Exhibit
4.1


 


EXECUTION VERSION


 


	
   

  







 


LANTHEUS
MEDICAL IMAGING, INC.,


as
Issuer,


 


GUARANTORS
NAMED HEREIN,


as
Guarantors,


 


and


 


WILMINGTON
TRUST FSB,


as
Trustee


 






 


INDENTURE


 


Dated
as of May 10, 2010


 






 


9.750%
Senior Notes due 2017


 






 


	
   

  


















 


Lantheus Medical Imaging, Inc.


 


Reconciliation and tie between Trust Indenture Act of 1939


and Indenture, dated as of May 10, 2010*


 


	
  Trust
  Indenture Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  	
   

  
	
  § 310

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.08

  
	
   

  	
  (a)(5)

  	
   

  	
  6.08

  
	
   

  	
  (b)

  	
   

  	
  6.05, 6.09

  
	
  § 311

  	
   

  	
   

  	
  1.01, 6.05

  
	
  § 312

  	
  (a)

  	
   

  	
  7.01, 7.02

  
	
   

  	
  (b)

  	
   

  	
  7.02

  
	
   

  	
  (c)

  	
   

  	
  7.02

  
	
  § 313

  	
  (a)

  	
   

  	
  7.03

  
	
   

  	
  (b)(1)

  	
   

  	
  7.01

  
	
   

  	
  (b)(2)

  	
   

  	
  7.01

  
	
   

  	
  (c)(1)

  	
   

  	
  6.02, 7.01, 7.03

  
	
   

  	
  (c)(2)

  	
   

  	
  6.02, 7.01, 7.03

  
	
  § 314

  	
  (a)

  	
   

  	
  1.02, 1.05, 1.06, 10.08

  
	
   

  	
  (a)(4)

  	
   

  	
  10.07

  
	
   

  	
  (c)(1)

  	
   

  	
  1.02

  
	
   

  	
  (c)(2)

  	
   

  	
  1.02

  
	
   

  	
  (c)(3)

  	
   

  	
  N/A

  
	
   

  	
  (e)

  	
   

  	
  1.02

  
	
   

  	
  (f)

  	
   

  	
  N/A

  
	
  § 315

  	
  (a)

  	
   

  	
  5.12, 6.01, 6.03

  
	
   

  	
  (b)

  	
   

  	
  1.06, 5.12, 6.02

  
	
   

  	
  (c)

  	
   

  	
  5.12, 6.01, 6.03

  
	
   

  	
  (d)

  	
   

  	
  5.12, 6.01, 6.03

  
	
   

  	
  (e)

  	
   

  	
  5.12, 6.03

  
	
  §
  316(a)(last sentence)

  	
   

  	
  1.01, 1.04(d)

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  5.02, 5.12

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
  (b)

  	
   

  	
  5.08

  
	
   

  	
  (c)

  	
   

  	
  1.04(d)

  
	
  § 317

  	
  (a)(1)

  	
   

  	
  5.03

  
	
   

  	
  (a)(2)

  	
   

  	
  5.04

  
	
   

  	
  (b)

  	
   

  	
  10.03

  
	
  § 318

  	
  (a)

  	
   

  	
  1.11

  



 






* This reconciliation and
tie shall not, for any purpose, be deemed to be a part of this Indenture.


 

















 


TABLE OF CONTENTS(1)


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE 1

  
	
  DEFINITIONS
  AND OTHER PROVISIONS

  
	
  OF
  GENERAL APPLICATION

  
	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Compliance Certificates
  and Opinions

  	
  30

  
	
  Section 1.03

  	
  Form of Documents
  Delivered to Trustee

  	
  31

  
	
  Section 1.04

  	
  Acts of Holders

  	
  31

  
	
  Section 1.05

  	
  Notices, Etc., to
  Trustee, Issuer, Any Guarantor and Agent

  	
  32

  
	
  Section 1.06

  	
  Notice to Holders; Waiver

  	
  33

  
	
  Section 1.07

  	
  Effect of Headings and
  Table of Contents

  	
  33

  
	
  Section 1.08

  	
  Successors and Assigns

  	
  33

  
	
  Section 1.09

  	
  Separability Clause

  	
  33

  
	
  Section 1.10

  	
  Benefits of Indenture

  	
  34

  
	
  Section 1.11

  	
  Governing Law

  	
  34

  
	
  Section 1.12

  	
  Communication by Holders
  of Notes with Other Holders of Notes

  	
  34

  
	
  Section 1.13

  	
  Legal Holidays

  	
  34

  
	
  Section 1.14

  	
  No Personal Liability of
  Directors, Officers, Employees and Stockholders

  	
  34

  
	
  Section 1.15

  	
  Trust Indenture Act
  Controls

  	
  34

  
	
  Section 1.16

  	
  Counterparts

  	
  34

  
	
  Section 1.17

  	
  USA Patriot Act

  	
  35

  
	
  Section 1.18

  	
  Waiver of Jury Trial

  	
  35

  
	
  Section 1.19

  	
  No Adverse Interpretation
  of Other Agreements

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  NOTE
  FORMS

  
	
   

  
	
  Section 2.01

  	
  Forms Generally

  	
  35

  
	
  Section 2.02

  	
  Form of Trustee’s
  Certificate of Authentication

  	
  36

  
	
  Section 2.03

  	
  Restrictive Legends

  	
  37

  
	
  Section 2.04

  	
  Unrestricted Global Notes

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  THE
  NOTES

  
	
   

  
	
  Section 3.01

  	
  Title and Terms

  	
  38

  
	
  Section 3.02

  	
  Denominations

  	
  39

  
	
  Section 3.03

  	
  Execution, Authentication,
  Delivery and Dating

  	
  39

  
	
  Section 3.04

  	
  Temporary Notes

  	
  40

  
	
  Section 3.05

  	
  Registration, Paying
  Agent, Registration of Transfer and Exchange

  	
  41

  
	
  Section 3.06

  	
  Mutilated, Destroyed, Lost
  and Stolen Notes

  	
  42

  
	
  Section 3.07

  	
  Payment of Interest;
  Interest Rights Preserved

  	
  42

  
	
  Section 3.08

  	
  Persons Deemed Owners

  	
  43

  
	
  Section 3.09

  	
  Cancellation

  	
  43

  
	
  Section 3.10

  	
  Computation of Interest

  	
  44

  
				



 






(1) This table of
contents shall not, for any purpose, be deemed to be a part of this Indenture.


 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  Book-Entry and Transfer
  Provisions

  	
  44

  
	
  Section 3.12

  	
  CUSIP Numbers

  	
  53

  
	
  Section 3.13

  	
  Issuance of Additional
  Notes

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  SATISFACTION
  AND DISCHARGE

  
	
   

  
	
  Section 4.01

  	
  Satisfaction and Discharge
  of Indenture

  	
  53

  
	
  Section 4.02

  	
  Application of Trust Money

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  REMEDIES

  
	
   

  
	
  Section 5.01

  	
  Events of Default

  	
  55

  
	
  Section 5.02

  	
  Acceleration of Maturity;
  Rescission and Annulment

  	
  56

  
	
  Section 5.03

  	
  Collection of Indebtedness
  and Suits for Enforcement by Trustee

  	
  57

  
	
  Section 5.04

  	
  Trustee May File
  Proofs of Claim

  	
  58

  
	
  Section 5.05

  	
  Trustee May Enforce
  Claims Without Possession of Notes

  	
  58

  
	
  Section 5.06

  	
  Application of Money
  Collected

  	
  58

  
	
  Section 5.07

  	
  Limitation on Suits

  	
  59

  
	
  Section 5.08

  	
  Unconditional Right of
  Holders To Receive Principal, Premium and Interest

  	
  60

  
	
  Section 5.09

  	
  Restoration of Rights and
  Remedies

  	
  60

  
	
  Section 5.10

  	
  Rights and Remedies
  Cumulative

  	
  60

  
	
  Section 5.11

  	
  Delay or Omission Not
  Waiver

  	
  60

  
	
  Section 5.12

  	
  Control by Holders

  	
  60

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  61

  
	
  Section 5.14

  	
  Waiver of Stay or
  Extension Laws

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  THE
  TRUSTEE

  
	
   

  
	
  Section 6.01

  	
  Duties of the Trustee

  	
  61

  
	
  Section 6.02

  	
  Notice of Defaults

  	
  62

  
	
  Section 6.03

  	
  Certain Rights of Trustee

  	
  62

  
	
  Section 6.04

  	
  Trustee Not Responsible
  for Recitals or Issuance of Notes

  	
  64

  
	
  Section 6.05

  	
  May Hold Notes

  	
  64

  
	
  Section 6.06

  	
  Money Held in Trust

  	
  64

  
	
  Section 6.07

  	
  Compensation and
  Reimbursement

  	
  64

  
	
  Section 6.08

  	
  Corporate Trustee
  Required; Eligibility

  	
  65

  
	
  Section 6.09

  	
  Resignation and Removal;
  Appointment of Successor

  	
  65

  
	
  Section 6.10

  	
  Acceptance of Appointment
  by Successor

  	
  66

  
	
  Section 6.11

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
  67

  
	
  Section 6.12

  	
  Appointment of
  Authenticating Agent

  	
  67

  
	
  Section 6.13

  	
  Force Majeure

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  HOLDERS
  LISTS AND REPORTS BY TRUSTEE AND ISSUER

  
	
   

  
	
  Section 7.01

  	
  Issuer To Furnish Trustee
  Names and Addresses

  	
  69

  
	
  Section 7.02

  	
  Disclosure of Names and
  Addresses of Holders

  	
  69

  
	
  Section 7.03

  	
  Reports by Trustee

  	
  69

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  MERGER,
  CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL ASSETS

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Issuer
  May Consolidate, Etc., Only on Certain Terms

  	
  69

  
	
  Section 8.02

  	
  Guarantors
  May Consolidate, Etc., Only on Certain Terms

  	
  70

  
	
  Section 8.03

  	
  Successor Substituted

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  SUPPLEMENTAL
  INDENTURES

  
	
   

  
	
  Section 9.01

  	
  Amendments or Supplements
  Without Consent of Holders

  	
  71

  
	
  Section 9.02

  	
  Amendments, Supplements or
  Waivers with Consent of Holders

  	
  72

  
	
  Section 9.03

  	
  Execution of Amendments,
  Supplements or Waivers

  	
  73

  
	
  Section 9.04

  	
  Effect of Amendments,
  Supplements or Waivers

  	
  74

  
	
  Section 9.05

  	
  Conformity with Trust
  Indenture Act

  	
  74

  
	
  Section 9.06

  	
  Reference in Notes to
  Supplemental Indentures

  	
  74

  
	
  Section 9.07

  	
  Notice of Supplemental
  Indentures

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  COVENANTS

  
	
   

  
	
  Section 10.01

  	
  Payment of Principal,
  Premium, if Any, and Interest

  	
  74

  
	
  Section 10.02

  	
  Maintenance of Office or
  Agency

  	
  74

  
	
  Section 10.03

  	
  Money for Notes Payments
  To Be Held in Trust

  	
  75

  
	
  Section 10.04

  	
  Corporate Existence

  	
  76

  
	
  Section 10.05

  	
  Payment of Taxes and Other
  Claims

  	
  76

  
	
  Section 10.06

  	
  Maintenance of Properties

  	
  76

  
	
  Section 10.07

  	
  Statement by Officers as
  to Default

  	
  76

  
	
  Section 10.08

  	
  Reports and Other
  Information

  	
  77

  
	
  Section 10.09

  	
  Limitation on Restricted
  Payments

  	
  78

  
	
  Section 10.10

  	
  Limitation on Incurrence
  of Indebtedness and Issuance of Disqualified Stock and Preferred Stock

  	
  85

  
	
  Section 10.11

  	
  Limitation on Liens

  	
  90

  
	
  Section 10.12

  	
  Limitations on
  Transactions with Affiliates

  	
  90

  
	
  Section 10.13

  	
  Limitations on Dividend
  and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
  92

  
	
  Section 10.14

  	
  Limitation on Guarantees
  of Indebtedness by Restricted Subsidiaries

  	
  94

  
	
  Section 10.15

  	
  Change of Control

  	
  94

  
	
  Section 10.16

  	
  Asset Sales

  	
  96

  
	
  Section 10.17

  	
  Waiver of Certain
  Covenants

  	
  98

  
	
  Section 10.18

  	
  Business Activities

  	
  98

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  REDEMPTION
  OF NOTES

  
	
   

  
	
  Section 11.01

  	
  Right of Redemption

  	
  98

  
	
  Section 11.02

  	
  Applicability of Article

  	
  99

  
	
  Section 11.03

  	
  Election To Redeem; Notice
  to Trustee

  	
  99

  
	
  Section 11.04

  	
  Selection by Trustee of
  Notes To Be Redeemed

  	
  99

  
	
  Section 11.05

  	
  Notice of Redemption

  	
  100

  
	
  Section 11.06

  	
  Deposit of Redemption
  Price

  	
  101

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.07

  	
  Notes Payable on
  Redemption Date

  	
  101

  
	
  Section 11.08

  	
  Notes Redeemed in Part

  	
  101

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  GUARANTEES

  
	
   

  
	
  Section 12.01

  	
  Guarantees

  	
  101

  
	
  Section 12.02

  	
  Severability

  	
  103

  
	
  Section 12.03

  	
  Restricted Subsidiaries

  	
  103

  
	
  Section 12.04

  	
  Ranking of Guarantee

  	
  103

  
	
  Section 12.05

  	
  Limitation of Guarantors’
  Liability

  	
  103

  
	
  Section 12.06

  	
  Contribution

  	
  104

  
	
  Section 12.07

  	
  Subrogation

  	
  104

  
	
  Section 12.08

  	
  Reinstatement

  	
  104

  
	
  Section 12.09

  	
  Release of a Guarantor

  	
  104

  
	
  Section 12.10

  	
  Benefits Acknowledged

  	
  105

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  DEFEASANCE
  AND COVENANT DEFEASANCE

  
	
   

  
	
  Section 13.01

  	
  Issuer’s Option To Effect
  Legal Defeasance or Covenant Defeasance

  	
  105

  
	
  Section 13.02

  	
  Legal Defeasance and
  Discharge

  	
  105

  
	
  Section 13.03

  	
  Covenant Defeasance

  	
  106

  
	
  Section 13.04

  	
  Conditions to Legal
  Defeasance or Covenant Defeasance

  	
  106

  
	
  Section 13.05

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

  	
  107

  
	
  Section 13.06

  	
  Reinstatement

  	
  108

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
  EXHIBIT A

  	
  Form of Note

  	
   

  
	
  EXHIBIT A-1

  	
  Form of Temporary
  Regulation S Note

  	
   

  
	
  EXHIBIT B

  	
  Form of Certificate
  of Transfer

  	
   

  
	
  EXHIBIT C

  	
  Form of Certificate
  of Exchange

  	
   

  
	
  EXHIBIT D

  	
  Form of Certificate
  from Acquiring Investor

  	
   

  
	
  EXHIBIT E

  	
  Form of Supplemental
  Indenture

  	
   

  
	
  EXHIBIT F

  	
  Form of Incumbency
  Certificate

  	
   

  



 


iv














 


INDENTURE, dated as of May 10,
2010 (this “Indenture”), among
LANTHEUS MEDICAL IMAGING, INC., a Delaware corporation (the “Issuer”), having its principal office at
331 North Treble Cove Road, Building 600, North Billerica, Massachusetts,
LANTHEUS MI INTERMEDIATE, INC., a Delaware corporation (“Parent”), certain of the Issuer’s
Subsidiaries, each named in the signature pages hereto (Parent and each
such Subsidiary, a “Guarantor”
and, collectively, the “Guarantors”),
and WILMINGTON TRUST FSB, a federal savings bank, as trustee for the Holders of
the Notes (as defined herein) (in such capacity, the “Trustee”).


 


RECITALS
OF THE ISSUER


 


The Issuer has duly
authorized the creation of an issue of 9.750% Senior Notes due 2017 issued on
the date hereof (the “Notes”), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Issuer has duly authorized the execution and delivery of this
Indenture. As used herein, “Notes”
shall include any Additional Notes that are issued pursuant to this Indenture
unless the context otherwise requires.


 


Each Guarantor has duly
authorized its Guarantee of the Notes and to provide therefor each Guarantor
has duly authorized the execution and delivery of this Indenture.


 


All things necessary have
been done to make the Notes, when executed by the Issuer and authenticated and
delivered hereunder and duly issued by the Issuer, the valid and legally
binding obligations of the Issuer and to make this Indenture a valid and
legally binding agreement of the Issuer, in accordance with their and its
terms.


 


All things necessary have
been done to make the Guarantees, upon execution and delivery of this
Indenture, the valid obligations of each Guarantor and to make this Indenture a
valid and legally binding agreement of each Guarantor, in accordance with their
and its terms.


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in consideration of
the premises and the purchase of the Notes by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders, as follows:


 


ARTICLE 1


DEFINITIONS
AND OTHER PROVISIONS


OF
GENERAL APPLICATION


 


Section 1.01                                Definitions.


 


For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:


 


(a)                                  the terms
defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;


 


(b)                                 all other terms
used herein which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;


 


(c)                                  all accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP (as herein defined);


 

















 


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


 


(e)                                  “or” is not
exclusive;


 


(f)                                    “including”
means including without limitation;


 


(g)                                 unsecured
Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness
merely by virtue of its nature as unsecured Indebtedness;


 


(h)                                 secured
Indebtedness shall not be deemed to be subordinate or junior to any other
secured Indebtedness merely because it has a junior priority with respect to
the same collateral; and


 


(i)                                     Indebtedness
that is not guaranteed shall not be deemed to be subordinate or junior to
Indebtedness that is guaranteed merely because of such guarantee.


 


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


 


“Acquired Indebtedness” means, with respect to any specified
Person,


 


(1)                                  Indebtedness of
any other Person existing at the time such other Person is merged with or into
or became a Restricted Subsidiary of such specified Person, including, without
limitation, Indebtedness incurred in connection with, or in contemplation
of, such other Person merging with or into or becoming a Restricted Subsidiary
of such specified Person, and


 


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


 


“Act” when used with respect to any Holder, has the meaning
specified in Section 1.04 of this Indenture.


 


“Additional Interest” has the meaning assigned to that term
pursuant to the Registration Rights Agreement.


 


“Additional Notes” has the meaning set forth in Section 3.13.


 


“Affiliate” of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling”
and “controlled by”) 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.


 


“Affiliate Transaction” has the meaning specified in Section 10.12
of this Indenture.


 


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


 


2

















 


“Annualized EBITDA” means, with respect to any Person, the
product of (x) the EBITDA of such Person from the most recently ended two
fiscal quarters for which internal financial statements are available, times
(y) two.


 


“Applicable Premium” means, with respect to any Note on any
Redemption Date, the greater of:


 


(1)                                  1.0% of the
principal amount of the Note on such Redemption Date; or


 


(2)                                  the excess (if
any) of:


 


(A)                              the present
value at such Redemption Date of (i) the Redemption Price of the Note at
May 15, 2014 (such Redemption Price being set forth in the table appearing
in Section 11.01), plus (ii) all
required interest payments due on the Note through May 15, 2014 (excluding
accrued but unpaid interest to the Redemption Date), computed using a discount
rate equal to the Treasury Rate as of such Redemption Date plus 50 basis
points; over


 


(B)                                the principal
amount of the Note on such Redemption Date, if greater.


 


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


 


“Asset Sale” means


 


(1)                                  the sale,
conveyance, transfer or other disposition, whether in a single transaction or a
series of related transactions, of property or assets (including by way of a
sale and leaseback) of the Issuer or any Restricted Subsidiary (each referred
to in this definition as a “disposition”),
or


 


(2)                                  the issuance or
sale of Equity Interests of any Restricted Subsidiary, whether in a single
transaction or a series of related transactions (other than preferred stock of
Restricted Subsidiaries issued in compliance with Section 10.10), in each
case, other than:


 


(A)                              a disposition
of Cash Equivalents, Investment Grade Securities or obsolete, damaged or
worn out equipment or other assets (including leaseholds) in the ordinary
course of business or a disposition of inventory or goods held for sale in the
ordinary course of business;


 


(B)                                the disposition
of all or substantially all of the assets of the Issuer in a manner permitted
pursuant to the provisions described above under Article 8. or any disposition
that constitutes a Change of Control pursuant to this Indenture;


 


(C)                                the making of
any Restricted Payment or Permitted Investment that is permitted to be made
under, and is made in accordance with, Section 10.09.


 


(D)                               any disposition
of assets or issuance or sale of Equity Interests of any Restricted Subsidiary
in any transaction or series of transactions with an aggregate Fair Market
Value of less than $5.0 million;


 


3

















 


(E)                                 any disposition
of property or assets or issuance of securities by a Restricted Subsidiary to
the Issuer or by the Issuer or a Restricted Subsidiary to a Restricted
Subsidiary;


 


(F)                                 to the extent
allowable under Section 1031 of the Internal Revenue Code of 1986, any
exchange of like property (excluding any boot thereon) for use in a Similar
Business;


 


(G)                                the lease,
assignment, sub-lease or license of any real or personal property in the
ordinary course of business;


 


(H)                               any issuance or
sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary;


 


(I)                                    foreclosures,
condemnation or any similar action on assets;


 


(J)                                   the surrender
or waiver of contract rights or the settlement, release or surrender of
contract, tort or other claim of any kind, in each case, in the ordinary course
of business;


 


(K)                               the creation of
a Lien in accordance with this Indenture;


 


(L)                                 any financing
transaction with respect to property built or acquired by the Issuer or any
Restricted Subsidiary after the Issue Date, including, without limitation, sale
leasebacks and asset securitizations permitted by this Indenture;


 


(M)                            dispositions of
Investments or receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or
similar proceedings;


 


(N)                               the sale of
Permitted Investments (other than sales of Equity Interests of any of the
Issuer’s Restricted Subsidiaries) made by the Issuer or any Restricted
Subsidiary after the Issue Date, if such Permitted Investments were (a) received
in exchange for, or purchased out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Issuer) of, Equity Interests
of the Issuer (other than Disqualified Stock) or (b) received in the form
of, or were purchased from the proceeds of, a substantially concurrent
contribution of common equity capital to the Issuer;


 


(O)                               the sale or
discount of inventory, accounts receivable or notes receivable in the ordinary
course of business or the conversion of accounts receivable to notes
receivable;


 


(P)                                 the abandonment
of intellectual property rights in the ordinary course of business, which in
the good faith determination of the Issuer are not material to the conduct of
the business of the Issuer and its Restricted Subsidiaries taken as a whole;
and


 


(Q)                               the licensing
or sub-licensing of intellectual property or other general intangibles in the
ordinary course of business.


