trustee may resign at any time by so notifying the Company. The Holders of a majority in
aggregate principal amount of the outstanding Bonds may remove the Trustee by so notifying the
Company and the Trustee in writing and may appoint a successor Trustee. The Company, by a Board
Resolution, may remove the Trustee if:




	 	(1)	 	the Trustee fails to comply with Section 6.10;
	 
	 	(2)	 	the Trustee is adjudged bankrupt or insolvent;
	 
	 	(3)	 	a receiver or other public officer takes charge of the Trustee or its property; or
	 
	 	(4)	 	the Trustee becomes incapable of acting with respect to the Bonds.





     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall notify each Holder in writing of such event and shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the Holders of a
majority in aggregate principal amount of the outstanding Bonds may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company and thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, trusts, duties and obligations of the retiring Trustee and
shall such retiring Trustee duly assign, transfer and deliver to such successor Trustee all
property and money held by such Trustee so ceasing to act hereunder subject nevertheless to its
lien, if any, provided for in Section 6.07. Upon written request of the Company or the
successor Trustee, such retiring Trustee shall at the expense of the Company and upon payment of
the charges of the Trustee then unpaid, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder.



     If a successor Trustee does not take office within thirty (30) days after the retiring Trustee
resigns or is removed, the retiring Trustee, at the Company’s expense, the Company or the Holders
of at least 10% in principal amount of the outstanding Bonds may petition any court of competent
jurisdiction for the appointment of a successor Trustee.



     If the Trustee fails to comply with Section 6.10, any Holder who satisfies the
requirements of TIA Section 310(b) may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.



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     The Company shall give notice of any resignation and any removal of the Trustee and each
appointment of a successor Trustee to all Holders in writing. Each notice shall include the name
of the successor Trustee and the address of its Corporate Trust Office and its notice address for
purposes of Section 10.02.



     Notwithstanding any resignation or replacement of the Trustee pursuant to this Section
6.08, the Company’s obligations under Section 6.07 shall continue for the benefit of
the retiring Trustee.



     Section 6.09. Successor Trustee by Merger, Etc.



     If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another Person, the resulting, surviving or transferee
Person without any further act shall, if such resulting, surviving or transferee Person is
otherwise eligible hereunder, be the successor Trustee; provided, however, that such Person shall
be otherwise qualified and eligible under this Article Six.



     In case any Bonds have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Bonds so authenticated with the same effect as if such successor
Trustee had itself authenticated such Bonds.



     Section 6.10. Eligibility; Disqualification.



     (a) This Indenture shall always have a Trustee who satisfies the requirements of TIA Sections
310(a)(1), (2), (3) and (5). The Trustee (or, in the case of a corporation included in a bank
holding company system, the related bank holding company) shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report of condition. In
addition, if the Trustee is a corporation included in a bank holding company system, the Trustee,
independently of such bank holding company, shall meet the capital requirements of TIA Section
310(a)(2). The Trustee shall comply with TIA Section 310(b); provided, however, that there shall
be excluded from the operation of TIA Section 310(b)(1) any indenture or indentures under which
other securities, or certificates of interest or participation in other securities, of the Company
are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
The provisions of TIA Section 310 shall apply to the Company, as obligor of the Bonds.



     (b) If the Trustee has or acquires a conflicting interest within the meaning of the TIA, the
Trustee shall either eliminate such interest or resign, to the extent and in the manner provided
by, and subject to the provisions of, the TIA and this Indenture.



     Section 6.11. Preferential Collection of Claims Against Company.



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



     Section 6.12. Trustee as Paying Agent and Collateral Agent.



     References to the Trustee in Sections 6.01, 6.02, 6.03, 6.04,
6.07 and 6.08 and the first paragraph of Section 6.09 shall include the
Trustee in its role as Paying Agent, as Registrar and as Collateral Agent.



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     Section 6.13. Co-Trustees, Co-Collateral Agent and Separate Trustees and Collateral
Agent.



     (a) At any time or times, for the purpose of meeting the legal requirements of any
jurisdiction in which any of the Collateral may at the time be located, the Company, the Trustee
and the Collateral Agent shall have the power to appoint, and, upon the written request of the
Trustee, the Collateral Agent or of the Holders of at least 25% in principal amount of the Bonds
outstanding, the Company shall for such purpose, join with the Trustee or the Collateral Agent, as
the case may be, in the execution, delivery and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Trustee either to act as
co-trustee, jointly with the Trustee, of all or any part of the Collateral, to act as co-collateral
agent, jointly with the Collateral Agent, or to act as separate trustees or Collateral Agent of any
such property, in either case with such powers as may be provided in the instrument of appointment,
and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or
power, deemed necessary or desirable, subject to the other provisions of this Section 6.13.
If the Company does not join such appointment within 15 days after the receipt by it of a request
to do so, or if an Event of Default shall have occurred and be continuing, the Trustee or the
Collateral Agent alone shall have the power to make such appointment.



     (b) Should any written instrument from the Company be required by any co-trustee,
co-collateral agent or separate trustee or separate collateral agent so appointed for more fully
confirming to such co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by the Company.



     (c) Every co-trustee, co-collateral agent or separate trustee or separate collateral agent
shall, to the extent permitted by law, but to such extent only, be appointed subject to the
following terms, namely:




     (i) The Bonds shall be authenticated and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee.




     (ii) The rights, powers, duties and obligations hereby conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the Trustee or by
the Trustee and such co-trustee or separate trustee, or by the Collateral Agent and such
co-collateral agent or separate collateral agent, jointly as shall be provided in the
instrument appointing such co-trustee or separate trustee or co-collateral agent or separate
collateral agent, except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate trustee, collateral agent or
co-collateral agent or separate collateral agent.




     (iii) The Trustee at any time, by an instrument in writing executed by it, with the
concurrence of the Company evidenced by a Board Resolution, may accept the resignation of or
remove any co-trustee or separate trustee appointed under this Section 6.13, and, in
case an Event of Default has occurred and is continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-trustee, co-collateral agent, separate
trustee or separate collateral agent without the concurrence of the Company. Upon the
written request of the Trustee, the Company shall join with the Trustee in the execution,
delivery and performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee, co-collateral agent, separate
trustee or separate collateral agent so resigned or removed may be appointed in the manner
provided in this Section 6.13.



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     (iv) Neither the Trustee nor any co-trustee, co-collateral agent or separate trustee or
separate collateral agent hereunder shall be personally liable by reason of any act or
omission of any other such trustee or collateral agent hereunder.




     (v) Any act of Holders delivered to the Trustee shall be deemed to have been delivered
to each such co-trustee or separate trustee and any act of Holders delivered to the
Collateral Agent shall be deemed to have been delivered to each such co-collateral agent or
separate collateral agent.



     Section 6.14. Form of Documents Delivered to Trustee.



     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other Persons as to other matters and any such Person may certify or give an opinion as to such
matters in one or several documents.



     Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion, or representation by, counsel, unless such Officer
knows, or in the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel or representation by counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



ARTICLE SEVEN




SATISFACTION AND DISCHARGE OF INDENTURE




     Section 7.01. Legal Defeasance and Covenant Defeasance.



     (a) The Company may, at its option and at any time, elect to have either clause (b) or
clause (c) below be applied to the outstanding Bonds upon compliance with the applicable
conditions set forth in clause (d).



     (b) Upon the Company’s exercise under clause (a) of the option applicable to this
clause (b), the Company and the Subsidiary Guarantors shall be deemed to have been released
and discharged from their obligations with respect to the outstanding Bonds, the Subsidiary
Guarantees and the Collateral Documents on the date the applicable conditions set forth below are
satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by
the outstanding Bonds, which shall thereafter be deemed to be “outstanding” only for the purposes
of the Sections and matters under this Indenture referred to in clause (i) and
(ii) below, and the Company and the Subsidiary Guarantors shall be deemed to have satisfied
all their other obligations under such Bonds and this Indenture, the Subsidiary



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Guarantees and the Collateral Documents, except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Bonds to
receive solely from the trust fund described in clause (d) below and as more fully set
forth in such clause, payments in respect of the principal of, and premium, if any, interest on,
such Bonds when such payments are due, (ii) obligations listed in Section 7.03, subject to
compliance with this Section 7.01 and (iii) the rights, powers, trusts, duties and
immunities of the Trustee and the Collateral Agent and the Company’s obligations in connection
therewith. The Company may exercise its option under this clause (b) notwithstanding the
prior exercise of its option under clause (c) below with respect to the Bonds.




