exv10w2



 




Exhibit
10.2



 





GEOKINETICS INC.




SECOND PRIORITY SENIOR SECURED FLOATING RATE NOTES DUE 2012




 






Indenture




Dated as of December 15, 2006




 






Wells Fargo Bank, National Association




as Trustee




 






 





 









 





CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.06
	(b)
	 	13.03
	(c)
	 	13.03
	313(a)
	 	7.06, 13.03
	(b)(1)
	 	7.06
	(b)(2)
	 	7.06, 7.07
	(c)
	 	7.06, 13.02
	(d)
	 	7.06
	314(a)
	 	7.06, 13.05
	(b)
	 	10.05
	(c)(1)
	 	N.A.
	(c)(2)
	 	N.A.
	(c)(3)
	 	N.A.
	(d)(1)
	 	10.06
	(e)
	 	13.05
	(f)
	 	N.A.
	315(a)
	 	N.A.
	(b)
	 	N.A.
	(c)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	N.A.
	316(a) (last sentence)
	 	N.A.
	(a)(1)(A)
	 	N.A.
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	N.A.
	(c)
	 	13.14








 




			
	N.A. means not applicable. 
	 	 	 
	*	  	This Cross-Reference Table is not part of the Indenture.




i









 










	 	 	 	 	 
	Trust Indenture	 	 	 
	Act Section	 	Indenture Section	 
	317(a)(1)
	 	 	N.A.	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	N.A.	 
	318(a)
	 	 	N.A.	 
	(b)
	 	 	N.A.	 
	(b)
	 	 	13.01	 







ii









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	CROSS-REFERENCE TABLE	 	 	i	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE ONE	 	 	 	 
	 

	 	DEFINITIONS AND INCORPORATION	 	 	 	 
	 

	 	BY REFERENCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.01

	 	Definitions
	 	 	1	 
	Section 1.02

	 	Other Definitions
	 	 	25	 
	Section 1.03

	 	Incorporation by Reference to the Trust Indenture Act
	 	 	25	 
	Section 1.04

	 	Rules of Construction
	 	 	26	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE TWO	 	 	 	 
	 

	 	THE NOTES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.01

	 	Form and Dating
	 	 	26	 
	Section 2.02

	 	Execution and Authentication
	 	 	27	 
	Section 2.03

	 	Methods of Receiving Payments on the Notes and Interest Payment
	 	 	28	 
	Section 2.04

	 	Registrar and Paying Agent
	 	 	28	 
	Section 2.05

	 	Paying Agent to Hold Money in Trust
	 	 	29	 
	Section 2.06

	 	Holder Lists
	 	 	29	 
	Section 2.07

	 	Transfer and Exchange
	 	 	29	 
	Section 2.08

	 	Replacement Notes
	 	 	42	 
	Section 2.09

	 	Outstanding Notes
	 	 	42	 
	Section 2.10

	 	Treasury Notes
	 	 	43	 
	Section 2.11

	 	Temporary Notes
	 	 	43	 
	Section 2.12

	 	Cancellation
	 	 	43	 
	Section 2.13

	 	Defaulted Interest
	 	 	43	 
	Section 2.14

	 	CUSIP Numbers
	 	 	44	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE THREE	 	 	 	 
	 

	 	REDEMPTION AND PREPAYMENT	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.01

	 	Notices to Trustee
	 	 	44	 
	Section 3.02

	 	Selection of Notes to Be Redeemed
	 	 	44	 
	Section 3.03

	 	Notice of Redemption
	 	 	44	 
	Section 3.04

	 	Effect of Notice of Redemption
	 	 	45	 
	Section 3.05

	 	Deposit of Redemption Price
	 	 	46	 
	Section 3.06

	 	Notes Redeemed in Part
	 	 	46	 
	Section 3.07

	 	Optional Redemption
	 	 	46	 
	Section 3.08

	 	Mandatory Redemption
	 	 	47	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE FOUR	 	 	 	 
	 

	 	COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.01

	 	Payment of Notes
	 	 	47	 
	Section 4.02

	 	Maintenance of Office or Agency
	 	 	47	 
	Section 4.03

	 	Reports
	 	 	48	 
	Section 4.04

	 	Compliance Certificate
	 	 	49	 
	Section 4.05

	 	Stay, Extension and Usury Laws
	 	 	49	 
	Section 4.06

	 	Liens
	 	 	49	 
	Section 4.07

	 	Offer to Repurchase upon a Change of Control
	 	 	50	 
	Section 4.08

	 	Offer to Repurchase upon an Asset Sale
	 	 	52	 
	Section 4.09

	 	Restricted Payments
	 	 	54	 
	Section 4.10

	 	Incurrence of Indebtedness
	 	 	56	 
	Section 4.11

	 	Limitation on Issuances and Sales of Equity Interests in Restricted Subsidiaries
	 	 	59	 
	Section 4.12

	 	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	60	 
	Section 4.13

	 	Transactions with Affiliates
	 	 	61	 
	Section 4.14

	 	Designation of Restricted and Unrestricted Subsidiaries
	 	 	63	 
	Section 4.15

	 	Business Activities
	 	 	64	 
	Section 4.16

	 	Payments for Consent
	 	 	65	 
	Section 4.17

	 	Guarantees
	 	 	65	 
	Section 4.18

	 	Sale and Leaseback Transactions
	 	 	65	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE FIVE	 	 	 	 
	 

	 	SUCCESSORS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.01

	 	Merger, Consolidation or Sale of Assets
	 	 	66	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE SIX	 	 	 	 
	 

	 	DEFAULTS AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.01

	 	Events of Default
	 	 	67	 
	Section 6.02

	 	Acceleration
	 	 	69	 
	Section 6.03

	 	Other Remedies
	 	 	69	 
	Section 6.04

	 	Waiver of Past Defaults
	 	 	69	 
	Section 6.05

	 	Control by Majority
	 	 	70	 
	Section 6.06

	 	Limitation on Suits
	 	 	70	 
	Section 6.07

	 	Rights of Holders of Notes to Receive Payment
	 	 	71	 
	Section 6.08

	 	Collection Suit by Trustee
	 	 	71	 
	Section 6.09

	 	Trustee May File Proofs of Claim
	 	 	71	 
	Section 6.10

	 	Priorities
	 	 	72	 
	Section 6.11

	 	Undertaking for Costs
	 	 	72	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE SEVEN	 	 	 	 
	 

	 	TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.01

	 	Duties of Trustee
	 	 	72	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 7.02

	 	Certain Rights of Trustee
	 	 	73	 
	Section 7.03

	 	Individual Rights of Trustee
	 	 	74	 
	Section 7.04

	 	Trustee’s Disclaimer
	 	 	74	 
	Section 7.05

	 	Notice of Defaults
	 	 	74	 
	Section 7.06

	 	Reports by Trustee to Holders of the Notes
	 	 	75	 
	Section 7.07

	 	Compensation and Indemnity
	 	 	75	 
	Section 7.08

	 	Replacement of Trustee
	 	 	76	 
	Section 7.09

	 	Successor Trustee by Merger, Etc
	 	 	77	 
	Section 7.10

	 	Eligibility; Disqualification
	 	 	77	 
	Section 7.11

	 	Preferential Collection of Claims Against the Company
	 	 	77	 
	Section 7.12

	 	Other Agreements
	 	 	77	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE EIGHT	 	 	 	 
	 

	 	DEFEASANCE AND COVENANT DEFEASANCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.01

	 	Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	78	 
	Section 8.02

	 	Legal Defeasance and Discharge
	 	 	78	 
	Section 8.03

	 	Covenant Defeasance
	 	 	79	 
	Section 8.04

	 	Conditions to Legal or Covenant Defeasance
	 	 	79	 
	Section 8.05

	 	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions
	 	 	80	 
	Section 8.06

	 	Repayment to the Company
	 	 	81	 
	Section 8.07

	 	Reinstatement
	 	 	81	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE NINE	 	 	 	 
	 

	 	AMENDMENT, SUPPLEMENT AND WAIVER	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.01

	 	Without Consent of Holders of Notes
	 	 	82	 
	Section 9.02

	 	With Consent of Holders of Notes
	 	 	83	 
	Section 9.03

	 	Compliance with Trust Indenture Act
	 	 	84	 
	Section 9.04

	 	Revocation and Effect of Consents
	 	 	84	 
	Section 9.05

	 	Notation on or Exchange of Notes
	 	 	85	 
	Section 9.06

	 	Trustee to Sign Amendments, Etc
	 	 	85	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE TEN	 	 	 	 
	 

	 	SECURITY	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.01

	 	Rights of the Trustee
	 	 	85	 
	Section 10.02

	 	Security Documents
	 	 	86	 
	Section 10.03

	 	Application of Proceeds of Collateral
	 	 	87	 
	Section 10.04

	 	Possession, Use and Release of Collateral
	 	 	87	 
	Section 10.05

	 	Opinion of Counsel
	 	 	88	 
	Section 10.06

	 	Further Assurances
	 	 	89	 
	Section 10.07

	 	Certain TIA Requirements
	 	 	89	 
	Section 10.08

	 	Suits to Protect the Collateral
	 	 	90	 
	Section 10.09

	 	Purchaser Protected
	 	 	90	 
	Section 10.10

	 	Powers Exercisable by Receiver or Trustee
	 	 	90	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 10.11

	 	Release of Second Priority Liens
	 	 	90	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE ELEVEN	 	 	 	 
	 

	 	NOTE GUARANTEES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.01

	 	Guarantee
	 	 	91	 
	Section 11.02

	 	Limitation on Guarantor Liability
	 	 	92	 
	Section 11.03

	 	Execution and Delivery of Note Guarantee
	 	 	92	 
	Section 11.04

	 	Releases
	 	 	93	 
	Section 11.05

	 	Guarantors May Consolidate, Etc., on Certain Terms
	 	 	93	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE TWELVE	 	 	 	 
	 

	 	SATISFACTION AND DISCHARGE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 12.01

	 	Satisfaction and Discharge
	 	 	94	 
	Section 12.02

	 	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions
	 	 	95	 
	Section 12.03

	 	Repayment to the Company
	 	 	95	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE THIRTEEN	 	 	 	 
	 

	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 13.01

	 	Trust Indenture Act Controls
	 	 	95	 
	Section 13.02

	 	Notices
	 	 	95	 
	Section 13.03

	 	Communication by Holders of Notes with Other Holders of Notes
	 	 	97	 
	Section 13.04

	 	Certificate and Opinion as to Conditions Precedent
	 	 	97	 
	Section 13.05

	 	Statements Required in Certificate or Opinion
	 	 	97	 
	Section 13.06

	 	Rules by Trustee and Agents
	 	 	97	 
	Section 13.07

	 	No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	98	 
	Section 13.08

	 	Governing Law
	 	 	98	 
	Section 13.09

	 	Consent to Jurisdiction
	 	 	98	 
	Section 13.10

	 	No Adverse Interpretation of Other Agreements
	 	 	98	 
	Section 13.11

	 	Successors
	 	 	98	 
	Section 13.12

	 	Severability
	 	 	98	 
	Section 13.13

	 	Counterpart Originals
	 	 	99	 
	Section 13.14

	 	Acts of Holders
	 	 	99	 
	Section 13.15

	 	Benefit of Indenture
	 	 	100	 
	Section 13.16

	 	Table of Contents, Headings, Etc
	 	 	100	 






iv









 






	 	 	 	 	 	 	 
	 

	 	EXHIBITS	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit A

	 	FORM OF NOTE	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE	 	 	 	 






v









 





S&S
Draft — December 6, 2006



          INDENTURE dated as of December 15, 2006 among Geokinetics Inc., a Delaware corporation (the
“Company”), the Guarantors (as defined below) and Wells Fargo Bank, National Association, as
trustee.




          The Company, the Guarantors and the Trustee (as defined below) agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as defined below) of
the Second Priority Senior Secured Floating Rate Notes due 2012:




ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE




     Section
1.01 Definitions.



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




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




          “Additional Notes” means an unlimited maximum aggregate principal amount of Notes (other than
(x) the Initial Notes, (y) any Exchange Notes and (z) any Note issued pursuant to Sections 2.07(a),
(c), (e) or (f), Section 2.08 or Section 2.11 hereof) issued under this Indenture in accordance
with Section 2.02 hereof as part of the same Series as the Initial Notes.




          “Administrative Agent” means the administrative or other principal agent for the lenders under
the Credit Agreement.




          “Affiliate” of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person
or (2) any executive officer or director of such specified Person. For purposes of this
definition, “control,” as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or otherwise; provided
that beneficial ownership of 10% or more of the Voting Stock of such Person shall be deemed to be
control. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” shall have correlative meanings.




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




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




1









 








          “Asset Sale” means:





	 	(a)	 	the sale, lease, conveyance or other disposition of any assets, other than a
transaction governed by the provisions of this Indenture pursuant to Section 4.07 or
5.01 hereof; and
	 
	 	(b)	 	the issuance of Equity Interests by any of the Company’s Restricted
Subsidiaries or the sale by the Company or any Restricted Subsidiary thereof of Equity
Interests in any of its Subsidiaries (other than directors’ qualifying shares and
            shares issued to foreign nationals to the extent required by applicable law).




Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales:





	 	(c)	 	any single transaction or series of related transactions that involves assets
or Equity Interests having a Fair Market Value of less than $500,000;
	 
	 	(d)	 	a transfer of assets or Equity Interests between or among the Company and its
Restricted Subsidiaries;
	 
	 	(e)	 	an issuance of Equity Interests by a Restricted Subsidiary of the Company to
the Company or to another Restricted Subsidiary;
	 
	 	(f)	 	the sale or lease of equipment, inventory, accounts receivable or other assets
in the ordinary course of business;
	 
	 	(g)	 	the sale or other disposition of Cash Equivalents;
	 
	 	(h)	 	dispositions of accounts receivable in connection with the compromise,
settlement or collection thereof in the ordinary course of business or in bankruptcy or
similar proceedings;
	 
	 	(i)	 	a Restricted Payment that is permitted pursuant to Section 4.09 hereof, and any
Permitted Investment;
	 
	 	(j)	 	any sale or disposition of any property or equipment that has become damaged,
worn out or obsolete; and
	 
	 	(k)	 	the creation of a Lien not prohibited by this Indenture.





          “Attributable Debt” means, in respect of a Sale and Leaseback Transaction, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP.




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




2









 








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




          “Board of Directors” means:





	 	(a)	 	with respect to a corporation, the board of directors of the corporation or,
except in the context of the definitions of “Change of Control” and “Continuing
Directors,” a duly authorized committee thereof;
	 
	 	(b)	 	with respect to a partnership, the Board of Directors of the general partner of
the partnership; and
	 
	 	(c)	 	with respect to any other Person, the board or committee of such Person serving
a similar function.





          “Board Resolution” means a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors of the Company and to be in full
force and effect on the date of such certification.




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




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




          “Capital Lease Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.




          “Capital Stock” means:





	 	(a)	 	in the case of a corporation, corporate stock;
	 
	 	(b)	 	in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;
	 
	 	(c)	 	in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
	 
	 	(d)	 	any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.





          “Cash Equivalents” means:





	 	(a)	 	U.S. dollars;




3









 












	 	(b)	 	securities issued or directly and fully guaranteed or insured by the U.S.
government or any agency or instrumentality thereof (provided that the full faith and
credit of the United States is pledged in support thereof), maturing, unless such
securities are deposited to defease any Indebtedness, not more than six months from the
date of acquisition;
	 
	 	(c)	 	certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding six months and overnight bank deposits, in each case, with any domestic
commercial bank having capital and surplus in excess of $500,000,000 and a rating at
the time of acquisition thereof of P-1 or better from Moody’s or A-1 or better from
Standard & Poor’s Ratings Services;
	 
	 	(d)	 	repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (b) and (c) above entered into with any
financial institution meeting the qualifications specified in clause (c) above;
	 
	 	(e)	 	commercial paper having the highest rating obtainable from Moody’s or Standard
& Poor’s Ratings Services and in each case maturing within six months after the date of
acquisition;
	 
	 	(f)	 	securities issued and fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing authority
thereof, rated at least “A” by Moody’s or Standard & Poor’s Ratings Services and having
maturities of not more than six months from the date of acquisition; and
	 
	 	(g)	 	money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (a) through (f) of this definition.





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





	 	(a)	 	the direct or indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the properties or assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any “person” (as that term is used in Section
13(d)(3) of the Exchange Act) other than the Principals;
	 
	 	(b)	 	the adoption of a plan relating to the liquidation or dissolution of the
Company;
	 
	 	(c)	 	any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than the Principals, becomes the Beneficial Owner, directly or
indirectly, of 30% or more of the voting power of the Voting Stock of the Company;
	 
	 	(d)	 	the first day on which a majority of the members of the Board of Directors of
the Company are not Continuing Directors; or




4









 






	 	(e)	 	the Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into the Company, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of the Company
or such other Person is converted into or exchanged for cash, securities or other
property, other than any such transaction where (1) the Voting Stock of the Company
outstanding immediately prior to such transaction is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such issuance) and
(2) immediately after such transaction, no “person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), other than the Principals, becomes,
directly or indirectly, the Beneficial Owner of 30% or more of the voting power of the
Voting Stock of the surviving or transferee Person.





          “Clearstream” means Clearstream Banking, a société anonyme organized under the laws of
Luxembourg.




          “Collateral” means all of the “Collateral” referred to in the Security Documents and all of
the other property and assets that are or are intended under the terms of this Indenture and the
Security Documents to be subject to Second Priority Liens in favor of the Trustee and for the
benefit of the Holders.




          “Commission” means the U.S. Securities and Exchange Commission.




          “Common Stock” means, with respect to any Person, any Capital Stock (other than Preferred
Stock) of such Person, whether outstanding on the Issue Date or issued thereafter.




          “Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus:





	 	(a)	 	provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such provision for taxes
was deducted in computing such Consolidated Net Income; plus
	 
	 	(b)	 	Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to the extent that any such Fixed Charges were deducted in computing such Consolidated
Net Income; plus
	 
	 	(c)	 	depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and other
non-cash expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation, amortization and
other non-cash expenses were deducted in computing such Consolidated Net Income;
provided that if any non-cash expense




5









 






	 	 	 	is recovered for cash in future periods, the amount of such cash shall be deducted
in computing Consolidated Net Income in the period of receipt; minus
	 
	 	(d)	 	non-cash items increasing such Consolidated Net Income for such period, other
than the accrual of revenue consistent with past practice;




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




          Notwithstanding the preceding, the provision for taxes based on the income or profits of, the
Fixed Charges of and the depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Company that is not a Guarantor shall be added to Consolidated Net Income to
compute Consolidated Cash Flow of the Company (A) in the same proportion that the Net Income of
such Restricted Subsidiary was added to compute such Consolidated Net Income of the Company and (B)
only to the extent that a corresponding amount would be permitted at the date of determination to
be dividended or distributed to the Company by such Restricted Subsidiary without prior
governmental approval (that has not been obtained) and without direct or indirect restriction
pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Subsidiary or its stockholders.




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





	 	(a)	 	the Net Income or loss of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to the specified Person
or a Restricted Subsidiary thereof;
	 
	 	(b)	 	the Net Income of any Restricted Subsidiary shall be excluded to the extent
that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its equityholders;
	 
	 	(c)	 	the Net Income of any Person acquired during the specified period for any
period prior to the date of such acquisition shall be excluded; and
	 
	 	(d)	 	the cumulative effect of a change in accounting principles shall be excluded.