 


“Asset Sale
Offer” has the meaning specified in Section 10.16 of the Indenture.


 


4

















 


“Authenticating Agent” has the meaning specified in Section
6.12 of this Indenture.


 


“Bankruptcy Law” means Title 11 of the United States Code, as
amended, or any similar federal or state law for the relief of debtors.


 


“Board of Directors” means, with respect to any Person,
either the board of directors or managing members, as applicable, of such
Person (or, if such Person is a partnership, the board of directors or other
governing body of the general partner of such Person) or any duly authorized
committee of such board.


 


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


 


“Business Day” means any day other than 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 by law, regulation or executive order to remain
closed. If a payment date is a legal holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a legal holiday,
and no interest shall accrue on such payment for the intervening period.


 


“Capital Stock” means


 


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


 


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


 


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


 


(4)           any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.


 


“Capitalized 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 such time be required to be capitalized and
reflected as a liability on a balance sheet (excluding the footnotes thereto)
in accordance with GAAP.


 


“Cash Equivalents” means


 


(1)           United States dollars,


 


(2)           pounds sterling,


 


(3)          (A)  euro, or any national currency of any
participating member state in the European Union,


 


(B)           Canadian dollars,


 


(C)           Japanese Yen, or


 


(D)          in the case of any
Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held
by them from time to time in the ordinary course of business,


 


5

















 


(4)           securities issued or directly and
fully and unconditionally guaranteed or insured by the United States government
or any agency or instrumentality thereof, the securities of which are
unconditionally guaranteed as a full faith and credit obligation of such
government, with maturities of 12 months or less from the date of acquisition,


 


(5)           certificates of deposit, time
deposits and eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers’ acceptances with maturities not exceeding one
year and overnight bank deposits, in each case with any commercial bank having
capital and surplus in excess of $250.0 million,


 


(6)           repurchase obligations for underlying
securities of the types described in clauses (4) and (5) entered into with any
financial institution meeting the qualifications specified in clause (5) above,


 


(7)           commercial paper rated at least P-2
by Moody’s or at least A-2 by S&P and in each case maturing within 12
months after the date of creation thereof,


 


(8)           investment funds investing 90% of
their assets in securities of the types described in clauses (1) through (7)
above,


 


(9)           readily marketable direct obligations
issued by any state of the United States of America or any political
subdivision thereof having one of the two highest rating categories obtainable
from either Moody’s or S&P with maturities of 24 months or less from the
date of acquisition,


 


(10)         Indebtedness or preferred stock issued
by Persons with a rating of “A” or higher from S&P or “A2” or higher from
Moody’s with maturities of 12 months or less from the date of acquisition, and


 


(11)         in the case of any Foreign Subsidiary
that is a Restricted Subsidiary, direct obligations of the sovereign nation (or
any agency thereof) in which such Foreign Subsidiary is organized and is
conducting business or in obligations fully and unconditionally guaranteed by
such sovereign nation (or any agency thereof).


 


Notwithstanding the
foregoing, Cash Equivalents shall include amounts denominated in currencies
other than those set forth in clauses (1) through (3) above; provided that such amounts are converted
into any currency listed in clauses (1) through (3) as promptly as practicable
and in any event within ten Business Days following the receipt of such
amounts.


 


“Change of Control” means:


 


(1)           the direct or indirect sale, lease,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Issuer and its
Subsidiaries taken as a whole to any Person (including any “person” (as that
term is used in Section 13(d)(3) of the Exchange Act)) other than any Permitted
Holder;


 


(2)           the consummation of any transaction
(including, without limitation, any merger or consolidation), the result of
which is that any “person” (as defined above), other than any Permitted Holder,
in the aggregate, beneficially owns (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act) more than 50% of the Voting Stock of the Issuer, measured by
voting power


 


6

















 


rather than number of
shares; provided that this clause
(2) will not apply to the acquisition of the Issuer by one or more direct or
indirect holding companies with no other material assets or operations, the
Voting Stock of which is beneficially owned, immediately after such
acquisition, by the Persons who beneficially owned the Voting Stock of the
Issuer immediately prior to such acquisition (and in substantially the same
proportions);


 


(3)           the Issuer shall adopt a plan of
liquidation or dissolution or any such plan shall be approved by the
stockholders of the Issuer; or


 


(4)           the first day on which a majority of
the members of the Board of Directors of the Issuer are not Continuing
Directors.


 


“Change of Control Offer” has the meaning specified in
Section 10.15 of this Indenture.


 


“Change of Control Payment” has the meaning specified in
Section 10.15 of this Indenture.


 


“Change of Control Payment Date” has the meaning specified in
Section 10.15 of this Indenture.


 


“Clearstream” means Clearstream Banking, Société Anonyme, and
its successors.


 


“Commission” means the Securities and Exchange Commission.


 


“consolidated” or “Consolidated”
means, with respect to any Person, such Person consolidated with its Restricted
Subsidiaries, and shall not include any Unrestricted Subsidiary.


 


“Consolidated Annualized Leverage Ratio” means, as of any
date of determination, the ratio of (1) Consolidated Total Indebtedness of the
Issuer and its Restricted Subsidiaries, less the amount of any cash and Cash
Equivalents in excess of restricted cash that would be stated on the balance
sheet of the Issuer and its Restricted Subsidiaries as of such date of
determination to (2) the Issuer’s Annualized EBITDA, in each case with such pro forma adjustments to Consolidated
Total Indebtedness and Annualized EBITDA as are appropriate and consistent with
the pro forma adjustment
provisions set forth in the definition of Fixed Charge Coverage Ratio.


 


“Consolidated Depreciation and Amortization Expense” means
with respect to any Person for any period, the total amount of depreciation and
amortization expense, including any amortization of deferred financing fees and
amortization in relation to terminated Hedging Obligations, of such Person and
its Restricted Subsidiaries for such period on a consolidated basis and
otherwise determined in accordance with GAAP.


 


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


 


(1)           consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, to the extent such
expense was deducted in computing Consolidated Net Income (including
amortization of original issue discount resulting from the issuance of
Indebtedness (other than the Notes) at less than par, non-cash interest
payments (but excluding any non-cash interest expense attributable to the
movement in the mark to market valuation of Hedging Obligations or other
derivative instruments pursuant to Financial Accounting Standards Board
Accounting Standards Codification 815), the interest component of Capitalized
Lease Obligations, all commissions, discounts and other fees and changes owed
with respect to letters of credit and bankers acceptances and net payments, if
any, pursuant to interest rate Hedging


 


7

















 


Obligations, and excluding
amortization of deferred financing fees and any interest and penalties on tax
reserves to the extent such Person has elected to treat such interest as
interest expense under Financial Accounting Standards Board Accounting
Standards Codification 740-10), plus


 


(2)           consolidated capitalized interest of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued, less


 


(3)           interest income of such Person and
its Restricted Subsidiaries for such period.


 


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


 


(4)           any net after-tax extraordinary,
non-recurring or unusual gains or losses (less all fees and expenses relating
thereto) or expenses (including, without limitation, relating to the
transactions described in the Offering Memorandum, severance, relocation, and
new product introductions) shall be excluded;


 


(5)           the cumulative effect of a change in
accounting principles during such period shall be excluded;


 


(6)           any net after-tax income or loss from
disposed or discontinued operations and any net after-tax gains or losses on
disposal of disposed or discontinued operations shall be excluded;


 


(7)           any net after-tax gains or losses
(less all fees and expenses relating thereto) attributable to asset
dispositions other than in the ordinary course of business, as determined in
good faith by the Board of Directors of the Issuer, shall be excluded;


 


(8)           the Net Income for such period of any
Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of
the Issuer shall be increased by the amount of dividends or distributions or
other payments that are actually paid in cash (or to the extent converted into
cash) to the referent Person or a Restricted Subsidiary thereof in respect of
such period;


 


(9)           solely for the purpose of determining
the amount available for Restricted Payments under clause (c)(1) of the first
paragraph of Section 10.09, the Net Income for such period of any Restricted
Subsidiary (other than any Guarantor) shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of its Net Income is not at the date of determination wholly
permitted without any prior governmental approval (which has not been obtained)
or, directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule, or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, unless
such restriction with respect to the payment of dividends or in similar
distributions has been legally waived; provided
that Consolidated Net Income of the Issuer will be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or to
the extent converted into cash) to the Issuer or a Restricted Subsidiary
thereof in respect of such period, to the extent not already included therein;


 


8

















 


(10)         the effects of adjustments resulting
from the application of purchase accounting (including the effects of such
adjustments pushed down to such Person and its Restricted Subsidiaries) in
relation to any acquisition that is consummated after the Issue Date, net of
taxes, shall be excluded;


 


(11)         any net after-tax income or loss from
the early extinguishment of Indebtedness or Hedging Obligations or other
derivative instruments shall be excluded;


 


(12)         any unrealized or realized gain or loss
due solely to fluctuations in currency values and the related tax effects,
determined in accordance with GAAP, shall be excluded;


 


(13)         any impairment charge or asset
write-off or write-down, including impairment charges or asset write-offs or
write-downs related to intangible assets, long-lived assets, investments in
debt and equity securities or as a result of a change in law or regulation, in
each case, pursuant to GAAP, and the amortization of intangibles arising
pursuant to GAAP shall be excluded; and


 


(14)         any non-cash compensation expense
recorded from grants of stock appreciation or similar rights, stock options or
other rights to officers, directors or employees shall be excluded.


 


Notwithstanding the
foregoing, for the purpose of Section 10.09 only (other than clause (c)(4) of
the first paragraph in Section 10.09), there shall be excluded from
Consolidated Net Income any income arising from any sale or other disposition
of Restricted Investments made by the Issuer and the Restricted Subsidiaries,
any repurchases and redemptions of Restricted Investments from the Issuer and
the Restricted Subsidiaries, any repayments of loans and advances which
constitute Restricted Investments by the Issuer or any Restricted Subsidiary,
any sale of the stock of an Unrestricted Subsidiary or any distribution or
dividend from an Unrestricted Subsidiary, in each case only to the extent such
amounts increase the amount of Restricted Payments permitted under clause
(c)(4) of the first paragraph in Section 10.09.


 


“Consolidated Secured Debt Ratio” means, as of any date of
determination, the ratio of (1) Consolidated Total Indebtedness of the Issuer
and its Restricted Subsidiaries that is secured by Liens on assets of the
Issuer and its Restricted Securities less the amount of any cash and Cash
Equivalents in excess of restricted cash that would be stated on the balance
sheet of the Issuer and its Restricted Subsidiaries as of such date of
determination, to (2) the Issuer’s EBITDA for such period, in each case with
such pro forma adjustments to
Consolidated Total Indebtedness and EBITDA as are appropriate and consistent
with the pro forma adjustment
provisions set forth in the definition of Fixed Charge Coverage Ratio.


 


“Consolidated Total Indebtedness” means, as at any date of
determination, an amount equal to the sum of the aggregate amount of all
outstanding Indebtedness of the Issuer and its Restricted Subsidiaries on a
consolidated basis and the aggregate amount of all outstanding Disqualified
Stock of the Issuer and all preferred stock of its Restricted Subsidiaries on a
consolidated basis, with the amount of such Disqualified Stock and preferred
stock equal to the greater of their respective voluntary or involuntary
liquidation preferences and maximum fixed repurchase prices, in each case
determined on a consolidated basis in accordance with GAAP. For purposes
hereof, the “maximum fixed repurchase price”
of any Disqualified Stock or preferred stock that does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock or preferred stock as if such Disqualified Stock or
preferred stock were purchased on any date on which Consolidated Total
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the Fair


 


9

















 


Market Value of such
Disqualified Stock or preferred stock, such Fair Market Value shall be
determined reasonably and in good faith by the Issuer.


 


“Contingent Obligations” means, with respect to any Person,
any obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent,


 


(1)           to purchase any such primary
obligation or any property constituting direct or indirect security therefor,


 


(2)           to advance or supply
funds


 


(A)          for the purchase or
payment of any such primary obligation or


 


(B)           to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, or


 


(3)           to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation against loss in respect thereof.


 


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


 


(4)           was a member of such Board of
Directors on the date of this Indenture; or


 


(5)           was nominated for election or elected
to such Board of Directors with the approval of the Sponsor or 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” means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at Wilmington Trust FSB, Corporate Capital Markets,
Corporate Capital Markets 246 Goose Lane, Suite 105 Guilford, Connecticut
06437, except that with respect to presentation of the Notes for payment or for
registration of transfer or exchange, such term shall mean the office or agency
of the Trustee at which, at any particular time, its corporate agency business
shall be conducted.


 


“corporation” includes corporations, associations, companies
and business trusts.


 


“Covenant Defeasance” has the meaning specified in Section
13.03 of this Indenture.


 


“Credit Agreement” means the senior secured revolving credit
facility to be executed in connection with the initial offering of the Notes as
described in the Offering Memorandum.


 


“Credit Facilities” means, one or more debt facilities
(including, without limitation, the Credit Agreement) or other financing
arrangements (including, without limitation, commercial paper facilities,
receivables facilities or indentures) 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 other long-term indebtedness,
including any Notes, in each case, as amended, restated, modified, renewed,
refunded, replaced in any manner


 


10














 


(whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time.


 


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


 


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


 


“Defaulted Interest” has the meaning specified in Section
3.07 of this Indenture.


 


“Definitive Note” means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 3.11 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.


 


“Depositary” means The Depository Trust Company (“DTC”), its nominees and their respective
successors.


 


“Designated Noncash Consideration” means the Fair Market
Value of noncash consideration received by the Issuer or a Restricted
Subsidiary in connection with an Asset Sale that is so designated as Designated
Noncash Consideration pursuant to an Officers’ Certificate, setting forth the
basis of such valuation, executed by a senior vice president or the principal
financial officer of the Issuer, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale of such Designated Noncash
Consideration.


 


“Designated Preferred Stock” means preferred stock of the
Issuer, any of its Restricted Subsidiaries or any direct or indirect parent
corporation thereof (in each case other than Disqualified Stock) that is issued
for cash (other than to the Issuer or any of its Restricted Subsidiaries or an
employee stock ownership plan or trust established by the Issuer or its
Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to
an Officers’ Certificate executed by the principal financial officer of the
Issuer, on the issuance date thereof, the cash proceeds of which are excluded
from the calculation set forth in clause (c) in the first paragraph in Section
10.09.


 


“Disqualified Stock” means, with respect to any Person, any
Capital Stock of such Person which, by its terms, or by the terms of any security
into which it is convertible or for which it is putable or exchangeable, or
upon the happening of any event, matures or is mandatorily redeemable or is
redeemable at the option of the holder thereof, in whole or in part, in each
case prior to the date 91 days after the earlier of the maturity date of the
Notes and the date the Notes are no longer outstanding; provided, however,
that if such Capital Stock is issued to any plan for the benefit of employees
of the Issuer or its Subsidiaries or by any such plan to such employees, such
Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Issuer or its Subsidiaries in order to
satisfy applicable statutory or regulatory obligations; provided, further, that any Capital Stock
that would constitute Disqualified Stock solely because the holders of the
Capital Stock have the right to require the Issuer to repurchase such Capital
Stock in the event of a change of control or asset sale will not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Issuer
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption is permitted under the terms of this
Indenture.


 


“Domestic Subsidiary” means, with respect to any Person, any
Restricted Subsidiary of such Person other than a Foreign Subsidiary.


 


11

















 


“EBITDA” means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (without duplication):


 


(1)                                  provision for
taxes based on income or profits, plus franchise or similar taxes, of such
Person for such period deducted in computing Consolidated Net Income; plus


 


(2)                                  Consolidated Interest
Expense (and other components of Fixed Charges to the extent changes in GAAP
after the Issue Date result in such components reducing Consolidated Net
Income) of such Person for such period to the extent the same was deducted in
calculating such Consolidated Net Income; plus


 


(3)                                  Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent such depreciation and amortization were deducted in computing
Consolidated Net Income; plus


 


(4)                                  any expenses or
charges related to any Equity Offering, Permitted Investment, acquisition,
disposition, recapitalization or Indebtedness permitted to be incurred by this
Indenture (whether or not successful), including such fees, expenses or charges
related to the offering of the Notes and the Credit Agreement and any amendment
or other modification of the Notes or the Credit Agreement, and deducted in
computing Consolidated Net Income; plus


 


(5)                                  the amount of
any restructuring charges, integration costs or other business optimization expenses
and reserves deducted in such period in computing Consolidated Net Income,
including any one-time costs incurred in connection with acquisitions after the
Issue Date; plus


 


(6)                                  any other
non-cash charges, including any write offs or write downs of assets, reducing
Consolidated Net Income for such period, excluding any such charge that
represents an accrual or reserve for a cash expenditure for a future period; plus


 


(7)                                  the amount of
any non-controlling interest expense deducted in calculating Consolidated Net
Income (less the amount of any cash dividends paid to the holders of such
minority interests); plus


 


(8)                                  the amount of
management, monitoring, consulting and advisory fees and related expenses paid
to Sponsor or any of its Affiliates, to the extent otherwise permitted under
Section 10.12 and deducted (and not added back) in such period in computing
Consolidated Net Income of such Person; plus


 


(9)                                  any net loss
from disposed or discontinued operations, to the extent deducted in computing
Consolidated Net Income of such Person; less


 


(10)                            (a) non-cash
items increasing Consolidated Net Income of such Person for such period,
excluding any items which represent the reversal of any accrual of, or cash
reserve for, potential cash charges that reduced EBITDA in any prior period,
(b) any net income from disposed or discontinued operations to the extent
included in computing Consolidated Net Income of such Person and (c) the amount
of any non-controlling interest income included in computing Consolidated Net Income
(less the amount of any cash dividends received by the Issuer or any of its
Restricted Subsidiaries on such minority interest).


 


“EMU” means economic and monetary union as contemplated in
the Treaty on European Union.


 


12

















 


“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 sale of common
stock or preferred stock of the Issuer or any of its direct or indirect parents
(excluding Disqualified Stock), other than


 


(1)                                  public
offerings with respect to the Issuer’s or any direct or indirect parent’s
common stock registered on Form S-8;


 


(2)                                  any such public
or private sale that constitutes an Excluded Contribution; and


 


(3)                                  any sales to
the Issuer or any of its Subsidiaries.


 


“euro” means the single currency of participating member
states of the EMU.


 


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


 


“Event of Default” has the meaning specified in Section 5.01
of this Indenture.


 


“Excess Proceeds” has the meaning specified in Section 10.16
of this Indenture.


 


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


 


“Excluded Contribution” means net cash proceeds, marketable
securities or Qualified Proceeds received by the Issuer from:


 


(1)                                  contributions to
its common equity capital; and


 


(2)                                  the sale (other
than to a Subsidiary of the Issuer or to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement of
the Issuer) of Capital Stock (other than Disqualified Stock) of the Issuer,


 


in each case designated as
Excluded Contributions pursuant to an Officers’ Certificate executed by a
senior vice president or the principal financial officer of the Issuer on the
date such capital contributions are made or the date such Equity Interests are
sold, as the case may be, which are excluded from the calculation set forth in
clause (c) of the first paragraph of Section 10.09.


 


“Existing Indebtedness” means Indebtedness of the Issuer or
any of its Restricted Subsidiaries in existence on the Issue Date, plus
interest accruing thereon, until such amounts are repaid.


 


“Fair Market Value” means the value that would be paid by a
willing buyer to an unaffiliated willing seller in a transaction not involving
distress or necessity of either party, determined in good faith by the chief
financial officer of the Issuer or the Restricted Subsidiary with respect to
valuations not in excess of $10.0 million or determined in good faith by the
Board of Directors of the Issuer or the Restricted Subsidiary with respect to
valuations equal to or in excess of $10.0 million, as applicable, which
determination will be conclusive (unless otherwise provided in this Indenture).


 


“Fixed Charge Coverage Ratio” means, with respect to any
Person for any period, the ratio of EBITDA of such Person for such period to
the Fixed Charges of such Person for such period. In the event that the Issuer
or any Restricted Subsidiary incurs, assumes, guarantees or redeems, retires or
extinguishes any Indebtedness (other than reductions in amounts outstanding
under revolving facilities unless


 


13

















 


accompanied by a
corresponding termination of commitment) or issues or redeems Disqualified
Stock or preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to or
simultaneous with the event 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, assumption, guarantee or redemption, retirement or extinguishment
of Indebtedness, or such issuance or redemption of Disqualified Stock or
preferred stock, as if the same had occurred at the beginning of the applicable
four-quarter period.


 


For purposes of making the
computation referred to above, Investments, acquisitions, dispositions,
mergers, consolidations and discontinued operations (as determined in
accordance with GAAP) that have been made (or committed to be made pursuant to
a definitive agreement) by the Issuer or any Restricted Subsidiary during the
four-quarter reference period or subsequent to such reference period and on or
prior to or simultaneously with the Calculation Date shall be calculated on a pro forma basis assuming that all such
Investments, acquisitions, dispositions, mergers, consolidations and
discontinued operations (and the change in any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. If since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Issuer or any Restricted Subsidiary since the beginning
of such period) shall have made any Investment, acquisition, disposition,
merger, consolidation or discontinued operation that would have required
adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio
shall be calculated giving pro forma
effect thereto for such period as if such Investment, acquisition, disposition,
merger, consolidation or disposed operation had occurred at the beginning of
the applicable four-quarter period.


 


For purposes of this
definition, whenever pro forma
effect is to be given to a transaction, the pro
forma calculations shall be made in good faith by a responsible
financial or accounting officer of the Issuer (including pro forma expense and cost reductions,
regardless of whether these cost savings could then be reflected in pro forma financial statements in
accordance with Regulation S-X promulgated under the Securities Act or any
other regulation or policy of the Commission related thereto).