     (c) Upon the Company’s exercise under clause (a) of the option applicable to this
clause (c), the Company and its Subsidiaries shall be released and discharged from their
obligations under any covenant contained in Section 4.03 (other than clause (i) and (j)
thereof), Section 4.07 (other than clause (c) thereof), Sections 4.08 through
4.34 and Section 4.37, with respect to the outstanding Bonds on and after the date
the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the
Bonds shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Bonds shall not be deemed outstanding for accounting purposes). For
this purpose, such Covenant Defeasance means that, with respect to the outstanding Bonds, the
Company may omit to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 5.01, but, except as specified
above, the remainder of this Indenture and such Bonds shall be unaffected thereby. In addition,
upon the Company’s exercise under clause (a) hereof of the option applicable to this
clause (c), subject to the satisfaction of the conditions set forth in clause (d)
below, Sections 5.01(3), through (7), and Sections 5.01(10) through
(14) shall not constitute Events of Default.



     (d) The following shall be the conditions to application of either clause (b) or
clause (c) above to the outstanding Bonds:




     (1) The Company shall have irrevocably deposited in trust with the Trustee, pursuant to
an irrevocable trust and security agreement in form and substance reasonably satisfactory to
the Trustee, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination
thereof, in such amounts and at such times as are sufficient, in the opinion of a
nationally-recognized firm of independent public accountants, to pay the principal of, and
premium, if any, interest on, the outstanding Bonds on the stated dates for payment or
redemption, as the case may be; provided, however, that the Trustee (or other qualifying
trustee) shall have received an irrevocable written order from the Company instructing the
Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or the proceeds of
such U.S. Government Obligations to said payments with respect to the Bonds to maturity or
redemption;




     (2) No Default or Event of Default shall have occurred and be continuing on the date of
such deposit pursuant to clause (1) of this clause (d) (except such Default or Event
of Default resulting from the failure to comply with Section 4.08 as a result of the
borrowing of funds required to effect such deposit) or insofar as Defaults or Events of
Default from bankruptcy or insolvency events are concerned, at any time in the period ending
on the 91st day after the date of such deposit;




     (3) Such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or
constitute a default here under or any other material agreement or instrument to which the



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Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;




     (4) (i) In the event the Company elects clause (b) above, the Company shall
deliver to the Trustee an Opinion of Counsel in the United States of America, in form and
substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a ruling or (B)
since the Issue Date, there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel shall state that,
Holders shall not recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance contemplated hereby and shall be subject to federal income tax in
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 or (ii) in the event the Company elects clause
(c) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United
States, in form and substance reasonably satisfactory to the Trustee, to the effect that
Holders shall not recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance contemplated hereby and shall be subject to federal income tax
in 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;




     (5) The Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit under clause (1) of this clause (d) was not made by the
Company with the intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other creditors of the
Company or others;




     (6) The Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or Covenant Defeasance, as the case may be, have been complied with;




     (7) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that after the 91st day following the date of deposit, the trust funds will not
be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors’ rights generally; and




     (8) The Company shall have delivered to the Trustee an Opinion of Counsel (subject to
customary qualifications and exclusions) to the effect that the trust resulting from the
deposit under clause (1) of this clause (d) does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of 1940.


Notwithstanding the foregoing, the Opinion of Counsel required by Section 7.01(d)(4)(i)
above with respect to a Legal Defeasance need not be delivered if all Bonds not theretofore
delivered to the Trustee for cancellation (1) have become due and payable or (2) shall become due
and payable on the maturity date within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.




     In the event all or any portion of the Bonds are to be redeemed through such irrevocable
trust, the Company must make arrangements reasonably satisfactory to the Trustee, at the time of
such deposit, for the giving of the notice of such redemption or redemptions by the Trustee in the
name and at the expense of the Company.



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     Section 7.02. Satisfaction and Discharge.



     In addition to the Company’s rights under Section 7.01, the Company may terminate all
of its obligations under this Indenture (subject to Section 7.03), and this Indenture, the
Bonds, the Subsidiary Guarantees and the Collateral Documents, and all Liens created thereunder,
shall be discharged and shall cease to be in effect when:




	 	(1)	 	either:






     (a) all the Bonds theretofore authenticated and delivered (except lost, stolen
or destroyed Bonds which have been replaced or paid as provided in Section
2.07 and Bonds for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for cancellation;
or




     (b) all Bonds not theretofore delivered to the Trustee for cancellation (i)
have become due and payable, (ii) shall become due and payable at their stated
maturity within one year or (iii) are to be called for redemption within one year
under arrangements reasonably satisfactory to the Trustee, and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Bonds not theretofore
delivered to the Trustee for cancellation, for principal of, and premium, if any,
and interest on, the Bonds to the date of deposit together with irrevocable written
instructions from the Company directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be;




     (2) the Company has paid all other sums payable under this Indenture, the Collateral
Documents and the other Financing Documents; and




     (3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel stating that all conditions precedent under this Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.



     Section 7.03. Survival of Certain Obligations.



     Notwithstanding the satisfaction and discharge of this Indenture and of the Bonds referred to
in Section 7.01 or 7.02, the respective obligations of the Company and the Trustee
under Sections 2.03, 2.04, 2.05, 2.06, 2.07 and
2.08, Sections 6.07 and 6.08 and Sections 7.05, 7.06 and
7.07 shall survive until the Bonds are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Sections 6.07, 7.04, 7.05
and 7.06 and 7.07 shall survive.



     Section 7.04. Acknowledgment of Discharge by Trustee.



     Subject to Section 7.07, after (i) the conditions of Section 7.01 or
7.02 have been satisfied, (ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and (iii) the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in
clause (i) above relating to the satisfaction and discharge of this Indenture have been
complied with, the Trustee, upon written request, shall acknowledge in writing the discharge of the
Company’s obligations under this Indenture except for those surviving obligations specified in
Section 7.03 and the Collateral Agent shall execute and deliver to the Company any




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document reasonably requested by the Company to effect or evidence any release and discharge
of Lien or Collateral Document.




     Section 7.05. Application of Trust Moneys.



     The Trustee shall hold any U.S. Legal Tender or U.S. Government Obligations deposited with it
in the irrevocable trust established pursuant to Section 7.01. The Trustee shall apply the
deposited U.S. Legal Tender or the U.S. Government obligations, together with earnings thereon,
through the Paying Agent, in accordance with this Indenture and the terms of the irrevocable trust
agreement established pursuant to Section 7.01, to the payment of principal of, premium, if
any, and interest on, the Bonds. Anything in this Article Seven to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the
Company’s request any U.S. Legal Tender or U.S. Government Obligations held by it as provided in
Section 7.01(d) which, in the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, are in excess of
the amount thereof that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 7.01
or 7.02 or the principal, premium, if any, 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
outstanding Bonds.



     Section 7.06. Repayment to the Company; Unclaimed Money.



     Subject to Sections 6.07, 7.01 and 7.02, the Trustee and the Paying
Agent shall promptly pay to the Company upon written request from the Company any excess U.S. Legal
Tender or U.S. Government Obligations held by them at any time. The Trustee and the Paying Agent
shall pay to the Company, upon receipt by the Trustee or the Paying Agent, as the case may be, of a
written request from the Company any money held by it for the payment of principal, premium, if
any, or interest that remains unclaimed for two years after payment to the Holders is required,
without interest thereon; provided, however, that the Trustee and the Paying Agent before being
required to make any payment may, but need not, at the expense of the Company cause to be published
once in a newspaper of general circulation in the City of New York or mail to each Holder entitled
to such money notice that such money remains unclaimed and that after a date specified therein,
which shall be at least thirty (30) days from the date of such publication or mailing, any
unclaimed balance of such money then remaining shall be repaid to the Company, without interest
thereon. After payment to the Company, Holders entitled to money must look solely to the Company
for payment as general creditors unless an applicable abandoned property law designated another
Person, and all liability of the Trustee or Paying Agent with respect to such money shall thereupon
cease.