          “Consolidated Tangible Assets” means, at any time, the amount which, in accordance with GAAP,
would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance
sheet of the Company and its Restricted Subsidiaries, less all goodwill, patents, tradenames,
trademarks, copyrights, franchises, experimental expenses, organization expenses and any other
amounts classified as intangible assets in accordance with GAAP.




6









 








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





	 	(a)	 	was a member of such Board of Directors on the Issue Date; or
	 
	 	(b)	 	was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election.





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




          “Credit Agreement” means that certain Revolving Credit, Term Loan and Security Agreement,
dated as of June 12, 2006, by and among the Company, certain of its subsidiaries, as borrowers, and
PNC Bank, National Association, as Lender and Administrative Agent and the other lenders named
therein, as amended by that Joinder and Amendment No. 1 dated as of September 8, 2006 and as
amended as contemplated by the Offering Memorandum, including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection therewith, and in each case
as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time,
regardless of whether such amendment, restatement, modification, renewal, refunding, replacement or
refinancing is with the same financial institutions or otherwise.




          “Credit Facilities” means one or more debt facilities (including, without limitation, the
Credit Agreement), commercial paper facilities or indentures, in each case with banks or other
institutional lenders or a trustee, providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables), letters of credit or issuances of
notes, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in
whole or in part, from time to time.




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




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




          “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.07 hereof, substantially in the form of Exhibit A attached
hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.




          “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.04 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.




7









 








          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is one year after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.09 hereof. The term “Disqualified Stock” shall also include any
options, warrants or other rights that are convertible into Disqualified Stock or that are
redeemable at the option of the holder, or required to be redeemed, prior to the date that is one
year after the date on which the Notes mature.




          “Domestic Subsidiary” means any Restricted Subsidiary of the Company other than a Restricted
Subsidiary that is (x) a “controlled foreign corporation” under Section 957 of the Internal Revenue
Code (i) whose primary operating assets are located outside the United States and (ii) that is not
subject to tax under Section 882(a) of the Internal Revenue Code because of a trade or business
within the United States or (y) a Subsidiary of an entity described in the preceding clause (x).




          “Enforcement Action” means:





	 	(a)	 	Notifying any debtors to direct payments, in respect of receivables that are
subject to Liens, to a creditor or directly collecting accounts receivables that are
subject to Liens or other payment rights of the Company or any Subsidiary that are
subject to Liens; and
	 
	 	(b)	 	exercising any rights or remedies (including any right of set-off or
recoupment) with respect to any Collateral or taking any steps, proceedings or actions
action whatsoever whether at law (including, without limitation, under the Uniform
Commercial Code or any other personal property security act) or under any of the
Security Documents, in any such case, to enforce all or any of the Security Documents
or any other rights with respect to any Collateral (including any steps, proceedings or
actions to foreclose upon, or to take possession of or to sell all or any of the
Collateral, or any other enforcement, collection, execution, levy or foreclosure action
or proceeding with respect to any Lien, whether arising pursuant to the Security
Documents, in connection with a judgment against the Company or any Subsidiary or
otherwise).





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




          “Equity Offering” means any public or private placement of Capital Stock (other than
Disqualified Stock) of the Company (other than pursuant to a registration statement on

8









 








Form S-8 or otherwise relating to equity securities issuable under any employee benefit plan
of the Company) to any Person other than any Subsidiary thereof or the Principals.




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




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, including the rules and
regulations promulgated thereunder.




          “Exchange Notes” means the Notes issued in the Exchange Offer in accordance with Section
2.07(f) hereof.




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




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




          “Existing Indebtedness” means (i) the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit Agreement or under the Notes and
the related Note Guarantees) in existence on the Issue Date after giving effect to the application
of the proceeds of (x) the Notes and (y) any borrowings made under the Credit Agreement on the
Issue Date, until such amounts are repaid.




          “Fair Market Value” means the price that would be paid in an arm’s-length transaction between
an informed and willing seller under no compulsion to sell and an informed and willing buyer under
no compulsion to buy, as determined in good faith by the Board of Directors of the Company, whose
determination, unless otherwise specified below, shall be conclusive if evidenced by a Board
Resolution. Notwithstanding the foregoing, (x) the Board of Directors’ determination of Fair
Market Value shall be evidenced by a Board Resolution attached to an Officers’ Certificate
delivered to the Trustee if the Fair Market Value exceeds $5,000,000 and (y) the Board of
Directors’ determination of Fair Market Value shall be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if the Fair Market Value
exceeds $10,000,000.




          “First Priority Liens” means the Liens on the assets of the Company and the Guarantors that
secure the obligations of the borrowers and the guarantors under the Credit Agreement.




          “First Priority Lien Security Documents” means each of the documents entered into by the
Company and the Guarantors in favor of the Administrative Agent, creating or evidencing the First
Priority Liens, other than the Credit Agreement to the extent such agreement does anything other
than create or evidence the First Priority Liens.




          “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness or issues,

9









 








repurchases or redeems Preferred Stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event
occurs for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such
Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of Preferred Stock, and the use of the proceeds therefrom as if the same had occurred at
the beginning of such period.




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





	 	(a)	 	acquisitions and dispositions of business entities or property and assets
constituting a division or line of business of any Person that have been made by the
specified Person or any of its Restricted Subsidiaries, including through mergers or
consolidations, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be given pro forma
effect as if they had occurred on the first day of the four-quarter reference period
and Consolidated Cash Flow for such reference period shall be calculated on a pro forma
basis in accordance with Regulation S-X under the Securities Act, but without giving
effect to clause (c) of the proviso set forth in the definition of Consolidated Net
Income;
	 
	 	(b)	 	the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, shall be excluded;
	 
	 	(c)	 	the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges shall not be obligations of the specified Person or
any of its Restricted Subsidiaries following the Calculation Date; and
	 
	 	(d)	 	consolidated interest expense attributable to interest on any Indebtedness
(whether existing or being Incurred) computed on a pro forma basis and bearing a
floating interest rate shall be computed as if the rate in effect on the Calculation
Date (taking into account any interest rate option, swap, cap or similar agreement
applicable to such Indebtedness if such agreement has a remaining term in excess of 12
months or, if shorter, at least equal to the remaining term of such Indebtedness) had
been the applicable rate for the entire period.





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





	 	(a)	 	the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and




10









 






	 	 	 	other fees and charges incurred in respect of letter of credit or bankers’
acceptance financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations; plus
	 	(b)	 	the consolidated interest of such Person and its Restricted Subsidiaries that
was capitalized during such period; plus
	 
	 	(c)	 	any interest expense on Indebtedness of another Person that is Guaranteed by
such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or
Lien is called upon; plus
	 
	 	(d)	 	the product of (x) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock or Preferred Stock of such Person or any of
its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in
Equity Interests (other than Disqualified Stock) of the Company or to the Company or a
Restricted Subsidiary of the Company, times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined federal, state
and local statutory tax rate of such Person, expressed as a decimal,




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




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants, the opinions and pronouncements of the Public Company Accounting Oversight Board and
in the statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.




          “Global Note Legend” means the legend set forth in Section 2.07(g)(ii) hereof, which is
required to be placed on all Global Notes issued under this Indenture.




          “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached
thereto, issued in accordance with Section 2.01, 2.07(b)(iv), 2.07(d)(ii) or 2.07(f) hereof.




          “Government Securities” means securities that are direct obligations of the United States of
America for the timely payment of which its full faith and credit is pledged.




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




11









 








          “Guarantors” means





	 	(a)	 	the Initial Guarantors; and
	 
	 	(b)	 	any other subsidiary that executes a Note Guarantee in accordance with the
provisions of the Indenture;




and their respective successors and assigns until released from their obligations under their Note
Guarantees and the Indenture in accordance with the terms of the Indenture.




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





	 	(a)	 	interest rate swap agreements, interest rate cap agreements, interest rate
collar agreements and other agreements or arrangements with respect to interest rates;
	 
	 	(b)	 	commodity swap agreements, commodity option agreements, forward contracts and
other agreements or arrangements with respect to commodity prices; and
	 
	 	(c)	 	foreign exchange contracts, currency swap agreements and other similar
agreements or arrangements with respect to foreign currency exchange rates.





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




          “Incur” means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee,
or otherwise become directly or indirectly liable for or with respect to, or become responsible
for, the payment of, contingently or otherwise, such Indebtedness (and “Incurrence” and “Incurred”
shall have meanings correlative to the foregoing); provided that (x) any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary of the Company shall be deemed to
be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the
Company and (y) neither the accrual of interest nor the accretion of original issue discount nor
the payment of interest in the form of additional Indebtedness with the same terms and the payment
of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same
class of Disqualified Stock or Preferred Stock (to the extent provided for when the Indebtedness or
Disqualified Stock or Preferred Stock on which such interest or dividend is paid was originally
issued) shall be considered an Incurrence of Indebtedness; provided that in each case the amount
thereof is for all other purposes included in the Fixed Charges and Indebtedness of the Company or
its Restricted Subsidiary as accrued.




          “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:





	 	(a)	 	in respect of borrowed money;
	 
	 	(b)	 	evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof);
	 
	 	(c)	 	in respect of banker’s acceptances;




12









 






	 	(d)	 	in respect of Capital Lease Obligations and Attributable Debt;
	 
	 	(e)	 	in respect of the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued expense or
trade payable;
	 
	 	(f)	 	representing Hedging Obligations;
	 
	 	(g)	 	representing Disqualified Stock valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends; or
	 
	 	(h)	 	in the case of a Subsidiary of such Person, representing Preferred Stock valued
at the greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued dividends.




The term “Indebtedness” includes (x) all Indebtedness of others secured by a Lien on any asset of
the specified Person (whether or not such Indebtedness is assumed by the specified Person),
provided that the amount of such Indebtedness shall be the lesser of (A) the Fair Market Value of
such asset at such date of determination and (B) the amount of such Indebtedness, and (y) to the
extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any
other Person. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock
or Preferred Stock which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Stock or Preferred Stock, as applicable, as if such
Disqualified Stock or Preferred Stock were repurchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture.




          The amount of any Indebtedness outstanding as of any date shall be the outstanding balance at
such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the
obligation, and shall be:





	 	(a)	 	the accreted value thereof, in the case of any Indebtedness issued with
original issue discount; and
	 
	 	(b)	 	the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness.





          The amount of Indebtedness denominated in any foreign currency shall be the amount of U.S.
dollars into which the value of the foreign currency represented by such Indebtedness could be
exchanged on the date of determination.




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




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




          “Initial Guarantors” means all of the Domestic Subsidiaries of the Company.




13









 








          “Initial Notes” means (i) the first $110,000,000 aggregate principal amount of Notes issued
under this Indenture on the date hereof and (ii) any Exchange Notes.




          “Interest Period” means the period commencing on and including an interest payment date and
ending on and including the day immediately preceding the next succeeding interest payment date,
with the exception that the first Interest Period shall commence on and include the Issue Date and
end on and include March 15, 2007.




          “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the form of loans or other extensions of credit
(including Guarantees), advances, capital contributions (by means of any transfer of cash or other
property to others or any payment for property or services for the account or use of others),
purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP.




          If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of
the Company, the Company shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Investment in such Subsidiary not sold or
disposed of. The acquisition by the Company or any Restricted Subsidiary of the Company of a
Person that holds an Investment in a third Person shall be deemed to be an Investment by the
Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market
Value of the Investment held by the acquired Person in such third Person.




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




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




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




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




          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give

14









 








a security interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statues) of any jurisdiction.




          “London Banking Day” is any day in which dealings in U.S. dollars are transacted or with
respect to any future date, are expected to be transacted in the London interbank market.




          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereof.




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





	 	(a)	 	any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (i) any sale of assets outside the ordinary course
of business of such Person; or (ii) the disposition of any securities by such Person or
any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries; and
	 
	 	(b)	 	any extraordinary gain or loss, together with any related provision for taxes
on such extraordinary gain or loss.





          “Net Proceeds” means the aggregate cash proceeds, including payments in respect of deferred
payment obligations (to the extent corresponding to the principal, but not the interest component,
thereof) received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (a) the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting, investment banking and brokerage
fees, and sales commissions, and any relocation expenses incurred as a result thereof, (b) taxes
paid or payable as a result thereof, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, (c) amounts required to be applied to the
repayment of Indebtedness or other liabilities secured by a Lien on the asset or assets that were
the subject of such Asset Sale or required to be paid as a result of such sale, (d) any reserve for
adjustment in respect of the sale price of such asset or assets established in accordance with
GAAP, (e) in the case of any Asset Sale by a Restricted Subsidiary of the Company, payments to
holders of Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity
Interests held by the Company or any Restricted Subsidiary thereof) to the extent that such payment
is required to permit the distribution of such proceeds in respect of the Equity Interests in such
Restricted Subsidiary held by the Company or any Restricted Subsidiary thereof and (f) appropriate
amounts to be provided by the Company or its Restricted Subsidiaries as a reserve against
liabilities associated with such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental matters and liabilities
under any indemnification obligations associated with such Asset Sale, all as determined in
accordance with GAAP; provided that (i) excess amounts set aside for payment of taxes pursuant to
clause (b) above remaining after such taxes have been paid in full or the statute of limitations
therefor has expired and (ii) amounts initially held in

15









 








reserve pursuant to clause (f) no longer so held, shall, in the case of each of subclause (i)
and (ii), at that time become Net Proceeds.




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




          “Note Guarantee” means a Guarantee of the Notes pursuant to this Indenture.




          “Notes Security Documents” means each of the documents entered into by the Company and the
Guarantors in favor of the Trustee, creating or evidencing the security interest over the
Collateral for the benefit of the holders of the Notes, as described in this Indenture.




          “Notes” means the Second Priority Senior Secured Floating Rate Notes due 2012 of the Company
issued under this Indenture. The Initial Notes and the Additional Notes, if any, shall be treated
as a single class for all purposes under this Indenture and all references to the Notes shall
include the Initial Notes and any Additional Notes.




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




          “Offering Memorandum” means the offering memorandum, dated December 11, 2006, relating to the
offering of the Notes.




          “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.




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




          “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee (who may be counsel to or an employee of the Company) that meets the requirements of this
Indenture.




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




          “Permitted Business” means any business conducted or proposed to be conducted (as described in
the Offering Memorandum) by the Company and its Restricted Subsidiaries on the Issue Date and other
businesses reasonably related or ancillary thereto.




          “Permitted Collateral Liens” means the following types of Liens:





	 	(a)	 	Liens existing as of the date of the issuance of the Notes;




16









 






	 	(b)	 	Liens securing Debt under the Credit Facilities permitted to be incurred
pursuant to Section 4.10(b)(i) hereof, which Liens may rank higher than the Second
Priority Liens;
	 
	 	(c)	 	Liens securing unsubordinated Debt permitted to be incurred pursuant to Section
4.10 hereof, which Liens may not rank higher than the Second Priority Liens, other than
as provided in clause (b) of this definition;
	 
	 	(d)	 	Liens securing the Company’s or any Restricted Subsidiary’s obligations under
Interest Rate Agreements or Currency Agreements permitted pursuant to Section 4.10
hereof or any collateral for the Debt to which such Interest Rate Agreements or
Currency Agreements relate, provided that each of the parties thereto shall have
entered into the Security Documents;
	 
	 	(e)	 	Liens described in clauses (e) through (u) of the definition of Permitted
Liens;
	 
	 	(f)	 	any extension, renewal or replacement, in whole or in part, of any Lien
described in the foregoing clauses (a) through (e); provided that any such extension,
renewal or replacement shall be no more restrictive in any material respect than the
Lien so extended, renewed or replaced and shall not extend in any material respect to
any additional property or assets; and
	 
	 	(g)	 	any additional Liens on the Collateral to the extent and in the manner
permitted by the Credit Facilities.
	 
	 	 	 	“Permitted Investments” means:
	 
	 	(a)	 	any Investment in the Company or in a Wholly Owned Restricted Subsidiary of the
Company that is a Guarantor;
	 
	 	(b)	 	any Investment in Cash Equivalents;
	 
	 	(c)	 	any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:






	 	(i)	 	such Person becomes a Wholly Owned Restricted Subsidiary of the
Company and a Guarantor; or
	 
	 	(ii)	 	such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Restricted Subsidiary of the
Company that is a Guarantor;






	 	(d)	 	any Investment made as a result of the receipt of non-cash consideration from
an Asset Sale that was made pursuant to and in compliance with Section 4.08 hereof;
	 
	 	(e)	 	Hedging Obligations that are Incurred for the purpose of fixing, hedging or
swapping interest rate, commodity price or foreign currency exchange rate risk (or




17









 






	 	 	 	to reverse or amend any such agreements previously made for such purposes) and not
for speculative purposes, and that do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in interest rates,
commodity prices or foreign currency exchange rates or by reason of fees,
indemnifies and compensation payable thereunder;
	 
	 	(f)	 	stock, obligations or securities received in satisfaction of judgments;
	 
	 	(g)	 	advances to customers or suppliers in the ordinary course of business that are,
in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits
on the balance sheet of the Company or its Restricted Subsidiaries and endorsements for
collection or deposit arising in the ordinary course of business;
	 
	 	(h)	 	commission, payroll, travel and similar advances to officers and employees of
the Company or any of its Restricted Subsidiaries that are expected at the time of such
advance ultimately to be recorded as an expense in conformity with GAAP; and
	 
	 	(i)	 	other Investments in any Person (provided that any such Person is not an
Affiliate of the Company or is an Affiliate of the Company solely because the Company,
directly or indirectly, owns Equity Interests in, or controls, such Person) having an
aggregate Fair Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (i) since the Issue Date, not to exceed
$5,000,000.
	 