 


If any Indebtedness bears a
floating rate of interest and is being given pro
forma effect, the interest on such Indebtedness shall be calculated
as if the rate in effect on the Calculation Date had been the applicable rate
for the entire period (taking into account any Hedging Obligations applicable
to such Indebtedness). Interest on a Capitalized Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by a responsible
financial or accounting officer of the Issuer to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP. For
purposes of making the computation referred to above, interest on any
Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based
upon the average daily balance of such Indebtedness during the applicable
period. Interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to have been based upon the
rate actually chosen, or, if none, then based upon such optional rate chosen as
the Issuer may designate.


 


“Fixed Charges” means, with respect to any Person for any
period, the sum of


 


(1)                                  Consolidated
Interest Expense,


 


(2)                                  all cash
dividend payments (excluding items eliminated in consolidation) on any series
of preferred stock or any Refunding Capital Stock of such Person, and


 


14

















 


(3)                                  all cash
dividend payments (excluding items eliminated in consolidation) on any series
of Disqualified Stock.


 


“Foreign Subsidiary” means, with respect to any Person, any
Restricted Subsidiary of such Person that is not organized or existing under
the laws of the United States, any state thereof or the District of Columbia.


 


“Funding Guarantor” has the meaning specified in Section 12.06
of this Indenture.


 


“GAAP” means generally accepted accounting principles in the
United States which are in effect on the Issue Date.


 


“Global Note Legend” means the legend set forth in Section 2.03
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 Depositary 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,
3.11(b)(4), 3.11(b)(4) or 3.11(d)(2) hereof.


 


“Government Securities” means securities that are


 


(1)                                  direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged, or


 


(2)                                  obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America,


 


which, in either case, are
not callable or redeemable at the option of the issuers thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such Government
Securities or a specific payment of principal of or interest on any such
Government Securities held by such custodian for the account of the holder of
such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or
the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.


 


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


 


“Guarantee” means the guarantee by any Guarantor of the
Issuer’s Indenture Obligations.


 


“Guarantors” means Parent and any Subsidiary of Parent that
executes a Guarantee in accordance with the provisions of this Indenture, and
their respective successors and assigns, in each case, until the Guarantee of
such Person has been released in accordance with the provisions of this
Indenture.


 


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


 


15

















 


(1)                                  currency
exchange, interest rate or commodity swap agreements, currency exchange,
interest rate or commodity cap agreements and currency exchange, interest rate
or commodity collar agreements; and


 


(2)                                  other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange, interest rates or commodity prices.


 


“Holder” means a holder of the Notes.


 


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


 


“incur” has the meaning specified in Section 10.10 of
this Indenture.


 


“incurrence” has the meaning specified in Section 10.10
of this Indenture. 


 


“Indebtedness” means, with respect to any Person,


 


(1)                                  any
indebtedness (including principal and premium) of such Person, whether or not
contingent


 


(A)                              in respect of
borrowed money,


 


(B)                                evidenced by
bonds, notes, debentures or similar instruments,


 


(C)                                representing
the balance deferred and unpaid of the purchase price of any property
(including Capitalized Lease Obligations), except (i) any such balance
that constitutes a trade payable or similar obligation to a trade creditor, in
each case accrued in the ordinary course of business and (ii) any earn-out
obligations until such obligation becomes a liability on the balance sheet of
such Person in accordance with GAAP,


 


(D)                               letters of
credit or bankers’ acceptances (or without double counting, reimbursement
agreements in respect thereof) (other than obligations with respect to letters
of credit securing obligations (other than obligations described in (1) (a) or
(b) or (2) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or, if and
to the extent drawn upon, such drawing is reimbursed no later than the tenth
Business Day following receipt by such Person or a demand for reimbursement),
or


 


(E)                                 representing
any Hedging Obligations


 


if and to the extent that
any of the foregoing Indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet (excluding the
footnotes thereto) of such Person prepared in accordance with GAAP,


 


(2)                                  to the extent
not otherwise included, any obligation by such Person to be liable for, or to
pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person,
other than by endorsement of negotiable instruments for collection in the
ordinary course of business, and


 


16

















 


(3)                                  to the extent
not otherwise included, Indebtedness of another Person secured by a Lien
on any asset owned by such Person, whether or not such Indebtedness is assumed
by such Person.


 


For the avoidance of doubt,
(a) customer advances made in the ordinary course of business and (b) obligations
that constitute Contingent Obligations in accordance with the definition
thereof shall not constitute “Indebtedness” of any Person.


 


“Indenture” means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this Indenture and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be part of and govern this instrument and any such supplemental
indenture, respectively.


 


“Independent Financial Advisor” means an accounting,
appraisal, investment banking firm or consultant to Persons engaged in Similar
Businesses of nationally recognized standing that is, in the good faith
judgment of the Issuer, qualified to perform the task for which it has been
engaged.


 


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


 


“Initial Purchasers” means Jefferies & Company, Inc.,
BMO Capital Markets Corp. and Natixis Bleichroeder LLC.


 


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


 


“Interest Payment Date” means the Stated Maturity of an
installment of interest on the Notes.


 


“Investment Grade Securities” means marketable securities of
a Person (other than the Issuer or its Restricted Subsidiaries, an Affiliate of
joint venture of the Issuer or any Restricted Subsidiary), acquired by the
Issuer or any of its Restricted Subsidiaries in the ordinary course of business
that are rated, at the time of acquisition, BBB- (or the equivalent) or higher
by S&P and Baa3 (or the equivalent) or higher by Moody’s.


 


“Investments” means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the form
of loans (including guarantees), advances or capital contributions (excluding
accounts receivable, trade credit, advances to customers, deposits, commission,
travel, moving, payroll and similar advances to officers, directors and
employees, in each case made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes) of the Issuer
in the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property. For
purposes of the definition of “Unrestricted
Subsidiary” and Section 10.09:


 


(1)                                  “Investments” shall include the portion
(proportionate to the Issuer’s equity interest in such Subsidiary) of the Fair
Market Value of the net assets of a Subsidiary of the Issuer at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the
Issuer shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary
in an amount (if positive) equal to


 


17

















 


(A)                              the Issuer’s “Investment” in such Subsidiary at the time
of such redesignation less


 


(B)                                the portion
(proportionate to the Issuer’s equity interest in such Subsidiary) of the Fair
Market Value of the net assets of such Subsidiary at the time of such
redesignation; and


 


(2)                                  any property
transferred to or from an Unrestricted Subsidiary shall be valued at its Fair
Market Value at the time of such transfer, in each case as determined in good
faith by the Issuer.


 


“Issue Date” means May 10, 2010.


 


“Issuer” means Lantheus Medical Imaging, Inc., a
Delaware corporation, as named in the first paragraph of this Indenture, until
a successor Person shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Issuer”
shall mean such successor Person.


 


“Issuer Request” or “Issuer
Order” means a written request or order signed in the name of the
Issuer by any Officer and delivered to the Trustee.


 


“Legal Defeasance” has the meaning specified in Section 13.02
of this Indenture.


 


“Lien” means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction; provided that in no
event shall an operating lease be deemed to constitute a Lien.


 


“Management Agreement” means the agreement between the
Sponsor and the Issuer pursuant to which the Sponsor provides the Issuer with
certain management, consulting, financial planning and other services, and the
Issuer pays the Sponsor an annual fee for these services.


 


“Maturity,” when used with respect to any Note, means the
date on which the principal of such Note or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, notice of redemption or otherwise.


 


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


 


“Net Proceeds” means the aggregate cash proceeds received by
the Issuer or any Restricted Subsidiary in respect of any Asset Sale,
including, without limitation, any cash received upon the sale or other
disposition of any Designated Noncash Consideration received in any Asset Sale,
net of any payments required to be made to any Person holding a Lien on the
assets subject to such Asset Sale, the direct costs relating to such Asset Sale
and the sale or disposition of such Designated Noncash Consideration,
including, without limitation, legal, accounting and investment banking fees,
and brokerage and sales commissions, any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of principal,
premium, if any, and any deduction of appropriate amounts to be provided by the
Issuer as a reserve in accordance with GAAP against any liabilities associated
with the asset disposed of in such transaction and retained by the Issuer


 


18

















 


after such sale or other
disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.


 


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


 


“Note Register” and “Note
Registrar” have the respective meanings specified in Section 3.05.


 


“Notes” has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture. The Notes and the Additional Notes shall be treated as a
single class for all purposes of this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Notes and any
Additional Notes.


 


“Obligations” means any principal, interest (including any
interest accruing subsequent to the filing of a petition in bankruptcy,
reorganization or similar proceeding at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable state, federal or foreign law), penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit and banker’s acceptances),
damages and other liabilities, and guarantees of payment of such principal,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities, payable under the documentation governing any Indebtedness.


 


“Offering Memorandum” means the offering memorandum dated May 4,
2010 relating to the initial offering of the Notes.


 


“Officer” means the Chairman of the Board of Directors, the
President, chief executive officer, chief financial officer, any Executive Vice
President, Senior Vice President, Vice President, the Treasurer, the Assistant
Treasurer or the Secretary of the Issuer.


 


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


 


“Opinion of Counsel” means, with respect to any Person, a
written opinion reasonably acceptable to the Trustee from legal counsel. The
counsel may be counsel for such Person, including an employee of such Person or
any Subsidiary of such Person.


 


“Other Pari Passu Obligations” means any Additional Notes and
any other Indebtedness ranking pari passu
in right of payment with the Notes.


 


“Outstanding Notes” means, as of the date of determination,
all Notes theretofore authenticated and delivered under this Indenture, except:


 


(1)                                  Notes theretofore
cancelled by the Trustee or delivered to the Trustee for cancellation;


 


(2)                                  Notes, or
portions thereof, for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Issuer) in trust or set aside and segregated in trust by the Issuer (if the
Issuer shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be


 


19

















 


redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;


 


(3)                                  Notes, except
to the extent provided in Sections 13.02 and 13.03, with respect to which the
Issuer has effected Legal Defeasance and/or Covenant Defeasance as provided in
Article 13; and


 


(4)                                  Notes which
have been paid pursuant to Section 3.06 or in exchange for or in lieu of
which other Notes have been authenticated and delivered pursuant to this
Indenture, other than any such Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Notes are held by a
bona fide purchaser in whose hands the Notes are valid obligations of the
Issuer;


 


provided, however, that in determining whether the
Holders of the requisite principal amount of Outstanding Notes have given any
request, demand, authorization, direction, consent, notice or waiver hereunder,
and for the purpose of making the calculations required by TIA Section 313,
Notes owned by the Issuer or any other obligor upon the Notes or any Affiliate
of the Issuer or such other obligor shall be disregarded and deemed not to be
Outstanding Notes, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Notes which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded.


 


“Parent” means Lantheus MI Intermediate, Inc., a
Delaware corporation, as named in the first paragraph 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).


 


“Paying Agent” means any Person (including the Issuer or any
Guarantor of the Issuer acting as Paying Agent) authorized by the Issuer to pay
the principal of (and premium, if any) or interest on any Notes on behalf of
the Issuer.


 


“Permitted Asset Swap” means the concurrent purchase and sale
or exchange of Related Business Assets or a combination of Related Business
Assets and cash or Cash Equivalents between the Issuer or any of its Restricted
Subsidiaries and another Person; provided
that any cash or Cash Equivalents received must be applied in accordance with
Section 10.16.


 


“Permitted Holder” means (i) the Sponsor, (ii) any
limited partner of the Sponsor and (iii) the members of management of the Issuer,
any direct or indirect parent of the Issuer and its subsidiaries who are
investors, directly or indirectly, in the Issuer or any of its direct or
indirect parent companies and (iv) any group (within the meaning of
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or
any successor provision) of which any of the foregoing are members; provided that, in the case of such group
and without giving effect to the existence of such group or any other group,
the Sponsor and members of management, collectively, have beneficial ownership
of more than 50% of the total voting power of the Voting Stock of the Issuer or
any of its direct or indirect parent companies.


 


“Permitted Investments” means


 


(1)                                  any Investment
in the Issuer or any Restricted Subsidiary;


 


20














 


(2)                                  any Investment
in cash, Cash Equivalents or Investment Grade Securities;


 


(3)                                  any Investment
by the Issuer or any Restricted Subsidiary of the Issuer in a Person if as a
result of such Investment:


 


(A)                              such Person
becomes a Restricted Subsidiary, or


 


(B)                                such Person, in
one transaction or a series of related transactions, is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Issuer or a Restricted Subsidiary, 


 


and,
in each case, any Investment held by such Person; provided that such Investment was not acquired by such
Person in contemplation of such acquisition, merger, consolidation,
amalgamation or transfer;


 


(4)                                  any Investment
in securities or other assets not constituting cash or Cash Equivalents or
Investment Grade Securities and received in connection with an Asset Sale made
pursuant to Section 10.16 or any other disposition of assets not
constituting an Asset Sale;


 


(5)                                  any Investment
existing on the Issue Date or made pursuant to binding commitments in effect on
the Issue Date;


 


(6)                                  advances to (or
guarantees of loans to) employees in the ordinary course of business or
consistent with past practices;


 


(7)                                  any Investment
acquired by the Issuer or any Restricted Subsidiary:


 


(A)                              in exchange for
any other Investment or accounts receivable held by the Issuer or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the Issuer of such other Investment
or accounts receivable; or


 


(B)                                as a result of
a foreclosure by the Issuer or any Restricted Subsidiary with respect to any
secured Investment or other transfer of title with respect to any secured
Investment in default;


 


(8)                                  Hedging
Obligations permitted under clause (10) of the second paragraph of Section 10.10;


 


(9)                                  loans to (or
guarantees of loans of) officers, directors and employees for business-related
travel expenses, moving expenses and other similar expenses, in each case
incurred in the ordinary course of business;


 


(10)                            Investments the
payment for which consists of Equity Interests of the Issuer, or any of its
direct or indirect parents (exclusive of Disqualified Stock); provided, however, that such Equity
Interests will not increase the amount available for Restricted Payments under
clause (c) of the first paragraph under Section 10.09;


 


(11)                            guarantees of
Indebtedness permitted under Section 10.10;


 


21

















 


(12)                            Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment or the licensing or contribution of intellectual property pursuant to
joint marketing arrangements with other Persons in the ordinary course of
business;


 


(13)                            additional
Investments having an aggregate Fair Market Value, taken together with all
other Investments made pursuant to this clause (13) that are at that time
outstanding (without giving effect to the sale of an Unrestricted Subsidiary to
the extent the proceeds of such sale do not consist of cash and/or marketable
securities), not to exceed the greater of (x) $30.0 million or (y) 6%
of Total Assets at the time of such Investment (with the Fair Market Value of
each Investment being measured at the time made and without giving effect to
subsequent changes in value);


 


(14)                            additional
Investments in any Unrestricted Subsidiary having an aggregate Fair Market
Value, taken together with all other Investments made pursuant to this clause
(14) that are at that time outstanding (without giving effect to the sale of an
Unrestricted Subsidiary to the extent the proceeds of such sale do not consist
of cash and/or marketable securities), not to exceed $5.0 million at the time
of such Investment (with the Fair Market Value of each Investment being
measured at the time made and without giving effect to subsequent changes in
value);


 


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


 


(16)                            endorsements
for collection or deposit in the ordinary course of business;


 


(17)                            repurchases of
the Notes and Other Pari Passu Obligations; and


 


(18)                            any Investment
in a Person (other than the Issuer or a Restricted Subsidiary) pursuant to the
terms of any agreements in effect on the Issue Date and any Investment that
replaces, refinances or refunds an existing Investment; provided that the new Investment is in an
amount that does not exceed the amount replaced, refinanced or refunded (after
giving effect to write-downs or write-offs with respect to such Investment),
and is made in the same Person as the Investment replaced, refinanced or
refunded; provided that the
amount of any such Investment may be increased (x) as required by the
terms of such Investment in existence on the Issue Date or (y) as
otherwise permitted under this Indenture.


 


“Permitted Liens” means, with respect to any Person:


 


(1)                                  pledges or
deposits by such Person under workmen’s compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to
which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or U.S. government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent, in
each case incurred in the ordinary course of business;


 


(2)                                  Liens imposed
by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each case,
for sums not yet overdue for a period of more than 30 days or being contested
in


 


22

















 


good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such
Person with respect to which such Person shall then be proceeding with an
appeal or other proceedings for review;


 


(3)                                  Liens for
taxes, assessments or other governmental charges not yet overdue for a period
of more than 30 days or payable or subject to penalties for nonpayment or which
are being contested in good faith by appropriate proceedings;


 


(4)                                  Liens in favor
of issuers of stay, customs, appeal, performance and surety bonds or bid bonds
or with respect to other regulatory requirements or letters of credit issued
pursuant to the request of and for the account of such Person in the ordinary
course of its business;


 


(5)                                  minor survey
exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties or Liens incidental, to the conduct of the
business of such Person or to the ownership of its properties which were not
incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person;


 


(6)                                  Liens existing
on the Issue Date (other than Liens incurred under the Credit Agreement);


 


(7)                                  Liens on
property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, that such Liens are not created
or incurred in connection with, or in contemplation of, such other Person
becoming such a subsidiary; provided,
further, that such Liens may not extend to any other property owned
by the Issuer or any of its Restricted Subsidiaries;


 


(8)                                  Liens on
property at the time the Issuer or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with
or into the Issuer or any of its Restricted Subsidiaries; provided, however,
that such Liens are not created or incurred in connection with, or in
contemplation of, such acquisition; provided,
further, that such Liens may not extend to any other property owned
by the Issuer or any of its Restricted Subsidiaries;


 


(9)                                  Liens securing
Indebtedness or other obligations of a Restricted Subsidiary owing to the
Issuer or another Restricted Subsidiary permitted to be incurred in accordance
with Section 10.10;


 


(10)                            Liens securing
Hedging Obligations so long as the related Indebtedness is, and is permitted to
be under this Indenture, secured by a Lien on the same property securing such
Hedging Obligations;


 


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


 


23

















 


(12)                            leases and
subleases of real property granted to others in the ordinary course of business
so long as such leases and subleases do not materially interfere with the
ordinary conduct of the business of the Issuer or any of its Restricted
Subsidiaries; 


 


(13)                            Liens arising
from Uniform Commercial Code financing statement filings regarding operating
leases or consignment of goods entered into by the Issuer and its Restricted
Subsidiaries in the ordinary course of business;


 


(14)                            Liens in favor
of the Issuer or any Guarantor;


 


(15)                            Liens on
equipment of the Issuer or any of its Restricted Subsidiaries granted in the
ordinary course of business to the Issuer’s client at which such equipment is
located;


 


(16)                            Liens to secure
any refinancing, refunding, extension, renewal or replacement (or successive
refinancing, refunding, extensions, renewals or replacements) as a whole, or in
part, of any Indebtedness secured by any Lien referred to in the foregoing
clauses (6), (7), (8), (10), and (14); provided,
however, that (x) such new
Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements on such property), and (y) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal amount or, if
greater, committed amount of the Indebtedness described under clauses (6), (7),
(8), (10) and (14) at the time the original Lien became a Permitted Lien
under this Indenture, and (B) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement;


 


(17)                            other Liens
securing obligations which obligations do to exceed $5.0 million at any one
time outstanding;


 


(18)                            Liens to secure
Indebtedness of any Foreign Subsidiary permitted by Section 10.10 hereof
covering only the assets of such Foreign Subsidiary;


 


(19)                            Liens securing
Indebtedness Incurred pursuant to clause (1) of the second paragraph under
Section 10.10;


 


(20)                            Licenses,
sublicenses or any other grants of rights to use, in the ordinary course of
business so long as such licenses, sublicenses or rights of use do not
materially interfere with the ordinary conduct of the business of the Issuer or
any of its Restricted Subsidiaries;


 


(21)                            Liens securing
judgments for the payment of money not constituting an Event of Default under
clause (5) under Section 5.01 so long as such Liens are adequately
bonded and any appropriate legal proceedings that may have been duly initiated
for the review of such judgment have not been finally terminated or the period
within which such proceedings may be initiated has not expired;


 


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


 


(23)                            Liens (i)
of a collection bank arising under Section 4-208 of the Uniform Commercial
Code, or any comparable or successor provision, on items in the course of
collection, (ii) attaching to commodity trading accounts or other commodity
brokerage accounts incurred in the ordinary course of business, and (iii) in
favor of banking institutions arising as a matter of law


 


24

















 


encumbering
deposits (including the right of set-off) and which are within the general
parameters customary in the banking industry; 


 


(24)                            Liens encumbering reasonable customary initial deposits
and margin deposits and similar Liens attaching to commodity trading accounts
or other brokerage accounts incurred in the ordinary course of business and not
for speculative purposes; 


 


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


 


(26)                            Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale or purchase of goods entered
into by the Issuer or any of its Restricted Subsidiaries in the ordinary course
of business; 


 


(27)                            Liens securing Indebtedness permitted to be incurred
pursuant to clause (4) of the second paragraph under Section 10.10 provided
that Liens extend only to the assets so financed, purchased, constructed or
improved; 


 


(28)                            Liens of landlords and mortgagees of landlords (i) arising
by statute or under any lease or related contractual obligation entered into in
the ordinary course of business, (ii) on fixtures and movable tangible
property located on the real property leased or subleased from such landlord, (iii) for
amounts not yet due or that are being contested in good faith by appropriate
proceedings diligently conducted and (iv) for which adequate reserves or
other appropriate provisions are maintained on the books of such Person in
accordance with GAAP; 


 


(29)                            Liens on earnest money deposits of cash or Cash
Equivalents in connection with an acquisition of assets or property (including
Capital Stock); 


 


(30)                            Liens in favor of customers on cash advances maintained
in restricted customer escrow accounts actually received from customers of the
Issuer or any Restricted Subsidiary in the ordinary course of business so long
as such cash advances were made for the provision of future services by the
Issuer or any Restricted Subsidiary; and 


 


(31)                            Liens on assets of the Issuer or any of its Restricted
Subsidiaries securing Indebtedness that was permitted by the terms of this
Indenture to be incurred; provided,
that at the time of such incurrence and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio
for Issuer’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
debt is incurred would have been no greater than 0.75 to 1.0.