     Section 7.07. Reinstatement.



     If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government
Obligations in accordance with Section 7.01 or 7.02 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 each Subsidiary
Guarantors’ obligations under this Indenture and each other Financing Document to which such person
is a party shall be revived and reinstated as though no deposit had occurred pursuant to
Section 7.01 or 7.02 until such time as the Trustee or Paying Agent is permitted to
apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with Section
7.01 or 7.02; provided, however, that if the Company has made any payment of premium,
if any, or interest on or principal of any Bonds because of the reinstatement of its obligations,
the Company shall



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be subrogated to the rights of the Holders of such Bonds to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.




     Section 7.08.
Recording and Opinions.



     (a) The Company will deliver to the Collateral Agent and the Trustee on November 16 in each
year beginning with November 16, 2008, an Opinion of Counsel, which may be rendered by internal
counsel to the Company, dated as of such date, either:




     (1) stating substantially to the effect that, in the opinion of such counsel, action
has been taken with respect to the recording, filing, re-recording, and re-filing of this
Indenture or any Collateral Document as is necessary to maintain the Lien of this Indenture
or any Collateral Document and reciting with respect to the security interests in the
Collateral the details of such action or referring to prior Opinions of Counsel in which
such details are given; or




     (2) stating that, in the opinion of such counsel, no such action is necessary to
maintain and perfect such Lien under this Indenture and the Collateral Documents.



     (b) The Company will otherwise comply with the provisions of TIA § 314(b).



     Section 7.09. Release of Collateral.



     (a) Subject to subsections (b), (c) and (d) of this Section 7.09, Collateral may be
released from the Lien and security interest created by the Collateral Documents at any time or
from time to time in accordance with the provisions of the Collateral Documents and as provided
hereby.



     (b) Upon the request of the Company pursuant to an Officers’ Certificate, upon which the
Trustee and the Collateral Agent may conclusively rely, certifying that all conditions precedent
hereunder have been met and without the consent of any Holder, the Company and the Subsidiary
Guarantors will be entitled to releases of assets included in the Collateral from the Liens
securing the Bonds under any one or more of the following circumstances:




     (1) to enable the Company or any Subsidiary Guarantor to consummate any Asset
Disposition permitted or not prohibited by Section 4.21;




     (2) if any Subsidiary Guarantor is released from its Subsidiary Guarantee, such
Subsidiary Guarantor’s assets constituting Collateral will also be released; or




     (3) pursuant to an amendment, waiver or supplement in accordance with Article
VIII hereof.



     Upon receipt of such Officers’ Certificate and any necessary or proper instruments of
termination, satisfaction or release prepared by the Company, the Collateral Agent shall execute,
deliver or acknowledge such instruments or releases to evidence the release of any Collateral
permitted to be released pursuant to this Indenture or the Collateral Documents.



     (c) At any time when a Default or Event of Default has occurred and is continuing and the
maturity of the Bonds has been accelerated (whether by declaration or otherwise) and the Trustee
has delivered a notice of acceleration to the Collateral Agent, no release of Collateral pursuant
to the provisions of the Collateral Documents will be effective as against the Holders.



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     (d) The release of any Collateral from the terms of this Indenture and the Collateral
Documents shall not be deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Collateral is released pursuant to the terms of this
Indenture and the Collateral Documents. To the extent applicable, the Company will cause TIA §
313(b), relating to reports, and TIA § 314(d), relating to the release of property or securities
from the Lien and security interest of this Indenture and the Collateral Documents and relating to
the substitution therefor of any property or securities to be subjected to the Lien and security
interest of this Indenture and the Collateral Documents, to be complied with. Any certificate or
opinion required by TIA § 314(d) may be made by an Officer of the Company except in cases where TIA
§ 314(d) requires that such certificate or opinion be made by an independent Person, which Person
will be an independent engineer, appraiser or other expert selected or approved by the Trustee and
the Collateral Agent in the exercise of reasonable care.



ARTICLE EIGHT




AMENDMENTS, SUPPLEMENTS AND WAIVERS




     Section 8.01. Without Consent of Holders.



     From time to time, the Company, the Subsidiary Guarantors, the Trustee and, if such amendment,
modification or supplement relates to any Collateral Document, the Collateral Agent, without the
consent of the Holders, may amend, modify, waive or supplement provisions of this Indenture, the
Bonds, the Subsidiary Guarantees, the Collateral Documents and any other Financing Document:




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




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




     (3) to provide for the assumption of the Company’s or a Subsidiary Guarantor’s
obligations to Holders by the successor to the Company or such Subsidiary Guarantor, as the
case may be;




     (4) to make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights of any such Holder under this
Indenture, the Bonds, the Subsidiary Guarantees, the Collateral Documents or any other
Financing Document;




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




     (6) to allow any Subsidiary or any other Person to guarantee the Bonds;




     (7) to release a Subsidiary Guarantor as permitted by this Indenture and the relevant
Subsidiary Guarantee;




     (8) if necessary, in connection with any addition or release of Collateral permitted
under the terms of this Indenture or the Collateral Documents;




     (9) to make any amendment to the provisions of the Indenture relating to the form,
authentication, transfer or legending of the Bonds; provided, however, that (a) compliance
with



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this Indenture as so amended would not result in the Bonds being transferred in
violation of the Securities Act or any other applicable securities law and (b) such
amendment does not materially affect the rights of the Holders to transfer the Bonds, or




     (10) provide for the issuance of any PIK Bonds in accordance with Section
2.02(c)(ii).


so long as such amendment, modification, waiver or supplement does not, in the opinion of the
Trustee and, if such amendment, modification or supplement relates to any Collateral Document, the
Collateral Agent, adversely affect the rights of any of the Holders in any material respect. In
formulating its opinion on such matters, each of the Trustee and, if such amendment, modification
or supplement relates to any Collateral Document, the Collateral Agent, will be entitled to rely on
such evidence as it deems appropriate, including, without limitation, solely on an Opinion of
Counsel.




     After an amendment, modification, waiver or supplement under this Section 8.01 becomes
effective, the Company shall mail to the Holders affected thereby a notice briefly describing the
amendment, modification, waiver or supplement. Any failure of the Company to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity of any such
amendment, modification, waiver or supplement.



     Section 8.02. With Consent of Holders.



     The Company and the Subsidiary Guarantors, when authorized by a Board Resolution, and the
Trustee, or the Collateral Agent, as applicable, together, with the written consent of the Holder
or Holders of at least a majority in aggregate principal amount of the outstanding Bonds, may amend
or supplement this Indenture, the Bonds, any Collateral Document, the Subsidiary Guarantees or any
other Financing Document without notice to any other Holders. The Holder or Holders of a majority
in aggregate principal amount of the outstanding Bonds may waive compliance by the Company with any
provision of this Indenture, the Bonds, any Collateral Document or any other Financing Document
without notice to any other Holder. However, no amendment, supplement or waiver, including a
waiver pursuant to Section 5.04, shall without the consent of each Holder of each Bond
affected thereby:




     (1) reduce the principal amount of Bonds whose Holders must consent to an amendment,
supplement or waiver of any provision of this Indenture or the Bonds;




     (2) reduce the rate of or change or have the effect of changing the time for payment of
interest, including default interest, on any Bonds;




     (3) reduce the principal of or change or have the effect of changing the fixed maturity
of any Bonds, or change the date on which any Bonds may be subject to redemption or reduce
the redemption price therefor;




     (4) make any Bonds payable in money other than that stated in the Bonds;




     (5) make any change in provisions of this Indenture protecting the right of each Holder
to receive payment of principal of, and premium, if any, and interest on, such Bond on or
after the due date thereof or to bring suit to enforce such payment, or permitting Holders
of a majority in principal amount of Bonds to waive Defaults or Events of Default;




     (6) modify or change any provision of this Indenture or the related definitions
affecting the ranking of the Bonds or any Subsidiary Guarantee or any Lien created under any
Collateral Agreement in a manner which adversely affects the Holders;



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     (7) release any Subsidiary Guarantor from any of its obligations under its Subsidiary
Guarantee or this Indenture otherwise than in accordance with the terms of this Indenture;




     (8) release all or substantially all of the Collateral otherwise than in accordance
with the terms of this Indenture and the Collateral Documents; or




     (9) make any change to Section 8.01 or this Section 8.02.