	 	 	 	“Permitted Liens” means:
	 
	 	(a)	 	Liens on the assets of the Company and any Guarantor securing Indebtedness
Incurred pursuant to Section 4.10(b)(i) hereof;
	 
	 	(b)	 	Liens in favor of the Company or any Restricted Subsidiary that is a Guarantor;
	 
	 	(c)	 	Liens on property of a Person existing at the time such Person is merged with
or into or consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person merged
into or consolidated with the Company or the Restricted Subsidiary;
	 
	 	(d)	 	Liens on property existing at the time of acquisition thereof by the Company or
any Restricted Subsidiary of the Company, provided that such Liens were in existence
prior to the contemplation of such acquisition and do not extend to any property other
than the property so acquired by the Company or the Restricted Subsidiary;
	 
	 	(e)	 	Liens securing the Notes and the Note Guarantees;




18









 






	 	(f)	 	Liens existing on the Issue Date (other than any Liens securing Indebtedness
Incurred pursuant to Section 4.10(b)(i) hereof;
	 
	 	(g)	 	Liens securing Permitted Refinancing Indebtedness; provided that such Liens do
not extend to any property or assets other than the property or assets that secure the
Indebtedness being refinanced;
	 
	 	(h)	 	Liens on property or assets used to defease or to satisfy and discharge
Indebtedness; provided that (x) the Incurrence of such Indebtedness was not prohibited
by this Indenture and (y) such defeasance or satisfaction and discharge is not
prohibited by this Indenture;
	 
	 	(i)	 	Liens securing obligations that do not exceed $5,000,000 at any one time
outstanding;
	 
	 	(j)	 	Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.10(b)(iv); provided that any such Lien (x) covers only the assets acquired,
constructed or improved with such Indebtedness and (y) is created within 180 days of
such acquisition, construction or improvement;
	 
	 	(k)	 	Liens on cash or Cash Equivalents securing Hedging Obligations of the Company
or any of its Restricted Subsidiaries (a) that are Incurred for the purpose of fixing,
hedging or swapping interest rate, commodity price or foreign currency exchange rate
risk (or to reverse or amend any such agreements previously made for such purposes),
and not for speculative purposes, or (b) securing letters of credit that support such
Hedging Obligations;
	 
	 	(l)	 	Liens incurred or deposits made in the ordinary course of business in
connection with worker’s compensation, unemployment insurance or other social security
obligations;
	 
	 	(m)	 	Lien, deposits or pledges to secure the performance of bids, tenders, contracts
(other than contracts for the payment of Indebtedness), leases, or other similar
obligations arising in the ordinary course of business;
	 
	 	(n)	 	survey exceptions, encumbrances, easements or reservations of, or rights of
other for, rights of way, zoning or other restrictions as to the use of properties, and
defects in title which, in the case of any of the foregoing, were not incurred or
created to secure the payment of Indebtedness, and which in the aggregate do no
materially adversely affect the value of such properties or materially impair the use
for the purposes of which such properties are held by the Company or any of its
Restricted Subsidiaries;
	 
	 	(o)	 	judgment and attachment Liens not giving rise to an Event of Default and
notices of lis pendens and associated rights related to litigation being contested in
good faith by appropriate proceedings and for which adequate reserves have been made;




19









 






	 	(p)	 	Liens, deposits or pledges to secure public or statutory obligations, surety,
stay, appeal, indemnity, performance or other similar bonds or obligations; and Liens,
deposits or pledges in lieu of such bonds or obligations, or to secure such bonds or
obligations, or to secure letters of credit in lieu of or supporting the payment of
such bonds or obligations;
	 
	 	(q)	 	Liens in favor of collecting or payor banks having a right of setoff,
revocation, refund or chargeback with respect to money or instruments of the Company or
any Subsidiary thereof on deposit with or in possession of such bank;
	 
	 	(r)	 	any interest or title of a lessor, licensor or sublicensor in the property
subject to any lease, license or sublicense (other than any property that is the
subject of a Sale Leaseback Transaction);
	 
	 	(s)	 	Liens for taxes, assessments and governmental charges not yet delinquent or
being contested in good faith and for which adequate reserves have been established to
the extent required by GAAP;
	 
	 	(t)	 	Liens arising from precautionary UCC financing statements regarding operating
leases or consignments; and
	 
	 	(u)	 	Liens of franchisors in the ordinary course of business not securing
Indebtedness.





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





	 	(a)	 	the amount of such Permitted Refinancing Indebtedness does not exceed the
amount of the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued and unpaid interest thereon and the amount of any reasonably
determined premium necessary to accomplish such refinancing and such reasonable
expenses incurred in connection therewith);
	 
	 	(b)	 	such Permitted Refinancing Indebtedness has a final maturity date later than
the final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
	 
	 	(c)	 	if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is expressly subordinated in right of payment to the Notes or the Note
Guarantees, such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of the Notes and is subordinated in right of payment to
the Notes or the Note Guarantees, as applicable, on terms at least as favorable, taken
as a whole, to the Holders of Notes as those contained in the documentation governing
the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;




20









 






	 	(d)	 	if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is pari passu in right of payment with the Notes or any Note Guarantees, such
Permitted Refinancing Indebtedness is pari passu with, or subordinated in right of
payment to, the Notes or such Note Guarantees; and
	 
	 	(e)	 	such Indebtedness is Incurred by either (i) the Restricted Subsidiary that is
the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded, or (ii) the Company.





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




          “Preferred Stock” means, with respect to any Person, any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions upon liquidation.




          “Private Placement Legend” means the legend set forth in Section 2.07(g)(i) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.




          “Principals” means Avista Capital Partners, L.P. and its Affiliates, Blackhawk Investors II
LLC, Maple Leaf Partners, L.P. and its Affiliates, Kestrel Capital, L.P. and Somerset Capital
Partners, Steven A. Webster and William R. Ziegler.




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




          “Registration Rights Agreement” means (a) with respect to the Notes issued on the Issue Date,
the Registration Rights Agreement, to be dated the Issue Date, among the Company, the Initial
Guarantors and RBC Capital Markets Corporation and (b) with respect to any Additional Notes, any
registration rights agreement between the Company and the other parties thereto relating to the
registration by the Company of such Additional Notes under the Securities Act.




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




          “Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended
Regulation S Global Note, as appropriate.




          “Replacement Assets” means (a) non-current assets that shall be used or useful in a Permitted
Business or (b) substantially all the assets of a Permitted Business or a majority of the Voting
Stock of any Person engaged in a Permitted Business that shall become on the date of acquisition
thereof a Wholly Owned Restricted Subsidiary that is a Guarantor.




          “Representative Amount” means a principal amount of not less than U.S. $1,000,000 for a single
transaction in the relevant market at the relevant time.




21









 








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




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




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




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




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




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




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




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




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




          “Sale and Leaseback Transaction” means, with respect to any Person, any transaction involving
any of the assets or properties of such Person whether now owned or hereafter acquired, whereby
such Person sells or otherwise transfers such assets or properties and then or thereafter leases
such assets or properties or any part thereof or any other assets or properties which such Person
intends to use for substantially the same purpose or purposes as the assets or properties sold or
transferred.




          “Second Priority Lien Enforcement Period” means the period beginning on the date which is 135
days after the occurrence of (i) an Event of Default and (ii) the Administrative Agent’s receipt of
written notice from the Trustee or any holder of the Notes certifying that (x) an Event of Default
has occurred and is continuing and (y) the Notes are currently due and payable in full (whether as
a result of acceleration thereof or otherwise) in accordance with the terms of the Indenture and
ending on the date the Notes are repaid in full; provided that the Second Lien Enforcement Period
shall be suspended (1) at any time the Administrative Agent or the lenders under the Credit
Agreement have commenced and are diligently pursuing in good faith the exercise of their default or
enforcement rights or remedies against, or diligently attempting in good faith to vacate any stay
of enforcement of their Liens on, all or a material portion of such Collateral, or (2) if the
acceleration of the Notes (if any) is rescinded in accordance with the terms of this Indenture.




22









 








          “Second Priority Liens” means the Liens over the Collateral securing the Notes created by the
Notes Security Documents.




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




          “Security Documents” means the Notes Security Documents and the First Priority Lien Security
Documents.




          “Senior Debt” means all Indebtedness, except (a) Indebtedness that is subordinated by its
terms to other Indebtedness and (b) Indebtedness that expressly provides that it is not Senior
Debt. Notwithstanding anything to the contrary in the foregoing Senior Debt shall not include: (x)
any liability for taxes owed or owing by the Subsidiary Guarantors; (y) any Debt that is incurred
in violation of the Indenture or the terms of the Notes, as the case may be; or (z) any trade
payables.




          “Senior Subordinated Loan” means the Indebtedness pursuant to the Senior Subordinated Loan
Agreement, dated as of September 8, 2006, among the Company and the lenders that are party thereto.




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




          “Significant Subsidiary” means any Subsidiary that would constitute a “significant subsidiary”
within the meaning of Article 1 of Regulation S-X of the Securities Act, provided, however, that
for purposes of this Indenture and the Notes, 5% shall be substituted for 10% in each place that it
appears in such definition.




          “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.




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





	 	(a)	 	any corporation, association or other business entity of which more than 50% of
the total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof); and
	 
	 	(b)	 	any partnership (i) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (ii) the only general partners
of which are such Person or one or more Subsidiaries of such Person (or any combination
thereof).




23









 











          “Telerate Page 3750” means the display designated as “Page 3750” on the Moneyline Telerate
service (or such other page as may replace Page 3750 on that service).




          “TIA” means the Trust Indenture Act of 1939, as amended.




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




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




          “Unrestricted Global Note” means a permanent Global Note substantially in the form of Exhibit
A attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do not bear the
Private Placement Legend.




          “Unlegended Regulation S Global Note” means a permanent Global Note in the form of Exhibit A
bearing the Global Note Legend, deposited with or on behalf of and registered in the name of the
Depositary or its nominee.




          “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary pursuant to a Board Resolution in
compliance with Section 4.14 hereof and any Subsidiary of such Subsidiary.




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




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




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





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





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




24









 








     Section 1.02 Other Definitions.



	 	 	 	 	 
	Term	 	Defined in Section	 
	“Act”
	 	13.14	 
	“Affiliate Transaction”
	 	4.13	 
	“Asset Sale Offer”
	 	4.08	 
	“Authentication Order”
	 	2.02	 
	“Calculation Agent”
	 	2.03	 
	“Calculation Date”
	 	1.01	 
	 
	 	(“Fixed Charge
	 
	 	Coverage Ratio”)
	“Change of Control Offer”
	 	4.07	 
	“Change of Control Payment”
	 	4.07	 
	“Change of Control Payment Date”
	 	4.07	 
	“Company”
	 	Preamble
	“controlled by”
	 	1.01 (“Affiliate”)
	“controlling”
	 	1.01 (“Affiliate”)
	“Covenant Defeasance”
	 	8.03	 
	“Daily Interest Amount”
	 	2.03	 
	“DTC”
	 	2.04	 
	“Excess Proceeds”
	 	4.08	 
	“Excess Proceeds Trigger Date”
	 	4.08	 
	“Event of Default”
	 	6.01	 
	“Incurred”
	 	1.01 (“Incur”)
	“Incurrence”
	 	1.01 (“Incur”)
	“Legal Defeasance”
	 	8.02	 
	“Paying Agent”
	 	2.04	 
	“Payment Default”
	 	6.01	 
	“Permitted Debt”
	 	4.10	 
	“Permitted Payment”
	 	4.09	 
	“Redemption Amount”
	 	3.07	 
	“Registrar”
	 	2.04	 
	“Restricted Payments”
	 	4.09	 
	“Specified Courts”
	 	13.09	 
	“Trustee”
	 	8.05	 
	“under common control with”
	 	1.01 (“Affiliate”)






     Section 1.03 Incorporation by Reference to the Trust Indenture Act.



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




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




25









 








          “indenture securities” means the Notes;




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




          “indenture to be qualified” means this Indenture;




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




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




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




     Section 1.04 Rules of Construction.



          Unless the context otherwise requires:




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




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




          (c) “or” is not exclusive;




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




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




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




ARTICLE TWO

THE NOTES




     Section 2.01 Form and Dating.



          (a) General. The Notes and the Trustee’s certificate of authentication shall be substantially
in the form of Exhibit A attached hereto. The Notes may have such appropriate insertions,
omissions, substitutions, notations, legends, endorsements, identifications and other variations as
are required or permitted by law, stock exchange rule or depositary rule or usage, agreements to
which the Company is subject, if any, or other customary usage, or as may consistently herewith be
determined by the Officer or Officers of the Company executing such Notes, as evidenced by such
execution (provided always that any such notation, legend, endorsement, identification or variation
is in a form acceptable to the Company). Each Note shall be dated the date of its authentication.
The Notes shall be (i) issued in registered form

26









 








without interest coupons and (ii) only in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.




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




          (b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon
and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, by adjustments made thereon
and/or in the records of the Custodian to reflect exchanges and redemptions as hereinafter
provided. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee in accordance with instructions given by
the Holder thereof as required by Section 2.07 hereof.




     Section 2.02 Execution and Authentication.



          (a) At least one Officer of the Company shall sign the Notes for the Company by manual or
facsimile signature.




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




          (c) A Note shall not be valid until authenticated by the manual signature of the Trustee.
Such signature shall be conclusive evidence that the Note has been authenticated under this
Indenture.




          (d) The aggregate principal amount of Notes which may be authenticated and delivered under
this Indenture is unlimited.




          (e) The Trustee shall, upon a written order of the Company signed by an Officer of the Company
(an “Authentication Order”), authenticate Notes for original issue with an unlimited maximum
aggregate principal amount, of which $110,000,000 shall be issued on the date of this Indenture.




          (f) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the

27









 








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




     Section 2.03 Methods of Receiving Payments on the Notes and Interest Payment.



          (a) For so long as the Notes are held in one or more Global Notes, the Company shall pay all
principal, interest and premium and Additional Interest, if any in respect of the Notes represented
by Global Notes by wire transfer of immediately available funds to the account specified by the
Holder of the relevant Global Note (so long as such wire transfer may be so made). Otherwise, if a
Holder has given wire transfer instructions to the Company at least 30 days prior to the applicable
payment date, the Company shall pay all principal, interest and premium and Additional Interest, if
any, on that Holder’s Notes in accordance with those instructions (so long as such wire transfer
may be so made). All other payments on Notes shall be made at the office or agency of the Paying
Agent and Registrar within the City and State of New York unless the Company elects to make
interest payments by check mailed to the Holders at their addresses set forth in the register of
Holders.




          (b) The amount of interest for each day that the Notes are outstanding (the “Daily Interest
Amount”) shall be calculated by dividing the interest rate in effect for such day by 360 and
multiplying the result by the principal amount of the Notes. The amount of interest to be paid on
the Notes for each Interest Period shall be calculated by adding the Daily Interest Amounts for
each day in the Interest Period. All percentages resulting from any of the above calculations
shall be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point being rounded upwards (e.g., 9.876545% (or .09876545)
being rounded to 9.87655% (or .0987655)) and all dollar amounts used in or resulting from such
calculations shall be rounded to the nearest cent (with one-half cent being rounded upwards). All
calculations made by the calculation agent (the “Calculation Agent”), which shall initially be the
Trustee, in the absence of manifest error, shall be conclusive for all purposes.




     Section 2.04 Registrar and Paying Agent.



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




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




28









 








          (c) The Trustee shall initially act as the Paying Agent and the Registrar and shall act as
Custodian with respect to the Global Notes.




     Section 2.05 Paying Agent to Hold Money in Trust.



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




     Section 2.06 Holder Lists.



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




     Section 2.07 Transfer and Exchange.



          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes shall be
exchanged by the Company for Definitive Notes if (i) the Depositary notifies the Company that it is
unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not appointed by
the Company within 120 days after the date of such notice from the Depositary; (ii) the Company in
its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the Trustee; or (iii) there
shall have occurred and be continuing a Default or Event of Default with respect to the Notes, and
the Depositary requests such exchange. Upon the occurrence of any of the preceding events in (i),
(ii) or (iii) above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.08 and 2.11 hereof. Except as otherwise provided above in this Section
2.07(a), every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.07 or

29









 








Section 2.08 or 2.11 hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in
this Section 2.07(a); however, beneficial interests in a Global Note may be transferred and
exchanged as provided in Section 2.07(b), (c) or (f) hereof.




          (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Neither the
Company nor any agent of the Company shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests of a Global
Note, or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. Beneficial interests in the Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent required by the
Securities Act, or for complying with or ensuring compliance with any Applicable Procedures.
Transfers of beneficial interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:





	 	(i)	 	Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth in
the Private Placement Legend. Except as required pursuant to the Private
Placement Legend, no written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this Section
2.07(b)(i).
	 
	 	(ii)	 	All Other Transfers and Exchanges of Beneficial Interests in Global
Notes. In connection with all transfers and exchanges of beneficial interests
that are not subject to Section 2.07(b)(i) above, the transferor of such
beneficial interest must deliver to the Registrar (in each case in form and
substance satisfactory to the Trustee and the Company) either (A) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant’s account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given by
the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial interests in the




30









 






	 	 	 	Regulation S Global Note prior to the receipt by the Registrar of any
certificates required pursuant to Rule 903 under the Securities Act. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee, as the case may
be, shall adjust the principal amount at maturity of the relevant Global Notes
pursuant to Section 2.07(h) hereof.
	 
	 	(iii)	 	Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be transferred to
a Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the requirements of
Section 2.07(b)(ii) above and the Registrar receives the following:






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




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




	 	(iv)	 	Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any Holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.07(b)(ii) above and:






          (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, provides the certifications required by the applicable Letter of
Transmittal and Exchange Offer Registration Statement;




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




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




          (D) the Registrar receives the following:



31









 






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




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




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



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




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




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





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






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




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



32









 






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




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




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




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




the Trustee shall cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.07(i) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section 2.07(c)(i)
shall be registered in such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.07(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.




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






     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and applicable law and the holder
of such beneficial interest, in the case of an exchange, or the transferee, in the
case of a transfer, provides the certifications required by the applicable Letter of
Transmittal and the Exchange Offer Registration Statement;



33









 






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




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




     (D) the Registrar receives the following:




     (1) if the Holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form of Exhibit C attached hereto,
including the certifications in item (1)(b) thereof; or




     (2) if the Holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof in the form of
a Definitive Note that does not bear the Private Placement Legend, a certificate from such
Holder in the form of Exhibit B attached hereto, including the certifications in item (4)
thereof;




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




	 	(iii)	 	Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any Holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note as permitted by this Indenture or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note, then, upon satisfaction of the conditions set forth in Section
2.07(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 2.07(i)
hereof, and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions an Unrestricted Definitive
Note in the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.07(c)(iv) shall be
registered in such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest




34









 






	 	 	 	pursuant to this Section 2.07(c)(iv) shall not bear the Private Placement
Legend.





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





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






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




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




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




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




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




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




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



35









 






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






          (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and applicable law and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer, provides
the certifications required by the applicable Letter of Transmittal and the Exchange
Offer Registration Statement;




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




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




          (D) the Registrar receives the following:




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




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




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




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




	 	(iii)	 	Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall cancel
the




36









 






	 	 	 	applicable Unrestricted Definitive Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Notes.






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



          (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.07(e), the
Registrar shall register the transfer or exchange of Definitive Notes for Definitive Notes. Prior
to such registration of transfer or exchange, the requesting Holder shall present or surrender to
the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar and the Company duly executed by such Holder or by
its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required pursuant to the
following provisions of this Section 2.07(e).





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






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




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




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




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






          (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and applicable law and the Holder,
in the case of an exchange, or the transferee, in the case of a



37









 






transfer, provides the certifications required by the applicable Letter of
Transmittal and the Exchange Offer Registration Statement;




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




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




     (D) the Registrar receives the following:




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




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




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




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





     (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes and/or Unrestricted Definitive Notes in an aggregate principal amount equal to the
aggregate principal amount of the beneficial interests in the Restricted Global Notes, or the
Restricted Definitive Notes, as the case may be, accepted for exchange in the Exchange Offer in
accordance with the Registration Rights Agreement and applicable law. Concurrently with the
issuance of such Notes, the Trustee, the Custodian or the Depositary or its nominee, as the case
may be, shall cause the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly. Any Notes that remain outstanding after the consummation of the Exchange
Offer, and Exchange Notes issued in



38









 




connection with the Exchange Offer, shall be treated as a single class of securities under
this Indenture.




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




          (i) Private Placement Legend. Except as permitted below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:





THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN “OFFSHORE TRANSACTION”
PURSUANT TO RULE 903 OR RULE 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT, PRIOR
TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR
OF ANY PREDECESSOR OF THIS SECURITY) AND THE LAST DATE ON WHICH GEOKINETICS INC.
(THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY OR
ANY PREDECESSOR OF THIS SECURITY, OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 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, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON
TO WHOM THIS SECURITY IS



39









 







TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE
COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND
(II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN
THE FORM APPEARING IN THE INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE.




Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.07 (and all Notes issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.



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





THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



     (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.12 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee, or by the Custodian or the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred to a Person who
shall take delivery thereof in the form of a beneficial interest in another Global Note, such other
Global Note shall be increased accordingly and an

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endorsement shall be made on such Global Note by the Trustee, or by the Custodian or the
Depositary at the direction of the Trustee to reflect such increase.




     (i) General Provisions Relating to Transfers and Exchanges.



          (i) To permit registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s order or at the
Registrar’s request.




          (ii) No service charge shall be made to a Holder of a beneficial interest in a Global Note or
to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.11, 3.06, and 9.05 hereof).




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




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




          (v) Neither the Registrar nor the Company shall be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (B) to register the transfer of or to exchange any Note
so selected for redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.




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




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




          (viii) All certifications, certificates and opinions of counsel required to be submitted to
the Trustee and/or the Company pursuant to this Section 2.07 to effect a registration of transfer
or exchange may be submitted by facsimile with the original to follow by first class mail.




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          (ix) The Trustee shall retain copies of all letters, notices and other written communications
received pursuant to this Section 2.07 (including all Notes received for transfer pursuant to
Section 2.07). The Company shall have the right to require the Trustee to deliver to the Company,
at the Company’s expense, copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the Trustee.




          (x) In connection with any transfer of any Note, the Trustee and the Company shall be entitled
to receive, shall be under no duty to inquire into, may conclusively presume the correctness of,
and shall be fully protected in relying upon the certificates, opinions and other information
referred to herein (or in the forms provided herein, attached hereto or to the Notes, or otherwise)
received from any Holder and any transferee of any Note regarding the validity, legality and due
authorization of any such transfer, the eligibility of the transferee to receive such Note and any
other facts and circumstances related to such transfer.




     Section 2.08 Replacement Notes.



          (a) If any mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee’s and the Company’s requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company
may charge for its expenses in replacing a Note.




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




     Section 2.09 Outstanding Notes.



          (a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.09 as not outstanding. Except as set forth in Section 2.10 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the
Note.




          (b) If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide
purchaser.




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




          (d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any of the
foregoing) holds, on a redemption date or maturity date, money sufficient to pay

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Notes payable on that date, then on and after that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue interest.




     Section 2.10
Treasury Notes.



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




     Section 2.11 Temporary Notes.



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




          (b) Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.




     Section 2.12 Cancellation.



          The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled securities in
effect as of the date of such disposition (subject to the record retention requirement of the
Exchange Act). Certification of the disposition of all canceled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.




     Section 2.13 Defaulted Interest.



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





43









 




notice that states the
special record date, the related payment date and the amount of such interest to be paid.




     Section 2.14 CUSIP Numbers.



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



ARTICLE THREE

REDEMPTION AND PREPAYMENT




     Section 3.01 Notices to Trustee.



            If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it shall furnish to the Trustee, at least 30 days (unless a shorter notice
shall be satisfactory to the Trustee) but not more than 60 days before a redemption date, an
Officers’ Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.



     Section 3.02 Selection of Notes to Be Redeemed.



          (a) If less than all of the outstanding Notes are to be redeemed, the Trustee shall select the
Notes to be redeemed among the Holders of the Notes on a pro rata basis, by lot or in accordance
with any other method the Trustee considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.




          (b) The Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the principal amount at
maturity thereof to be redeemed. No Notes in amounts of $1,000 or less shall be redeemed in part.
Notes and portions of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of
Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.




     Section 3.03 Notice of Redemption.



          (a) At least 30 days but not more than 60 days before a redemption date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption to each




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Holder whose Notes
are to be redeemed, at its registered address. The notice shall identify the Notes to be redeemed
and shall state:





	 	(i)	 	the redemption date;
	 
	 	(ii)	 	the redemption price;
	 
	 	(iii)	 	if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
and upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion of the original Note shall be issued in the name of the
Holder thereof upon cancellation of the original Note;
	 
	 	(iv)	 	the name and address of the Paying Agent;
	 
	 	(v)	 	that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price and become due on the date fixed for
redemption;
	 
	 	(vi)	 	that, unless the Company defaults in making such redemption
payment, interest and Additional Interest, if any, on Notes called for redemption
ceases to accrue on and after the redemption date;
	 
	 	(vii)	 	the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
	 
	 	(viii)	 	that no representation is made as to the correctness or accuracy of the CUSIP
or ISIN number, if any, listed in such notice or printed on the Notes.





          (b) At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days (unless a shorter notice shall be satisfactory to the Trustee) prior to the
redemption date, an Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in Section 3.03(a) hereof. The
notice, if mailed in the manner provided herein, shall be presumed to have been given, whether or
not the Holder receives such notice.




          (c) The notice if mailed in the manner herein provided shall be conclusively presumed to have
been given, whether or not the Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the Holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the redemption of any other
Note.




     Section 3.04 Effect of Notice of Redemption.



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



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     Section 3.05 Deposit of Redemption Price.



          (a) One Business Day prior to the redemption date, the Company shall deposit with the Trustee
or with the Paying Agent money sufficient to pay the redemption price of and accrued interest and
Additional Interest, if any, on all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.




          (b) If the Company complies with Section 3.05(a) hereof, on and after the redemption date,
interest and Additional Interest, if any, shall cease to accrue on the Notes or the portions of
Notes called for redemption. If a Note is redeemed on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid interest shall be paid to
the Person in whose name such Note was registered at the close of business on such record date. If
any Note called for redemption shall not be so paid upon surrender for redemption on the redemption
date because of the failure of the Company to comply with Section 3.05(a) hereof, interest and
Additional Interest, if any, shall continue to accrue on the unpaid principal of such Note or the
portions thereof called for redemption from the redemption date until such principal is paid.




     Section 3.06 Notes Redeemed in Part.



            Upon surrender of a Note that is redeemed in part, the Company shall issue and the Trustee
shall authenticate for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered. No Notes in denominations of $1,000 or
less shall be redeemed in part.



     Section 3.07 Optional Redemption.



          (a) At any time prior to June 15, 2007, the Company may redeem all or part of the aggregate
principal amount of Notes issued under this Indenture (including any Additional Notes) at a
redemption price of 103% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the redemption date, with the net cash proceeds of one or
more Equity Offerings (the “Redemption Amount”); provided that the redemption must occur within 60
days of the date of the closing of such Equity Offering.




          (b) At any time after June 15, 2007 and prior to December 15, 2008, the Company may, at its
option, redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture
(including any Additional Notes) at a redemption price of 100% of the principal amount thereof,
plus an amount equal to four times the quarterly interest payment next payable on the Notes, plus
accrued and unpaid interest and Additional Interest, if any, thereon to the date of redemption,
with the net cash proceeds of one or more Equity Offerings;
provided that the redemption must occur within 60 days of the date of the closing of such
Equity Offering.




          (c) Except pursuant to Sections 3.07(a) and (b) hereof, the Notes shall not be redeemable at
the Company’s option prior to December 15, 2008.





46









 








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




	 	 	 	 	 
	Year	 	Percentage	 
	2008
	 	 	102.00	%
	2009
	 	 	101.00	%
	2010 and thereafter
	 	 	100.00	%






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




     Section 3.08 Mandatory Redemption.



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



ARTICLE FOUR

COVENANTS




     Section 4.01 Payment of Notes.



          (a) The Company shall pay or cause to be paid the principal of, premium, if any, and interest
on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Company or
one of its Subsidiaries, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due. The Company shall pay all Additional Interest, if any, in
the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.




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




     Section 4.02 Maintenance of Office or Agency.



          (a) The Company shall maintain one or more offices or agencies designated by it (which may be
an office of the Trustee or an agent of the Trustee, Registrar or co-registrar)

47









 








where Notes may be
surrendered for registration of transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of any such designation or rescission of any such designation,
and the location, and any change in the location, of such office or agency (other than the
designation and location specified in Section 4.02(b) hereof). 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 of the Trustee.




          (b) The Company hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.04 hereof.




     Section 4.03 Reports.



          (a) The Company shall furnish to the Trustee and, upon request, to beneficial owners and
prospective investors in the Notes a copy of all of the information and reports referred to in
clauses (i) and (ii) below within the time periods specified in the Commission’s rules and
regulations for “non-accelerated filers” (as defined in such rules and regulations):





	 	(i)	 	all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Company were required to file such Forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and,
with respect to the annual information only, a report on the annual financial
statements by the Company’s certified independent accountants; and
	 
	 	(ii)	 	all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports.





          (b) Whether or not required by the Commission, the Company shall comply with the periodic
reporting requirements of the Exchange Act and shall file the reports specified in Section 4.03(a)
hereof with the Commission within the time periods specified above unless the
Commission shall not accept such a filing. The Company agrees that it shall not take any
action for the purpose of causing the Commission not to accept any such filings. If,
notwithstanding the foregoing, the Commission shall not accept the Company’s filings for any
reason, the Company shall post the reports referred to in Section 4.03(a) hereof on its website
within the time periods that would apply if the Company were required to file those reports with
the Commission.




          (c) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by this Section 4.03 shall include a
reasonably detailed presentation, either on the face of the financial statements or in the
footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results
of Operations,” of the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Company.





48









 








          (d) In addition, the Company and the Guarantors have agreed that, for so long as any Notes
remain outstanding, they shall furnish to the Holders and to prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act.




     Section 4.04 Compliance Certificate.



          (a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge, the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the Notes is prohibited or if
such event has occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.




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




     Section 4.05 Stay, Extension and Usury Laws.



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



     Section 4.06 Liens.



          (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any Lien of any kind or assign or otherwise
convey any right to receive any income, profits or proceeds on or with respect to any of the
Company’s or any Restricted Subsidiary’s property or assets, including any shares of stock




49









 







or Debt
of any Restricted Subsidiary, whether owned at or acquired after the date of the Indenture, or any
income, profits or proceeds therefrom except:





	 	(i)	 	in the case of any property or asset that does not constitute
Collateral, Permitted Liens; provided that any Lien on such assets shall be
permitted notwithstanding that it is not a Permitted Lien if all payments due
under the Indenture, the Notes and the Guarantees are secured on an equal and
ratable basis (or prior basis in the case of any Debt that is subordinated in
right of payment to the Notes or the Guarantees) with the obligations so secured
until such time as such obligations are no longer secured by a Lien; and
	 
	 	(ii)	 	in the case of any property or asset that constitutes Collateral,
Permitted Collateral Liens.





     Section 4.07 Offer to Repurchase upon a Change of Control.



          (a) If a Change of Control occurs, each Holder of Notes shall have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that
Holder’s Notes pursuant to an offer (a “Change of Control Offer”) on the terms set forth in this
Indenture; provided that the Company shall not be obligated to repurchase Notes in the event that
it has exercised its right to redeem all of the Notes pursuant to Section 3.07 hereof. In the
Change of Control Offer, the Company shall offer payment (a “Change of Control Payment”) in cash
equal to not less than 101% of the aggregate principal amount of Notes repurchased plus accrued and
unpaid interest and Additional Interest, if any, thereon, to the date of repurchase (the “Change of
Control Payment Date,”) which date shall be no earlier than the date of such Change of Control.
Within 30 days following any Change of Control, the Company shall mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control and stating:





	 	(i)	 	that the Change of Control Offer is being made pursuant to this
Section 4.07 and that all Notes tendered will be accepted for payment;
	 
	 	(ii)	 	the Change of Control Payment and the Change of Control Payment
Date;
	 
	 	(iii)	 	that any Note not tendered will continue to accrue interest;
	 
	 	(iv)	 	that Holders electing to have a Note purchased pursuant to a Change
of Control Offer may elect to have Notes purchased in integral multiples of
$1,000 only;
	 
	 	(v)	 	that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of Control
Offer will cease to accrue interest on and after the Change of Control Payment
Date;
	 
	 	(vi)	 	that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the form
entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or




50









 












	 	 	 	transfer by book-entry transfer, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day preceding the
Change of Control Payment Date;
	 
	 	(vii)	 	that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount
of Notes delivered for purchase, and a statement that such Holder is withdrawing
his election to have the Notes purchased; and
	 
	 	(viii)	 	that Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer), which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple of $1,000.




The Change of Control Payment Date shall be no earlier than 30 days and no later than 60 days from
the date such notice is mailed, pursuant to the procedures required by this Indenture and described
in such notice. The Company shall comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a result of a Change
of Control. To the extent that the provisions of any securities laws or regulations conflict with
the Change of Control provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations under the
Change of Control provisions of this Indenture by virtue of such compliance.




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





	 	(i)	 	accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer; provided that no Note shall be
repurchased in part if less than $1,000 in principal amount of such Note would be
left outstanding; provided further that if all the Notes of a Holder are to be
repurchased, the entire outstanding amount of the Notes held by such Holder, even
if not a multiple of $1,000, shall be repurchased;
	 
	 	(ii)	 	deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so tendered; and
	 
	 	(iii)	 	deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers’ Certificate stating the aggregate principal
amount of Notes or portions thereof being purchased by the Company.





          (c) The Paying Agent shall promptly mail or wire transfer to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail
(or request transfer by book entry) to each Holder a new Note equal in




51









 







principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in
a principal amount of $1,000 or an integral multiple thereof.




          (d) The Company shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.




          (e) Notwithstanding anything to the contrary in this Section 4.07, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.07 and all other provisions of this Indenture applicable
to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.




     Section 4.08 Offer to Repurchase upon an Asset Sale.



          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:





	 	(i)	 	the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the assets or Equity Interests issued or sold or otherwise
disposed of; and
	 
	 	(ii)	 	at least 75% of the consideration therefor received by the Company
or such Restricted Subsidiary is in the form of cash, Cash Equivalents or
Replacement Assets or a combination thereof. For purposes of this provision,
each of the following shall be deemed to be cash:






     (A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet) of the Company or any Restricted Subsidiary (other than
contingent liabilities, Indebtedness that is by its terms subordinated to the Notes
or any Note Guarantee and liabilities to the extent owed to the Company or any
Affiliate of the Company) (i) that are assumed by the transferee of any such assets
or Equity Interests pursuant to a written novation agreement that releases the
Company or such Restricted Subsidiary from further liability therefor; and




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are contemporaneously (subject
to ordinary settlement periods) converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received in that conversion).



          (b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or
its Restricted Subsidiaries may apply such Net Proceeds at its option:





	 	(i)	 	to repay Indebtedness secured by such assets or Indebtedness under
the Credit Agreement and, if the Indebtedness repaid is revolving credit




52









 












	 	 	 	Indebtedness, to correspondingly reduce commitments with respect thereto; or
	 
	 	(ii)	 	to purchase Replacement Assets (or enter into a binding agreement
to purchase any such Replacement Assets; provided that (x) such purchase is
consummated within 180 days after the date of such binding agreement and (y) if
such purchase is not consummated within the period set forth in subclause (x),
the Net Proceeds not so applied shall be deemed to be Excess Proceeds (as defined
below)).





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




          (d) On the 361st day after an Asset Sale (or, in the event that a binding agreement has been
entered into pursuant to Section 4.08(b)(ii) hereof, the later date of expiration of the 180-day
period set forth in such clause (ii)) or such earlier date, if any, as the Company determines not
to apply the Net Proceeds relating to such Asset Sale as set forth in the preceding paragraph (each
such date being referred as an “Excess Proceeds Trigger Date”), such aggregate amount of Net
Proceeds that has not been applied on or before the Excess Proceeds Trigger Date as permitted in
Section 4.08(b) hereof (“Excess Proceeds”) shall be applied by the Company to make an offer (an
“Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari
passu with the Notes or any Note Guarantee containing provisions similar to those set forth in this
Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the
maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out
of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the
principal amount of the Notes and such other
pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to
the date of purchase, and shall be payable in cash.




          (e) The Company may defer the Asset Sale Offer until there are aggregate unutilized Excess
Proceeds equal to or in excess of $5,000,000 resulting from one or more Asset Sales, at which time
the entire unutilized amount of Excess Proceeds (not only the amount in excess of $5,000,000) shall
be applied as provided in Section 4.08(d) hereof. If any Excess Proceeds remain after consummation
of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes
and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the
principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each
Asset Sale, the Excess Proceeds subject to such Asset Sale Offer shall no longer be deemed to be
Excess Proceeds.




          (f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the Asset Sales
provisions of this Indenture, the Company shall comply with the applicable




53









 







securities laws and
regulations and shall not be deemed to have breached its obligations under the Asset Sale
provisions of this Indenture by virtue of such compliance.




     Section 4.09 Restricted Payments.



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





	 	(i)	 	declare or pay (without duplication) any dividend or make any other
payment or distribution on account of the Company’s or any of its Restricted
Subsidiaries’ Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the Company or any of its
Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or
any of its Restricted Subsidiaries’ Equity Interests in their capacity as such
(other than dividends, payments or distributions (x) payable in Equity Interests
(other than Disqualified Stock) of the Company or (y) to the Company or a
Restricted Subsidiary of the Company);
	 
	 	(ii)	 	purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) any Equity Interests
of the Company or any Restricted Subsidiary thereof held by Persons other than
the Company or any of its Restricted Subsidiaries;
	 
	 	(iii)	 	make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated
to the Notes or any Note Guarantees, except (a) a payment of interest or
principal at the Stated Maturity thereof or (b) the purchase, repurchase or
other acquisition of any such Indebtedness in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of such purchase, repurchase or other
acquisition; or
	 
	 	(iv)	 	make any Restricted Investment;




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





	 	(i)	 	no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
	 
	 	(ii)	 	the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period, have been permitted to Incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.10(a) hereof; and




54









 












	 	(iii)	 	such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted Subsidiaries
after the Issue Date (excluding Permitted Payments in clauses (iii) through (vi)
of Section 4.09(b) hereof, is less than the sum, without duplication, of:






     (A) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the beginning of the first fiscal quarter commencing
after the Issue Date to the end of the Company’s most recently ended fiscal quarter
for which internal financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a deficit, less 100%
of such deficit), plus




     (B) 100% of the aggregate net cash proceeds received by the Company since the
Issue Date as a contribution to its common equity capital or from the issue or sale
of Equity Interests (other than Disqualified Stock) of the Company or from the
Incurrence of Indebtedness of the Company that has been converted into or exchanged
for such Equity Interests (other than Equity Interests sold to, or Indebtedness held
by, a Subsidiary of the Company), excluding net cash proceeds used to redeem or
repurchase the Notes, plus




     (C) with respect to Restricted Investments made by the Company and its
Restricted Subsidiaries after the Issue Date, an amount equal to the net reduction
in such Restricted Investments in any Person resulting from repayments of loans or
advances, or other transfers of assets, in each case to the Company or any
Restricted Subsidiary or from the net cash proceeds from the sale of any such
Restricted Investment (except, in each case, to the extent any such payment or
proceeds are included in the calculation of Consolidated Net Income) from the
release of any Guarantee (except to the extent any amounts are paid under such
Guarantee) or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries, not to exceed, in each case, the amount of Restricted Investments
previously made by the Company or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary after the Issue Date; plus




     (D) $5,000,000.