 


For
purposes of determining compliance with this definition, (A) Permitted
Liens need not be incurred solely by reference to one category of Permitted
Liens described above but are permitted to be incurred in part under any
combination thereof and (B) in the event that a Lien (or any portion
thereof) meets the criteria of one or more of the categories of Permitted Liens
described above, the Issuer may, in its sole discretion, classify or reclassify
such item of Permitted Liens (or any portion thereof) in any


 


25

















 


manner
that complies with this definition and the Issuer may divide and classify a
Lien in more than one of the types of Permitted Liens in one of the above
clauses.


 


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


 


“Predecessor Note” of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in exchange for a mutilated
Note or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.


 


“preferred stock” means any Equity Interest with preferential rights of
payment of dividends or upon liquidation, dissolution, or winding up.


 


“Private Placement Legend” has the meaning specified in Section 2.03 of
this Indenture.


 


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


 


“Qualified Proceeds”
means assets that are used or useful in, or Capital Stock of any Person engaged
in, a Similar Business; provided
that the Fair Market Value of any such assets or Capital Stock shall be
determined by the Board of Directors in good faith.


 


“Record Date” means either a Regular Record Date or a Special
Record Date.


 


“Redemption Date” when used with respect to any Note to be redeemed, in
whole or in part, means the date fixed for such redemption by or pursuant to this
Indenture.


 


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


 


“Refinancing Indebtedness” has the meaning specified in Section 10.10 of
this Indenture.


 


“Refunding Capital Stock” has the meaning specified in Section 10.09 of
this Indenture.


 


“Registration Rights Agreement” means that certain Registration Rights Agreement, dated
May 10, 2010, among the Issuer, the Guarantors and Jefferies &
Company, Inc., as representative of the Initial Purchasers.


 


“Regular Record Date” has the meaning specified in Section 3.01 of
this Indenture. 


 


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


 


“Regulation S Global Note” means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.


 


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


 


26

















 


“Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A-1
hereto 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.


 


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


 


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


 


“Responsible Officer,” when used with respect to the Trustee, means any
vice president, any assistant treasurer, any trust officer or assistant trust
officer, 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 and who shall have direct responsibility for the
administration of this Indenture.


 


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


 


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


 


“Restricted Payments” has the meaning specified in Section 10.09 of
this Indenture.


 


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


 


“Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary
of the Issuer (including any Foreign Subsidiary) that is not then an
Unrestricted Subsidiary; provided,
however, that upon the occurrence of an Unrestricted
Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be
included in the definition of “Restricted Subsidiary.”


 


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


 


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


 


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


 


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


 


“Securities Act” means the Securities Act of 1933 and the rules and
regulations of the Commission promulgated thereunder.


 


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


 


“Similar Business” means any business conducted or proposed to be
conducted by the Issuer and its Restricted Subsidiaries on the date of this
Indenture or any business that is similar, reasonably related, incidental or
ancillary thereto.


 


27

















 


“Special Record Date” for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.


 


“Sponsor”
means Avista Capital Partners, L.P., Avista Capital Partners (Offshore), L.P. and
their respective Affiliates (but not including, however, any operating
portfolio companies of the foregoing).


 


“Stated Maturity,” when used with respect to any Note or any installment
of principal thereof or interest thereon, means the date specified in such
Notes as the fixed date on which the principal of such Notes or such
installment of principal or interest is due and payable.


 


“Subordinated Indebtedness” means:


 


(1)                                  with respect to the Issuer, any Indebtedness of the
Issuer which is by its terms subordinated in right of payment to the Notes, and



 


(2)                                  with respect to any Guarantor, any Indebtedness of such
Guarantor which is by its terms subordinated in right of payment to the
Guarantee of such Guarantor.


 


“Subsidiary” means, with respect to any Person,


 


(3)                                  any corporation, association, or other business entity
(other than a partnership, joint venture, limited liability company or similar
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 of
determination 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


 


(4)                                  any partnership, joint venture, limited liability
company or similar entity of which


 


(A)                              more than 50% of the capital accounts, distribution
rights, total equity and voting interests or general or limited partnership
interests, as applicable, are owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person or a
combination thereof whether in the form of membership, general, special or
limited partnership or otherwise, and 


 


(B)                                such Person or any Restricted Subsidiary of such Person
is a controlling general partner or otherwise controls such entity.


 


“Successor Issuer” has the meaning specified in Section 8.01 of
this Indenture. 


 


“Successor Person” has the meaning specified in Section 8.02 of
this Indenture.


 


“Total Assets” means the total assets of the Issuer and the
Restricted Subsidiaries, as shown on the most recent balance sheet of the
Issuer for which internal financial statements are available immediately
preceding the date on which any calculation of Total Assets is being made, with
such pro forma adjustments for transactions consummated on or prior
to or simultaneously with the date of the calculation as are appropriate and
consistent with the pro forma
adjustment provisions set forth in the definition of Fixed Charge Coverage
Ratio.


 


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“Total Assets of Foreign Subsidiaries” means the total assets of the Foreign Subsidiaries of
the Issuer, as shown on the most recent balance sheet of such Foreign Subsidiaries
for which internal financial statements are available immediately preceding the
date on which any calculation of Total Assets of Foreign Subsidiaries is being
made, with such pro forma
adjustments for transactions consummated on or prior to or simultaneously with
the date of the calculation as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of
Fixed Charge Coverage Ratio.


 


“Treasury Rate” means, as of any Redemption Date, the yield to
maturity as of such Redemption Date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to the Redemption Date (or if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the Redemption Date to May 15, 2014; provided,
however, that if the period from the Redemption Date to May 15,
2014 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be
used.


 


“Trust Indenture Act” or “TIA”
means the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was executed, except as provided in Section 9.05.


 


“Trustee”
means the Person named as the “Trustee”
in the first paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall
mean such successor Trustee.


 


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


 


“Unrestricted Subsidiary” means:


 


(1)                                  any Subsidiary of the Issuer which at the time of
determination is an Unrestricted Subsidiary (as designated by the Board of
Directors of the Issuer, as provided below); and 


 


(2)                                  any Subsidiary of an Unrestricted Subsidiary.


 


The
Board of Directors of the Issuer may designate any Subsidiary of the Issuer
(including any existing Subsidiary and any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of
its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds
any Lien on, any property of, the Issuer or any Restricted Subsidiary of the
Issuer (other than any Subsidiary of the Subsidiary to be so designated); provided
that 


 


(3)                                  any Unrestricted Subsidiary must be an entity of which
shares of the Capital Stock or other Equity Interests (including partnership
interests) entitled to cast at least a majority of the votes that may be cast
by all shares or Equity Interests having ordinary voting power for the election
of directors or other governing body are owned, directly or indirectly, by the
Issuer,


 


(4)                                  such designation complies with Section 10.09, and


 


(5)                                  each of (a) the Subsidiary to be so designated, and
(b) its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to
which the lender has recourse to any of the assets of the Issuer or any
Restricted Subsidiary.


 


29

















 


The
Board of Directors of the Issuer may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided
that, immediately after giving effect to such designation no Default or Event
of Default shall have occurred and be continuing and the Issuer could either (1) incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test described in the first paragraph under Section 10.10 or (2) the
Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries
would be equal to or greater than such ratio for the Issuer and its Restricted
Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation. Any such
designation by the Board of Directors of the Issuer shall be notified by the
Issuer to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.


 


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


 


“Vice President,” when used with respect to the Issuer or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title “vice president.”  


 


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


 


“Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified
Stock or preferred stock, as the case may be, at any date, the quotient
obtained by dividing 


 


(1)                                  the sum of the products of the number of years from the
date of determination to the date of each successive scheduled principal
payment of such Indebtedness or redemption or similar payment with respect to
such Disqualified Stock or preferred stock multiplied by the amount of such
payment, by


 


(2)                                  the sum of all such payments.


 


“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100%
of the outstanding Capital Stock or other ownership interests of which (other
than directors’ qualifying shares) shall at the time be owned by such Person or
by one or more Wholly-Owned Subsidiaries of such Person.


 


Section 1.02                                Compliance Certificates and Opinions.


 


Upon
any application or request by the Issuer to the Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Trustee
an Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that (i) in
the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished and (ii) subject to Section 8.02 hereof, no Opinion
of Counsel shall be required in connection with the addition of a Guarantor
under this Indenture upon execution and delivery by such Guarantor and the
Trustee of a supplemental indenture to this Indenture, the form of which is
attached as Exhibit E hereto.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 10.07(a)) shall
include:


 


30














 


(1)                                  a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto; 


 


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


 


(3)                                  a statement that, in the opinion of each such
individual, he 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 complied with; and


 


(4)                                  a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with. 


 


Section 1.03                                Form of Documents Delivered to
Trustee.


 


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


 


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


 


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


 


Section 1.04                                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
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 Issuer. 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 Issuer, if made in the manner provided in this Section.


 


(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


 


31

















 


officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him 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 that the Trustee deems sufficient.


 


(c)                                  The principal amount and serial numbers of Notes held
by any Person, and the date of holding the same, shall be proved by the Note
Register.


 


(d)                                 If the Issuer shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Issuer may, at its option, by or pursuant to a Board Resolution, 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 Issuer shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith 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
proportion of 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 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. 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 of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, the Issuer or any Guarantor in
reliance thereon, whether or not notation of such action is made upon such
Note.


 


Section 1.05                                Notices, Etc., to Trustee, Issuer,
Any Guarantor and Agent.


 


Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,


 


(1)                                  the Trustee by any Holder or by the Issuer or any
Guarantor shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing (which may be via facsimile) to or with the Trustee at
Wilmington Trust FSB, 246 Goose Lane, Suite 105, Guilford, CT 06437, Attention:
Joseph O’Donnell; or 


 


(2)                                  the Issuer or any Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or delivered in writing and
mailed, first-class postage prepaid, or delivered by recognized overnight
courier, to the Issuer or such Guarantor addressed to it at the address of its
principal office specified in the first paragraph of this Indenture, Attention:
Michael Duffy, General Counsel, or at any other address previously furnished in
writing to the Trustee by the Issuer or such Guarantor.


 


All
notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five calendar days after being deposited
in the mail, postage prepaid, if


 


32

















 


mailed
by first- class mail; when receipt acknowledged, if faxed; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery; provided
that any notice or communication delivered to the Trustee shall be deemed
effective upon actual receipt thereof.


 


Notwithstanding
any other provision of this Indenture or any Note, where this Indenture or any
Note provides for notice of any event (including any notice of redemption) to a
Holder of a Global Note (whether by mail or otherwise), such notice shall be
sufficiently given if given to the Depositary for such Note (or its designee) pursuant
to the customary procedures of such Depositary.


 


Section 1.06                                Notice to Holders; Waiver.


 


Where
this Indenture provides for notice of any event to Holders by the Issuer or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first- class postage prepaid or
by overnight air courier guaranteeing next day delivery, to each Holder
affected by such event, at his address as it appears in the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Notices given by publication shall be deemed
given on the first date on which publication is made and notices given by
first-class mail, postage prepaid, shall be deemed given five calendar days
after mailing.


 


In
case by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause, it shall be impracticable to mail notice of
any event to Holders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice for every purpose hereunder.


 


Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver. 


 


Section 1.07                                Effect of Headings and Table of
Contents.


 


The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.


 


Section 1.08                                Successors and Assigns.


 


All
agreements of the Issuer in this Indenture and the Notes will bind its
successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 12.09 hereof.


 


Section 1.09                                Separability Clause.


 


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


 


33

















 


Section 1.10                                Benefits 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 Notes Registrar and their
successors hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


Section 1.11                                Governing Law.


 


This
Indenture, the Notes and any Guarantee shall be governed by and construed in
accordance with the laws of the State of New York. This Indenture is subject to
the provisions of the Trust Indenture Act that are referred to herein or are
otherwise required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.


 


Section 1.12                                Communication by Holders of Notes with
Other Holders of Notes.


 


Holders
may communicate pursuant to Trust Indenture Act Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes. The
Issuer, the Trustee, the Notes Registrar and anyone else shall have the
protection of Trust Indenture Act Section 312(c).


 


Section 1.13                                Legal Holidays.


 


In
any case where any Interest Payment Date, Redemption Date or Stated Maturity or
Maturity of any Note shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Notes) payment of principal (or
premium, if any) or interest need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date, or at the Stated Maturity or
Maturity; provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be.


 


Section 1.14                                No Personal Liability of Directors, Officers,
Employees and Stockholders.


 


No
director, officer, employee, incorporator or stockholder of the Issuer or any
Guarantor or any of their parent companies shall have any liability for any
obligations of the Issuer or the Guarantors under the Notes, the Guarantees or
this Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder by accepting a Note and the related
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and the Guarantees.


 


Section 1.15                                Trust Indenture Act Controls.


 


If
any provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
provision required by the TIA shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.


 


Section 1.16                                Counterparts.


 


This
Indenture may be executed in any number of counterparts, each of which shall be
original; but such counterparts shall together constitute but one and the same
instrument.


 


34

















 


Section 1.17                                USA Patriot Act.


 


The
parties hereto acknowledge that in accordance with Section 3.26 of the USA
Patriot Act the Trustee and Agents, like all financial institutions and in
order to help fight the funding of terrorism and money laundering, are required
to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account. The parties to this
Indenture agree that they will provide the Trustee and the Agents with such
information as they may reasonably request in order to satisfy the requirements
of the USA Patriot Act.


 


Section 1.18                                Waiver of Jury Trial.


 


EACH
OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.


 


Section 1.19                                No Adverse Interpretation of Other
Agreements.


 


This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Issuer or any Subsidiary of the Issuer, and no such indenture
or loan or debt agreement may be used to interpret this Indenture.


 


ARTICLE 2


NOTE FORMS


 


Section 2.01                                Forms Generally.


 


The
Notes shall be known and designated as “9.750% Senior Notes due 2017” of the
Issuer. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage; provided, that any such notations, legends or endorsements are
in a form reasonably acceptable to the Issuer. Each Note will be dated the date
of its authentication. The Notes shall be in minimum denominations of $2,000
and any integral multiple of $1,000 in excess thereof.


 


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


 


Any
Definitive Notes shall be printed, lithographed, typewritten or engraved on
steel-engraved borders or may be produced in any other manner, all as
determined by the Officer of the Issuer executing such Notes, as evidenced by
their execution of such Notes.


 


Notes
issued in global form will be substantially in the form of Exhibit A
hereto (including the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto). Notes issued in definitive
form will be substantially in the form of Exhibit A hereto (but without
the Global Note Legend thereon and without the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Each Global Note will
represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding Notes
from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented


 


35

















 


thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 3.11 hereof.


 


Notes
offered and sold in reliance on Regulation S will be issued initially in the
form of the Regulation S Temporary Global Note, which will be deposited on behalf
of the purchasers of the Notes represented thereby with the Trustee as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided.


 


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


 


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


 


Section 2.02                                Form of Trustee’s Certificate of
Authentication.


 


The
Trustee shall, upon receipt of an Issuer Order, authenticate Notes for original
issue that may be validly issued under this Indenture, including any Additional
Notes. The aggregate principal amount of Notes outstanding at any time may not
exceed the aggregate principal amount of Notes authorized for issuance by the
Issuer pursuant to one or more Issuer Orders, except as provided in Section 3.06
hereof.


 


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


 


Subject
to Section 6.11, the Trustee’s certificate of authentication shall be in
substantially the following form:


 


TRUSTEE’S CERTIFICATE OF
AUTHENTICATION.


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


 




	
   

  	
   

  	
  WILMINGTON
  TRUST FSB,

  
	
   

  	
   

  	
  as
  Trustee

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized
  Signatory

  
					






 


36

















 


Section 2.03                                Restrictive Legends.


 


Except
as permitted by Section 2.04 below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution therefor) shall
bear the following legend set forth below (the “Private Placement Legend”)
on the face thereof:


 


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



 


THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT
IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL ACCREDITED INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL INVESTOR (AN “INSTITUTIONAL ACCREDITED INVESTOR”)) AND
(2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) 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 WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE FOR THIS SECURITY), (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.


 


37

















 


Each
Global Note shall also bear the following legend on the face thereof:


 


UNLESS
THIS CERTIFICATE IS PRESENTED, BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL BECAUSE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.


 


TRANSFERS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.11
OF THE INDENTURE.


 


The
Regulation S Temporary Global Note will bear a Legend in substantially the
following form: 


 


THE
RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED
IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL
OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON.


 


Section 2.04                                Unrestricted Global Notes.


 


Any
Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(3),
(c)(4), (d)(2), (d)(3), (e)(2) or (e)(3) of Section 3.11 (and all
Notes issued in exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.


 


ARTICLE 3


THE NOTES


 


Section 3.01                                Title and Terms.


 


The
aggregate principal amount of Notes which may be authenticated and issued under
this Indenture is not limited; provided,
however, that any Additional Notes issued under this Indenture
are issued in accordance with Sections 3.03 and 10.10 hereof, as part of the same
series as the Notes.


 


The
Notes shall be known and designated as the “9.750% Senior Notes due 2017” of
the Issuer. The Stated Maturity of the Notes shall be May 15, 2017, and
the Notes shall bear interest at the rate of 9.750% per annum from May 10,
2010, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, payable on November 15, 2010 and semi-annually
thereafter on May 15 and November 15 in each year and at said Stated
Maturity, until the principal thereof is paid or duly


 


38

















 


provided
for and to the Person in whose name the Note (or any Predecessor Note) is
registered at the close of business on November 1 and May 1 immediately
preceding such Interest Payment Date (each, a “Regular Record Date”).


 


The
principal of, premium, if any, and interest and Additional Interest, if any, on
the Notes shall be payable at the office or agency of the Issuer maintained for
such purpose or, at the option of the Issuer, payment of interest may be made
by check mailed to the Holders at their respective addresses set forth in the
Note Register of Holders; provided
that all payments of principal, premium, if any, interest and Additional
Interest, if any, with respect to Notes represented by one or more Global Notes
registered in the name of or held by Depositary or its nominee will be made by
wire transfer of immediately available funds to the accounts specified by the
Holder or Holders thereof. Until otherwise designated by the Issuer, the
Issuer’s office or agency will be the office of the Trustee maintained for such
purpose.


 


Holders
shall have the right to require the Issuer to purchase their Notes, in whole or
in part, in the event of a Change in Control pursuant to Section 10.15. The
Notes shall be subject to repurchase pursuant to an offer to purchase as
provided in Section 10.16.


 


The
Notes shall be redeemable as provided in Article 11.


 


The
due and punctual payment of principal of, premium, if any, and interest on the
Notes payable by the Issuer is irrevocably and unconditionally guaranteed, to
the extent set forth herein, by each of the Guarantors.


 


Section 3.02                                Denominations.


 


The
Notes shall be issuable only in registered form without coupons and only in
minimum denominations of $2,000 and any integral multiple of $1,000 in excess
thereof.


 


Section 3.03                                Execution, Authentication, Delivery and
Dating.


 


The
Notes shall be executed on behalf of the Issuer by any one Officer. The
signature of any Officer on the Notes may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Notes.


 


Notes
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Issuer shall bind the Issuer, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.


 


At
any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee
for authentication, together with an Issuer Order for the authentication and
delivery of such Notes, and the Trustee in accordance with such Issuer Order
shall authenticate and deliver such Notes. Such Issuer Order shall identify the
Notes to be authenticated, the date on which the original issue of the Notes is
to be authenticated, the number of separate Note certificates, the principal
amount of such Notes to be authenticated, the registered holder of each of the
said Notes, and delivery instructions.


 


On
the Issue Date, the Issuer shall deliver the Notes in the aggregate principal
amount of $250,000,000 executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Notes, directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of Notes contained
herein have been fully complied


 


39

















 


with,
and the Trustee in accordance with such Issuer Order shall authenticate and
deliver such Notes. At any time and from time to time after the Issue Date, the
Issuer may deliver Additional Notes executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Additional Notes, directing the Trustee to authenticate the
Additional Notes and certifying that the issuance of such Additional Notes is
in compliance with Article 10 hereof and that all other conditions
precedent to the issuance of Notes contained herein have been fully complied
with, and the Trustee in accordance with such Issuer Order shall authenticate
and deliver such Additional Notes, and in such case, the Trustee shall receive
an Officers’ Certificate and an Opinion of Counsel of the Issuer that it may
reasonably require in connection with such authentication of Notes. Such order
shall specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated.


 


Each
Note shall be dated the date of its authentication.


 


No
Note shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.


 


In
case the Issuer or any Guarantor, pursuant to Article 8, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Issuer or such
Guarantor shall have been merged, or the Person which shall have received a
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed a supplemental indenture hereto with the Trustee pursuant to Article 9,
any of the Notes authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Notes executed in the
name of the successor Person with such changes in phraseology and form as may
be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like principal amount; and the Trustee, upon
Issuer Request of the successor Person, shall authenticate and deliver Notes as
specified in such request for the purpose of such exchange. If Notes shall at
any time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option of
the Holders but without expense to them, shall provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and delivered in such new
name.


 


Section 3.04                                Temporary Notes.


 


In
the event Definitive Notes are to be issued pursuant to the terms of this
Indenture, pending the preparation of Definitive Notes, the Issuer may execute,
and upon Issuer Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
Definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as conclusively evidenced by their
execution of such Notes.


 


If
temporary Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon surrender
of the temporary Notes at the office or agency of the Issuer designated for
such purpose pursuant to Section 10.02, without charge to the Holder. Upon
surrender for


 


40














 


cancellation
of any one or more temporary Notes, the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
Definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as Definitive Notes.


 


Section 3.05                                Registration, Paying Agent, Registration
of Transfer and Exchange.


 


The
Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.02 being herein sometimes
referred to as the “Note Register”)
in which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Notes and of transfers of Notes. The
Note Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all reasonable times, the
Note Register shall be open to inspection by the Trustee. The Trustee is hereby
initially appointed as note registrar (the “Note Registrar”)
for the purpose of registering Notes and transfers of Notes as herein provided
and as Paying Agent. The Issuer may appoint one or more co-registrars and one
or more additional paying agents. The Issuer may change any Paying Agent or
Registrar without prior notice to any Holder provided the Issuer shall notify
the Trustee in writing of such occurrence. The Issuer shall notify the Trustee
in writing of the name and address of any Agent not party to this Indenture. If
the Issuer fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Issuer or any Restricted Subsidiary
may act as a Paying Agent or Registrar.


 


The
Issuer initially appoints DTC to act as Depositary with respect to the Global
Notes.