     It shall not be necessary for the consent of the Holders under this Section 8.02 to
approve the particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section 8.02 becomes effective,
the Company shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.



     Section 8.03. Compliance with TIA.



     Every amendment, waiver or supplement of this Indenture, the Bonds, the Collateral Documents
or the Subsidiary Guarantees that would be subject to the terms of the TIA shall comply with the
TIA as then in effect.



     Section 8.04. Revocation and Effect of Consents.



     Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Bond or portion of a Bond that
evidences the same debt as the consenting Holder’s Bond, even if notation of the consent is not
made on any Bond. Subject to the following paragraph, any such Holder or subsequent Holder may
revoke the consent as to such Holder’s Bond or portion of such Bond by written notice to the
Trustee and the Company received before the date on which the Trustee and if such amendment, waiver
or supplement relates to any Collateral Document, the Collateral Agent, receives an Officers’
Certificate certifying that the Holders of the requisite principal amount of Bonds have consented
(and not theretofore revoked such consent) to the amendment, supplement or waiver. An amendment,
waiver or supplement shall become effective upon receipt by the Trustee or the Collateral Agent, as
the case may be, of written consents from the Holders of the requisite percentage in principal
amount of the outstanding Bonds or such Officers’ Certificate, whichever first occurs, and the
execution thereof by the Trustee or the Collateral Agent, as the case may be.



     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. 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 (8) of Section
8.02, in which case, the amendment, supplement or waiver shall bind only each Holder of a Bond
who has consented to it and every subsequent Holder of a Bond or portion of a Bond that evidences
the same debt as the consenting



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Holder’s Bond; provided that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal of, and premium, if any, and interest on, a Bond, on or
after the respective due dates expressed in such Bond, or to bring suit for the enforcement of any
such payment on or after such respective dates without the consent of such Holder.




     Section 8.05. Notation on or Exchange of Bonds.



     If an amendment, supplement or waiver changes the terms of a Bond, the Trustee may require the
Holder of the Bond to deliver the Bond to the Trustee. The Trustee at the written direction of the
Company may place an appropriate notation on the Bond about the changed terms and return it to the
Holder and the Trustee may place an appropriate notation on any Bond thereafter authenticated.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Bond
shall issue and the Trustee shall authenticate a new Bond that reflects the changed terms. Failure
to make an appropriate notation, or issue a new Bond, shall not affect the validity and effect of
such amendment, supplement or waiver. Any such notation or exchange shall be made at the sole cost
and expense of the Company. Failure to make the appropriate notation or issue a new Bond shall not
effect the validity and effect of such amendment, supplement or waiver.



     Section 8.06. Trustee to Sign Amendments, etc.



     The Trustee and/or the Collateral Agent, as applicable, shall execute any amendment,
supplement or waiver authorized pursuant to this Article Eight; provided that the Trustee
or the Collateral Agent, as the case may be, may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the rights, duties or immunities of the Trustee or
the Collateral Agent, as the case may be, under this Indenture, any Collateral Document or any
other Financing Document. The Trustee or the Collateral Agent, as the case may be, shall be
entitled to receive (in addition to the documents required pursuant to Section 10.04), and
shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each
stating that the execution of any amendment, supplement or waiver authorized pursuant to this
Article Eight is authorized or permitted by this Indenture or the applicable Financing
Document. Such Opinion of Counsel shall also state that the amendment or supplement is a valid and
enforceable obligation of the Company. Such Opinion of Counsel shall not be an expense of the
Trustee or the Collateral Agent, as the case may be, and shall be paid for by the Company.



     Section 8.07. Conformity with Trust Indenture Act.



     Every supplemental indenture executed pursuant to this Article Eight that is subject
to the terms of the TIA shall conform to the requirements of the TIA as then in effect.



ARTICLE NINE




SUBSIDIARY GUARANTEE




     Section 9.01. Subsidiary Guarantee.



     Each Subsidiary Guarantor hereby fully, irrevocably and unconditionally, jointly and
severally, guarantees (such guarantee to be referred to herein as the “Subsidiary
Guarantee”), to each of the Holders, the Trustee and the Collateral Agent and its respective
successors and assigns that (i) the principal of, premium, if any and interest on, the Bonds shall
be promptly paid in full when due, subject to any applicable grace period, whether upon redemption
pursuant to the terms of the Bonds, by acceleration or otherwise, and interest on the overdue
principal, if any, of, and interest on any interest, to the extent



77









 




lawful, on, the Bonds and all other obligations of the Company to the Holders, the Trustee and
the Collateral Agent hereunder, thereunder or under any Collateral Document or any other Financing
Document shall be promptly paid in full or performed, all in accordance with the terms hereof or
thereof; and (ii) in case of any extension of time of payment or renewal of any of the Bonds or of
any such other obligations, the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 9.03.
The Subsidiary Guarantee of each Subsidiary Guarantor shall rank senior in right of payment to all
subordinated Indebtedness of such Subsidiary Guarantor and equal in right of payment with all other
senior obligations of such Subsidiary Guarantor. Each Subsidiary Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Bonds, this Indenture, any Collateral Document or any other Financing
Document, the absence of any action to enforce the same, any waiver or consent by any of the
Holders with respect to any provisions hereof or thereof, any release of any other Subsidiary
Guarantor, 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
Subsidiary Guarantor. Each Subsidiary 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 covenants that this Subsidiary Guarantee shall not be discharged except by complete performance
of the obligations contained in the Bonds, this Indenture and in this Subsidiary Guarantee. The
obligations of each Subsidiary Guarantor are limited to the maximum amount which, after giving
effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and, to the
extent permitted by applicable Law, after giving effect to any collections from or payments made by
or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations
under this Indenture, shall result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal
or state law. The net worth of any Subsidiary Guarantor for such purpose shall include any claim
of such Subsidiary Guarantor against the Company for reimbursement and any claim against any other
Subsidiary Guarantor for contribution. If any Holder, the Collateral Agent or the Trustee is
required by any court or otherwise to return to the Company, any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to the Company or any
Subsidiary Guarantor, any amount paid by the Company or any Subsidiary Guarantor to the Trustee,
the Collateral Agent or such Holder, this Subsidiary Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees
that, as between each Subsidiary Guarantor, on the one hand, and the Holders, the Collateral Agent
and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five for the purposes of this Subsidiary Guarantee
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Five, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Subsidiary Guarantor for the purpose of this Subsidiary
Guarantee.




     Section 9.02. Release of a Subsidiary Guarantor.



     A Subsidiary Guarantor will be automatically and unconditionally released from its Subsidiary
Guarantee (and may subsequently dissolve) without any action required on the part of the Trustee or
any Holder:




     (1) if the Company exercises its legal defeasance option or its covenant defeasance
option as described in Section 7.01, or



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     (2) upon satisfaction and discharge of this Indenture in accordance with Section
7.02 or payment in full in cash of the principal of, and premium, if any, and accrued
and unpaid interest on, the Bonds and all other Obligations under this Indenture and each
other Financing Document that are then due and payable.



     At the Company’s expense, the Trustee shall promptly deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by an Officers’
Certificate certifying as to the compliance with this Section 9.02. Any Subsidiary
Guarantor not so released remains liable for the full amount of its Subsidiary Guarantee as
provided in this Article Nine.



     Section 9.03. Limitation of Subsidiary Guarantor’s Liability.