          (b) The preceding provisions shall not prohibit (each, a “Permitted Payment”):





	 	(i)	 	the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
	 
	 	(ii)	 	the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its Common Stock on a pro rata basis;
	 
	 	(iii)	 	the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or any Guarantor or
of any Equity Interests of the Company or any Restricted Subsidiary in exchange




55









 












	 	 	 	for, or out of the net cash proceeds of a contribution to the common equity of
the Company or a substantially concurrent sale (other than to a Subsidiary of the
Company) of, Equity Interests (other than Disqualified Stock) of the Company;
provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition shall be
excluded from Section 4.09(a)(vii)(B) hereof;
	 
	 	(iv)	 	the defeasance, redemption, repurchase or other acquisition of
Indebtedness subordinated to the Notes or the Note Guarantees with the net cash
proceeds from an Incurrence of Permitted Refinancing Indebtedness;
	 
	 	(v)	 	Investments acquired as a capital contribution to the Company, or
in exchange for, or out of the net cash proceeds of a substantially concurrent
sale (other than to a Subsidiary of the Company) of, Equity Interests (other than
Disqualified Stock) of the Company; provided that the amount of any such net cash
proceeds that are utilized for any such acquisition or exchange shall be excluded
from Section 4.09(a)(vii)(B) hereof;
	 
	 	(vi)	 	the repurchase of Capital Stock deemed to occur upon the exercise
of options or warrants to the extent that such Capital Stock represents all or a
portion of the exercise price thereof; and
	 
	 	(vii)	 	the payment of dividends at the rate of 8% per annum on the
original issue price of $250 per share on 220,000 shares of the Company’s Series
B Convertible Preferred Stock issued on or about the Issue Date.





          (c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued to or by the Company or such Subsidiary, as the case may be, pursuant to the Restricted
Payment. Not later than the date of making any Restricted Payment, the Company shall deliver to
the Trustee an Officers’ Certificate stating that such Restricted Payment is permitted and setting
forth the basis upon which the calculations required by this Section 4.09 were made, together with
a copy of any opinion or appraisal required by this Indenture.




     Section 4.10 Incurrence of Indebtedness.



          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, Incur any Indebtedness; provided, however, that the Company or any
Guarantor may Incur Indebtedness, if the Fixed Charge Coverage Ratio for the Company’s most
recently ended four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is Incurred would have been at
least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been Incurred at the beginning of such
four-quarter period.




          (b) Section 4.10(a) hereof shall not prohibit the Incurrence of any of the following items of
Indebtedness (collectively, “Permitted Debt”):





56









 









	 	(i)	 	the Incurrence by the Company or any Guarantor of Indebtedness
under Credit Facilities (including, without limitation, the Incurrence by the
Company and the Guarantors of Guarantees thereof) in an aggregate amount at any
one time outstanding pursuant to this Section 4.10(b)(i) not to exceed the
greater of (x) $20,000,000 and (y) 10% of Consolidated Tangible Assets, less in
each case the aggregate amount of all Net Proceeds of Asset Sales applied by the
Company or any Restricted Subsidiary thereof to permanently repay any such
Indebtedness pursuant to Section 4.08 hereof;
	 
	 	(ii)	 	the Incurrence of Existing Indebtedness;
	 
	 	(iii)	 	the Incurrence by the Company and the Guarantors of Indebtedness
represented by the Notes and the related Note Guarantees;
	 
	 	(iv)	 	the Incurrence by the Company or any Restricted Subsidiary of the
Company of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, Incurred for the purpose
of financing all or any part of the purchase price or cost of construction or
improvement of property, plant, or equipment used in the business of the Company
or such Restricted Subsidiary, in an aggregate amount, including all Permitted
Refinancing Indebtedness Incurred to refund, refinance or replace any
Indebtedness Incurred pursuant to this Section 4.10(b)(iv), not to exceed the
greater of $5,000,000 and 2.5% of Consolidated Tangible Assets at any time
outstanding;
	 
	 	(v)	 	the Incurrence by the Company or any Restricted Subsidiary of the
Company of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace Indebtedness (other
than intercompany Indebtedness and the Senior Subordinated Loan) that was
permitted by this Indenture to be Incurred under Section 4.10(a) or (b)(ii),
(iii), (iv), (v), or (xiii) hereof;
	 
	 	(vi)	 	the Incurrence by the Company or any of its Restricted Subsidiaries
of intercompany Indebtedness owing to and held by the Company or any of its
Restricted Subsidiaries; provided, however, that:






     (A) if the Company or any Guarantor is the obligor on such Indebtedness, such
Indebtedness must be unsecured and expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Notes, in the case of the
Company, or the Note Guarantee, in the case of a Guarantor;




     (B) Indebtedness owed to the Company or any Guarantor shall be evidenced by an
unsubordinated promissory note, unless the obligor under such Indebtedness is the
Company or a Guarantor;




     (C) (x) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary thereof and (y) any sale or other transfer of any such



57









 






Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary thereof, shall be
deemed, in each case, to constitute an Incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not permitted by
this Section 4.10(b)(vi);




	 	(vii)	 	the Guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company that was
permitted to be Incurred by another provision of this Section 4.10; provided that
the ranking of the Guarantee matches the ranking of the Indebtedness;
	 
	 	(viii)	 	the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations that are Incurred for the purpose of fixing, hedging or swapping
interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes), and not
for speculative purposes, and that do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations in
interest rates, commodity prices or foreign currency exchange rates or by reason
of fees, indemnities and compensation payable thereunder;
	 
	 	(ix)	 	the Incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness arising from agreements providing for indemnification, adjustment
of purchase price or similar obligations, or Guarantees or letters of credit,
surety bonds or performance bonds and completion guarantees
securing any obligations of the Company or any of its Restricted Subsidiaries
pursuant to such agreements, in any case Incurred in connection with the
disposition of any business, assets or Restricted Subsidiary (other than
Guarantees of Indebtedness Incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for the purpose of financing
such acquisition), so long as the amount does not exceed the gross proceeds
actually received by the Company or any Restricted Subsidiary thereof in
connection with such disposition;
	 
	 	(x)	 	the Incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within five Business Days of its Incurrence;
	 
	 	(xi)	 	the Incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business; provided that, upon the drawing
of such letters of credit or the Incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or Incurrence;




58









 












	 	(xii)	 	the Incurrence by the Company of Indebtedness to the extent that
the net proceeds thereof are promptly deposited to defease or to satisfy and
discharge the Notes; or
	 
	 	(xiii)	 	the Incurrence by the Company or any Restricted Subsidiary of additional
Indebtedness in an aggregate amount at any time outstanding, including all
Permitted Refinancing Indebtedness Incurred to refund, refinance, or replace any
Indebtedness Incurred pursuant to this Section 4.10(b)(xiii), not to exceed
$5,000,000.





          (c) For purposes of determining compliance with this Section 4.10, in the event that any
proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in Section 4.10(b)(i) through (xiii) above, or is entitled to be Incurred pursuant to
Section 4.10(a), the Company shall be permitted to classify such item of Indebtedness at the time
of its Incurrence in any manner that complies with this Section 4.10. In addition, any
Indebtedness originally classified as Incurred pursuant to Section 4.10(b)(i) through (xiii) above
may later be reclassified by the Company such that it shall be deemed as having been Incurred
pursuant to another of such clauses to the extent that such reclassified Indebtedness could be
incurred pursuant to such new clause at the time of such reclassification.




          (d) Notwithstanding any other provision of this Section 4.10, the maximum amount of
Indebtedness that may be Incurred pursuant to this Section 4.10 shall not be deemed to be exceeded
with respect to any outstanding Indebtedness due solely to the result of fluctuations in the
exchange rates of currencies.




          (e) The Company shall not Incur any Indebtedness that is subordinate in right of payment to
any other Indebtedness of the Company unless it is subordinate in right of payment to the Notes to
the same extent. The Company shall not permit any Guarantor to Incur any Indebtedness that is
subordinate in right of payment to any other Indebtedness of such Guarantor unless it is
subordinate in right of payment to such Guarantor’s Note Guarantee to the same extent. For
purposes of the foregoing, no Indebtedness shall be deemed to be subordinated in right of payment
to any other Indebtedness of the Company or any Guarantor, as applicable, solely by reason of any
Liens or Guarantees arising or created in respect thereof or by virtue of the fact that the holders
of any secured Indebtedness have entered into intercreditor agreements giving one or more of such
holders priority over the other holders in the collateral held by them.




     Section 4.11 Limitation on Issuances and Sales of Equity Interests in Restricted
Subsidiaries.



            The Company shall not transfer, convey, sell or otherwise dispose of, and shall not permit any
of its Restricted Subsidiaries to, issue, transfer, convey, sell or otherwise dispose of any Equity
Interests in any Restricted Subsidiary of the Company to any Person (other than the Company or a
Restricted Subsidiary of the Company or, if necessary, shares of its Capital Stock constituting
directors’ qualifying shares or issuances of shares of Capital Stock of foreign Restricted
Subsidiaries to foreign nationals, to the extent required by applicable law), except sales of
Equity Interests of a Restricted Subsidiary of the Company by the Company or a Restricted
Subsidiary thereof; provided that (x) the Company or such Restricted Subsidiary



59









 




selling such Equity
Interests complies with Section 4.08, (y) any sales of Preferred Stock of a Restricted Subsidiary
that result in such Preferred Stock being held by a Person other than the Company or a Restricted
Subsidiary thereof shall be deemed to be an Incurrence of Indebtedness and must comply with Section
4.10 hereof and (z) if, immediately after giving effect to such issuance, transfer, conveyance,
sale or other disposition, such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary, any Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 4.09 hereof if made on the date of such issuance
or sale.




     Section 4.12 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.



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





	 	(i)	 	pay dividends or make any other distributions on its Capital Stock
(or with respect to any other interest or participation in, or measured by, its
profits) to the Company or any of its Restricted Subsidiaries or pay any
liabilities owed to the Company or any of its Restricted Subsidiaries;
	 
	 	(ii)	 	make loans or advances to the Company or any of its Restricted
Subsidiaries; or
	 
	 	(iii)	 	transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.





          (b) However, the restrictions set forth in Section 4.12(a) hereof shall not apply to
encumbrances or restrictions:





	 	(i)	 	existing under, by reason of or with respect to the Credit
Agreement, Existing Indebtedness or any other agreements in effect on the Issue
Date and any amendments, modifications, restatements, renewals, extensions,
supplements, refundings, replacements or refinancings thereof; provided that the
encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, than those contained in
the Credit Agreement, Existing Indebtedness or such other agreements, as the case
may be, as in effect on the Issue Date;
	 
	 	(ii)	 	set forth in this Indenture, the Notes and the Note Guarantees;
	 
	 	(iii)	 	existing under, by reason of or with respect to applicable law;
	 
	 	(iv)	 	with respect to any Person or the property or assets of a Person
acquired by the Company or any of its Restricted Subsidiaries existing at the
time of such acquisition and not Incurred in connection with or in contemplation
of such acquisition, which encumbrance or restriction is not applicable to any





60









 





	 	 	 	Person or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired and any amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacements or
refinancings thereof; provided that the encumbrances and restrictions in any such
amendments, modifications, restatements, renewals, extensions, supplements,
refundings, replacement or refinancings are no more restrictive, taken as a
whole, than those in effect on the date of the acquisition;






	 	(v)	 	in the case of Section 4.12(a)(iii) above:






     (A) that restrict in a customary manner the subletting, assignment or transfer
of any property or asset that is a lease, license, conveyance or contract or similar
property or asset,




     (B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary thereof not otherwise prohibited by this Indenture; or




     (C) arising or agreed to in the ordinary course of business, not relating to
any Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary thereof
in any manner material to the Company or any Restricted Subsidiary thereof;




	 	(vi)	 	existing under, by reason of or with respect to any agreement for
the sale or other disposition of all or substantially all of the Capital Stock
of, or property and assets of, a Restricted Subsidiary that restrict
distributions by that Restricted Subsidiary pending such sale or other
disposition;
	 
	 	(vii)	 	existing under restrictions on cash or other deposits or net worth
imposed by customers or required by insurance, surety or bonding companies, in
each case, under contracts entered into in the ordinary course of business; and
	 
	 	(viii)	 	existing under, by reason of or with respect to provisions with respect to the
disposition or distribution of assets or property, in each case contained in
joint venture agreements and which the Board of Directors of the Company
determines in good faith shall not adversely affect the Company’s ability to make
payments of principal or interest payments on the Notes.





     Section 4.13 Transactions with Affiliates.



          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make
any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into, make, amend, renew or extend any
transaction, contract, agreement, understanding, loan, advance or Guarantee with, or primarily for
the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:





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	 	(i)	 	such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable arm’s-length transaction by the Company or such
Restricted Subsidiary with a Person that is not an Affiliate of the Company or
any of its Restricted Subsidiaries; and
	 
	 	(ii)	 	the Company delivers to the Trustee:






     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $1,000,000, a Board
Resolution set forth in an Officers’ Certificate certifying that such Affiliate
Transaction or series of related Affiliate Transactions complies with this Section
4.13 and that such Affiliate Transaction or series of related Affiliate Transactions
has been approved by a majority of the disinterested members of the Board of
Directors of the Company; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $7,500,000, an opinion
as to the fairness to the Company or such Restricted Subsidiary of such Affiliate
Transaction or series of related Affiliate Transactions from a financial point of
view issued by an independent accounting, appraisal or investment banking firm of
national standing selected by the Company.



          (b) The following items shall not be deemed to be Affiliate Transactions and shall not be
subject to the provisions of Section 4.13(a) hereof:





	 	(i)	 	transactions between or among the Company and/or its Restricted
Subsidiaries;
	 
	 	(ii)	 	payment of reasonable and customary fees to, and reasonable and
customary indemnification and similar payments on behalf of, directors of the
Company;
	 
	 	(iii)	 	Restricted Payments that are permitted by the provisions of this
Indenture described under Section 4.09 hereof;
	 
	 	(iv)	 	any sale of Equity Interests (other than Disqualified Stock) of the
Company;
	 
	 	(v)	 	transactions pursuant to agreements or arrangements in effect on
the Issue Date or any amendment, modification or supplement thereto or
replacement thereof, as long as such agreement or arrangement, as so amended,
modified, supplemented or replaced, taken as a whole, is not more disadvantageous
to the Company and its Restricted Subsidiaries than the original agreement or
arrangement in existence on the Issue Date; and
	 
	 	(vi)	 	any employment, consulting, service or termination agreement, or
reasonable and customary indemnification arrangements, entered into by the
Company or any of its Restricted Subsidiaries with officers and employees




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	 	•	 	f the
Company or any of its Restricted Subsidiaries, and the payment of compensation to
officers and employees of the Company or any of its Restricted Subsidiaries
(including amounts paid pursuant to employee benefit plans, employee stock option
or similar plans), so long as such agreement or payment have been approved by a
majority of the disinterested members of the Board of Directors of the Company.





     Section 4.14 Designation of Restricted and Unrestricted Subsidiaries.



          (a) The Board of Directors of the Company may designate any Restricted Subsidiary of the
Company to be an Unrestricted Subsidiary; provided that:





	 	(i)	 	any Guarantee by the Company or any Restricted Subsidiary thereof
of any Indebtedness of the Subsidiary being so designated shall be deemed to be
an Incurrence of Indebtedness by the Company or such Restricted Subsidiary (or
both, if applicable) at the time of such designation, and such Incurrence of
Indebtedness would be permitted under the Section 4.10 hereof;
	 
	 	(ii)	 	the aggregate Fair Market Value of all outstanding Investments
owned by the Company and its Restricted Subsidiaries in the Subsidiary being so
designated (including any Guarantee by the Company or any Restricted Subsidiary
thereof of any Indebtedness of such Subsidiary) shall be deemed
to be a Restricted Investment made as of the time of such designation and that
such Investment would be permitted under Section 4.09 hereof;
	 
	 	(iii)	 	such Subsidiary does not hold any Liens on any property of the
Company or any Restricted Subsidiary thereof;
	 
	 	(iv)	 	at the time of such designation the Subsidiary being so designated:






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




     (B) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe for
additional Equity Interests or (y) to maintain or preserve such Person’s financial
condition or to cause such Person to achieve any specified levels of operating
results;




     (C) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted Subsidiaries,
except to the extent such Guarantee or credit support would be released upon such
designation; and



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     (D) has at least one director on its Board of Directors that is not a director
or officer of the Company or any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or officer of the Company or any of its
Restricted Subsidiaries; and




	 	(v)	 	no Default or Event of Default would be in existence following such
designation.





          (b) Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary
shall be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to
such designation and an Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by this Indenture. If, at any time, any Unrestricted
Subsidiary (x) would fail to meet any of the preceding requirements described in Section
4.14(a)(iv)(A), (B) or (C) above, or (y) fails to meet the requirement described in Section
4.14(a)(iv)(D) above and such failure continues for a period of 30 days, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness, Investments,
or Liens on the property, of such Subsidiary shall be deemed to be Incurred or made by a Restricted
Subsidiary of the Company as of such date and, if such Indebtedness, Investments or Liens are not
permitted to be Incurred or made as of such date under this Indenture, the Company shall be in
default under this Indenture.




          (c) The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that:





	 	(i)	 	such designation shall be deemed to be an Incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if such Indebtedness is permitted under Section 4.10 hereof;
	 
	 	(ii)	 	all outstanding Investments owned by such Unrestricted Subsidiary
shall be deemed to be made as of the time of such designation and such
designation shall only be permitted if such Investments would be permitted under
Section 4.09 hereof;
	 
	 	(iii)	 	all Liens upon property or assets of such Unrestricted Subsidiary
existing at the time of such designation would be permitted under Section 4.06
hereof; and
	 
	 	(iv)	 	no Default or Event of Default would be in existence following such
designation.





     Section 4.15 Business Activities.



            The Company shall not, and shall not permit any Restricted Subsidiary thereof to, engage in
any business other than Permitted Businesses, except to such extent as would not be material to the
Company and its Restricted Subsidiaries taken as a whole.



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     Section 4.16 Payments for Consent.



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



     Section 4.17 Guarantees.



          (a) If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary on or after the Issue Date, then that newly acquired or created Domestic Subsidiary
shall become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel to
the Trustee.




            The Company shall not permit any of its Restricted Subsidiaries, directly or indirectly, to
Guarantee or pledge any assets to secure the payment of any other Indebtedness of the Company or
any other Restricted Subsidiary thereof unless such Restricted Subsidiary is a Guarantor or
simultaneously executes and delivers to the Trustee an Opinion of Counsel and a
supplemental indenture providing for the Guarantee of the payment of the Notes by such
Restricted Subsidiary, which Guarantee shall be senior to or pari passu with such Subsidiary’s
Guarantee of such other Indebtedness.



          (b) If, on the date this is 90 days from the Issue Date, Trace Energy Services Ltd., an entity
organized under the laws of Canada (“Trace”), is still an obligor under the Credit Agreement, Trace
shall become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel to
the Trustee. Following the date that Trace becomes a Guarantor, if Trace is no longer an obligor
under the Credit Agreement, Trace shall be released from its Note Guarantee.




     Section 4.18 Sale and Leaseback Transactions



          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter
into any Sale and Leaseback Transaction; provided that the Company or any Restricted Subsidiary may
enter into a Sale and Leaseback Transaction if:





	 	(i)	 	the Company or such Restricted Subsidiary, as applicable, could
have (a) Incurred Indebtedness in an amount equal to the Attributable Debt
relating to such Sale and Leaseback Transaction and (b) incurred a Lien to secure
such Indebtedness pursuant to Section 4.06 hereof;
	 
	 	(ii)	 	the gross cash proceeds of that Sale and Leaseback Transaction are
at least equal to the Fair Market Value of the property that is the subject of
that Sale and Leaseback Transaction; and




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	 	(iii)	 	the transfer of assets in that Sale and Leaseback Transaction is
permitted by, and the Company applies the proceeds of such transaction in
compliance with, Section 4.08 hereof.