 


Upon
surrender for registration of transfer of any Note at the office or agency of
the Issuer designated pursuant to Section 10.02, the Issuer shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized denomination
or denominations of a like aggregate principal amount.


 


At
the option of the Holder, Notes may be exchanged for other Notes of any
authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive.


 


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


 


Every
Note presented or surrendered for registration of transfer or for exchange
shall (if so required by the Issuer or the Note Registrar) be duly endorsed, or
be accompanied by written instruments of transfer, in form satisfactory to the
Issuer and the Note Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.


 


No
service charge shall be made for any registration of transfer or exchange or
redemption of Notes, but the Issuer may require payment of a sum sufficient to
cover any taxes, fees or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Sections 3.03, 3.04, 9.06, 10.16, 10.17 or 11.08 not
involving any transfer.


 


41

















 


Neither
the Registrar nor the Issuer shall 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.


 


Section 3.06                                Mutilated, Destroyed, Lost and Stolen
Notes.


 


If
(i) any mutilated Note is surrendered to the Trustee, or (ii) the
Issuer and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Issuer
and the Trustee such security or indemnity as may be required by them to
protect the Trustee, any Agent and the Issuer from any loss, then, in the
absence of notice to the Issuer or the Trustee that such Note has been acquired
by a bona fide purchaser, the Issuer shall execute and upon Issuer Order the
Trustee shall authenticate and deliver, in exchange for any such mutilated Note
or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor
and principal amount, bearing a number not contemporaneously outstanding.


 


In
case any such mutilated, destroyed, lost or stolen Note has become or is about
to become due and payable, the Issuer in its discretion may, instead of issuing
a new Note, pay such Note.


 


Upon
the issuance of any new Note under this Section, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.


 


Every
new Note issued pursuant to this Section in lieu of any mutilated, destroyed,
lost or stolen Note shall constitute an original additional contractual
obligation of the Issuer and each Guarantor and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.


 


The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.


 


Section 3.07                                Payment of Interest; Interest Rights
Preserved.


 


Interest
on any Note which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name such Note
(or one or more Predecessor Notes) is registered at the close of business on
the Regular Record Date for such interest at the office or agency of the Issuer
maintained for such purpose pursuant to Section 10.02; provided,
however, that, subject to Section 3.01 hereof, each
installment of interest may at the Issuer’s option be paid by (i) mailing
a check for such interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 3.08, to the address of such Person
as it appears in the Note Register or (ii) transfer to an account located
in the United States maintained by the payee.


 


Any
interest on any Note which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the Holder on the Regular Record Date by virtue of having been such Holder, and
such defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate borne by the Notes (such defaulted interest and interest
thereon herein collectively called “Defaulted Interest”)
may be paid by the Issuer, at its election in each case, as provided in clause
(1) or (2) below:


 


(1)                                  The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of


 


42

















 


business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Issuer shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Note
and the date of the proposed payment, and at the same time the Issuer shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer of such Special Record Date, and in
the name and at the expense of the Issuer, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be given
in the manner provided for in Section 1.06, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so given, such
Defaulted Interest shall be paid to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (2).


 


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


 


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


 


Section 3.08                                Persons Deemed Owners.


 


Prior
to the due presentment of a Note for registration of transfer, the Issuer, any
Guarantor, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Sections 3.05 and 3.07) interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee shall be affected by notice
to the contrary.


 


Section 3.09                                Cancellation.


 


All
Notes surrendered for payment, redemption, registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Issuer may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder. All Notes so delivered shall be promptly cancelled by the
Trustee. If the Issuer shall so acquire any of the Notes, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Notes held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures. Certification of the destruction of all cancelled Notes shall upon
the written request of the Issuer be delivered to the Issuer.


 


43

















 


Section 3.10                                Computation of Interest.


 


Interest
on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months. All reference in this indenture, in any context, to any interest or
other amount payable on or with respect to the Notes shall be deemed to include
any Additional Interest, if any.


 


Section 3.11                                Book-Entry and Transfer Provisions.


 


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


 


(1)                                  the Depositary (a) notifies the Issuer that it is
unwilling or unable to continue as depositary for the Global Notes or (b) has
ceased to be a clearing agency registered under the Exchange Act and, in either
case, the Issuer fails to appoint a successor depositary; 


 


(2)                                  the Issuer, at its option, notifies the Trustee in
writing that it elects to cause the issuance of the Definitive Notes; provided
that in no event shall the Regulation S Temporary Global Note be exchanged by
the Issuer for Definitive Notes prior to the expiration of the Restricted
Period; or 


 


(3)                                  there has occurred and is continuing a Default with
respect to the Notes and the Issuer or a beneficial holder requests such
exchange.


 


Upon
the occurrence of either of the preceding events in (1) or (2) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 3.04 and 3.06 hereof. Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 3.11 or Sections 3.04 or 3.06 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 3.11(a), however, beneficial interests in a Global Note may
be transferred and exchanged as provided in Section 3.11(b) or (c) hereof.


 


(b)                                 Transfer and Exchange of Beneficial Interests in the
Global Notes. The
transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. None of the Issuer, the Trustee, Paying
Agent, nor any agent of the Issuer shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Note, or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Notes also will
require compliance with either subparagraph (1) or (2) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:


 


(1)                                  Transfer of Beneficial Interests in the
Same Global Note. Beneficial
interests in any Restricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set forth in the
Private Placement Legend; provided,
however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Temporary Regulation S


 


44

















 


Global Note may not be made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Note Registrar to effect the transfers
described in this Section 3.11(b)(1).


 


(2)                                  All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection
with all transfers and exchanges of beneficial interests that are not subject
to Section 3.11(b)(1) above, the transferor of such beneficial interest must
deliver to the Note Registrar either:


 


(A)                              both:


 


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


 


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


 


(B)                                both:


 


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


 


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


 


provided that in no
event shall Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note prior to the
expiration of the Restricted Period.


 


Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 3.11(g) hereof.


 


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


 


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


 


45

















 


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


 


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


 


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


 


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


 


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


 


and, in each such case set
forth in this Section 3.11(b)(4), if the Note Registrar or the Issuer so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Issuer to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


If any such transfer is
effected pursuant to this Section 3.11(b)(4) at a time when an Unrestricted
Global Note has not yet been issued, the Issuer shall issue and, upon receipt
of an Issuer 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 this Section 3.11(b)(4).


 


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.


 


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


 


46

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 3.11(g) hereof, and the Issuer 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
3.11(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall
instruct the Note 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 3.11(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained
therein.


 


(2)                                  Beneficial
Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 3.11(c)(1)(A) and (C) hereof, a beneficial interest in
the Regulation S Temporary Global Note may not be exchanged for a Definitive
Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to the expiration of the Restricted Period.


 


47

















 


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


 


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


 


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


 


and, in each such case set
forth in this Section 3.11(c)(3), if the Note Registrar or the Issuer so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Issuer to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


(4)                                  Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder
of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section 3.11(b)(2)
hereof, the Trustee will cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 3.11(g) hereof, and
the Issuer will execute and the Trustee will authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section
3.11(c)(3) will be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
requests through instructions to the Note Registrar from or through the
Depositary and the Participant or Indirect Participant. The Trustee will
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 pursuant to this Section 3.11(c)(4) will
not bear the Private Placement Legend.


 


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


 


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


 


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


 


48

















 


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


 


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


 


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


 


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


 


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


 


(G)                                if such
Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof, the Trustee will cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause (B)
above, the 144A Global Note, in the case of clause (C) above, the Regulation S
Global Note, and in all other cases, the IAI Global Note.


 


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


 


(A)                              the Note
Registrar receives the following:


 


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


 


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


 


and, in each such case set
forth in this subparagraph (A), if the Note Registrar or the Issuer so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Issuer to the effect that such exchange or
transfer is in


 


49

















 


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 3.11(d)(2), the Trustee
will cancel the Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.


 


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


 


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


 


(e)                                  Transfer and
Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 3.11(e), the
Note Registrar will register the transfer or exchange of Definitive Notes.
Prior to such registration of transfer or exchange, the requesting Holder must
present or surrender to the Note Registrar the Definitive Notes duly endorsed
or accompanied by a written instruction of transfer in form satisfactory to the
Note Registrar duly executed by such Holder or by its attorney, duly authorized
in writing. In addition, the requesting Holder must provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 3.11(e).


 


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


 


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


 


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


 


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


 


(2)                                  Restricted
Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Note or


 


50














 


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


 


(A)                              the Note
Registrar receives the following:


 


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


 


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


 


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


 


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


 


(f)                                    Cancellation
and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 3.09 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly
and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.


 


(g)                                 General
Provisions Relating to Transfers and Exchanges.


 


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


 


(2)                                  No service
charge will be made to a Holder of a beneficial interest in a Global Note or to
a Holder of a Definitive Note for any registration of transfer or exchange, but
the Issuer may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar


 


51

















 


governmental charge payable
upon exchange or transfer pursuant to Sections 3.04, 9.06, 10.15 and 10.16
hereof).


 


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


 


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


 


(5)                                  Neither the
Note Registrar nor the Issuer will be required:


 


(A)                              to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 11.04 hereof and ending at the close of business on
the day of such selection;


 


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


 


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


 


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


 


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


 


(8)                                  All certifications,
certificates and Opinions of Counsel required to be submitted to the Note
Registrar pursuant to this Section 3.11 to effect a registration of transfer or
exchange may be submitted by facsimile.


 


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


 


(10)                            Neither the
Trustee nor any Agent shall have any responsibility for any actions taken or
not taken by the Depositary.


 


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Section 3.12                                CUSIP
Numbers.


 


The Issuer in issuing the
Notes may use “CUSIP,” “ISIN” or other numbers (if then generally in use) in
addition to serial numbers, and, if so, the Trustee shall use such “CUSIP,”
“ISIN” or other numbers in addition to serial numbers in notices of redemption,
repurchase or other notices to Holders 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 or
repurchase and that reliance may be placed only on the serial or other
identification numbers printed on the Notes, and any such redemption or
repurchase shall not be affected by any defect in or omission of such numbers.
The Issuer will promptly notify the Trustee in writing of any change in the
CUSIP, ISIN or other numbers.


 


Section 3.13                                Issuance
of Additional Notes.


 


The Issuer may, subject to
Section 10.10 of this Indenture, issue from time to time additional Notes
without notice to or consent of the Holders having identical terms and
conditions to the Notes issued on the Issue Date (the “Additional Notes”). The Notes issued on
the Issue Date and any Additional Notes subsequently issued shall be treated as
a single class for all purposes under this Indenture. With respect to any
Additional Notes, the Issuer shall set forth in an Officers’ Certificate
pursuant to a resolution of the Board of Directors of the Issuer, copies of
which shall be delivered to the Trustee, the following information:


 


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


 


(2)                                  the issue
price, the issue date and the CUSIP number of such Additional Notes; and


 


(3)                                  whether such
Additional Notes shall be issued in the form of Restricted Global Notes.


 


ARTICLE
4


SATISFACTION
AND DISCHARGE


 


Section 4.01                                Satisfaction
and Discharge of Indenture.


 


This Indenture shall upon
Issuer Request be discharged and will cease to be of further effect as to all
Notes issued hereunder (except as to surviving rights of registration of
transfer or exchange of Notes expressly provided for herein or pursuant hereto)
and the Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:


 


(1)                                  either


 


(a)                                  all Notes
theretofore authenticated and delivered (other than (i) Notes which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.06 and (ii) Notes for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or segregated and held
in trust by the Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 10.03) have been delivered to the Trustee
for cancellation; or


 


53

















 


(b)                                 all such Notes
not theretofore delivered to the Trustee for cancellation have become due and
payable by reason of the making of a notice of redemption pursuant to Section
11.05 or otherwise, or will become due and payable at their Stated Maturity
within one year, or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Issuer, and the Issuer
or any Guarantor, in the case of (i), (ii) or (iii) above, 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, Government
Securities, or a combination thereof, in such amounts as will be sufficient
without consideration of any reinvestment of interest to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any and accrued interest on the Stated
Maturity or Redemption Date, as the case may be;


 


(2)                                  no Default or
Event of Default (other than that resulting from borrowing funds to be applied
to make such deposit or the granting of Liens in connection therewith) with
respect to this Indenture or the Notes 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 instrument to which the Issuer or any Guarantor is a party or
by which the Issuer or any Guarantor is bound (other than an instrument to be
terminated contemporaneously with or prior to the borrowing of funds to be
applied to make such deposit and the granting of Liens in connection
therewith);


 


(3)                                  the Issuer has
paid or caused to be paid all sums payable by it under this Indenture;


 


(4)                                  the Issuer has
delivered irrevocable instructions to the Trustee under this Indenture to apply
the deposited money toward the payment of such Notes at the Stated Maturity or
the Redemption Date, as the case may be; and


 


(5)                                  the Issuer has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein to the satisfaction and
discharge of this Indenture have been complied with.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Issuer to
the Trustee under Section 6.07, the obligations of the Issuer to any
Authenticating Agent under Section 6.12 and, if money or Government Securities
shall have been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive such satisfaction and discharge.


 


Section 4.02                                Application
of Trust Money.


 


Subject to the provisions of
the last paragraph of Section 10.03, all money or Government Securities
deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money or Government Securities has
been deposited with the Trustee; but such money or Government Securities need
not be segregated from other funds except to the extent required by law.


 


54

















 


If the Trustee or Paying
Agent is unable to apply any money or Government Securities in accordance with
Section 4.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer’s and any Guarantor’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 4.01 until such time as
the Trustee or Paying Agent is permitted to apply all such money or Government
Securities in accordance with Section 4.01; provided
that if the Issuer has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.


 


ARTICLE
5


REMEDIES


 


Section 5.01                                Events
of Default.


 


“Event of Default,” wherever used herein, means one of the
following events (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):


 


(1)                                  default in
payment when due and payable, upon redemption, acceleration or otherwise, of
principal of, or premium, if any, on the Notes issued under this Indenture;


 


(2)                                  default for 30
days or more in the payment when due of interest on or with respect to the
Notes issued under this Indenture;


 


(3)                                  failure by the
Issuer or any Guarantor for 60 days after receipt of written notice given by
the Trustee or the Holders of at least 25% in principal amount of the
Outstanding Notes and issued under this Indenture to comply with any of its
other agreements in this Indenture or the Notes;


 


(4)                                  default under
any mortgage, indenture or instrument under which there is issued or by which
there is secured or evidenced any Indebtedness for money borrowed by the Issuer
or any Restricted Subsidiary or the payment of which is guaranteed by the
Issuer or any Restricted Subsidiary, other than Indebtedness owed to the Issuer
or a Restricted Subsidiary, whether such Indebtedness or guarantee now exists
or is created after the issuance of the Notes, if both:


 


(A)                              such default either:


 


(i)                                     results from
the failure to pay any principal of such Indebtedness at its stated final
maturity (after giving effect to any applicable grace periods); or


 


(ii)                                  relates to an
obligation other than the obligation to pay principal of any such Indebtedness
at its stated final maturity and results in the holder or holders of such
Indebtedness causing such Indebtedness to become due prior to its stated
maturity; and


 


(B)                                the principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal at stated final
maturity (after giving effect to any applicable grace periods), or the maturity
of


 


55

















 


which has been so
accelerated, aggregates $10.0 million or more at any one time outstanding;


 


(5)                                  failure by the
Issuer or any Significant Subsidiary to pay final judgments aggregating in
excess of $10.0 million, which final judgments remain unpaid, undischarged and
unstayed for a period of more than 60 days after such judgment becomes final,
and in the event such judgment is covered by insurance, an enforcement
proceeding has been commenced by any creditor upon such judgment or decree
which is not promptly stayed;


 


(6)                                  any of the
following events with respect to the Issuer or any Significant Subsidiary:


 


(A)                              the Issuer or
any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy
Law


 


(i)                                     commences a
voluntary case;


 


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


 


(iii)                               consents to the
appointment of a custodian of it or for any substantial part of its property;


 


(iv)                              takes any
comparable action under any foreign laws relating to insolvency; or


 


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


 


(i)                                     is for relief
against the Issuer or any Significant Subsidiary in an involuntary case;


 


(ii)                                  appoints a
custodian of the Issuer or any Significant Subsidiary or for any substantial
part of its property; or


 


(iii)                               orders the
winding up or liquidation of the Issuer or any Significant Subsidiary;


 


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


 


(7)                                  the Guarantee
of any Significant Subsidiary shall for any reason cease to be in full force
and effect or be declared null and void or any responsible officer of any
Guarantor that is a Significant Subsidiary, as the case may be, denies that it
has any further liability under its Guarantee or gives notice to such effect,
other than by reason of the termination of this Indenture or the release of any
such Guarantee in accordance with this Indenture.


 


Section 5.02                                Acceleration
of Maturity; Rescission and Annulment.


 


If any Event of Default
(other than of a type specified in Section 5.01(6) above) occurs and is
continuing under this Indenture, the Trustee or the Holders of at least 25% in
principal amount of the


 


56

















 


Outstanding Notes issued
under this Indenture may declare the principal, premium, if any, interest and
Additional Interest, if any, and any other monetary obligations on all the
Outstanding Notes issued under this Indenture to be due and payable
immediately, by a notice in writing to the Issuer (and to the Trustee if given
by Holders).


 


Upon the effectiveness of
such declaration, such principal and interest will be due and payable
immediately. Notwithstanding the foregoing, if an Event of Default specified in
Section 5.01(6) above occurs and is continuing, then the principal amount of
all Outstanding Notes shall ipso facto
become and be immediately due and payable without any notice, declaration or
other act on the part of the Trustee or any Holder.


 


At any time after a
declaration of acceleration has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in aggregate principal
amount of the Outstanding Notes, by written notice to the Issuer and the
Trustee, may, on behalf of all Holders of the Outstanding Notes, rescind and
annul such declaration and its consequences except a continuing Default or
Event of Default in the payment of interest on, premium, if any, or the
principal of any such Note held by a non-consenting Holder.


 


No such rescission shall
affect any subsequent default or impair any right consequent thereon. 


 


Notwithstanding the
preceding paragraph, in the event of any Event of Default specified in Section
5.01(4) above, such Event of Default and all consequences thereof (excluding
any resulting payment default, other than as a result of the acceleration of
the Notes) shall be annulled, waived and rescinded, automatically and without
any action by the Trustee or the Holders, if within 20 days after such Event of
Default arose:


 


(x)                                   the
Indebtedness or guarantee that is the basis for such Event of Default has been
discharged,


 


(y)                                 the holders
thereof have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default, or


 


(z)                                   if the default
that is the basis for such Event of Default has been cured.


 


Section 5.03                                Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Issuer covenants that if
an Event of Default specified in Section 5.01(1) or 501(2) hereof occurs and is
continuing, the Issuer will, upon demand of the Trustee, pay to the Trustee for
the benefit of the Holders of such Notes, the whole amount then due and payable
on such Notes for principal (and premium, if any) and interest, and interest on
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installment of
interest, at the rate borne by the Notes, and, in addition thereto, 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.


 


If the Issuer fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Issuer, any
Guarantor or any other obligor upon the Notes and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of
the Issuer, any Guarantor or any other obligor upon the Notes, wherever
situated.


 


57

















 


If an Event of Default
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders under this Indenture and
the Guarantees by such appropriate judicial proceedings as the Trustee shall
deem necessary to protect and enforce any such rights, including seeking
recourse against any Guarantor, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy, including but without
limitation, seeking recourse against any Guarantor.


 


Section 5.04                                Trustee
May File Proofs of Claim.


 


In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or any other obligor including any Guarantor, upon the Notes or the
property of the Issuer or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,


 


(i)                                     to file and
prove a claim for the whole amount of principal (and premium, if any) and
interest owing and unpaid in respect of the Notes and to file such 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 of the
Holders allowed in such judicial proceeding, and


 


(ii)                                  to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or similar official 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 the Trustee any amount due 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 6.07.


 


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
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.


 


Section 5.05                                Trustee
May Enforce Claims Without Possession of Notes.


 


All rights of action and
claims under this Indenture or the Notes may be prosecuted and enforced by the
Trustee without the possession of any of the Notes or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders in respect of
which such judgment has been recovered.


 


Section 5.06                                Application
of Money Collected.


 


Any money, property or
proceeds thereof collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of


 


58

















 


such money on account of
principal (or premium, if any) or interest, upon presentation of the Notes and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:


 


First: To the payment of all amounts due the
Trustee under Section 6.07;


 


Second:  To
the payment of the amounts then due and unpaid for principal of (and premium,
if any) and interest on the Notes in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Notes for principal
(and premium, if any) and interest, respectively; and


 


Third:  The
balance, if any, to the Issuer or any other obligor on the Notes, as their
interests may appear or as a court of competent jurisdiction may direct in
writing; provided that all sums
due and owing to the Holders and the Trustee have been paid in full as required
by this Indenture.


 


Section 5.07                                Limitation
on Suits.


 


No Holder of any Notes shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:


 


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


 


(2)                                  the Holders of
not less than 25% in principal amount of the Outstanding Notes shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;


 


(3)                                  such Holder or
Holders have offered to the Trustee indemnity reasonably satisfactory to it
against the costs, expenses and liabilities to be incurred in compliance with
such request;


 


(4)                                  the Trustee for
60 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and


 


(5)                                  no direction
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority or more in principal amount of
the Outstanding Notes;


 


it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture or
the Guarantees to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture or the Guarantees, except in the
manner herein provided and for the equal and ratable benefit of all the Holders
(it being further understood that the Trustee does not have an affirmative duty
to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders).


 


59

















 


Section 5.08                                Unconditional
Right of Holders To Receive Principal, Premium and Interest.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Note shall have the right, which
is absolute and unconditional, to receive payment, as provided herein
(including, if applicable, Article 11) and in such Note of the principal of
(and premium, if any) and (subject to Section 3.07) interest on such Note on
the respective Stated Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.


 


Section 5.09                                Restoration
of Rights and Remedies.


 


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


 


Section 5.10                                Rights
and Remedies Cumulative.


 


Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in the last paragraph of Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 5.11                                Delay
or Omission Not Waiver.


 


No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.


 


Section 5.12                                Control
by Holders.