     Each Subsidiary Guarantor and, by its acceptance hereof, each of the Holders hereby confirms
that it is the intention of all such parties that the guarantee by such Subsidiary Guarantor
pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for
purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under the Subsidiary Guarantee shall be limited to the maximum amount as
shall, after giving effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and, to the extent permitted by applicable Law, after giving effect to any collections
from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to
Section 9.04, result in the obligations of such Subsidiary Guarantor under the Subsidiary
Guarantee not constituting such fraudulent transfer or conveyance.



     Section 9.04. Contribution.



     In order to provide for just and equitable contribution among the Subsidiary Guarantors, the
Subsidiary Guarantors agree, inter se, that each Subsidiary Guarantor that makes a payment or
distribution under a Subsidiary Guarantee shall be entitled to a pro rata contribution from each
other Subsidiary Guarantor hereunder based on the net assets of each other Subsidiary Guarantor.
The preceding sentence shall in no way affect the rights of the Holders of Bonds to the benefits of
this Indenture, the Bonds or the Subsidiary Guarantees.



     Section 9.05. Waiver of Subrogation.



     Each Subsidiary Guarantor agrees that it shall 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.



     Section 9.06. Waiver of Stay, Extension or Usury Laws.



     Each Subsidiary Guarantor covenants to the extent permitted by law that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law that would prohibit or forgive such Subsidiary
Guarantor from performing its Subsidiary Guarantee as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the performance of this
Subsidiary Guarantee; and each Subsidiary Guarantor hereby expressly waives to the extent permitted
by law all benefit or advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.



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ARTICLE TEN




MISCELLANEOUS




     Section 10.01. Intentionally Omitted.



     Section 10.02. Notices.



     Any notices or other communications required or permitted hereunder shall be in writing, and
shall be sufficiently given if made by hand delivery, by telex, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:


if to the Company:



Molecular Insight Pharmaceuticals, Inc.

160 Second Street

Cambridge, MA 02142

Attention: Chief Operating Officer

Facsimile Number: (617) 492-5664



With a copy to:



Foley & Lardner LLP

111 Huntington Avenue

Boston, MA 02199

Attention: Gabor Garai, Esq.

Facsimile Number: (617) 342-4001



if to the Trustee:



The Bank of New York Trust Company, N.A.

222 Berkeley Street, 2nd Floor

Boston, MA 02116

Attn: Global Corporate Trust

Facsimile Number: (617) 351-2401



if to the Collateral Agent:



The Bank of New York Trust Company, N.A.

222 Berkeley Street, 2nd Floor

Boston, MA 02116

Attn: Global Corporate Trust

Facsimile Number: (617) 351-2401




     Each of the Company, the Trustee and the Collateral Agent by written notice to each other may
designate additional or different addresses for notices to such Person. Any notice or
communication to the Company, the Trustee or the Collateral Agent shall be deemed to have been
given or made as of the date so delivered if personally delivered; when answered back, if telexed;
when receipt is acknowledged, if faxed; and five (5) days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address or a notice sent by mail
to the Trustee shall not be deemed to have been given until actually received by the addressee).



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     Any notice or communication mailed to a Holder shall be mailed to such Holder by first class
mail or other equivalent means at such Holder’s address as it appears on the registration books of
the Registrar and shall be sufficiently given to such Holder if so mailed within the time
prescribed.



     Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.



     Section 10.03. Communications by Holders with Other Holders.



     Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture, the Bonds, any Collateral Document, any Subsidiary Guarantee or
any other Financing Document. The Company, the Trustee, the Collateral Agent, the Registrar and
any other Person shall have the protection of TIA Section 312(c).



     Section 10.04. Certificate and Opinion as to Conditions Precedent.



     Upon any request or application by the Company or any Subsidiary Guarantor to the Trustee or
the Collateral Agent, as the case may be, to take any action under this Indenture, any Collateral
Document or any other Financing Document, the Company shall furnish to the Trustee or the
Collateral Agent, as the case may be, upon request:




     (1) an Officers’ Certificate, in form and substance reasonably satisfactory to the
Trustee or the Collateral Agent, as the case may be, stating that, in the opinion of the
signers, all conditions precedent to be performed by the Company or the applicable
Subsidiary Guarantor (as the case may be), if any, provided for in this Indenture, any
Collateral Document or any other Financing Document relating to the proposed action have
been complied with; and




     (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent to be performed by the Company or the applicable Subsidiary Guarantor
(as the case may be), if any, provided for in this Indenture, any Collateral Document or any
other Financing Document relating to the proposed action have been complied with.



     Section 10.05. Statements Required in Certificate or Opinion.



     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture, any Collateral Document or any other Financing Document other than the
Officers’ Certificate required by Section 4.06, shall 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 has made such examination or
investigation as is reasonably necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and




     (4) a statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with.



81









 





     Section 10.06. Rules by Trustee, Paying Agent, Registrar.



     The Trustee may make reasonable rules in accordance with the Trustee’s customary practices for
action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.



     Section 10.07. Legal Holidays.



     A “Legal Holiday” used with respect to a particular place of payment is a Saturday, a
Sunday or a day on which banking institutions in New York, New York, or at such place of payment
are not required to be open. If a payment date is a Legal Holiday at such place, payment may be
made at such place on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.



     Section 10.08. Governing Law; Submission to Jurisdiction.



     THIS INDENTURE AND THE BONDS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAWS PROVISIONS (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE.



     Section 10.09. No Adverse Interpretation of Other Agreements.



     This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.



     Section 10.10. No Recourse Against Others.



     A past, present or future director, officer, employee, stockholder or incorporator, as such,
of the Company or of the Trustee shall not have any liability for any obligations of the Company or
the Subsidiary Guarantors under the Bonds, this Indenture, the Collateral Documents or any other
Financing Document, or for any claim based on, in respect of or by reason of such obligations or
their creation. Each Holder, by accepting a Bond, waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the Bonds.



     Section 10.11. Successors.



     All agreements of the Company and the Subsidiary Guarantors in this Indenture and the Bonds
shall bind their successors. All agreements of each of the Trustee and the Collateral Agent in
this Indenture shall bind their respective successors.



     Section 10.12. Duplicate Originals.



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



82









 





     Section 10.13. Severability.



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



     Section 10.14. Waiver of Jury Trial.



     THE COMPANY AND EACH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR IN
CONNECTION WITH THIS INDENTURE, THE BONDS, THE SUBSIDIARY GUARANTEES, THE COLLATERAL DOCUMENTS OR
ANY OTHER FINANCING DOCUMENT, OR ANY TRANSACTION CONTEMPLATED THEREBY.



     Section 10.15. Authorization of Actions To Be Taken by the Collateral Agent under the
Financing Documents.



     The Bank of New York Trust Company, N.A. is hereby appointed Collateral Agent. Subject to the
provisions of the applicable Financing Documents, the Trustee and each Holder, by acceptance of its
Bond(s) agrees that (a) the Collateral Agent shall execute and deliver the Financing Documents and
the ENSR Reliance Letter and act in accordance with the terms thereof, (b) the Collateral Agent
may, in its sole discretion and without the consent of the Trustee or the Holders, take all actions
it deems necessary or appropriate in order to (i) enforce any of the terms of the Financing
Documents and (ii) collect and receive any and all amounts payable in respect of the Obligations of
the Company and the Subsidiary Guarantors hereunder and under the Bonds, the Subsidiary Guarantees,
the Financing Documents and the other Financing Documents and (c) the Collateral Agent shall have
power to institute and to maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Collateral by any act that may be unlawful or in violation of the Financing
Documents or this Indenture, and suits and proceedings as the Collateral Agent may deem expedient
to preserve or protect its interests and the interests of the Secured Parties in the Collateral
(including the power to institute and maintain suits or proceedings to restrain the enforcement of
or compliance with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest thereunder or be prejudicial to the interests of
the Collateral Agent, the Holders or the Trustee). Notwithstanding the foregoing, the Collateral
Agent may, at the expense of the Company, request the direction of the Holders with respect to any
such actions and upon receipt of the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Bonds, shall take such actions.