ARTICLE FIVE

SUCCESSORS




     Section 5.01 Merger, Consolidation or Sale of Assets.



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





	 	(i)	 	either: (A) the Company is the surviving corporation; or (B) the
Person formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made (1) is a corporation organized or existing under
the laws of the United States, any state thereof or the District of
Columbia; and (2) assumes all the obligations of the Company under the Notes,
this Indenture and the Registration Rights Agreement pursuant to agreements in
form reasonably satisfactory to the Trustee;
	 
	 	(ii)	 	immediately after giving effect to such transaction, no Default or
Event of Default exists;
	 
	 	(iii)	 	immediately after giving effect to such transaction on a pro forma
basis, the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made, shall, on the date of such
transaction after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable
four-quarter period, (x) be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.10(a) hereof; or (y) have a Fixed Charge Coverage Ratio that exceeds
the Company’s Fixed Charge Coverage Ratio (determined without giving effect to
such transaction) for such applicable four-quarter period;
	 
	 	(iv)	 	each Guarantor, unless such Guarantor is the Person with which the
Company has entered into a transaction under this covenant, shall have by
amendment to its Note Guarantee confirmed that its Note Guarantee shall apply to
the obligations of the Company or the surviving Person in accordance with the
Notes and this Indenture; and
	 
	 	(v)	 	each Guarantor, unless such Guarantor is (A) a Guarantor that shall
be released from its obligations under its Note Guarantee in connection with 




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	 	 	 	such
transaction or (B) the Person with which the Company has entered into a
transaction under this Section 5.01, shall have confirmed in writing that its
Note Guarantee shall apply to the obligations of the Company or the surviving
Person in accordance with the Notes and this Indenture; and






	 	(vi)	 	the Company delivers to the Trustee an Officers’ Certificate
(attaching the arithmetic computation to demonstrate compliance with (a)(iii)
above) and Opinion of Counsel, in each case stating that such transaction and
such agreement complies with this Section 5.01 and that all conditions precedent
provided for herein relating to such transaction have been complied with.





          (b) Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company in accordance with this
Section 5.01, the successor corporation formed by such consolidation or into or with which the
Company is merged or to which such sale, assignment, transfer, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, conveyance or other disposition, the provisions of this
Indenture referring to the “Company” shall refer instead to the successor corporation and not to
the Company), and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been named as the
Company in this Indenture.




          (c) The Company and its Restricted Subsidiaries shall not, directly or indirectly, lease all
or substantially all of the properties or assets of the Company and its Restricted Subsidiaries
considered as one enterprise, in one or more related transactions, to any other Person. Section
5.01(a)(iii) hereof shall not apply to any merger, consolidation or sale, assignment, transfer,
conveyance or other disposition of assets between or among the Company and any of its Restricted
Subsidiaries.




ARTICLE SIX

DEFAULTS AND REMEDIES




     Section 6.01 Events of Default.




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




     (a) default for 30 days in the payment when due of interest on, or Additional Interest
with respect to, the Notes;




     (b) default in payment when due (whether at maturity, upon acceleration, redemption or
otherwise) of the principal of, or premium, if any, on the Notes;




     (c) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions described in Sections 4.07, 4.08 or 5.01 hereof;




     (d) failure by the Company or any of its Restricted Subsidiaries for 30 days after
written notice by the Trustee or Holders representing 25% or more of the aggregate



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principal
amount of Notes outstanding to comply with any of the other agreements in this Indenture;




     (e) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness by the Company or any of its
Restricted Subsidiaries (or the payment of which is Guaranteed by the Company or any of its
Restricted Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, if that default:




(i) is caused by a failure to make any payment when due at the final maturity of
such Indebtedness (a “Payment Default”); or




(ii) results in the acceleration of such Indebtedness prior to its express maturity
(until and unless such acceleration is rescinded by the holder(s) of such
Indebtedness),




and, in each case, the amount of any such Indebtedness, together with the amount of any
other such Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $5,000,000 or more;




     (f) failure by the Company or any of its Restricted Subsidiaries that together to pay
final judgments (to the extent such judgments are not paid or covered by insurance provided
by a reputable carrier that has the ability to perform and has acknowledged in writing)
aggregating in excess of $5,000,000, which judgments are not paid, discharged or stayed for
a period of 60 days;




     (g) except as permitted by this Indenture, any Note Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full
force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under its Note Guarantee; and




     (h) the Company, any Guarantor or any Significant Subsidiary of the Company (or any
Restricted Subsidiaries that together would constitute a Significant Subsidiary), pursuant
to or within the meaning of Bankruptcy Law:




     (i) commences a voluntary case, or




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




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




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




     (v) generally is not paying its debts as they become due; and



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




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




     (ii) appoints a custodian of the Company, any Guarantor or any Significant
Subsidiary of the Company (or any Restricted Subsidiaries that together would
constitute a Significant Subsidiary), for all or substantially all of the property
of the Company, or




     (iii) orders the liquidation of the Company, any Guarantor or any Significant
Subsidiary of the Company (or any Restricted Subsidiaries that together would
constitute a Significant Subsidiary); and the order or decree remains unstayed and
in effect for 60 consecutive days.



     Section 6.02 Acceleration.



            If any Event of Default specified in Section 6.01(h) or (i), with respect to the Company, any
Guarantor or any Significant Subsidiary of the Company (or any Restricted Subsidiaries that
together would constitute a Significant Subsidiary), all outstanding Notes shall become due and
payable immediately without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the holders of at least 25% in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately by notice in writing to the
Company specifying the Event of Default.



     Section 6.03 Other Remedies.



          (a) If an Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, interest, and Additional Interest, if
any, with respect to the Notes or to enforce the performance of any provision of the Notes or this
Indenture; provided that it may not take an Enforcement Action against the Collateral unless
permitted by the Intercreditor Agreement.




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




     Section 6.04 Waiver of Past Defaults.



            Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to
the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder except a continuing Default or Event of Default in the
payment of interest or Additional Interest, if any, on, or the principal of, the Notes (provided,
however, that the Holders of a majority in principal amount of the then



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outstanding Notes may with
such exception, on behalf of all Holders, rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). The Company shall deliver to
the Trustee an Officers’ Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. In case of any such waiver, the
Company, the Trustee and the Holders shall be restored to their former positions and rights
hereunder and under the Notes, respectively. This Section 6.04 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from
this Indenture and the Notes, as permitted by the TIA. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.




     Section 6.05 Control by Majority.



            Holders of a majority in principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture
that the Trustee determines in good faith may be unduly prejudicial to the rights of other Holders
of Notes or not joining in the giving of such direction that may involve the Trustee in personal
liability, and may take any other action it deems proper that is not inconsistent with any such
direction received from Holders of Notes.



     Section 6.06 Limitation on Suits.



          (a) A Holder may pursue a remedy with respect to this Indenture, or the Notes or the Note
Guarantees only if:





	 	(i)	 	the Holder gives to the Trustee written notice of a continuing
Event of Default;
	 
	 	(ii)	 	the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
	 
	 	(iii)	 	such Holder of a Note or Holders of Notes offer the Trustee
indemnity satisfactory to the Trustee against any costs, liability or expense
that might be incurred by it in connection with the request or direction;
	 
	 	(iv)	 	the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
	 
	 	(v)	 	during such 60-day period, the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction that is inconsistent with the request.





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





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     Section 6.07 Rights of Holders of Notes to Receive Payment.



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



     Section 6.08 Collection Suit by Trustee.



            If an Event of Default specified in Section 6.01(a) or (b) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, if any, interest, and Additional
Interest, if any, remaining unpaid on the Notes and interest on overdue principal and premium, if
any, and, to the extent lawful, interest and Additional Interest, if any, and such further amount
as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.



     Section 6.09 Trustee May File Proofs of Claim.



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



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     Section 6.10 Priorities.



          (a) If the Trustee collects any money pursuant to this Article Six, it shall pay out the money
in the following order:





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




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




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



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




     Section 6.11 Undertaking for Costs.



            In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.



ARTICLE SEVEN

TRUSTEE




     Section 7.01 Duties of Trustee.



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




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





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




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





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





	 	(i)	 	this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
	 
	 	(ii)	 	the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
	 
	 	(iii)	 	the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Sections 6.05 and 6.06 hereof.





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




          (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or Incur any liability.




          (f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.




     Section 7.02 Certain Rights of Trustee.



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




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




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





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




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




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




          (g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such
event is sent to the Trustee in accordance with Section 13.02 hereof, and such notice references
the Notes.




     Section 7.03 Individual Rights of Trustee.



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



     Section 7.04 Trustee’s Disclaimer.



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



     Section 7.05 Notice of Defaults.



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



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     Section 7.06 Reports by Trustee to Holders of the Notes.



          (a) Within 60 days after each September 30 beginning with September 30, 2007, and for so long
as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA §
313(a) has occurred within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA § 313(b)(2). The Trustee shall also transmit
by mail all reports as required by TIA § 313(c).




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




     Section 7.07 Compensation and Indemnity.



          (a) The Company shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder in accordance with a written schedule provided
by the Trustee to the Company. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses Incurred or made by it in
accordance with any provision of this Indenture, except any such disbursement, advance or expense
attributable to its negligence or bad faith. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.




          (b) The Company shall indemnify the Trustee against any and all losses, liabilities or
expenses Incurred by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture, including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.07) and defending itself against any claim (whether
asserted by either of the Company or any Holder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, except
to the extent any such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.




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




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





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




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




     Section 7.08 Replacement of Trustee.



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




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





	 	(i)	 	the Trustee fails to comply with Section 7.10 hereof;
	 
	 	(ii)	 	the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
	 
	 	(iii)	 	a custodian or public officer takes charge of the Trustee or its
property; or
	 
	 	(iv)	 	the Trustee becomes incapable of acting.





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




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




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




          (f) A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its

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succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to
the claim provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.




     Section 7.09 Successor Trustee by Merger, Etc.



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



     Section 7.10 Eligibility; Disqualification.



          (a) There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.




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




     Section 7.11 Preferential Collection of Claims Against the Company.



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



     Section 7.12 Other Agreements.



            The Trustee is hereby directed to execute and deliver the Intercreditor Agreement dated as of
December 15, 2006, among the Trustee, the First Lien Agent (as therein defined), the Company and
the Subsidiaries therein listed, the Security Agreement dated as of December 15, 2006, among the
Trustee as collateral agent, the Company and the other parties named therein, and any other Notes
Security Documents. The Trustee shall be entitled to all of the rights and protections afforded it
in this Indenture in the performance of its duties under the Intercreditor Agreement and the
Security Agreement, and such terms of this Indenture shall prevail over the terms of the
Intercreditor Agreement and the Security Agreement to the extent of any conflict of such terms.



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ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE




     Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.



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



     Section 8.02 Legal Defeasance and Discharge.



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





	 	(i)	 	the rights of Holders of outstanding Notes to receive payments in
respect of the principal of, or interest or premium and Additional Interest, if
any, on such Notes when such payments are due from the trust referred to in
Section 8.05 hereof;
	 
	 	(ii)	 	the Company’s obligations with respect to Sections 2.07, 2.08, 2.11
and 4.02 hereof;
	 
	 	(iii)	 	the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company’s and the Guarantors’ obligations in connection
herewith; and
	 
	 	(iv)	 	this Section 8.03.





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





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     Section 8.03 Covenant Defeasance.



            Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, each of the Company and the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in
Sections 4.03, 4.04 and 4.07 through 4.18 hereof and clauses (ii), (iii), (iv) and (v) of Section
5.01(a) hereof with respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter
be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or
act of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that
(unless the Company shall otherwise determine) such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, 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 6.01 hereof, but, except
as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through (g) shall not constitute Events of Default.



     Section 8.04 Conditions to Legal or Covenant Defeasance.



            The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes:




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




     (b) in the case of an election under Section 8.02 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) 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 confirm that, the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and shall be subject to federal income tax on the same amounts, in the



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same
manner and at the same times as would have been the case if such Legal Defeasance had not
occurred;




     (c) in the case of an election under Section 8.03 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and shall be
subject to federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred;




     (d) no Default or Event of Default shall have occurred and be continuing either: (a) on
the date of such deposit, or (b) insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 123rd day after the
date of deposit;




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




     (f) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that, (1) assuming no intervening bankruptcy of the Company or any Guarantor between the
date of deposit and the 123rd day following the deposit and assuming that no Holder is an
“insider” of the Company under applicable bankruptcy law, after the 123rd
day following the deposit, the trust funds shall not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, including Section 547 of the United States Bankruptcy Code and Section 15
of the New York Debtor and Creditor Law and (2) the creation of the defeasance trust does
not violate the Investment Company Act of 1940;




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




     (h) if the Notes are to be redeemed prior to their Stated Maturity, the Company shall
deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified
redemption date; and




     (i) the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that this Section 8.04 has been complied with.



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



          (a) Subject to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding

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Notes
shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes
and this Indenture, to the payment, either directly or through any Paying Agent (including the
Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium and Additional Interest, if
any, and interest, but such money need not be segregated from other funds except to the extent
required by law.




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




          (c) Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be a certification of the opinion referred to in
Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.




     Section 8.06 Repayment to the Company.



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



     Section 8.07 Reinstatement.



            If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case



81









 




may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.




ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER




     Section 9.01 Without Consent of Holders of Notes.



          (a) Notwithstanding Section 9.02 hereof, without the consent of any Holder of Notes, the
Company, the Guarantors and the Trustee may amend or supplement this Indenture or the Notes:





	 	(i)	 	to cure any ambiguity, defect or inconsistency;
	 
	 	(ii)	 	to provide for uncertificated Notes in addition to or in place of
certificated Notes;
	 
	 	(iii)	 	to provide for the assumption of the Company’s or any Guarantor’s
obligations to Holders of Notes in the case of a merger or consolidation or sale
of all or substantially all of the Company’s or such Guarantor’s assets;
	 
	 	(iv)	 	to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not materially adversely affect the
legal rights under this Indenture of any such Holder;
	 
	 	(v)	 	to comply with requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA;
	 
	 	(vi)	 	to comply with the provisions described under Section 4.17 hereof;
	 
	 	(vii)	 	to evidence and provide for the acceptance of appointment by a
successor Trustee;
	 
	 	(viii)	 	to conform the text of this Indenture, the Notes or any Note Guarantee to any
provision of the “Description of Notes” in the Offering Memorandum with respect
to the Notes;
	 
	 	(ix)	 	to provide for the issuance of Additional Notes in accordance with
this Indenture.





          (b) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 13.04 hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated

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to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture or otherwise.




     Section 9.02 With Consent of Holders of Notes.



          (a) Except as provided below in this Section 9.02, the Company, the Guarantors and the Trustee
may amend or supplement this Indenture or the Notes with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and any
existing Default or Event of Default or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the holders of a majority in principal amount of the then
outstanding Notes (including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes).




          (b) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of
Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 13.04
hereof, the Trustee shall join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or supplemental indenture.




          (c) The consent of the applicable Holders is not necessary under this Indenture to approve the
particular form of any proposed amendment or waiver. It is sufficient if such consent approves the
substance of the proposed amendment or waiver.




          (d) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including Additional Notes,
if any) may waive compliance in a particular instance by the Company with any provision of this
Indenture, or the Notes. However, without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 shall not (with respect to any Notes held by a non-consenting
Holder):





	 	(i)	 	reduce the principal amount of Notes whose holders must consent to
an amendment, supplement or waiver;
	 
	 	(ii)	 	reduce the principal of or change the fixed maturity of any Note or
alter the provisions, or waive any payment, with respect to the redemption of the
Notes;
	 
	 	(iii)	 	reduce the rate of or change the time for payment of interest on
any Note;




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	 	(iv)	 	waive a Default or Event of Default in the payment of principal of,
or interest or premium, or Additional Interest, if any, on, the Notes (except a
rescission of acceleration of the Notes by the holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the payment default that
resulted from such acceleration);
	 
	 	(v)	 	make any Note payable in money other than U.S. dollars;
	 
	 	(vi)	 	make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of holders of Notes to receive payments of
principal of, or interest or premium or Additional Interest, if any, on the
Notes;
	 
	 	(vii)	 	release any Guarantor from any of its obligations under its Note
Guarantee or this Indenture, except in accordance with the terms of this
Indenture;
	 
	 	(viii)	 	impair the right to institute suit for the enforcement of any payment on or
with respect to the Notes or the Note Guarantees;
	 
	 	(ix)	 	amend, change or modify the obligation of the Company to make and
consummate an Asset Sale Offer with respect to any Asset Sale in accordance with
Section 4.08 hereof after the obligation to make such Asset Sale Offer has
arisen, or the obligation of the Company to make and consummate a Change of
Control Offer in the event of a Change of Control in accordance with Section 4.07
after such Change of Control has occurred, including, in each case, amending,
changing or modifying any definition relating thereto;
	 
	 	(x)	 	except as otherwise permitted under Section 5.01 and Section 11.05,
consent to the assignment or transfer by the Company or any Guarantor of any of
their rights or obligations under this Indenture;
	 
	 	(xi)	 	amend or modify any of the provisions of this Indenture or the
related definitions affecting the ranking of the Notes or any Note Guarantee in
any manner adverse to the holders of the Notes or any Note Guarantee; or
	 
	 	(xii)	 	make any change in the preceding amendment and waiver provisions.





     Section 9.03 Compliance with Trust Indenture Act.



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



     Section 9.04 Revocation and Effect of Consents.



            Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the consenting Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting



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Holder’s Note, even if a
notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent
Holder of a Note may revoke the consent as to its Note if the Trustee, or the Company, receives
written notice of revocation before the date on which the Company certifies to such Trustee that
the Holders of the requisite principal amount of Notes have consented to such amendment or waiver.
An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder. After an amendment, supplement or waiver under this Indenture becomes
effective, the Company shall mail to Holders a notice briefly describing such amendment or waiver.
However, the failure to give such notice
to all Holders, or any defect therein, shall not impair or affect the validity of the
amendment or waiver.




     Section 9.05 Notation on or Exchange of Notes.



          (a) The Trustee may place an appropriate notation about an amendment, supplement or waiver on
any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.




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




     Section 9.06 Trustee to Sign Amendments, Etc.



            The Trustee shall sign any amended or supplemental indenture or Note authorized pursuant to
this Article Nine if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental
Indenture or Note until its Board of Directors approves it. In executing any amended or
supplemental indenture or Note, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture and that all conditions precedent thereto have been satisfied.



ARTICLE TEN

SECURITY




     Section 10.01 Rights of the Trustee.



          (a) Except to the extent inconsistent with Section 7.01(a), neither the Trustee nor any of its
respective officers, directors, employees, attorneys or agents shall be responsible for the
existence, genuineness, value or protection of any Collateral (except for the safe custody of any
Collateral in their possession and the accounting for moneys actually received by them hereunder),
for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the
creation, perfection, priority, sufficiency, continuance or protection of any Second Priority Lien,
or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the
Second Priority Liens or Notes Security Documents or for any delay in doing so. The Trustee shall
be deemed to have exercised reasonable care in the custody and

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preservation of any Collateral in
their possession if such Collateral is accorded treatment substantially equal to that which they
accord their own property.