 


The Holders of not less than
a majority in principal amount of the Outstanding Notes shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, provided that:


 


(1)                                  such direction
shall not be in conflict with any rule of law or with this Indenture,


 


(2)                                  subject to
Section 315 of the Trust Indenture Act, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction, and


 


(3)                                  the Trustee
need not take any action which might involve it in personal liability or be
unjustly prejudicial to the Holders not consenting.


 


60






 










 


Section 5.13           Waiver of
Past Defaults.


 


Subject to Sections 5.02,
5.08 and 9.02, the Holders of not less than a majority in principal amount of
the Outstanding Notes may on behalf of the Holders of all such Notes waive any
past Default hereunder and its consequences, except a continuing Default or
Event of Default (1) in respect of the payment of interest on, premium, if any,
or the principal of any such Note held by a non-consenting Holder, or (2) in
respect of a covenant or provision hereof which under Article 9 cannot be
modified or amended without the consent of the Holder of each Outstanding Note
affected.


 


Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.


 


Section 5.14           Waiver of
Stay or Extension Laws.


 


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


 


ARTICLE
6


THE
TRUSTEE


 


Section 6.01           Duties of
the Trustee.


 


(a)           Except during the
continuance of an Event of Default,


 


(1)           the Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and


 


(2)           in the absence of bad faith
or willful misconduct on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions specifically required by any provision hereof to be provided to it,
the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture, but not to verify the
contents thereof.


 


(b)           In case an Event of Default
has occurred and is continuing of which a Responsible Officer of the Trustee
has actual knowledge or of which written notice of such Event of Default shall
have been given to the Trustee by the Issuer, any other obligor of the Notes or
by any Holder, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent Person would exercise or use under the circumstances in
the conduct of such Person’s own affairs.


 


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(c)           No provision of this Indenture
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that


 


(1)           this paragraph (c) shall not
be construed to limit the effect of paragraph (a) of this Section;


 


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


 


(3)           the Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority in
aggregate principal amount of the Outstanding Notes relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture; and


 


(4)           no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


(d)           Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.


 


Section 6.02           Notice of
Defaults.


 


Within ninety days after the
earlier of receipt from the Issuer of notice of the occurrence of any Default
or Event of Default hereunder or the date when such Default or Event of Default
becomes known to the Trustee, the Trustee shall transmit, in the manner and to
the extent provided in TIA Section 313(c), notice of such Default or Event of
Default hereunder known to the Trustee, unless such Default or Event of Default
shall have been cured or waived; provided,
however, that, except in the case
of a Default or Event of Default in the payment of the principal, premium, if
any, interest and Additional Interest, if any, on any Note, the Trustee shall
be protected in withholding such notice if and so long as a trust committee of
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders.


 


Section 6.03           Certain
Rights of Trustee.


 


Subject to the provisions of
TIA Sections 315(a) through 315(d):


 


(1)           the Trustee may conclusively
rely and shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
party or parties;


 


(2)           any request or direction of
the Issuer mentioned herein shall be sufficiently evidenced by a Issuer Request
or Issuer Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;


 


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(3)           whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;


 


(4)           the Trustee may consult with
counsel of its own selection and the advice of such counsel or any Opinion of
Counsel with respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;


 


(5)           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 pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses, losses and
liabilities which might be incurred by it in compliance with such request or
direction;


 


(6)           the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney at the expense of
the Issuer and shall incur no liability of any kind by reason of such inquiry
or investigation;


 


(7)           the Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;


 


(8)           the Trustee shall not be
liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;


 


(9)           the rights, privileges,
protections, immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder;


 


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


 


(11)         in no event shall the
Trustee be responsible or liable for special, indirect, or consequential loss
or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.


 


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The Trustee shall not be
required to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.


 


The Trustee shall not be
deemed to have notice of any Default or Event of Default unless a Responsible
Officer of the Trustee has received written notice of any event which is in
fact such a Default or Event of Default at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.


 


Section 6.04           Trustee
Not Responsible for Recitals or Issuance of Notes.


 


The recitals contained
herein and in the Notes, except for the Trustee’s certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder.  The Trustee shall not be accountable for the
use or application by the Issuer of Notes or the proceeds thereof.


 


Section 6.05           May Hold
Notes.


 


The Trustee, any Paying
Agent, any Note Registrar or any other agent of the Issuer or of the Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Notes and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Issuer with the same rights it would have if it were not the Trustee, Paying
Agent, Note Registrar or such other agent; provided,
however, that, if it acquires any
conflicting interest, it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue or resign.


 


Section 6.06           Money Held
in Trust.


 


Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Issuer.


 


Section 6.07           Compensation
and Reimbursement.


 


The Issuer agrees:


 


(1)           to pay to the Trustee from
time to time such compensation as shall be agreed in writing between the Issuer
and the Trustee for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);


 


(2)           except as otherwise expressly
provided herein, to reimburse the Trustee upon its request for all expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as shall be determined to have been caused by its own
negligence or willful misconduct; and


 


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(3)           to indemnify the Trustee and
its officers, directors, agents and employees and any predecessor Trustee for,
and to hold it harmless against, any and all loss, liability, claim, damage or
expense, including taxes (other than the taxes based on the income of the
Trustee) incurred without negligence or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim
regardless of whether the claim is asserted by the Issuer, a Guarantor, a
Holder or any other Person or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee will notify
the Issuer promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Issuer will not relieve the Issuer of its
obligations hereunder. The Issuer will defend the claim and the Trustee will
cooperate in the defense. The Issuer need not pay for any settlement made
without its consent, which consent will not be unreasonably withheld. The
Issuer need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee’s own willful
misconduct, negligence or bad faith.


 


The obligations of the Issuer
under this Section to compensate the Trustee, to pay or reimburse the
Trustee for expenses, disbursements and advances and to indemnify and hold
harmless the Trustee shall constitute additional indebtedness hereunder and
shall survive the satisfaction and discharge of this Indenture and resignation
or removal of the Trustee. As security for the performance of such obligations
of the Issuer, the Trustee shall have a claim prior to the Notes upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Notes.


 


When the Trustee incurs
expenses or renders services in connection with an Event of Default specified
in Section 5.01(6), the expenses (including the reasonable charges and
expenses of its counsel) of and the compensation for such services are intended
to constitute expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.


 


The provisions of this
Section shall survive the termination of this Indenture. 


 


Section 6.08           Corporate
Trustee Required; Eligibility.


 


There shall be at all times
a Trustee hereunder which shall be eligible to act as Trustee under TIA
Sections 310(a)(1), (2) and (5) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.


 


Section 6.09           Resignation
and Removal; Appointment of Successor.


 


(a)           No resignation or removal of
the Trustee and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 6.10.


 


(b)           The Trustee may resign at
any time by giving written notice thereof to the Issuer. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee by
written instrument executed by authority of the Board of Directors, a copy of
which shall be delivered to the resigning Trustee and a copy to the successor
trustee. If the instrument of acceptance by a successor


 


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Trustee required by
Section 6.10 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition, at the expense of the Issuer, any court of competent jurisdiction for
the appointment of a successor Trustee.


 


(c)           The Trustee may be removed at
any time by Act of the Holders of not less than a majority in principal amount
of the Outstanding Notes, delivered to the Trustee and to the Issuer. If the
instrument of acceptance by a successor Trustee required by Section 6.10
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition, at the expense
of the Issuer, any court of competent jurisdiction for the appointment of a
successor Trustee.


 


(d)           If at any time:


 


(1)           the Trustee
shall fail to comply with the provisions of TIA Section 310(b) after written
request therefor by the Issuer or by any Holder who has been a bona fide Holder
of a Note for at least six months, or 


 


(2)           the Trustee
shall cease to be eligible under Section 6.08 and shall fail to resign
after written request therefor by the Issuer or by any Holder who has been a
bona fide Holder of a Note for at least six months, or


 


(3)           the Trustee
shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation,


 


then, in any such case,
(i) the Issuer, by a Board Resolution, may remove the Trustee, or
(ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


(e)           If the Trustee shall resign,
be removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, the Issuer shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding Notes
delivered to the Issuer and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Issuer.
If no successor Trustee shall have been so appointed by the Issuer or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(f)            The Issuer shall give notice
of each resignation and each removal of the Trustee and each appointment of a
successor Trustee to the Holders in the manner provided for in
Section 1.06. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office. 


 


Section 6.10           Acceptance
of Appointment by Successor.


 


(a)           Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to the Issuer and to
the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of


 


66

















 


the retiring Trustee; but,
on request of the Issuer or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder. Upon request of
any such successor Trustee, the Issuer shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts.


 


(b)           Upon request of any such
successor Trustee, the Issuer shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
rights, powers and trusts referred to in paragraph (a) of this Section 6.10.


 


(c)           No successor Trustee shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this Article.


 


Section 6.11           Merger,
Conversion, Consolidation or Succession to Business.


 


Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder; provided,
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as
if such successor Trustee had itself authenticated such Notes. In case at that
time any of the Notes shall not have been authenticated, any successor Trustee
may authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor Trustee. In all such cases such certificates shall
have the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee shall have; provided, however,
that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Notes in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.


 


Section 6.12           Appointment
of Authenticating Agent.


 


At any time when any of the
Notes remain Outstanding, the Trustee may appoint an Authenticating Agent or
Agents with respect to the Notes which shall be authorized to act on behalf of
the Trustee to authenticate Notes and the Trustee shall give written notice of
such appointment to all Holders of Notes with respect to which such
Authenticating Agent will serve, in the manner provided for in
Section 1.06. Notes so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, and
a copy of such instrument shall be promptly furnished to the Issuer. Wherever
reference is made in this Indenture to the authentication and delivery of Notes
by the Trustee or the Trustee’s certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Issuer and shall at all times be a corporation
organized and doing business under the laws of the United States of America,
any state thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or state
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this


 


67

















 


Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in this Section.


 


Any corporation into which
an Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided,
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.


 


An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and to the
Issuer. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Issuer and
shall give written notice of such appointment to all Holders of Notes, in the
manner provided for in Section 1.06. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.


 


The Issuer agrees to pay to
each Authenticating Agent from time to time such compensation for its services
under this Section as shall be agreed in writing between the Issuer and
such Authenticating Agent.


 


If an appointment is made
pursuant to this Section, the Notes may have endorsed thereon, in addition to
the Trustee’s certificate of authentication, an alternate certificate of
authentication in the following form:


 


This is one of the Notes
designated therein referred to in the within-mentioned Indenture.


 


	
   

  	
  WILMINGTON TRUST FSB, as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  as Authenticating Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  as Authorized Officer

  
					



 


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Section 6.13           Force
Majeure.


 


In no event shall the
Trustee be responsible or liable for any failure or delay in the performance of
its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


ARTICLE 7


HOLDERS
LISTS AND REPORTS BY TRUSTEE AND ISSUER


 


Section 7.01           Issuer To
Furnish Trustee Names and Addresses.


 


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


 


Section 7.02           Disclosure
of Names and Addresses of Holders.


 


Every Holder of Notes, by
receiving and holding the same, agrees with the Issuer and the Trustee that
none of the Issuer or the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).


 


Section 7.03           Reports by
Trustee.


 


Within 60 days after April 15
of each year commencing with April 15, 2011, the Trustee shall transmit to
the Holders of Notes (with a copy to the Issuer), in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such
May 15 if required by TIA Section 313(a).


 


ARTICLE 8


MERGER,
CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL ASSETS


 


Section 8.01           Issuer
May Consolidate, Etc., Only on Certain Terms.


 


(a)           The Issuer may not
consolidate or merge with or into or wind up into (whether or not the Issuer is
the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to any Person unless: 


 


(1)           the Issuer is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than the Issuer) or to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made is a Person
organized or existing under the laws of the United States, any state thereof,
the District of Columbia, or any territory thereof (such Person, as the case
may be, being herein called the “Successor
Issuer”);


 


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(2)           the Successor Issuer, if other
than the Issuer, expressly assumes all the obligations of the Issuer under this
Indenture and the Notes pursuant to supplemental indentures or other documents
or instruments in form reasonably satisfactory to the Trustee; 


 


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


 


(4)           immediately after giving pro forma effect to such transaction, as
if such transaction had occurred at the beginning of the applicable
four-quarter period,


 


(A)          the Successor Issuer would
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 10.10, or 


 


(B)           the Fixed Charge Coverage
Ratio for the Successor Issuer and the Restricted Subsidiaries would be equal
to or greater than such ratio for the Issuer and the Restricted Subsidiaries
immediately prior to such transaction;


 


(5)           if the Successor Issuer is
not the Issuer, each Guarantor, unless it is the other party to the
transactions described above, in which case Section 8.02(2) below
shall apply, shall have by supplemental indenture confirmed that its Guarantee
shall apply to such Person’s obligations under this Indenture and the Notes;
and


 


(6)           the Issuer shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indentures, if any, comply with this Indenture;


 


(b)           The Successor Issuer will
succeed to, and be substituted for the Issuer under this Indenture and the
Notes. Notwithstanding clauses (3) and (4) above, 


 


(1)           the Issuer or any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Issuer or a Guarantor; and


 


(2)           the Issuer may merge with an
Affiliate incorporated solely for the purpose of reincorporating the Guarantor
or the Issuer in another State of the United States so long as the amount of
Indebtedness of the Issuer and the Restricted Subsidiaries is not increased
thereby.


 


Section 8.02           Guarantors
May Consolidate, Etc., Only on Certain Terms.


 


Subject to
Section 12.09, each Guarantor will not, and the Issuer will not permit any
Guarantor to, consolidate or merge with or into or wind up into (whether or not
such Guarantor is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, any Person unless:


 


(1)           such Guarantor is the
surviving Person or the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been made is a
Person organized or existing under the laws of the United States, any state
thereof, the District of Columbia, or any territory thereof (such Guarantor or
such Person, as the case may be, being herein called the “Successor Person”);


 


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(2)           the Successor Person, if
other than such Guarantor, expressly assumes all the obligations of such
Guarantor under this Indenture and such Guarantor’s Guarantee pursuant to
supplemental indentures or other documents or instruments in form reasonably satisfactory
to the Trustee;


 


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


 


(4)           the Issuer shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indentures, if any, comply with this Indenture; and 


 


(5)           the transaction is made in
compliance with Section 10.16.


 


Subject to
Section 12.09 hereof, the Successor Person shall succeed to, and be
substituted for, such Guarantor under this Indenture and such Guarantor’s
Guarantee. Notwithstanding the foregoing, any Guarantor may merge into or
transfer all or part of its properties and assets to another Guarantor or the
Issuer.


 


Section 8.03           Successor
Substituted.


 


Upon any consolidation or
merger, or any sale, assignment, conveyance, transfer, lease or disposition of
all or substantially all of the assets of the Issuer or any Guarantor in
accordance with Sections 8.01 and 8.02 hereof, the successor Person formed by
such consolidation or into which the Issuer or such Guarantor, as the case may
be, is merged or the successor Person to which such sale, assignment,
conveyance, transfer, lease or disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer or such
Guarantor, as the case may be, under this Indenture and/or the Guarantees, as
the case may be, with the same effect as if such successor Person had been
named as the Issuer or such Guarantor, as the case may be, herein and/or the
Guarantees, as the case may be. When a successor Person assumes all obligations
of its predecessor hereunder, and under the Notes or the Guarantees, as the
case may be, such predecessor shall be released from all obligations; provided that in the event of a transfer
or lease, the predecessor shall not be released from the payment of principal
and interest or other obligations on the Notes or the Guarantees, as the case
may be.


 


ARTICLE 9


SUPPLEMENTAL
INDENTURES


 


Section 9.01           Amendments
or Supplements Without Consent of Holders.


 


Without the consent of any
Holder, the Issuer, any Guarantor (with respect to a Guarantee or this
Indenture to which it is a party) and the Trustee, at any time and from time to
time, may amend or supplement this Indenture, any Guarantee, or the Notes for
any of the following purposes: 


 


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


 


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


 


(3)           to comply with Article 8
hereof; 


 


(4)           to provide for the
assumption of the Issuer’s or any Guarantor’s obligations to the Holders;


 


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(5)           to make any change that
would provide any additional rights or benefits to the Holders or that does not
adversely affect the rights under this Indenture of any such Holder; 


 


(6)           to add covenants for the
benefit of the Holders or to surrender any right or power conferred upon the
Issuer; 


 


(7)           to comply with requirements
of the Commission in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act; 


 


(8)           to evidence and provide for
the acceptance and appointment under this Indenture of a successor Trustee
pursuant to the requirements of Sections 6.09 and 6.10;


 


(9)           to provide for the issuance
of exchange notes or private exchange notes, which are identical to exchange
notes except that they are not freely transferable; 


 


(10)         to add or release a
Guarantor under this Indenture in accordance with the terms of this Indenture; 


 


(11)         to conform the text of this
Indenture, Guarantees or the Notes to any provision of the “Description of the
Notes” section of the Offering Memorandum to the extent that such provision in
the “Description of the Notes” was intended (as evidenced by an Officers’
Certificate of the Issuer delivered to the Trustee) to be a verbatim recitation
of a provision of this Indenture, the Guarantees, or the Notes; 


 


(12)         to provide for the issuance
of Additional Notes in accordance with the limitations set forth in this
Indenture; 


 


(13)         to make any changes with
respect to the rights or obligations of the Trustee or other provisions
relating to the Trustee that do not adversely affect the rights of any Holder
in any material respect; or 


 


(14)         to make any amendment to the
provisions of this Indenture relating to the transfer and legending of Notes as
permitted by this Indenture, including, without limitation to facilitate the
issuance and administration of the Notes; provided,
however, that (i) compliance
with this Indenture as so amended would not result in the Notes being
transferred in violation of the Securities Act or any applicable securities law
and (ii) such amendment does not materially and adversely affect the
rights of the Holders to transfer the Notes.


 


Section 9.02           Amendments,
Supplements or Waivers with Consent of Holders.


 


With the consent of the
Holders of at least a majority in principal amount of the Outstanding Notes, by
Act of said Holders delivered to the Issuer and the Trustee, the Issuer, any
Guarantor (with respect to any Guarantee or this Indenture to which it is a
party) and the Trustee may amend or supplement this Indenture, any Guarantee or
the Notes for the purpose of adding any provisions hereto or thereto, changing in
any manner or eliminating any of the provisions or of modifying in any manner
the rights of the Holders hereunder or thereunder and any existing Default,
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 Outstanding Notes (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes); provided, however, that no such amendment,
supplement or waiver shall, without the consent of the Holder of each
Outstanding Note affected thereby:


 


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


 


(2)           reduce the principal of or
change the Maturity of any such Note or alter or waive the provisions with
respect to the redemption of the Notes (other than provisions relating to
Sections 10.15 and 10.16),


 


(3)           reduce the rate
of or change the time for payment of interest on any Note,


 


(4)           waive a Default
or Event of Default in the payment of principal of or premium, if any, or
interest on the Notes issued under this Indenture, except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of such Notes and a waiver of the payment default that
resulted from such acceleration, or in respect of a covenant or provision
contained in this Indenture or any Guarantee which cannot be amended or modified
without the consent of all Holders, 


 


(5)           make any Note
payable in money other than that stated in such Notes, 


 


(6)           make any change
in Section 5.13 or the rights of Holders to receive payments of principal
of or premium, if any, or interest on the Notes, 


 


(7)           make any change
in the amendment and waiver provisions set forth in Sections 9.01 and 9.02,


 


(8)           impair the
right of any Holder to receive payment of principal of, or interest on such
Holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Notes, 


 


(9)           except as
expressly permitted by this Indenture, modify the Guarantees of any Significant
Subsidiary in any manner adverse to the Holders, or 


 


(10)         make any change
to or modify the ranking of the Notes that would adversely affect the Holders.


 


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


 


Section 9.03           Execution
of Amendments, Supplements or Waivers.


 


In executing, or accepting
the additional trusts created by, any amendment, supplement or waiver permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be provided with, and shall be fully protected in
relying upon, an Officers’ Certificate and Opinion of Counsel stating that the
execution of such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such amendment, supplement or waiver which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise. Notwithstanding the
foregoing, no Opinion of Counsel shall be required in connection with the
addition of a Guarantor under this Indenture upon execution and delivery by
such Guarantor and the Trustee of a supplemental indenture to this Indenture,
the form of which is attached as Exhibit E hereto, and delivery of an
Officers’ Certificate, except as provided in Section 8.02.


 


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Section 9.04           Effect of
Amendments, Supplements or Waivers.


 


Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such amendment, supplement or waiver shall form a
part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.


 


Section 9.05           Conformity
with Trust Indenture Act.


 


Every supplemental indenture
executed pursuant to the Article shall conform to the requirements of the
Trust Indenture Act as then in effect.


 


Section 9.06           Reference
in Notes to Supplemental Indentures.


 


Notes authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Issuer shall so determine, new Notes so modified as to
conform, in the opinion of the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Trustee in exchange for Outstanding Notes. Failure to make the appropriate
notation or issue a new Note will not affect the validity and effect of such
amendment, supplement or waiver.


 


Section 9.07           Notice of
Supplemental Indentures.


 


Promptly after the execution
by the Issuer, any Guarantor and the Trustee of any supplemental indenture
pursuant to the provisions of Section 9.02, the Issuer shall give notice
thereof to the Holders of each Outstanding Note affected, in the manner provided
for in Section 1.06, briefly setting forth in general terms the substance
of such supplemental indenture. Any failure of the Issuer to mail such notice,
or any defect therein, will not, however, in any way impair or affect the
validity of any such amended or supplemental indenture or waiver.


 


ARTICLE 10


COVENANTS


 


Section 10.01         Payment of
Principal, Premium, if Any, and Interest.


 


The Issuer covenants and
agrees for the benefit of the Holders that it will duly and punctually pay the
principal of (and premium, if any) and interest on (and Additional Interest, if
any) the Notes in accordance with the terms of the Notes and this Indenture.
Principal, premium, if any, interest and Additional Interest, if any, will be
considered paid on the date due if the Paying Agent, if other than the Issuer
or a Subsidiary thereof, holds as of 11:00 a.m. New York City Time on the due
date money deposited by the Issuer in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and interest,
if any, then due. The Issuer will pay all Additional Interest, if any, in the
same manner on the dates and in the amounts set forth in the Registration
Rights Agreement.


 


Section 10.02         Maintenance
of Office or Agency.