     Section 10.16. Authorization of Receipt of Funds by the Trustee Under the Collateral
Documents.



     The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee
and the Holders distributed under the Collateral Documents and for turnover to the Trustee to make
further distributions of such funds to itself, the Trustee and the Holders in accordance with the
provisions of this Indenture.



83









 





SIGNATURES




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



	 	 	 	 	 
	 	MOLECULAR INSIGHT PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/
John E. McCray	 
	 	Name:  	 	John E. McCray	 
	 	Title:  	 	COO	 
	 
	 	THE BANK OF NEW YORK TRUST COMPANY,

N.A., as Trustee and Collateral Agent



	 
	 	By:  	/s/
Diana J. Kenneally	 
	 	Name:  	 	Diana J. Kenneally	 
	 	Title:  	 	VP	 
	 




 











 





EXHIBIT A




[FORM OF BOND]



THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS BOND NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.



THE HOLDER OF THIS BOND, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S.
PURCHASER AND IS ACQUIRING THIS BOND IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH BOND, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”)
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY (AS HEREINAFTER DEFINED) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS BOND (OR ANY
PREDECESSOR OF SUCH BOND), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS
THIS BOND IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS BOND FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C),
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS BOND IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.














 







THIS BOND IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT UNDER SECTIONS 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND IS SUBJECT TO THE RULES FOR DEBT INSTRUMENTS WITH
CONTINGENT PAYMENTS UNDER TREASURY REGULATION SECTION 1.1275-4(b). FOR INFORMATION REGARDING THE
ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE, THE YIELD TO MATURITY, THE
COMPARABLE YIELD AND THE PROJECTED PAYMENT SCHEDULE FOR THIS BOND, YOU SHOULD SUBMIT A WRITTEN
REQUEST TO THE COMPANY AT THE FOLLOWING ADDRESS: MOLECULAR INSIGHT PHARMACEUTICALS, INC., 160
SECOND STREET, CAMBRIDGE, MA 02142, ATTN: CHIEF OPERATING OFFICER.




A-2









 








MOLECULAR INSIGHT PHARMACEUTICALS, INC.




SENIOR SECURED FLOATING RATE BONDS DUE 2012




			
	CUSIP No.	 	 
	No.
	 	$          






     Molecular Insight Pharmaceuticals, Inc., a Massachusetts corporation, for value received
promises to pay to
                              , or registered assigns, the principal sum of                     
DOLLARS ($[          ]) on November 16, 2012.



	 	 	 	 	 
	 

	 	 Interest Rate:
	 	a floating interest rate determined in accordance with Paragraph
	 

	 	 	 	1 on the reverse side of this Bond






	 	 	 	 	 
	 

	 	 Interest Payment Dates:
	 	February 1, May 1, August 1 and November 1,
	 

	 	 	 	commencing February 1, 2008
	 
	 

	 	 Record Dates: January 15, April 15, July 15 and October 15
	 	








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



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          IN WITNESS WHEREOF, the Company has caused this Bond to be signed manually or by facsimile by
its duly authorized officer.




	 	 	 	 	 
	 	MOLECULAR INSIGHT 
 PHARMACEUTICALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                     




TRUSTEE CERTIFICATE OF AUTHENTICATION





     This is one of the Senior Secured Floating Rate Bonds due 2012 referred to in the
within-mentioned Indenture.



	 	 	 	 	 
	 	THE BANK OF NEW YORK TRUST COMPANY,
 N.A., as Trustee

 	 
	Dated:                      	By:  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




A-4









 








(REVERSE OF BOND)




Senior Secured Floating Rate Bonds due 2012





	 	1.	 	Interest.





     Molecular Insight Pharmaceuticals, Inc. (the “Company”, which term includes any
successor) promises to pay interest on the principal amount of this Bond at the Interest Rate
determined in accordance with the terms hereof. Interest on the Bond will accrue from the most
recent date on which interest has been paid or, if no interest has been paid, with respect to an
Original Bond, from and including the Issue Date and, with respect to a PIK Bond, from and
including the date of issuance of such PIK Bond. The Company will pay interest quarterly in
arrears on each Interest Payment Date, commencing February 1, 2008; provided,
however that if a Shortfall exists on any Interest Payment Date (other than an Interest
Payment Date that is also a Redemption Date) between and including November 16, 2007 and November
16, 2010, such Shortfall shall be payable through the issuance of PIK Bonds in a principal amount
equal to such Shortfall pursuant to Section 2.02(c)(ii) of the Indenture. Interest will be
computed on the basis of the actual number of days for which interest is payable in the relevant
Interest Period divided by 360.



     This Bond will bear interest for each Interest Period at a per annum rate (“Interest
Rate”) determined by the Calculation Agent, subject to the maximum interest rate permitted by
New York or other applicable state law, as such law may be modified by United States law of general
application. The Interest Rate for each Interest Period will be equal to LIBOR on the Interest
Determination Date for such Interest Period plus 8.00%; provided, however, that in
certain circumstances described below, the Interest Rate will be determined without reference to
LIBOR. Promptly upon such determination, the Calculation Agent will notify the Trustee for the
Bonds, if the Trustee is not then serving as the Calculation Agent, of the Interest Rate for the
new Interest Period. The Interest Rate determined by the Calculation Agent, absent manifest error,
shall be binding and conclusive upon the beneficial owners and registered Holders of this Bond, the
Company and the Trustee for the Bonds.



     “Business Day” means, with respect to this Bond, any day other than a Saturday, Sunday
or other day on which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the State of New York or the state where the Corporate Trust Office is located.



     “Calculation Agent” means The Bank of New York Trust Company, N.A., in its capacity as
calculation agent under the Calculation Agency Agreement, and its successors.



     “Interest Determination Date” means the second London Business Day immediately
preceding the first day of the relevant Interest Period.



     “Interest Period” means the period commencing on an Interest Payment Date (or
commencing on the Issue Date, if no interest has been paid or duly made available for payment since
that date) and ending on the day before the next succeeding Interest Payment Date.



A-5









 





     “LIBOR” means, with respect to any Interest Period, the rate (expressed as a
percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the first
day of that Interest Period and ending on the next Interest Payment Date that appears on Reuters
LIBOR0l Page as of 11:00 a.m. (London time) on the Interest Determination Date for that Interest
Period. If such rate does not appear on the Reuters LIBOR0l Page as of 11:00 a.m. (London time) on
the Interest Determination Period, LIBOR will be determined on the basis of the rates at which
deposits in U.S. dollars for the Interest Period and in a principal amount of not less than
$1,000,000 are offered to prime banks in the London interbank market by four major banks in the
London interbank market selected by the Calculation Agent (after consultation with the Company), at
approximately 11:00 a.m., London time on the Interest Determination Date for that Interest Period.
The Calculation Agent will request the principal London office of each such bank to provide a
quotation of its rate and, if at least two such quotations are provided, LIBOR with respect to that
Interest Period will be the arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR with respect to that Interest Period will be the arithmetic mean of the rates
quoted by three major banks in New York City selected by the Calculation Agent (after consultation
with the Company), at approximately 11:00 a.m., New York City time, on the first day of that
Interest Period for loans in U.S. dollars to leading European banks for that Interest Period and in
a principal amount of not less than $1,000,000. However, if fewer than three banks selected by the
Calculation Agent to provide quotations are quoting as described above, LIBOR for that Interest
Period will be the same as LIBOR as determined for the previous Interest Period. The establishment
of LIBOR by the Calculation Agent shall (in the absence of manifest error) be final and binding.



     “London Business Day” means a Business Day and a day on which dealings in deposits in
U. S. dollars are transferred, or with respect to any future date are expected to be transferred,
in the London interbank market.



     “Reuters LIBOR01 Page” means the display so designated as the Reuters 3000 Xtra (or
such other page as may replace that page or that service, or such other service as may be nominated
by the Calculation Agent as the information vendor, for the purpose of displaying rates as prices
comparable to the London Interbank Offered rate for U.S. dollar deposits).