          (b) The Trustee shall be accountable only for amounts that it actually receives as a result of
the enforcement of the Second Priority Liens or Security Documents.




     Section 10.02 Security Documents.



          (a) In order to secure the due and punctual payment of the Notes, the Company and the
Guarantors, shall, on the date hereof, enter into the Notes Security Documents to create the Second
Priority Liens on the Collateral in accordance with the terms thereof. In the event of a conflict
between the terms of this Indenture and the Notes Security Documents or the Intercreditor
Agreement, the Notes Security Documents or the Intercreditor Agreement shall control.




          (b) Each Holder of a Note, by accepting such Note, (i) agrees to all of the terms and
provisions of the Intercreditor Agreement and the Notes Security Documents and (ii) authorizes the
Trustee to enter into the Intercreditor Agreement and the other Notes Security Documents, to bind
the Holders on the terms set forth in the Notes Security Documents and the Intercreditor Agreement,
to perform and observe its obligations under the Notes Security Documents and the Intercreditor
Agreement and, unless violative of the provisions hereof and thereof, to execute any and all
documents, amendments, waivers, consents, releases or other instruments required (or authorized) to
be executed by it pursuant to the terms thereof.




          (c) Each Holder of a Note, by accepting such Note, acknowledges and agrees that, so long as
the Credit Agreement is outstanding,





	 	(i)	 	the Administrative Agent or holders of the First Priority Liens may
change, waive, modify or vary the Security Documents; provided that any such
change, waiver, modification or variance materially adversely affecting the
rights of the Holders of the Notes shall require the consent of the Trustee
(acting at the direction of Holders of a majority of the aggregate principal
amount of the Notes outstanding); and
	 
	 	(ii)	 	the Trustee may not amend, modify or supplement, or permit or
consent to any amendment, modification or supplement of, the Security Documents
in any way that would result in a default under the Credit Agreement, increase
the obligations of the Company or any Guarantor or confer additional material
rights on the Trustee or the holders of the Notes in a manner adverse in any
material respect to the Administrative Agent or the lenders under the Credit
Agreement, without the consent of the Administrative Agent; and





          (d) While the Credit Agreement is outstanding, the Company and any Guarantor shall not amend,
modify or supplement, or permit or consent to any amendment, modification or supplement of, the
Security Documents in any way that would be adverse to the holders of the Notes in any material
respect except in the following circumstances:




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	 	(i)	 	if the Administrative Agent agrees to any amendment or waiver of,
or consent under, any provision of the First Priority Lien Security Documents,
then, subject to Section 10.01(c)(i), such amendment, waiver or consent shall
automatically apply to the comparable provision in the Notes Security Documents;
	 
	 	(ii)	 	to effectuate a release of Collateral permitted under “Releases of
Liens” above; or
	 
	 	(iii)	 	with the written consent of holders of a majority of the principal
amount of the Notes then outstanding or without the consent of any holder of the
Notes in accordance with Section 9.01.





          (e) Notwithstanding Section 10.01(d), an amendment, waiver or consent granted by the
Administrative Agent shall not similarly modify the Security Documents if it would have the effect
of imposing additional duties on the Trustee without its consent or permitting additional Liens on
the Collateral that are not permitted under the terms of this Indenture.




          (f) In the event that any Senior Debt, including the Notes, is to be refinanced or replaced,
the Trustee (amongst others) shall enter into a further intercreditor agreement (and/or any
amendment or supplement to the Intercreditor Agreement) to provide substantially similar rights and
remedies to the providers of such refinancing as those afforded to the lenders under the Credit
Agreement and the Second Priority Liens. In addition, if the Company incurs any additional Senior
Debt which is entitled to benefit from the First Priority Liens, the Trustee shall enter into
further agreements to provide substantially similar rights and remedies to the providers of such
senior debt as those afforded to the lenders under the Credit Agreement.




     Section 10.03 Application of Proceeds of Collateral.



            Upon any realization upon the Collateral, the proceeds thereof shall be applied, subject to
the terms of the Intercreditor Agreement, in accordance with the Security Documents and Section
6.10(a).



     Section 10.04 Possession, Use and Release of Collateral.



          (a) Subject to the terms of the Intercreditor Agreement and the other Security Documents, the
Company and each Guarantor shall have the right to remain in possession and retain exclusive
control of the Collateral (other than any cash, securities, obligations and cash equivalents
constituting part of the Collateral to the extent deposited with the Trustee, or any agent of the
Trustee, in accordance with the provisions of the Security Documents and other than as set forth in
the Security Documents), to freely operate the Collateral and to collect, invest and dispose of any
income therefrom.




          (b) In the event of the release of Second Priority Liens on any property constituting
Collateral pursuant to Section 10.11, the Trustee shall, at the Company’s expense, promptly execute
and deliver to the Company or the applicable Guarantor such documents as the Company or such
Guarantor shall reasonably request to evidence the release of such item of

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Collateral from the
Second Priority Liens; provided that the Company shall have delivered to the Trustee, at least five
Business Days prior to the date of the proposed release, a written request for release describing
the item of Collateral and the terms of the sale, lease, transfer or other disposition in
reasonable detail, including, without limitation, the price thereof and any expenses in connection
therewith, together with a form of release for execution by the Trustee and a certificate of the
Company to the effect that the relevant transaction is in compliance with this Indenture, the
Intercreditor Agreement and the other Security Documents, and as to such other matters as the
Trustee may reasonably request.




          (c) Each Holder of a Note, by accepting such Note, acknowledges and agrees that, so long as
any First Priority Lien Obligations are outstanding, the holders of the First Priority Liens will
control all Enforcement Actions related to the Collateral to the extent set forth in the
Intercreditor Agreement.




          (d) Each Holder of a Note, by accepting such Note, acknowledges that, notwithstanding the
provisions set forth in this Section 10.04, the Company and each Guarantor may, without any release
or consent by the Trustee, perform a number of activities in the ordinary course in respect of the
Collateral to the extent not restricted or prohibited by the Security Documents and this Indenture,
including, (i) selling or otherwise disposing of any property subject to the Second Priority Liens
which has become worn out, defective or obsolete or not used or useful in the business, (ii)
abandoning, terminating, canceling, releasing or making alterations to or substitutions of any
lease or contracts subject to the Second Priority Liens, (iii) surrendering or modifying any
franchise, license or permit subject to the Second Priority Liens which it may own or under which
it may be operating, (iv) altering, repairing, replacing, changing the location or position of and
adding to its structure, machinery, systems, equipment, fixtures and appurtenances, (v) granting a
license in any intellectual property, (vi) selling, transferring or otherwise disposing of
inventory in the ordinary course of business, (vii) selling, collecting, liquidating, factoring or
otherwise disposing of accounts receivable in the ordinary course of business and (viii) making
cash payments (including for the repayment of Indebtedness) from cash that is at any time part of
the Collateral in the ordinary course of business that are not otherwise prohibited by this
Indenture.




     Section 10.05 Opinion of Counsel.



            So long as the Notes Security Documents have not been terminated in accordance with the terms
thereof, the Company shall deliver to the Trustee, if and for so long as such delivery is required
by Section 314(b) of the TIA, at least annually, within 90 days after December 31 of each year
(commencing with December 31, 2007), an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture as is necessary to maintain the Second Priority Liens, and reciting the
details of such action, or referring to prior Opinions of
Counsel when such details were given, or stating that in the opinion of such counsel, no such
action is necessary to maintain such Second Priority Liens.




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     Section 10.06 Further Assurances.



               The Company and each Guarantor shall (a) furnish to the Trustee (for the benefit of the
Trustee and the Holders) from time to time, at the Company’s or such Guarantor’s sole cost and
expense, statements and schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Trustee may request, all in such detail as the
Trustee may request; (b) subject to the Intercreditor Agreement, at any time and from time to time,
upon the written request of the Trustee, and at the sole expense of the Company or such Guarantor,
promptly execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register,
as applicable, any and all such further acts, deeds, conveyances, security agreements, mortgages,
assignments, estoppel certificates, financing statements and continuations thereof (including,
without limitation, any financing or continuation statements under the Uniform Commercial Code (or
other similar laws) in effect in any jurisdiction with respect to the Second Priority Liens),
termination statements, notices of assignment, transfers, certificates, assurances and other
instruments as may be required from time to time in order to (i) subject to the Second Priority
Liens any of the property or assets constituting Collateral and (ii) perfect and maintain the
validity, effectiveness, perfection and priority of any of the Second Priority Liens; (c) subject
to the Intercreditor Agreement and without limitation of the foregoing subsection (b), with respect
to any fee interest in real property constituting Collateral acquired after the Issue Date by the
Company or any Guarantor, promptly (i) execute and deliver a mortgage in favor of the Trustee,
creating a security interest for the benefit of the Trustee and the Holders of the Notes, covering
such real property, and (ii) deliver to the Trustee title and extended coverage insurance covering
such real property in an amount at least equal to the purchase price of such real property, with
local fixture filings being made in respect of fixtures associated with such real property as well
as a current ALTA survey thereof, together with a surveyor’s certificate; and (d) promptly deliver
to the Trustee such Opinions of Counsel, if any, as the Trustee may reasonably require with respect
to this Section 10.06 (including opinions as to validity, enforceability and perfection of security
interests).



     Section 10.07 Certain TIA Requirements.



          (a) To the extent applicable, and in addition to any other requirements under this Indenture,
the Company shall cause § 313(b) of the TIA (relating to reports) and § 314(d) of the TIA (relating
to the release of property or securities from the Second Priority Liens or relating to the
substitution for such Liens of any property or securities to be subjected to the Secured Priority
Liens) to be complied with and shall furnish to the Trustee, prior to each proposed release of
Collateral pursuant to this Indenture and the Security Documents, all documents required by §
314(d) of the TIA and an Opinion of Counsel to the effect that the accompanying documents
constitute all documents required by § 314(d) of the TIA.




          (b) Notwithstanding anything to the contrary in this Section 10.07, the Company shall not be
required to comply with all or any portion of § 314(d) of the TIA if the Board of Directors of the
Company determines, in good faith based on advice of counsel, that, under the terms of § 314(d) of
the TIA and/or any interpretation or guidance as to the meaning thereof of the Commission or its
staff, including publicly available “no action” letters or exemptive orders, all or any portion of
§ 314(d) of the TIA is inapplicable to all or any part of







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the Collateral or the release, deposit or
substitution thereof, and the Trustee receives an Opinion of Counsel to such effect.




     Section 10.08 Suits to Protect the Collateral.



               Subject to the provisions of the Intercreditor Agreement and the Security Documents, the
Trustee shall have the authority to institute and to maintain such suits and proceedings as the
Trustee may deem reasonably expedient to prevent any impairment of the Collateral by any acts which
may be unlawful or in violation of any of the Security Documents or this Indenture, and such suits
and proceedings as the Trustee may deem reasonably expedient to preserve or protect its interests
and the interests of the Holders of the Notes in the Collateral (including 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 Second Priority Liens or be
prejudicial to the interests of the Holders of the Notes).



     Section 10.09 Purchaser Protected.



               In no event shall any purchaser in good faith or other transferee of any property purported to
be released hereunder be bound to ascertain the authority of the Trustee to execute the release or
to inquire as to the satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration given by such
purchaser or other transferee; nor shall any purchaser or other transferee of any property or
rights permitted to be sold by this Article Ten, be under obligation to ascertain or inquire into
the authority of the Company or any Guarantor, as applicable, to make any such sale or other
transfer.



     Section 10.10 Powers Exercisable by Receiver or Trustee.



               In case the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article Ten upon the Company or any Guarantor, as
applicable, with respect to the release, sale or other disposition of such property may be
exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall
be deemed the equivalent of any similar instrument of the Company or any Guarantor, as applicable,
or of any officer or officers thereof required by the provisions of this Article Ten.



     Section 10.11 Release of Second Priority Liens.



          (a) The Second Priority Liens on any asset constituting Collateral shall be released:





	 	(i)	 	upon the sale by the Company or any Guarantor of such asset (other
than in an Enforcement Action) in a transaction complying with the provisions of
the Credit Agreement and this Indenture, including Section 4.08 and, if the asset
is all of the Capital Stock of a Guarantor, such Guarantor’s Guarantee of the
Notes shall also be released as provided in Section 11.04.




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	 	(ii)	 	upon the designation of a Guarantor as a Unrestricted Subsidiary,
with respect to the assets held by such Guarantor; provided that the First
Priority Liens over such assets are also released;
	 
	 	(iii)	 	as to any property constituting Collateral that is owned by a
Guarantor that has been released from its Guarantee in accordance with the terms
of the Indenture, concurrently with the release of such Guarantee;
	 
	 	(iv)	 	in connection with the sale of an asset pursuant to an Enforcement
Action in which (x) the First Priority Liens over that asset are released, (y)
the proceeds of such sale are used to repay the obligations secured by the First
Priority Liens (and, to the extent of any excess, the Notes) or the Second
Priority Liens are granted on the proceeds of such sale and (z) the sale is made
pursuant to the Administrative Agent’s and the lenders under the Credit
Agreement’s remedies in respect of such Collateral, unless such sale is to the
lenders under the Credit Agreement, in which case the Second Priority Liens shall
be released only in the event that lenders under the Credit Agreement
subsequently sell such assets; and
	 
	 	(v)	 	to the extent such asset is sold pursuant to a bankruptcy court
order.





ARTICLE ELEVEN

NOTE GUARANTEES




     Section 11.01 Guarantee.



          (a) Subject to this Article Eleven, each of the Guarantors hereby, jointly and severally, and
fully and unconditionally, guarantees to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of, this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that: (a) the principal of, premium, if any, and interest and Additional Interest, if
any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if any,
and interest and Additional Interest, if any, on the Notes, if lawful (subject in all cases to
any applicable grace period provided herein), and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, the same shall be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or
any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment
and not a guarantee of collection.




     (b) The Guarantors hereby agree that, to the maximum extent permitted under applicable law,
their obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to enforce



91









 




the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever and covenants that
this Note Guarantee shall not be discharged except by complete performance of the obligations
contained in the Notes and this Indenture.




          (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to any of the Company or the Guarantors, any amount paid by any of them to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.




          (d) Each 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. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes
of this Note 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
declaration of acceleration of such obligations as provided in Article Six hereof, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any
non paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Note Guarantee.




     Section 11.02 Limitation on Guarantor Liability.



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



     Section 11.03 Execution and Delivery of Note Guarantee.



               The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Note Guarantee of each applicable Guarantor set



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forth in this
Indenture or any supplemental indenture on behalf of such Guarantor. Neither the Company nor any
Guarantor shall be required to make a notation on the Notes to reflect any Note Guarantee.




     Section 11.04 Releases.



          (a) Any Guarantor shall be released and relieved of any obligations under its Note Guarantee
(and Section 4.17(b) hereof shall not apply):





	 	(i)	 	in connection with any sale or other disposition of all of the
Capital Stock of a Guarantor to a Person that is not (either before or after
giving effect to such transaction) a Restricted Subsidiary of the Company, if the
sale of all such Capital Stock of that Guarantor complies with Section 4.08
hereof;
	 
	 	(ii)	 	if the Company designates any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary under this Indenture;
	 
	 	(iii)	 	solely in the case of a Note Guarantee created pursuant to Section
4.17(b) hereof, upon the release or discharge of the Guarantee which resulted in
the creation of such Note Guarantee pursuant to Section 4.17(b), except a
discharge or release by or as a result of payment under such Guarantee.





          (b) Upon any such occurrence specified in Section 11.04(a) hereof, the Trustee shall execute
documents reasonably required in order to evidence the release, discharge and termination in
respect of such Note Guarantee. Neither the Company nor any Guarantor shall be required to make a
notation on the Notes to reflect any such release, discharge and termination in respect of such
Note Guarantee.




          (c) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for the other obligations
of any Guarantor under this Indenture as provided in this Article Eleven.




     Section 11.05 Guarantors May Consolidate, Etc., on Certain Terms



          (a) A Guarantor shall not sell or otherwise dispose of all or substantially all of its assets
to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving
Person), another Person, other than the Company or another Guarantor, unless:





	 	(i)	 	immediately after giving effect to that transaction, no Default or
Event of Default exists; and
	 
	 	(ii)	 	either:






     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is organized or existing under the laws of the United States, any state
thereof or the District of Columbia and assumes all the obligations of that



93









 






Guarantor under this Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture satisfactory to the Trustee; or




     (B) such sale or other disposition or consolidation or merger complies with
Section 4.08 hereof, to the extent applicable.



ARTICLE TWELVE

SATISFACTION AND DISCHARGE




     Section 12.01 Satisfaction and Discharge.



          (a) This Indenture shall be discharged and shall cease to be of further effect as to all Notes
issued thereunder, when:





	 	(i)	 	either:






     (A) all Notes that have been authenticated (except lost, stolen or destroyed
Notes that have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or




     (B) all Notes that have not been delivered to the Trustee for cancellation have
become due and payable by reason of the mailing of a notice of redemption or
otherwise or shall become due and payable within one year and the Company or any
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in
such amounts as shall be sufficient without consideration of any reinvestment
of interest, to pay and discharge the entire indebtedness on the Notes not delivered
to the Trustee for cancellation for principal, premium and Additional Interest, if
any, and accrued interest to the date of maturity or redemption;




	 	(ii)	 	no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such deposit
and such deposit shall not result in a breach or violation of, or constitute a
default under, any other material instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;
	 
	 	(iii)	 	the Company or any Guarantor has paid or caused to be paid all
sums then payable by it under this Indenture; and
	 
	 	(iv)	 	the Company has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the Notes
at maturity or the redemption date, as the case may be.





          (b) The Company shall deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge as contemplated by this
Article Twelve shall have been satisfied.







94









 








     Section 12.02 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.



               Subject to Section 12.03 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee pursuant to Section 12.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium and
Additional Interest, if any, and interest, but such money shall be segregated from other funds
except to the extent required by law.



     Section 12.03 Repayment to the Company.



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



ARTICLE THIRTEEN

MISCELLANEOUS




     Section 13.01 Trust Indenture Act Controls.



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



     Section 13.02 Notices.



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



If to the Company or any Guarantor:



Geokinetics Inc.

One Riverway, Suite 2100







95









 







Houston, Texas 77056

Facsimile: 281-398-9996

Attention: Scott A. McCurdy, Vice President and Chief Financial Officer



With courtesy copies to:



Chamberlain, Hrdlicka, White, Williams & Martin

1200 Smith Street, Suite 1400

Houston, Texas 77002

Facsimile: (713) 658-2553

Attention: James J. Spring, III



If to the Trustee:



Wells Fargo Bank, National Association

1445 Ross Avenue – 2nd Floor

Corporate Trust Services

Dallas, TX 75202-2812



Facsimile: 214-777-4086

Attention: Patrick T. Giordano, Vice President




          (b) The Company, the Guarantors or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.




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




          (d) Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.




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




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






96









 








     Section 13.03 Communication by Holders of Notes with Other Holders of Notes.



               Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to its rights
under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).



     Section 13.04 Certificate and Opinion as to Conditions Precedent.



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




          (a) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 13.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




          (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 13.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.



     Section 13.05 Statements Required in Certificate or Opinion.



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




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




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




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




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



     Section 13.06 Rules by Trustee and Agents.



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



97









 





     Section 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.