 


The Issuer will maintain in
the continental United States, an office or agency where Notes may be presented
or surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The designated office of
the Trustee shall be such office or agency of the Issuer, unless


 


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the Issuer shall designate
and maintain some other office or agency for one or more of such purposes. The
Issuer will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Issuer hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


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


 


Section 10.03         Money for
Notes Payments To Be Held in Trust.


 


If the Issuer or a
Wholly-Owned Subsidiary of the Issuer shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of (or premium, if
any) or interest on any of the Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
of (or premium, if any) or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.


 


Whenever the Issuer shall
have one or more Paying Agents for the Notes, it will, on or before each due
date of the principal of (or premium, if any) or interest on any Notes, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of
such action or any failure so to act.


 


The Issuer will cause each
Paying Agent (other than the Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:


 


(1)           hold all sums held by it for
the payment of the principal of (and premium, if any) or interest on Notes in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided; 


 


(2)           give the Trustee notice of
any default by the Issuer (or any other obligor upon the Notes) in the making
of any payment of principal (and premium, if any) or interest; and 


 


(3)           at any time during the
continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent.


 


The Issuer may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or by Issuer Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Issuer or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such sums.


 


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Subject to any applicable
abandoned property law, any money deposited with the Trustee or any Paying
Agent, or then held by the Issuer, in trust for the payment of the principal of
(or premium, if any) or interest on any Note and remaining unclaimed for two
years after such principal, premium or interest has become due and payable
shall be paid to the Issuer on Issuer Request, or (if then held by the Issuer)
shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of New York, 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
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.


 


Section 10.04         Corporate
Existence.


 


Subject to Article 8,
the Issuer will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and that of each
Restricted Subsidiary and the corporate rights (charter and statutory) and
franchises of the Issuer and each Restricted Subsidiary; provided, however,
that the Issuer shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Issuer and its
Subsidiaries as a whole.


 


Section 10.05         Payment of
Taxes and Other Claims.


 


The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges
levied or imposed upon the Issuer or any Subsidiary or upon the income, profits
or property of the Issuer or any Subsidiary and (b) all material lawful
claims for labor, materials and supplies, which, if unpaid, might by law become
a lien upon the property of the Issuer or any Subsidiary; provided, however,
that the Issuer shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Issuer) are being maintained in accordance with
GAAP.


 


Section 10.06         Maintenance
of Properties.


 


The Issuer will cause all
properties owned by the Issuer or any Restricted Subsidiary or used or held for
use in the conduct of its business or the business of any Restricted Subsidiary
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Issuer may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall
prevent the Issuer from discontinuing the maintenance of any of such properties
if such discontinuance is, in the judgment of the Issuer, desirable in the
conduct of its business or the business of any Restricted Subsidiary.


 


Section 10.07         Statement
by Officers as to Default.


 


(a)           The Issuer will deliver to
the Trustee within 120 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Issuer and its
Restricted Subsidiaries


 


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during the preceding fiscal
year has been made under the supervision of the signing officers with a view to
determining whether it has kept, observed, performed and fulfilled, and has
caused each of its Restricted Subsidiaries to keep, observe, perform and
fulfill 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 Issuer during such preceding quarter or the preceding fiscal year,
as the case may be, has kept, observed, performed and fulfilled, and has caused
each of its Restricted Subsidiaries to keep, observe, perform and fulfill each
and every such covenant contained in this Indenture and no Default or Event of
Default occurred during such year and at the date of such certificate there is
no Default or Event of Default which has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate shall
describe its status, with particularity and that, to the best of his or her
knowledge, no event has occurred and remains by reason of which payments on the
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 each is
taking or proposes to take with respect thereto. The Officers’ Certificate
shall also notify the Trustee should the Issuer elect to change the manner in
which it fixes its fiscal year-end. For purposes of this Section 10.07(a),
such compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.


 


(b)           When any Default or Event of
Default has occurred and is continuing under this Indenture or any other
document, instrument or agreement representing Indebtedness of the Issuer or
any Guarantor, the Issuer shall deliver to the Trustee by registered or
certified mail or facsimile transmission an Officers’ Certificate specifying
such event, notice or other action within five Business Days of any Officer
becoming aware of the foregoing.


 


Section 10.08         Reports
and Other Information.


 


Whether or not required by
the rules and regulations of the Commission, so long as any Notes are
outstanding, the Issuer will furnish to the Holders or cause the Trustee to
furnish to the Holders (or file with the Commission for public availability),
within the time periods specified in the Commission’s rules and
regulations:


 


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


 


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


 


Notwithstanding the
foregoing, prior to the effectiveness of the exchange offer registration
statement or a shelf registration statement contemplated by the Registration
Rights Agreement, (i) such requirements, with regard to the applicable
periods, shall be deemed satisfied by the filing with the Commission of an
exchange offer registration statement or a shelf registration statement, and
any amendments thereto, with such financial and other information that
satisfies Regulation S-X of the Securities Act and the information requirements
of this Section 10.08 within the time periods and in accordance with the
other provisions of the Registration Rights Agreement, subject to exceptions
consistent with the presentation of financial information in the Offering
Memorandum, and (ii) such requirements with respect to quarterly and annual
reports, with regard to the applicable periods, shall be deemed satisfied by
furnishing to the Holders within 15 days of the date the Issuer would have been
required to file annual and interim reports with the Commission, the financial
information (including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” section) that


 


77

















 


would be required to be
included in such reports, subject to exceptions consistent with the presentation
of financial information in the Offering Memorandum and excluding, for the
avoidance of doubt, any Section 302 and Section 906 certification of
the Sarbanes Oxley Act of 2002.


 


Except as provided above,
all such reports will be prepared in all material respects in accordance with
all of the rules and regulations applicable to such reports. In addition,
following the consummation of the exchange offer contemplated by the
Registration Rights Agreement, the Issuer will file a copy of each of the reports
referred to in clauses (1) and (2) above in this Section 10.08
with the Commission for public availability within the time periods specified
in the rules and regulations applicable to such reports (unless the
Commission will not accept such a filing) and will post the reports on its
website within those time periods. The Issuer will at all times comply with TIA
§314(a).


 


If, at any time after
consummation of the exchange offer contemplated by the Registration Rights
Agreement, the Issuer is no longer subject to the periodic reporting
requirements of the Exchange Act for any reason, the Issuer will nevertheless
continue filing the reports specified in the preceding paragraphs of this
Section 10.08 with the Commission within the time periods specified above
unless the Commission will not accept such a filing.  The Issuer will not take any action for the
purpose of causing the Commission not to accept any such filings. If,
notwithstanding the foregoing, the Commission will not accept the Issuer’s
filings for any reason, the Issuer will post the reports referred to in the
preceding paragraphs of this Section 10.08 on its website within the time
periods that would apply if the Issuer were required to file those reports with
the Commission.


 


If the Issuer has designated
any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and
annual financial information required by the preceding paragraphs of this
Section 10.08 will 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 Issuer
and its Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Issuer.
Notwithstanding the foregoing, (a) so long as Parent, or any direct or
indirect parent holding company of the Issuer, is a Guarantor of the Notes, the
reports, information and other documents required to be filed and provided as
described hereunder may, at the Issuer’s option, be filed by and be those of
Parent or such other direct or indirect parent holding company of the Issuer
rather than the Issuer and (b) in the event that Parent or such other
direct or indirect parent holding company of the Issuer conducts any business
or holds any significant assets other than the capital stock of the Issuer at
the time of filing and providing any such report, information or other document
containing financial statements of Parent or such other direct or indirect
parent holding company of the Issuer, Parent or such other direct or indirect
parent holding company of the Issuer shall include in such report, information
or other document summarized financial information (as defined in Rule 1-02(bb)
of Regulation S-X promulgated by the Commission) with respect to the Issuer.


 


In addition, the Issuer and
the Guarantors agree that, for so long as any Notes remain outstanding, if at any
time they are not required to file with the Commission the reports required by
the preceding paragraphs of this Section 10.08, they will furnish to the
Holders of Notes and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


Section 10.09         Limitation
on Restricted Payments.


 


The Issuer will not, and
will not permit any Restricted Subsidiary to, directly or indirectly:


 


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(1)           declare or pay
any dividend or make any distribution on account of the Issuer’s or any
Restricted Subsidiary’s Equity Interests, including any dividend or
distribution payable in connection with any merger or consolidation other than:


 


(a)           dividends or
distributions by the Issuer payable in Equity Interests (other than
Disqualified Stock) of the Issuer; or


 


(b)           dividends or
distributions by a Restricted Subsidiary so long as, in the case of any
dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly-Owned
Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro
rata share of such dividend or distribution in accordance with its Equity
Interests in such class or series of securities;


 


(2)           purchase,
redeem, defease or otherwise acquire or retire for value any Equity Interests
of the Issuer or any direct or indirect parent of the Issuer, including in
connection with any merger or consolidation;


 


(3)           make any
principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value in each case, prior to any scheduled repayment, sinking fund
payment or maturity, any Subordinated Indebtedness, other than (x) the purchase,
repurchase or other acquisition of Subordinated Indebtedness purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of purchase,
repurchase or acquisition and (y) Indebtedness of the Issuer to a
Restricted Subsidiary or a Restricted Subsidiary to the Issuer or another
Restricted Subsidiary; or


 


(4)           make any
Restricted Investment;


 


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


 


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


 


(b)           immediately
after giving effect to such transaction on a pro
forma basis, the Issuer could incur $1.00 of additional indebtedness
under the provisions of the first paragraph of Section 10.10; and


 


(c)           such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Issuer and its Restricted Subsidiaries after the Issue Date
(including Restricted Payments permitted by clauses (1) and (7) of
the next succeeding paragraph of this Section 10.09, but excluding all
other Restricted Payments permitted by the next succeeding paragraph of this
Section 10.09), is less than the sum of:


 


(1)           50% of the
Consolidated Net Income of the Issuer for the period (taken as one accounting
period) from the beginning of the first fiscal quarter commencing immediately
prior to the Issue Date to the end of the Issuer’s most recently ended fiscal
quarter for which internal financial statements are available at the time of
such Restricted Payment, or, in the


 


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case
such Consolidated Net Income for such period is a deficit, minus 100% of such
deficit, plus


 


(2)           100% of the
aggregate net cash proceeds and the Fair Market Value of marketable securities
or other property received by the Issuer after the Issue Date (other than net
cash proceeds to the extent such net cash proceeds have been used to incur
Indebtedness, Disqualified Stock or preferred stock pursuant to clause (13)(b) of
the second paragraph of Section 10.10) from the issue or sale of:


 


(A)          Equity
Interests of the Issuer and, to the extent actually contributed to the Issuer,
Equity Interests of any direct or indirect parent company, excluding cash
proceeds and the Fair Market Value of marketable securities or other property
received from the sale of Equity Interests to members of management, directors
or consultants of the Issuer, any direct or indirect parent of the Issuer and
the Issuer’s Subsidiaries after the Issue Date to the extent such amounts have
been applied to Restricted Payments made in accordance with clause (4) of
the next succeeding paragraph; or


 


(B)           debt securities
or Disqualified Stock of the Issuer or any Restricted Subsidiary that have been
converted into or exchanged for such Equity Interests of the Issuer or its
direct or indirect parents;


 


provided,
however, that this clause (2) shall not include the
proceeds from (a) Refunding Capital Stock (as defined below), (b) Equity
Interests or converted or exchanged debt securities of the Issuer sold to a
Restricted Subsidiary or the Issuer, as the case may be, (c) Disqualified
Stock or debt securities that have been converted into or exchanged for
Disqualified Stock, (d) Excluded Contributions or (e) Designated
Preferred Stock, plus


 


(3)           100% of the
aggregate amount of cash and the Fair Market Value of marketable securities or
other property contributed to the capital of the Issuer following the Issue
Date (other than net cash proceeds to the extent such net cash proceeds have
been used to incur Indebtedness, Disqualified Stock or preferred stock pursuant
to clause (13)(b) of the second paragraph of Section 10.10) (other
than by a Restricted Subsidiary and other than any proceeds from Excluded
Contributions and Designated Preferred Stock), plus


 


(4)           100% of the
aggregate amount received in cash and the Fair Market Value of marketable
securities or other property received by the Issuer or a Restricted Subsidiary
by means of:


 


(A)          the sale or
other disposition (other than to the Issuer or a Restricted Subsidiary) of
Restricted Investments made by the Issuer and its Restricted Subsidiaries and
repurchases and redemptions of such Restricted Investments from the Issuer and
its Restricted Subsidiaries (other than by the Issuer or a


 


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Restricted
Subsidiary) and repayments of loans or advances, and any releases of
guarantees, which constitute Restricted Investments by the Issuer and its
Restricted Subsidiaries, in each case after the Issue Date; or


 


(B)           the sale or
other disposition (other than to the Issuer or a Restricted Subsidiary) of the
stock of an Unrestricted Subsidiary (other than to the extent such Investment
constituted a Permitted Investment) or a dividend or distribution from an
Unrestricted Subsidiary in each case after the Issue Date; plus


 


(5)           if after the
Issue Date an Unrestricted Subsidiary is designated as a Restricted Subsidiary,
the Fair Market Value of the Investment in such Unrestricted Subsidiary as of
the date of the designation of such Unrestricted Subsidiary as a Restricted
Subsidiary, other than to the extent such Investment constituted a Permitted
Investment.


 


The foregoing provisions
will not prohibit:


 


(1)           the payment of
any dividend or distribution within 60 days after the date of declaration
thereof, if at the date of declaration such payment would have complied with
the provisions of this Indenture and the redemption of any Indebtedness that is
subordinated in right of payment to the Notes or the Guarantees within 60 days
after the date on which notice of such redemption was given, if at said date of
the giving of such notice, such redemption would have complied with the
provisions of this Indenture;


 


(2)           any Restricted
Payment in exchange for, or out of the proceeds of the substantially concurrent
sale (other than to the Issuer or a Restricted Subsidiary) of, Equity Interests
of the Issuer or of a direct or indirect parent company of the Issuer
contributed to the capital of the Issuer (in each case, other than any
Disqualified Stock) (“Refunding Capital
Stock”);


 


(3)           the defeasance,
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness of the Issuer or a Guarantor made by exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the
Issuer or a Guarantor, as the case may be, which is incurred in compliance with
Section 10.10 so long as:


 


(a)           the principal
amount (or accreted value) of such new Indebtedness does not exceed the
principal amount, plus any accrued and unpaid interest of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired for value,
plus the amount of any premium and any reasonable tender premiums, defeasance
costs or other fees and expenses incurred in connection with the issuance of
such new Indebtedness,


 


(b)           such new Indebtedness
is subordinated to the Notes or the applicable Guarantee at least to the same
extent as such Subordinated Indebtedness so redeemed, repurchased, acquired or
retired,


 


(c)           such new
Indebtedness has a final scheduled maturity date equal to or later than the
final scheduled maturity date of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired, and


 


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(d)           such new
Indebtedness has a Weighted Average Life to Maturity which is not less than the
remaining Weighted Average Life to Maturity of the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired;


 


(4)           a Restricted
Payment to pay for the repurchase, retirement or other acquisition or
retirement for value of common Equity Interests of the Issuer or any of its
direct or indirect parents held by any future, present or former employee,
officer, director or consultant of the Issuer, any of its Subsidiaries or any
of its direct or indirect parents (or any spouses, successors, executors,
administrators, heirs or legatees of any of the foregoing) pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or other agreement or arrangement; provided, however,
that the aggregate Restricted Payments made under this clause (4) in any
calendar year may not exceed the sum of (x) $2.0 million and (y) the
aggregate amount of Restricted Payments permitted (but not made) pursuant to
this clause (4) in the immediately preceding calendar year; provided, further, that such amount in any
calendar year may be increased by an amount not to exceed:


 


(a)           the cash
proceeds from the sale of Equity Interests (other than Disqualified Stock) of
the Issuer and, to the extent contributed to the Issuer, Equity Interests of
any of the Issuer’s direct or indirect parents, in each case to employees,
directors, officers or consultants of the Issuer, any of its Subsidiaries or
any of its direct or indirect parents that occurred after the Issue Date, to
the extent the cash proceeds from the sale of such Equity Interests have not
otherwise been applied to the payment of Restricted Payments by virtue of
clause (c) of the preceding paragraph of this Section 10.09, plus


 


(b)           the cash
proceeds of key man life insurance policies received by the Issuer and its
Restricted Subsidiaries after the Issue Date; less


 


(c)           the amount of
any Restricted Payments previously made pursuant to clauses (a) and (b) of
this clause (4);


 


provided that the Issuer may elect to
apply all or any portion of the aggregate increase contemplated by subclauses
(a) and (b) above in any calendar year; provided, further that
cancellation of Indebtedness owing to the Issuer or any of its Restricted
Subsidiaries from employees, officers, directors or consultants of the Issuer,
any of its Subsidiaries or its direct or indirect parent companies in
connection with a repurchase of Equity Interests of the Issuer or any direct or
indirect parent company will not be deemed to constitute a Restricted Payment
for purposes of this Section 10.09 or any other provisions of this
Indenture;


 


(5)           the declaration
and payment of dividends to holders of any class or series of Disqualified
Stock of the Issuer or any other Restricted Subsidiary issued in accordance
with Section 10.10 to the extent such dividends are included in the
definition of Fixed Charges;


 


(6)           repurchases of
Equity Interests of the Issuer or any of its direct or indirect parents deemed
to occur upon exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or warrants and
repurchases of Equity Interests or options to purchase Equity Interests deemed
to occur in connection with the exercise of stock options to the extent
necessary to pay applicable withholding taxes;


 


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(7)           the declaration
and payment of dividends on the Issuer’s common stock (or the payment of
dividends to any direct or indirect parent entity to fund a payment of
dividends on such entity’s common stock), following the first public offering
of the Issuer’s common stock or the common stock of any of its direct or
indirect parent companies after the Issue Date, of up to 6% per annum of the
net cash proceeds received by or contributed to the Issuer from any such public
offering, other than public offerings with respect to the Issuer’s or such
direct or indirect parent company’s common stock registered on Form S-8
and other than any public sale constituting an Excluded Contribution;


 


(8)           Restricted
Payments that are made with Excluded Contributions;


 


(9)           other
Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (9) not to exceed $5.0
million;


 


(10)         the declaration
and payment of dividends by the Issuer to, or the making of loans to, its
direct or indirect parent in amounts required for either of their respective
direct or indirect parents to pay:


 


(a)           franchise taxes
and other fees, taxes and expenses required to maintain their corporate
existence;


 


(b)           federal,
foreign, state and local income taxes of a consolidated or combined tax group
of which the direct or indirect parent is the common parent (within 30 days of
receipt of such proceeds from the Issuer), to the extent such income taxes are
solely attributable to the income of the Issuer and the Restricted Subsidiaries
and not directly payable by the Issuer or the Restricted Subsidiaries; provided, that in each case the amount of
such payments in any fiscal year does not exceed the amount that the Issuer and
its Restricted Subsidiaries would be required to pay in respect of federal,
foreign, state and local income taxes for such fiscal year were the Issuer and
its Restricted Subsidiaries required to pay such taxes separately from any
parent entity; provided, further, that, to the extent such proceeds
from the Issuer are not used to pay such taxes within such 30-day period, such
unused proceeds shall be promptly returned to the Issuer;


 


(c)           general
corporate overhead expenses of any direct or indirect parent of the Issuer, to
the extent such expenses are attributable to the ownership or operation of the
Issuer and the Restricted Subsidiaries;


 


(d)           fees,
indemnities and expenses incurred in connection with the issuance and sale of
the Notes and the use of proceeds therefrom as described in the Offering
Memorandum or amounts payable to the Sponsor or its Affiliates pursuant to the
Management Agreement to the extent permitted pursuant to clause (3) of the
second paragraph of Section 10.12.


 


(e)           indemnification
obligations of any direct or indirect parent of the Issuer owing to directors,
officers, employees or other Affiliates of the Issuer under its charter or
by-laws or pursuant to written agreements with such Person, or obligations in
respect of director and officer insurance (including any premiums therefor);


 


(f)            customary
salary, bonus, contributions to pension and 401(k) plans, deferred
compensation and other benefits payable to directors, officers and employees of


 


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any
direct of indirect parent of the Issuer to the extent such amounts are
attributable to the ownership or operation of the Issuer and its Subsidiaries
(other than pursuant to clause (4) above); and


 


(g)           any amounts
required for any direct or indirect parent of the Issuer to pay reasonable fees
and expenses, other than to Affiliates of the Issuer, related to any equity or
debt offering of such parent (whether or not successful);


 


(11)         Restricted
Payments by the Issuer or any Restricted Subsidiary to allow the payment of
cash in lieu of the issuance of fractional shares upon the exercise of options
or warrants or upon the conversion or exchange of Capital Stock of any such
Person;


 


(12)         the purchase by
the Issuer of fractional shares arising out of stock dividends, splits or
combinations or business combinations;


 


(13)         payments or
distributions to dissenting stockholders pursuant to applicable law, pursuant
to or in connection with a consolidation, merger or transfer of all or
substantially all of the assets of the Issuer and its Restricted Subsidiaries,
taken as a whole, that complies with Article 8.


 


(14)         the repurchase,
redemption or other acquisition or retirement for value of any Subordinated
Indebtedness required pursuant to the provisions similar to those described
under Sections 10.15 and 10.16, provided that
there is a concurrent or prior Change of Control Offer or Asset Sale Offer, as
applicable, and all Notes tendered by holders of the Notes in connection with
such Change of Control Offer or Asset Sale Offer, as applicable, have been
repurchased, redeemed or acquired for value;


 


(15)         Restricted
Payments in the manner described in the Offering Memorandum under “Use of
Proceeds”; and


 


(16)         at any time
prior to the date that is the second annual anniversary of the Issue Date, the
declaration and payment of a dividend to the direct parent of the Issuer out of
the net cash proceeds of the substantially concurrent sale (other than to the
Issuer or a Restricted Subsidiary) of unsecured debt securities of the Issuer
after the date of this Indenture; provided,
however that (i) at the time
of such incurrence of such unsecured debt securities and after giving pro forma effect thereto, the Consolidated
Annualized Leverage Ratio for the Issuer’s most recently ended two fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such debt is incurred would have been no greater
than 2.75 to 1.0 and (ii) the aggregate amount of Restricted Payments made
pursuant to this clause (16) may not exceed $150.0 million;


 


provided, however, that at the time of, and after
giving effect to, any Restricted Payment permitted under clauses (9), (14) and
(16), no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof.