Upon request, the Calculation Agent will provide the current Interest Rate and, if determined, the
Interest Rate which will become effective for the next Interest Period.



     All percentages resulting from any calculation of the Interest Rate will be rounded, if
necessary, to the nearest one-hundred thousandth of a percentage point, with five one-millionths of
a percentage point rounded upwards, and all dollar amounts used in or resulting from such
calculation will be rounded to the nearest cent (with one-half cent being rounded upwards).




	 	2.	 	Method of Payment.





     The Company shall pay interest on the Bonds (except defaulted interest) to the Persons who are
the registered Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Bonds are cancelled on registration of transfer or registration
of exchange after such Record Date, and on or before such Interest Payment Date. Payments of
interest in the form of PIK Bonds in respect of this Bond issued in the form of a Global Bond shall
be effected by the Trustee’s notation of an increase in the principal amount of



A-6









 







this Bond as set forth above and through the book-entry procedures of DTC. Payments of
interest in the form of PIK Bonds in respect of this Bond issued in the form of a definitive Bond
shall be made through the issuance of definitive PIK Bonds by the Trustee to the Holder on the
applicable Record Date at its address appearing on the Register maintained with respect to this
Bond. Holders must surrender Bonds to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in such coin or currency of the United States (except for the
issuance of PIK Bonds as payment of interest) that at the time of payment is immediately available
legal tender for payment of public and private debts (“U.S. Legal Tender”). The Company
shall deliver any such interest and principal payment to the Paying Agent.




	 	3.	 	Paying Agent and Registrar.





     Initially, The Bank of New York Trust Company, N.A. (the “Trustee”) will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar without
notice to the Holders. Neither the Company nor any Affiliate of the Company shall act as Paying
Agent or Registrar. If the Trustee acquires any conflicting interest as described in the Trust
Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”), it must eliminate such
conflict or resign.




	 	4.	 	Indenture.





     The Bonds were issued under an Indenture, dated as of November 16, 2007 (the
“Indenture”), between the Company, the Trustee and Collateral Agent. The terms of the
Bonds include those stated in the Indenture and those stated herein. Notwithstanding anything to
the contrary herein, the Bonds are subject to all such terms, and Holders of Bonds are referred to
the Indenture for a statement of such terms. The Bonds are senior secured obligations of the
Company. Each Holder, by accepting a Bond, agrees to be bound by all of the terms and provisions
of the Indenture. Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein.




	 	5.	 	Subsidiary Guarantees.





     Payment of principal of and premium, if any, and interest on, the Bonds, is unconditionally
guaranteed, jointly and severally, by each of the Subsidiary Guarantors.




	 	6.	 	Optional Redemption.





     (a) Optional Make Whole Redemption. Pursuant to Section 3.01(b) of the
Indenture, at any time prior to November 16, 2008, the Company may redeem the Bonds, at its option,
in whole or in part, upon not less than 20 nor more than 60 days’ notice, at a redemption price
equal to the greater of:




     (1) 106% of the aggregate principal amount of the Bonds being redeemed and




     (2) the present values of 106.00% of the aggregate principal amount of such
Bonds and scheduled payments of interest on such Bonds to and including November 16,
2008 (assuming for purposes of calculating interest due on such Bonds that LIBOR is
equal to the average of the rate per annum quoted by the



A-7









 







British Bankers’ Association for dollar deposits in the London Interbank market
for the four immediately preceding consecutive three-month periods), discounted to
the date of redemption on an annual basis at the Treasury Rate plus 50 basis points,
together with, in each case, accrued and unpaid interest, to such Make-Whole
Redemption Date.



     (b) Optional Redemption. Pursuant to Section 3.01(b) of the Indenture, at any
time on or after November 16, 2008, the Company may redeem the Bonds, at its option, in whole or in
part, upon not less than 20 nor more than 60 days’ notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) plus accrued and unpaid interest, if
redeemed during the twelve-month period commencing on November 1, of the year set forth below:



	 	 	 	 	 	 	 	 
	Year	 	 	Percentage
	 	2008	 	 	 	 	106.00	%
	 	2009	 	 	 	 	104.00	%
	 	2010	 	 	 	 	102.00	%
	 	2011	 	and thereafter
	 	 	100.00	%






     (c) Notice of Redemption. Notice of redemption will be mailed by first-class mail at
least 20 days but not more than 60 days before the Redemption Date to each Holder of Bonds to be
redeemed at such Holder’s registered address. If fewer than all of the Bonds are to be redeemed,
at any time, selection of Bonds for redemption will be made by the Trustee, on a pro rata basis, by
lot or by such method as the Trustee may reasonably determine is fair and appropriate (subject to
the procedures of DTC or any other depository); provided that no partial redemption will
reduce the principal amount of a Bond not redeemed to a denomination of less than $100,000. Bonds
in denominations of $100,000 or more may be redeemed in part in multiples of $100,000 only.



     Except as set forth in the Indenture, if monies for the redemption of the Bonds called for
redemption shall have been deposited with the Paying Agent for redemption on such redemption date
sufficient to pay such redemption price plus accrued and unpaid interest, the Bonds called for
redemption will cease to bear interest from and after such redemption date, and the only remaining
right of the Holders of such Bonds will be to receive payment of the redemption price plus accrued
and unpaid interest, as of the redemption date upon surrender to the Paying Agent of the Bonds
redeemed.




	 	7.	 	Mandatory Redemption.





     The Bonds are subject to mandatory redemption on the terms and conditions set forth in
Section 3.01(a) of the Indenture.



     The Redemption Price of any Bond redeemed in accordance with Section 3.01(a) of the
Indenture will be at the following redemption prices (expressed as percentages of the principal
amount thereof) plus accrued and unpaid interest, if redeemed during the twelve-month period
commencing on November 1, of the year set forth below:



A-8









 





	 	 	 	 	 	 	 	 	 	 
	Year	 	 	 	 	 	Percentage
	 	2008	 	 	 	 	 	 	106.00	%
	 	2009	 	 	 	 	 	 	104.00	%
	 	2010	 	 	 	 	 	 	102.00	%
	 	2011	 	and thereafter	 	 	100.00	%





; provided that, the Redemption Price of any Bond redeemed in accordance with Section
3.01(a)(v) and (a)(vi) of the Indenture will be at 100% of the principal price thereof,
plus accrued and unpaid interest at the time of redemption.





	 	8.	 	Denominations; Transfer; Exchange.





     The Bonds are in registered form, without coupons, in denominations of $100,000 and any
integral multiples thereof. A Holder shall register the transfer of or exchange of Bonds in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes, fees or similar governmental
charges payable in connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange of any Bonds or portions thereof selected for redemption.




	 	9.	 	Persons Deemed Owners.





     The registered Holder of a Bond shall be treated as the owner of it and the Bonds of which it
is composed for all purposes.




	 	10.	 	Unclaimed Money.





     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and the Paying Agent may pay the money without interest thereon back to the Company upon written
request by the Company. After that, all liability of the Trustee and such Paying Agent with
respect to such money shall cease.




	 	11.	 	Discharge Prior to Redemption or Maturity.





     If the Company at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of and interest on the Bonds to redemption or the
Maturity Date and complies with the other provisions of the Indenture relating thereto, the Company
shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding
Bonds, except for the rights of Holders to receive payments in respect of the principal of, and
premium, if any, and interest, on the Bonds when such payments are due from the deposits referred
to above.