               No director, officer, employee, incorporator, stockholder, member, manager or partner of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases these individuals from this liability. The waiver and release are part
of the consideration for issuance of the Notes.



     Section 13.08 Governing Law.



               THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES.



     Section 13.09 Consent to Jurisdiction.



               Any legal suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby may be instituted in the federal courts of the United States of
America located in The City of New York or the courts of the State of New York in each case located
in The City of New York (collectively, the “Specified Courts”), and each party irrevocably submits
to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service
of any process, summons, notice or document by mail to such party’s address set forth above shall
be effective service of process for any suit, action or other proceeding brought in any such court.
The parties (to the fullest extent permitted by applicable law) irrevocably and unconditionally
waive any objection to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court
has been brought in an inconvenient forum.



     Section 13.10 No Adverse Interpretation of Other Agreements.



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



     Section 13.11 Successors.



               All agreements of the Company in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors. All agreements of each
Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section
11.04 hereof.



     Section 13.12 Severability.



               In case any provision in this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not (to
the fullest extent permitted by applicable law) in any way be affected or impaired thereby.



98









 





     Section 13.13 Counterpart Originals.



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



     Section 13.14 Acts of Holders.



          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by the Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by
agents duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company if made in the manner provided in this Section
13.14.




          (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such witness, notary or officer the execution
thereof. Where such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The
fact and date of the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee deems sufficient.




          (c) Notwithstanding anything to the contrary contained in this Section 13.14, the principal
amount and serial numbers of Notes held by any Holder, and the date of holding the same, shall be
proved by the register of the Notes maintained by the Registrar as provided in Section 2.04 hereof.




          (d) If the Company shall solicit from the Holders of the Notes any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by
or pursuant to a resolution of its Board of Directors, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA § 316(c), such record date shall be the record date specified in or pursuant to such
resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation
of Holders generally in connection therewith or the date of the most recent list of Holders
forwarded to the Trustee prior to such solicitation pursuant to Section 2.06 hereof and not later
than the date such solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining whether Holders of the requisite







99









 







proportion of the then outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the
then outstanding Notes shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.




          (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.




          (f) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Note may do so itself with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount.




     Section 13.15 Benefit of Indenture.



               Nothing, in this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto, any Paying Agent, any Registrar and its successors hereunder, and
the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 13.16 Table of Contents, Headings, Etc.



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



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




100









 








S&S Draft — December 6, 2006




SIGNATURES



GEOKINETICS INC.




	 	 	 	 	 
	By:
	 	 /s/
Scott A. McCurdy	 	 
	 

	 	 	 	 
	 

	 	Name: Scott A. McCurdy	 	 
	 

	 	Title: Vice President and Chief Financial Officer	 	 





GUARANTORS:



Advanced Seismic Technology, Inc.



Geokinetics Holdings, Inc.



Geophysical Development Corporation



Grant Geophysical Corp.



Grant Geophysical, Inc.



Grant Geophysical (Int’l), Inc.



Quantum Geophysical, Inc.



Trace Energy Services, Inc.




	 	 	 	 	 
	By:
	 	 /s/
Scott A. McCurdy	 	 
	 

	 	 	 	 
	 

	 	Name: Scott A. McCurdy	 	 
	 

	 	Title: Vice President	 	 





Indenture



 









 






WELLS FARGO BANK, NATIONAL ASSOCIATION,




	 	 	 	 	 
	 

	 	as Trustee	 	 
	 

	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name: Patrick T. Giordano	 	 
	 

	 	Title: Vice President	 	 





Indenture



 









 






EXHIBIT A




[Face of Note]




CUSIP [     ]




			
	 	 	 
	No. ___
	 	**$[                    ]**
	 	 	 





GEOKINETICS INC.




Second Priority Senior Secured Floating Rate Note due 2012




Issue Date: [     ]




          [NAME OF COMPANY] (the “Company”, which term includes any successor under the Indenture
hereinafter referred to), for value received, promises to pay to [NAME], or its registered assigns,
the principal sum of [  ] DOLLARS ($[                    ]) on [     ], 2012.



Interest Payment Dates: [     ]



Record Dates: [     ]




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








A-1 









 








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




	 	 	 	 	 
	 	GEOKINETICS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-2 









 






	 	 	 	 	 


This is one of the Second Priority Senior Secured Floating Rate Notes due 2012 to which reference
is made in the within-mentioned Indenture.



Dated: [     ]



WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






A-3 









 






[Reverse Side of Note]




GEOKINETICS INC.




Second Priority Senior Secured Floating Rate Note due 2012




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




[Insert the Private Placement legend, if applicable, pursuant to the provisions of the Indenture].




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



               1. Interest. Interest on the Notes will be payable quarterly in arrears on March 15, June 15,
September 15, and December 15, commencing on March 15, 2007. The interest rate for each quarterly
interest period will be determined on the second London Banking Day prior to the first day of the
interest period (the “Determination Date”). The interest rate for such quarterly period will be
equal to the LIBOR rate, as determined at 11:00 a.m. London time, on the Determination Date, for
deposits maturing at or around the end of such quarterly interest period, plus 6.5% per year (as
determined by the Calculation Agent). The Company will make each interest payment to the Holders
of record on the immediately preceding March 1, June 1, September 1 and December 1. Any Additional
Interest due will be paid on the same dates as interest on the Notes. The Company shall pay
interest (including post petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful;
it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest, and Additional Interest (without regard to any applicable
grace period), at the same rate to the extent lawful. Interest on the Notes will accrue from the
date of original issuance or, if interest has already been paid, from the date it was most recently
paid. Interest will be computed on the basis of a 360-day year comprising twelve 30-day months.



               “LIBOR” with respect to an Interest Period, will be the rate (expressed as a percentage per
annum) for deposits in United States dollars for three-month periods beginning on the first day of
such Interest Period that appears on Telerate Page 3750 as of 11:00 a.m., London time, on the
Determination Date. If Telerate Page 3750 does not include such a rate or is unavailable on a
Determination Date, the Calculation Agent will request the principal London office of each of four
major banks in the London interbank market, as selected by the Calculation Agent, to provide such
bank’s offered quotation (expressed as a percentage per annum), as of approximately 11:00 a.m.,
London time, on such Determination Date, to prime banks in the London interbank market for deposits
in a Representative Amount in United States dollars for a three-month period beginning on the first
day of such Interest Period. If at least two such offered quotations are so provided, LIBOR for the
Interest Period will be the arithmetic mean of such quotations. If fewer than two such quotations
are so provided, the Calculation Agent will request each of three major banks in New York City, as
selected by the Calculation Agent, to provide such bank’s rate (expressed as a percentage per
annum), as of approximately 11:00 a.m., New York City time, on such Determination Date, for loans
in a Representative Amount in United States dollars to leading European banks for a three-month
period beginning on the first day of such Interest Period. If at least two such rates are so
provided, LIBOR for the Interest Period will



A-4 









 




be the arithmetic mean of such rates. If fewer than two such rates are so provided, then LIBOR
for the Interest Period will be LIBOR in effect with respect to the immediately preceding Interest
Period.




               2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest)
to the Persons who are registered Holders of Notes at the close of business on the March 1, June 1,
September 1 and December 1 next preceding the interest payment date, even if such Notes are
canceled after such record date and on or before such interest payment date, except as provided in
Section 2.13 of the Indenture with respect to defaulted interest. The Notes shall be payable as to
principal, interest and premium and Additional Interest, if any, at the offices or agencies of one
or more Paying Agents and Registrars maintained for such purpose in The City of New York, New York,
or, at the option of the Company, payment of interest, may be made by check mailed to the Holders
at their addresses set forth in the register of Holders, and provided that payment by wire transfer
of immediately available funds shall be required with respect to the principal of, and premium, if
any, interest and Additional Interest, if any, on, all Global Notes and all other Notes the Holders
of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in U.S. dollars.



               3. Paying Agent and Registrar. Initially, Wells Fargo Bank, National Association, the Trustee
under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without prior notice to any Holder. The Company or any of its Subsidiaries may
act in any such capacity.



               4. Indenture. The Company issued the Notes under an Indenture dated as of December 15, 2006
(the “Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the TIA.
The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act
for a statement of such terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall (to the fullest extent permitted
by law) govern and be controlling. The Indenture pursuant to which this Note is issued provides
that an unlimited aggregate principal amount of Additional Notes may be issued thereunder.



               5. Optional Redemption.



          (a) At any time prior to June 15, 2007, the Company may redeem up to all or part of the
aggregate principal amount of Notes issued under the Indenture (including any Additional Notes) at
a redemption price of 103% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the redemption date, with the net cash proceeds of one or
more Equity Offerings; provided that the redemption must occur within 60 days of the date of the
closing of such Equity Offering.




          (b) On or after June 15, 2007 and prior to December 15, 2008, the Company may redeem up to 35%
of the aggregate principal amount of Notes issued under the Indenture (including any Additional
Notes) at a redemption price of 100% of the principal amount thereof, plus an amount equal to four
times the quarterly interest payment next payable on the Notes, accrued and unpaid interest, and
Additional Interest, if any, thereon to the redemption date, with






A-5 









 







the net cash proceeds of one or more Equity Offerings; provided that the redemption must occur
within 60 days of the date of the closing of such Equity Offering.




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




	 	 	 	 	 
	Year	 	Percentage
	2008
	 	 	102	%
	 
	 	 	 	 
	2009
	 	 	101	%
	 
	 	 	 	 
	2010 and thereafter
	 	 	100.000	%






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



               7. Selection and Notice of Redemption. Any redemption pursuant to paragraph 5 above shall be
made pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.



               8. Repurchase at Option of Holder.



          (a) Upon the occurrence of a Change of Control, each Holder of Notes shall have the right to
require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of such Holder’s Notes on the terms set forth in the Indenture at a purchase price in cash equal to
not less than 101% of the aggregate principal amount thereof plus accrued and unpaid interest, and
Additional Interest, if any, thereon, to the date of repurchase; provided that the Company shall
not be obligated to repurchase Notes in the event that it has exercised its right to redeem all of
the Notes described in paragraph 5 above.




          (b) The Company is, subject to certain conditions, obligated to make an offer to repurchase
Notes at 100% of the principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, to the date of repurchase, which shall be payable in cash, with certain net cash
proceeds of certain sales or other dispositions of assets in accordance with the terms of the
Indenture, all as more particularly described in the Indenture.




               9. Denominations, Transfer and Exchange. The Notes are in registered form, without coupons,
in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. As set forth more fully in the
Indenture, (a) the Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes required by law or permitted by the Indenture;
(b) the Company need not exchange or register the transfer of any Note or portion of a Note



A-6 









 




selected for redemption, except for the unredeemed portion of any Note being redeemed in part; and
(c) the Company need not transfer or exchange any Note for a period of 15 days prior to a selection
of Notes to be redeemed or during the period between a record date and the corresponding Interest
Payment Date.




               10. Collateral. The obligations of the Company under the Notes and the Guarantors under their
Guarantees are secured by a second priority security interest on all property and assets of the
Company and the Guarantors constituting Collateral.



               11. Persons Deemed Owners. The registered Holder of a Note shall be treated as its owner for
all purposes.



               12. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding and Additional Notes, if any, voting as a single
class (including, without limitation, consents obtained in connection with a purchase of, or tender
offer or exchange offer for, the Notes), and any existing Default or compliance with any provision
of the Indenture or the Notes may be waived with the consent of the Holders of a majority in
principal of the Notes then outstanding and Additional Notes, if any, voting as a single class
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes). The Indenture may also be amended without the consent of any
Holders as provided in the Indenture.



               13. Defaults and Remedies. In the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company or any Significant Subsidiary of the Company
(or any Restricted Subsidiaries that together would constitute a Significant Subsidiary), all
outstanding Notes shall become due and payable immediately without further action or notice. If
any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be due and payable
immediately by notice in writing to the Company specifying the Event of Default. Holders of the
Notes may not enforce the Indenture or the Notes except as provided in the Indenture. As more
particularly provided in the Indenture, (a) subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any
trust or power; (b) the Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to the payment of
principal or interest or Additional Interest, if any) if it determines that withholding notice is
in their interest; and (c) the Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may, on behalf of the Holders of all of the Notes, waive
any existing Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest or Additional Interest, if any,
on, or the principal of, the Notes.



               14. Trustee Dealings with the Company. The Trustee, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company
or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were
not the Trustee.



A-7 









 





               15. Guarantees. The Company’s obligations under the Notes are guaranteed on a joint and
several basis by each of the Guarantors to the extent set forth in the Indenture.



               16. No Recourse Against Others. No director, officer, employee, incorporator, stockholder,
member, manager or partner of the Company or any Guarantor, as such, shall have any liability for
any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases these individuals from this
liability. The waiver and release are part of the consideration for issuance of the Notes.



               17. Authentication. This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.



               18. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.
In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration
Rights Agreement dated December 15, 2006, among the Company, the Guarantors and the parties named
on the signature pages thereof or, in the case of Additional Notes, the Holders of Additional Notes
shall have the rights set forth in one or more registration rights agreements, if any, between the
Company, the Guarantors and the other parties thereto, relating to rights given by the Company and
the Guarantors to the purchasers of Additional Notes (the “Registration Rights Agreement”).



               19. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes
and the Trustee may use CUSIP numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.



               20. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE, THIS NOTE AND THE GUARANTEES.



               The Company shall furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:


Geokinetics Inc.

One Riverway, Suite 2100

Houston, Texas 77056

Facsimile: 281-398-9996

Attention: Scott A. McCurdy, Vice President and Chief Financial Officer



With courtesy copies to:



Chamberlain, Hrdlicka, White, Williams & Martin








A-8 









 







1200 Smith Street, Suite 1400

Houston, Texas 77002

Facsimile: (713) 658-2553

Attention: James J. Spring, III









A-9 









 








Assignment Form





To assign this Note, fill in the form below:


(I) or (we) assign and transfer this Note to:                                                            
                                                                                   
                 




                                                                          
                     (Insert assignee’s legal name)




      



(Insert assignee’s soc. sec. or tax I.D. no.)




      




      




      




      



(Print or type assignee’s name, address and zip code)



and irrevocably appoint                                                                 
                                                                             
                                       



to transfer this Note on the books of the Company. The agent may substitute another to act for
him.




	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(Sign exactly as your name appears on the face of this Note)





Signature Guarantee*:                                        






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-10 









 










OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.08 or
4.09 of the Indenture, check the box below:



o



          If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.08 or 4.09 of the Indenture, state the amount you elect to have purchased:



$                    


Date:                    




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on the face of this Note)






	 	 	 	 	 
	 

	 	Tax Identification No.:	 	 
	 

	 	 	 	 




Signature Guarantee*:                    






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-11 









 










SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE




          The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount at	 	 
	 	 	Amount of Decrease in	 	Amount of Increase in	 	Maturity	 	Signature of
	 	 	Principal Amount at	 	Principal Amount at	 	of this Global Note	 	Authorized Officer
	 	 	Maturity	 	Maturity	 	Following such	 	of Trustee or
	Date of Exchange	 	of this Global Note	 	of this Global Note	 	decrease (or increase)	 	Note Custodian
	 
	 	 	 	 	 	 	 	 





A-12 









 






EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




[Name of Company]

[Address]



[Name of Company]

[Address]




          Re: Second Priority Senior Secured Floating Rate Notes due 2012




          Reference is hereby made to the Indenture, dated as of December [14], 2006 (the “Indenture”),
among Geokinetics Inc., a Delaware corporation (the “Company”), the Guarantors and [ ], as
trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.




                                                   (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount at maturity of $                     in
such Note[s] or interests (the “Transfer”), to                                          (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:




[CHECK ALL THAT APPLY]




          1. o Check if Transferee shall take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Restricted Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or Restricted Definitive
Note for its own account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Restricted Definitive Note shall be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global
Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.




          2. o Check if Transferee shall take delivery of a beneficial interest in the Regulation S
Permanent Global Note or a Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
Person in the United States and either (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person






B-1 









 







acting on its behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S under the Securities Act, and (iii) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note shall be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Permanent Global Note, the Regulation S Global Note
and/or the Restricted Definitive Note and in the Indenture and the Securities Act.




          3. o Check and complete if Transferee shall take delivery of a beneficial interest in a
Restricted Global Note or a Restricted Definitive Note pursuant to any provision of the Securities
Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with
the transfer restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):





     (a) o such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification);



or





     (b) o such Transfer is being effected to the Company or a subsidiary thereof;



or




          (c) o such Transfer is being effected pursuant to an effective registration statement under
the Securities Act and in compliance with the prospectus delivery requirements of the Securities
Act.





     4. o Check if Transferee shall take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.



          (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note shall no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
the Restricted Definitive Notes and in the Indenture.




B-2 









 








          (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note shall no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on the Restricted Definitive Notes and in the Indenture.




          (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note shall not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.




          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.




	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 





Dated:                    




B-3 









 








ANNEX A TO CERTIFICATE OF TRANSFER




	 	 	 	 	 	 	 
	1. The Transferor owns and proposes to transfer the following:
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	[CHECK ONE OF (A) OR (B)]
	 
	 	 	 	 	 	 
	 	 	(A)   o a beneficial interest in the:
	 
	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	o 144A Global Note (CUSIP [     ]); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	o Regulation S Global Note (CUSIP [     ]); or
	 
	 	 	 	 	 	 
	 	 	(B)   o a Restricted Definitive Note.
	 
	 	 	 	 	 	 
	2. After the Transfer the Transferee will hold:
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	[CHECK ONE]
	 
	 	 	 	 	 	 
	 	 	(A)   o a beneficial interest in the:
	 
	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	o 144A Global Note (CUSIP [     ]); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	o Regulation S Global Note (CUSIP [     ]); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(iii)
	 	o Unrestricted Global Note (CUSIP [     ]); or
	 
	 	 	 	 	 	 
	 	 	(B)   o a Restricted Definitive Note; or
	 
	 	 	 	 	 	 
	 	 	(C)   o an Unrestricted Definitive Note,
	 
	 	 	 	 	 	 
	 	 	in accordance with the terms of the Indenture.






B-4 









 






EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




[Name of Company]

[Address]




[Name of Company]

[Address]




               Re: Second Priority Senior Secured Floating Rate Notes due 2012



               Reference is hereby made to the Indenture, dated as of December [14], 2006 (the “Indenture”),
among Geokinetics Inc., a Delaware corporation (the “Company”), the Guarantors and [ ], as
trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.



                                                        (the “Owner”) owns and proposes to exchange the Note[s] or interest
in such Note[s] specified herein, in the principal amount at maturity of $                     in such
Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies
that:



               1. o Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted
Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global
Note.



          (c) o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount at maturity, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii)
the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.




          (d) o Check if Exchange is from beneficial interest in a Restricted Global Note to an
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive








D-1 









 







Note is being acquired in compliance with any applicable blue sky securities laws of any state
of the United States.




          (e) o Check if Exchange is from a Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.




          (f) o Check if Exchange is from a Restricted Definitive Note to an Unrestricted Definitive
Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.




               2. o Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes.



          (A) o Check if Exchange is from beneficial interest in a Restricted Global Note to a
Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued shall continue to be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note
and in the Indenture and the Securities Act.




          (B) o Check if Exchange is from a Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE] ? 144A Global Note, ? Regulation S Global Note, with
an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable





D-2 









 







blue sky securities laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest issued shall be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
relevant Restricted Global Note and in the Indenture and the Securities Act.




               This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 





Dated:                    





D-3