	 	12.	 	Amendment; Supplement; Waiver.





     The Company, the Subsidiary Guarantors, the Trustee and, if such amendment, modification or
supplement relates to any Collateral Document, the Collateral Agent, without the



A-9









 







consent of the Holders, may amend, modify or supplement the Indenture, the Bonds, the
Subsidiary Guarantees, the Collateral Documents and any other Financing Document:




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




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




(3) to provide for the assumption of the Company’s or a Subsidiary Guarantor’s
obligations to Holders by the successor to the Company or such Subsidiary Guarantor,
as the case may be;




(4) to make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights of any such Holder under
the Indenture, the Bonds, the Subsidiary Guarantees, the Collateral Documents or any
other Financing Document;




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




(6) to allow any Subsidiary or any other Person to guarantee the Bonds;




(7) to release a Subsidiary Guarantor as permitted by the Indenture and the relevant
Subsidiary Guarantee;




(8) if necessary, in connection with any addition or release of Collateral permitted
under the terms of the Indenture or Collateral Documents;




(9) to make any amendment to the provisions of the Indenture relating to the form,
authentication, transfer or legending of the Bonds, provided,
however, that (a) compliance with the Indenture as so amended would not
result in the Bonds beings transferred in violation of the Securities Act or any
other applicable securities law and (b) such amendment does not materially affect
the rights of the Holders to transfer the Bonds; or




(10) provide for the issuance of any PIK Bonds in accordance with Section
2.02(c)(ii) of the Indenture,




so long as such amendment, modification, waiver or supplement does not, in the opinion of
the Trustee and, if such amendment, modification or supplement relates to any Collateral
Document, the Collateral Agent, adversely affect the rights of any of the Holders in any
material respect. In formulating its opinion on such matters, each of the Trustee and, if
such amendment, modification or supplement relates to any Collateral Document, the
Collateral Agent, will be entitled to rely on such evidence as it deems appropriate,
including, without limitation, solely on an Opinion of Counsel. Other amendments of,
modifications to and supplements to the Indenture, the Bonds, the Subsidiary Guarantee, the
Collateral Documents and any other Financing Document may



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be made with the consent of the Holders of a majority in principal amount of the then
outstanding Bonds issued under the Indenture, except that, without the consent of each
Holder affected thereby, no amendment may:




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




(2) reduce the rate of or change or have the effect of changing the time for payment
of interest, including default interest, on any Bonds;




(3) reduce the principal of or change or have the effect of changing the fixed
maturity of any Bonds, or change the date on which any Bonds may be subject to
redemption or reduce the redemption price therefor;




(4) make any Bonds payable in money other than that stated in the Bonds;




(5) make any change in provisions of the Indenture protecting the right of each
Holder to receive payment of principal of, and premium, if any, and interest on,
such Bond on or after the due date thereof or to bring suit to enforce such payment,
or permitting Holders of a majority in principal amount of Bonds to waive Defaults
or Events of Default;




(6) modify or change any provision of the Indenture or the related definitions
affecting the ranking of the Bonds or any Subsidiary Guarantee or any Lien created
under any Collateral Agreement in a manner which adversely affects the Holders;




(7) release any Subsidiary Guarantor from any of its obligations under its
Subsidiary Guarantee or the Indenture otherwise than in accordance with the terms of
the Indenture;




(8) release all or substantially all of the Collateral otherwise than in accordance
with the terms of the Indenture and the Collateral Documents; or




(9) make any change to Section 8.01 or Section 8.02 of the
Indenture.




	 	13.	 	Restrictive Covenants.





     The Indenture imposes certain limitations on the ability of the Company and its Subsidiaries
to, among other things, incur additional Indebtedness or grant Liens, make payments in respect of
their Equity Interests or certain Indebtedness, enter into transactions with Affiliates, make
Capital Expenditures, create dividend or other payment restrictions affecting Subsidiaries, merge
or consolidate with any other Person, sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its assets or adopt a plan of liquidation. Such limitations are
subject to a number of important qualifications and exceptions. The Company must annually report
to the Trustee on compliance with such limitations.




	 	14.	 	Defaults and Remedies.




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     If an Event of Default (other than certain events of bankruptcy) occurs and is continuing and
has not been waived, the Trustee may, and upon the direction of the Holders of at least 25% in
aggregate principal amount of the Bonds, shall declare the principal of and premium, if any,
accrued interest, on all the Bonds to be due and payable in the manner, at the time and with the
effect provided in the Indenture. Holders of Bonds may not enforce the Indenture except as
provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Bonds
unless it has received indemnity reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate principal amount of the
Bonds then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of Bonds notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding notice is in their
interest.




	 	15.	 	Trustee Dealings with Company.





     Subject to the terms of the Indenture, the Trustee under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of Bonds and may otherwise deal with the
Company, any Subsidiaries of the Company or its respective Affiliates as if it were not the
Trustee.




	 	16.	 	No Recourse Against Others.





     No past, present or future stockholder, director, officer, employee or incorporator, as such,
of the Company or the Subsidiary Guarantors shall have any liability for any obligation of the
Company under the Bonds, the Subsidiary Guarantees, the Collateral Documents or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their creation. Each
Holder, by accepting a Bond waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Bonds.




	 	17.	 	Authentication.





     This Bond shall not be valid until the Trustee or Authenticating Agent manually signs the
certificate of authentication on this Bond.




	 	18.	 	Governing Law.





     THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS BOND, THE SUBSIDIARY GUARANTEES, THE
COLLATERAL DOCUMENTS AND THE INDENTURE, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS (OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).




	 	19.	 	Waiver of Jury Trial.





     Each of the parties hereto and the holders (by their acceptance of this Bond) hereby
irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in
any action or proceeding arising out of or in connection with the Indenture, this Bond, the
Subsidiary Guarantees, the Collateral Documents or the transactions contemplated by the Indenture.



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	 	20.	 	Abbreviations and Defined Terms.





     Customary abbreviations may be used in the name of a Holder of a Bond or an assignee, such as:
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts to Minors Act).



     The Company will furnish to any Holder of a Bond upon written request and without charge a
copy of the Indenture. Requests may be made to: Molecular Insight Pharmaceuticals, Inc., 160
Second Street, Cambridge, MA 02142.



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ASSIGNMENT FORM




          If you the Holder want to assign this Bond, fill in the form below and have your signature
guaranteed:




I or we assign and transfer this Bond to:




 





 





(Print or type name, address and zip code and

social security or tax ID number of assignee)



and irrevocably appoint                                                         
                                                               
agent to transfer this Bond on the books of the Company. The agent may substitute another to act
for him.




	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 
	 	Signed:
	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(Sign exactly as your name appears on

the other side of this Bond)	 	 






Signature Guarantee:                                                            




          In connection with any transfer of this Bond, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the transfer and that
this Bond is being transferred:




[Check One]




	 	 	 	 	 
	(1)

	 	          
	 	to the Company or a subsidiary thereof; or
	 
	 	 	 	 
	(2)

	 	          
	 	pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as
amended (the “Securities Act”); or
	 
	 	 	 	 
	(3)

	 	          
	 	to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which letter can be obtained from the
Trustee); or
	 
	 	 	 	 
	(4)

	 	          
	 	outside the United States to a person other than a “U.S. person” in compliance with
Rule 904 of Regulation S under the Securities Act; or
	 
	 	 	 	 
	(5)

	 	          
	 	pursuant to the exemption from registration provided by Rule 144 under the Securities
Act.





Unless one of the boxes is checked, the Trustee will refuse to register any of the Bonds evidenced
by this certificate in the name of any person other than the registered Holder thereof;
provided that if box (3), (4) or (5) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Bonds, in its sole discretion, such legal opinions,


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certifications (including an investment letter in the case of box (3) or (4)) and other information
as the Trustee or the Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the registration requirements of
the Securities Act.




     If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Bond in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section 2.15 of the
Indenture shall have been satisfied.



	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 
	 	Signed:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(Sign exactly as your name appears on

the other side of this Bond)
	 	 






Signature Guarantee:                                                            




TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED




          The undersigned represents and warrants that it is purchasing this Bond for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.




	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 
	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	NOTICE: To be executed by an executive officer	 	 







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EXHIBIT B




FORM OF LEGEND FOR GLOBAL BOND




          Any Global Bond authenticated and delivered hereunder shall bear a legend (which would be in
addition to any other legends required in the case of a Restricted Security) in substantially the
following form:





     THIS SECURITY IS A GLOBAL BOND WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS BOND IS NOT EXCHANGEABLE FOR BONDS
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
BOND (OTHER THAN A TRANSFER OF THIS BOND AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.




     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“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 IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS 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.




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