 


As of the time of issuance
of the Notes, all of the Issuer’s Subsidiaries will be Restricted Subsidiaries.
The Issuer will not permit any Unrestricted Subsidiary to become a Restricted
Subsidiary except pursuant to the last sentence of the definition of “Unrestricted Subsidiary” in Section 1.01
of this Indenture.  For purposes of
designating any Restricted Subsidiary as an Unrestricted Subsidiary, all
outstanding Investments by the Issuer and its Restricted Subsidiaries (except
to the extent repaid) in the Subsidiary so designated will be deemed to be
Restricted Payments in an amount determined as set forth


 


84

















 


in the last sentence of the
definition of “Investment.” Such
designation will be permitted only if a Restricted Payment in such amount would
be permitted at such time, whether pursuant to the first paragraph of this
Section 10.09 or under clause (8) or (9) of the second paragraph
of this Section 10.09, or pursuant to the definition of “Permitted Investments,” and if such
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
Unrestricted Subsidiaries will not be subject to any of the restrictive
covenants set forth in this Indenture.


 


Section 10.10         Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred
Stock.


 


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


 


The foregoing limitations
will not apply to:


 


(1)           the incurrence of
Indebtedness of the Issuer or any of its Restricted Subsidiaries under Credit
Facilities in an aggregate amount at any time outstanding not to exceed $42.5
million;


 


(2)           the incurrence by the Issuer
and any Guarantor of Indebtedness represented by the Notes (including any
Guarantee) (other than any Additional Notes);


 


(3)           Existing Indebtedness (other
than Indebtedness described in clauses (1) and (2) above);


 


(4)           Indebtedness (including
Capitalized Lease Obligations) incurred, or Disqualified Stock and preferred
stock issued, by the Issuer or any of its Restricted Subsidiaries to finance
the purchase, lease or improvement of property (real or personal) or equipment
that is used or useful in a Similar Business, whether through the direct
purchase of assets or the Capital Stock of any Person owning such assets, in an
aggregate principal amount which, when aggregated with the principal amount of
all other Indebtedness, Disqualified Stock and preferred stock then outstanding
and incurred pursuant to this clause (4) and including all Refinancing
Indebtedness incurred to refund, refinance or replace any other Indebtedness,
Disqualified Stock and preferred stock incurred pursuant to this clause (4),
does not exceed the greater of (x) $15.0 million and (y) 2.75% of
Total Assets as of the date of such incurrence;


 


(5)           Indebtedness incurred by the
Issuer or any of its Restricted Subsidiaries constituting reimbursement
obligations with respect to letters of credit and bank guarantees issued in


 


85

















 


the
ordinary course of business, including without limitation letters of credit in
respect of workers’ compensation claims, health, disability or other benefits
to employees or former employees or their families or property, casualty or
liability insurance or self-insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers’ compensation claims; provided, however,
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;


 


(6)           Indebtedness arising from
agreements of the Issuer or any of its Restricted Subsidiaries providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a Subsidiary
for the purpose of financing such acquisition; provided,
however, that the maximum
assumable liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds including non-cash proceeds (the Fair Market Value of such
non-cash proceeds being measured at the time received and without giving effect
to any subsequent changes in value) actually received by the Issuer and its
Restricted Subsidiaries in connection with such disposition;


 


(7)           Indebtedness of the Issuer
to a Restricted Subsidiary; provided that,
other than in the case of intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations
of the Issuer and its Restricted Subsidiaries to finance working capital needs
of the Restricted Subsidiaries, any such Indebtedness owing to a non-Guarantor
is expressly subordinated in right of payment to the Notes; provided, further, that any subsequent issuance or transfer
of any Equity Interests or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such Indebtedness (except to the Issuer or another Restricted
Subsidiary) shall be deemed, in each case, to be an incurrence of such Indebtedness
not permitted by this clause (7);


 


(8)           Indebtedness of a Restricted
Subsidiary to the Issuer or another Restricted Subsidiary; provided
that, other than in the case of intercompany current liabilities incurred in
the ordinary course of business in connection with the cash management
operations of the Issuer and its Restricted Subsidiaries to finance working
capital needs of the Restricted Subsidiaries, if a Guarantor owes such
Indebtedness to a Restricted Subsidiary that is not the Issuer or a Guarantor
such Indebtedness is expressly subordinated in right of payment to the
Guarantee of such Guarantor; provided, further,
that, in the case of Indebtedness to another Restricted Subsidiary, any
subsequent issuance or transfer of any Equity Interests or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary, or any other subsequent transfer of any such Indebtedness (except
to the Issuer or another Restricted Subsidiary) shall be deemed, in each case,
to be an incurrence of such Indebtedness not permitted by this clause (8);


 


(9)           shares of preferred stock of
a Restricted Subsidiary issued to the Issuer or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such shares of preferred stock (except to the Issuer or another
Restricted Subsidiary) shall be deemed, in each case, to be an issuance of such
shares of preferred stock not permitted by this clause (9);


 


86

















 


(10)         Hedging Obligations
(excluding Hedging Obligations entered into for speculative purposes) incurred
in the ordinary course of business;


 


(11)         Indebtedness and other
obligations in respect of performance, bid, appeal and surety bonds and
completion guarantees and other obligations of a like nature provided by the
Issuer or any of its Restricted Subsidiaries in the ordinary course of
business, including, but not limited to, Indebtedness with respect to a
guarantee, surety bond or other Contingent Obligation, in form and substance
sufficient to satisfy the requirements set forth at 10 C.F.R. 30.35 or
comparable state regulations, as applicable, the face amount of which shall be
adjusted from time to time in accordance with applicable regulations to reflect
adjustments to the decommissioning funding plan for any of the facilities of
the Issuer or any of its Restricted Subsidiaries;


 


(12)         Indebtedness of any
Guarantor in respect of such Guarantor’s Guarantee;


 


(13)         Indebtedness, Disqualified
Stock and preferred stock of the Issuer or any of the Guarantors not otherwise
permitted hereunder in an aggregate principal amount or liquidation preference
which when aggregated with the principal amount and liquidation preference of
all other Indebtedness, Disqualified Stock and preferred stock then outstanding
and incurred pursuant to this clause (13), including all Refinancing Indebtedness
incurred to refund, refinance or replace any other Indebtedness, Disqualified
Stock or preferred stock incurred pursuant to this clause (13), does not at any
one time outstanding exceed the sum of (a) $15.0 million and (b) up
to 100.0% of the net cash proceeds received by the Issuer since after the Issue
Date from the issue or sale of Equity Interests of the Issuer or cash
contributed to the capital of the Issuer (in each case, other than proceeds of
Disqualified Stock or sale of Equity Interests to the Issuer or any of its
Subsidiaries) to the extent that such net proceeds or cash have not been
applied pursuant to clause (4) of the first paragraph of Section 10.09
or to make other Investments, payments or exchanges pursuant to the second
paragraph of Section 10.09 or to make Permitted Investments (other than
Permitted Investments specified in clauses (1) and (3) of the
definition thereof);


 


(14)         (a) any guarantee by
the Issuer or a Guarantor of Indebtedness or other obligations of any of its
Restricted Subsidiaries so long as the incurrence of such Indebtedness incurred
by such Restricted Subsidiary is permitted under the terms of this Indenture,
or


 


(b) any
guarantee by a Restricted Subsidiary of Indebtedness of the Issuer or another
Restricted Subsidiary so long as the incurrence of such Indebtedness incurred
by the Issuer or such other Restricted Subsidiary is permitted under the terms
of this Indenture;


 


provided, in each case,
that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall be
subordinated or pari passu, as applicable, to the
same extent as the Indebtedness guaranteed;


 


(15)         the incurrence by the Issuer
or any of its Restricted Subsidiaries of Indebtedness, Disqualified Stock or
preferred stock which serves to refund or refinance any Indebtedness,
Disqualified Stock or preferred stock incurred under the first paragraph of
this Section 10.10, clauses (2), (3) and (13) above, this clause (15)
and clauses (19) and (21) below, including additional Indebtedness,
Disqualified Stock or preferred stock incurred to pay premiums (including
tender premiums), defeasance costs and fees in


 


87

















 


connection therewith (the “Refinancing Indebtedness”) prior to its
respective maturity; provided, however, that:


 


(a)           such Refinancing
Indebtedness has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is incurred which is not less than the remaining
Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or
preferred stock being refunded or refinanced;


 


(b)           to the extent such
Refinancing Indebtedness refinances (i) Indebtedness subordinated or pari passu in right of payment to the
Notes or any Guarantee of the Notes, such Refinancing Indebtedness is
subordinated or pari passu in
right of payment to the Notes or such Guarantee at least to the same extent as
the Indebtedness being refinanced or refunded or (ii) Disqualified Stock
or preferred stock, such Refinancing Indebtedness must be Disqualified Stock or
preferred stock, respectively; and


 


(c)           such
Refinancing Indebtedness shall not include


 


(x)            Indebtedness, Disqualified
Stock or preferred stock of a non-Guarantor Subsidiary that refinances
Indebtedness, Disqualified Stock or preferred stock of the Issuer;


 


(y)           Indebtedness, Disqualified
Stock or preferred stock of a non-Guarantor Subsidiary that refinances
Indebtedness, Disqualified Stock or preferred stock of a Guarantor; or


 


(z)            Indebtedness, Disqualified
Stock or preferred stock of the Issuer or a Restricted Subsidiary that
refinances Indebtedness, Disqualified Stock or preferred stock of an
Unrestricted Subsidiary;


 


provided, further that subclause (a) of this
clause (15) will not apply to any refunding or refinancing of Indebtedness
under a Credit Facility that is secured by a Lien that is permitted to be
incurred under this Indenture;


 


(16)         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 that such
Indebtedness is extinguished within five Business Days of its incurrence;


 


(17)         Indebtedness of the Issuer
or any of its Restricted Subsidiaries supported by a letter of credit issued
pursuant to a Credit Facility, in a principal amount not in excess of the
stated amount of such letter of credit;


 


(18)         Indebtedness of the Issuer
or any of its Restricted Subsidiaries (i) incurred in connection with the
financing of insurance premiums or (ii) in the form of take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary
course of business;


 


(19)         Indebtedness of Foreign
Subsidiaries in an aggregate principal amount at any time outstanding, pursuant
to this clause (19), including all Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness incurred


 


88

















 


pursuant
to this clause (19), not to exceed the greater of (a) $15.0 million and
(b) 10.0% of Total Assets of Foreign Subsidiaries as of the date of such
incurrence;


 


(20)         Indebtedness owed on a
short-term basis of no longer than 30 days to banks and other financial
institutions incurred in the ordinary course of business of the Issuer and the
Restricted Subsidiaries with such banks or financial institutions that arises
in connection with ordinary cash management activities of the Issuer and the
Restricted Subsidiaries;


 


(21)         Indebtedness, Disqualified
Stock or preferred stock of (x) the Issuer or a Guarantor incurred to
finance an acquisition or assumed by the Issuer or any Guarantor in connection
with any acquisition or (y) Persons that are acquired by the Issuer or any
Guarantor or merged into the Issuer or a Guarantor in accordance with the terms
of this Indenture; provided, that
after giving effect to such acquisition or merger, either:


 


(a)           the Issuer would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of this
Section 10.10; or


 


(b)           the Fixed Charge Coverage
Ratio is greater than immediately prior to such acquisition or merger; and


 


(22)         cash management obligations
and Indebtedness in respect of netting services, employee credit card programs
and similar arrangements in connection with cash management and deposit
accounts.


 


For purposes of determining
compliance with this Section 10.10, in the event that an item of
Indebtedness, Disqualified Stock or preferred stock meets the criteria of more
than one of the categories of permitted Indebtedness, Disqualified Stock or
preferred stock described in clauses (1) through (22) above or is entitled
to be incurred pursuant to the first paragraph of this Section 10.10, the
Issuer, in its sole discretion, may classify or reclassify such item of
Indebtedness in any manner that complies with this Section 10.10 and the
Issuer may divide and classify an item of Indebtedness in more than one of the
types of Indebtedness described in the first and second paragraphs of this
Section 10.10. Notwithstanding the foregoing, Indebtedness under the
Credit Agreement outstanding on the Issue Date will initially be deemed to have
been incurred on such date in reliance on the exception provided by clause (1) of
the second paragraph of this Section 10.10.  Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional
Indebtedness, Disqualified Stock or preferred stock will not be deemed to be an
incurrence of Indebtedness, Disqualified Stock or preferred stock for purposes
of this Section 10.10; provided,
in each such case (other than with respect to the Notes), that the amount of
such accrual, accretion or payment is included in Fixed Charges of the Issuer
as accrued.


 


For purposes of determining
compliance with any U.S. dollar-denominated restriction on the incurrence of
Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness
denominated in a foreign currency shall be calculated based on the relevant
currency exchange rate in effect on the date such Indebtedness was incurred, in
the case of term debt, or first committed, in the case of revolving credit
debt; provided that if such
Indebtedness is incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable U.S. dollar
denominated restriction to be exceeded if calculated at the relevant currency
exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal
amount of such refinancing Indebtedness does not exceed the principal amount of
such Indebtedness being refinanced.


 


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The principal amount of any
Indebtedness incurred to refinance other Indebtedness, if incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.


 


The Issuer will not, and
will not permit any Guarantor to, directly or indirectly, incur any
Indebtedness (including Acquired Indebtedness) that is subordinated or junior
in right of payment to any Indebtedness of the Issuer or such Guarantor, as the
case may be, unless such Indebtedness is expressly subordinated in right of
payment to the Notes or such Guarantor’s guarantee to the same extent as such
Indebtedness is subordinated in right of payment to other Indebtedness of the
Issuer or such Guarantor as the case may be.


 


Unsecured Indebtedness shall
not be treated as subordinated or junior to secured Indebtedness merely because
it is unsecured, and Indebtedness shall not be treated as subordinated or
junior to any other Indebtedness merely because it has a junior priority with
respect to the same collateral.


 


Section 10.11         Limitation
on Liens.


 


The Issuer will not, and
will not permit any of its Restricted Subsidiaries to, create, incur, assume or
otherwise cause or suffer to exist or become effective any Lien that secures
obligations under any Indebtedness on any asset now owned or hereafter
acquired, except Permitted Liens, unless the Notes and related Guarantees, as
applicable, are equally and ratably secured with the obligations so secured
and, if such Lien secures subordinated Indebtedness, the Notes are secured by a
Lien on the same assets which is senior to such Lien securing such subordinated
Indebtedness to the same extent as the Notes are senior to such subordinated
Indebtedness, in each case, until such time as such obligations are no longer
secured by a Lien.


 


Section 10.12         Limitations
on Transactions with Affiliates.


 


The Issuer will not, and
will not permit any Restricted Subsidiary to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Issuer (each of the
foregoing, an “Affiliate Transaction”)
involving aggregate payments or consideration in excess of $1.0 million,
unless:


 


(a)           such Affiliate
Transaction is on terms that are not materially less favorable to the Issuer or
the relevant Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Issuer or such Restricted Subsidiary with an
unrelated Person; and


 


(b)           the Issuer
delivers to the Trustee


 


(1)           with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate payments or consideration in excess of $10.0 million, a resolution
adopted by the majority of the disinterested members of the Board of Directors
approving such Affiliate Transaction and set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with this Section 10.12;
and


 


(2)           with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate payments or consideration in excess of


 


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$20.0 million, an opinion as
to the fairness to the Issuer or such Restricted Subsidiary of such Affiliate
Transaction from a financial point of view issued by an Independent Financial
Advisor.


 


The
foregoing provisions will not apply to the following:


 


(1)           transactions between or
among the Issuer and/or any of the Restricted Subsidiaries;


 


(2)           Restricted Payments
permitted by the provisions of this Indenture described under Section 10.09
and Permitted Investments;


 


(3)           the payment of management,
consulting, monitoring and advisory fees and related expenses to Sponsor and
its Affiliates pursuant to the Management Agreement, as in effect on the Issue
Date and the termination fees pursuant to the Management Agreement, or any
amendment thereto so long as any such amendment is not materially adverse in
the good faith judgment of the Issuer to the Holders, when taken as a whole;


 


(4)           the payment of reasonable
and customary fees paid to, and indemnities (including the advancement of legal
expenses) provided on behalf of, officers, directors, employees or consultants
of the Issuer, any of its direct or indirect parents or any Restricted
Subsidiary;


 


(5)           payments or loans (or
cancellation of loans) to employees or consultants of the Issuer, any of its
direct or indirect parents or any Restricted Subsidiary which are made in the
ordinary course of business and approved by a majority of the Board of
Directors of the Issuer in good faith;


 


(6)           any agreement (other than
the Management Agreement) as in effect as of the Issue Date, or any amendment
thereto (so long as any such amendment, taken as a whole, is not materially
less favorable to the Issuer and its Restricted Subsidiaries than the agreement
in effect on the date of this Indenture (as determined by the Board of Directors
of the Issuer in good faith));


 


(7)           the existence of, or the
performance by the Issuer or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which
it is a party as of the Issue Date and any similar agreements which it may
enter into thereafter; provided, however, that the existence of, or the
performance by the Issuer or any Restricted Subsidiary of obligations under any
future amendment to any such existing agreement or under any similar agreement
entered into after the Issue Date shall only be permitted by this clause (7) to
the extent that the terms of any such amendment or new agreement, taken as a
whole, is not materially less favorable to the Issuer and its Restricted
Subsidiaries than the agreement in effect on the date of this Indenture (as
determined by the Board of Directors of the Issuer in good faith);


 


(8)           transactions with customers,
clients, suppliers, purchasers or sellers of goods or services that are
Affiliates, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture which are fair to the Issuer and
the Restricted Subsidiaries, in the reasonable determination of the Board of
Directors of the Issuer or the senior management thereof, or are on terms at
least as favorable as would reasonably have been obtained at such time from an
unaffiliated party (as determined by the Board of Directors of the Issuer in
good faith);


 


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(9)           the issuance of Equity
Interests (other than Disqualified Stock) of the Issuer to any Affiliate of the
Issuer;


 


(10)         transactions or payments
pursuant to any employee, officer or director compensation or benefit plans,
employment agreements, severance agreement, indemnification agreements or any
similar arrangements entered into in the ordinary course of business or
approved in good faith by the Board of Directors of the Issuer;


 


(11)         transactions in the ordinary
course of business with (i) Unrestricted Subsidiaries or (ii) joint
ventures in which the Issuer or a Subsidiary of the Issuer holds or acquires an
ownership interest (whether by way of Capital Stock or otherwise) so long as
the terms of any such transactions are no less favorable to the Issuer or
Subsidiary participating in such joint ventures than they are to other joint
venture partners;


 


(12)         transactions in which the
Issuer or any Restricted Subsidiary, as the case may be, delivers to the
Trustee a letter from an Independent Financial Advisor stating that such
transaction is fair to the Issuer or such Restricted Subsidiary from a
financial point of view or meets the requirements of clause (a) of the
preceding paragraph of this Section 10.09;


 


(13)         investments by the Sponsor
or any of its Related Parties in securities of the Issuer or any of its
Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses
incurred by such investors in connection therewith) so long as the investment
is being offered generally to other investors on the same or more favorable
terms;


 


(14)         any tax sharing agreement or
arrangement and payments pursuant thereto among the Issuer, its direct or
indirect parents and its Subsidiaries and any other Person with which the
Issuer or its Subsidiaries is required or permitted to file a consolidated,
combined or unitary tax return or with which the Issuer or any of its
Restricted Subsidiaries is or could be part of a consolidated, combined or unitary
group for tax purposes; provided that
in each case the amount of such payments in any fiscal year does not exceed the
amount that the Issuer, its Restricted Subsidiaries and its Unrestricted
Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries)
would be required to pay in respect of foreign, federal, state and local taxes
for such fiscal year were the Issuer and its Restricted Subsidiaries (to the
extent described above) to pay such taxes separately from any such parent entity;


 


(15)         licenses of, or other grants
of rights to use, intellectual property granted by the Issuer or any Restricted
Subsidiary in the ordinary course of business; and


 


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


 


Section 10.13         Limitations
on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


The Issuer will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any such Restricted
Subsidiary to:


 


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(a)           (1) pay
dividends or make any other distributions to the Issuer or any Restricted
Subsidiary on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or


 


(2) pay
any Indebtedness owed to the Issuer or any Restricted Subsidiary;


 


(b)           make loans or
advances to the Issuer or any Restricted Subsidiary; or


 


(c)           sell, lease or
transfer any of its properties or assets to the Issuer or any Restricted
Subsidiary,


 


except (in each case) for
such encumbrances or restrictions existing under or by reason of:


 


(1)           contractual
encumbrances or restrictions in effect on the Issue Date, including, without
limitation, pursuant to the Credit Agreement and its related documentation;


 


(2)           this Indenture
and the Notes;


 


(3)           purchase money
obligations for property acquired in the ordinary course of business that
impose restrictions of the nature discussed in clause (c) above on the
property so acquired;


 


(4)           applicable law
or any applicable rule, regulation or order;


 


(5)           any agreement
or other instrument of a Person acquired by the Issuer or any Restricted
Subsidiary in existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired;


 


(6)           contracts for
the sale of assets, including, without limitation, customary restrictions with
respect to a Subsidiary pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary that impose restrictions on the assets to be sold;


 


(7)           secured
Indebtedness otherwise permitted to be incurred pursuant to Section 10.10
and Section 10.11 that limit the right of the debtor to dispose of the
assets securing such Indebtedness;


 


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


 


(9)           customary
provisions in joint venture agreements and other similar agreements relating
solely to such joint venture;


 


(10)         customary
provisions contained in leases, licenses or similar agreements, including with
respect to intellectual property and other agreements, entered into in the
ordinary course of business;


 


(11)         any such
encumbrance or restriction pursuant to an agreement governing Indebtedness
incurred pursuant to clause (1) of the second paragraph of Section 10.10
which


 


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encumbrances
or restrictions are, in the good faith judgment of the Issuer’s Board of
Directors, no more restrictive, taken as a whole, than any such encumbrances or
restrictions pursuant to the Credit Agreement on the Issue Date;


 


(12)         other
Indebtedness, Disqualified Stock or preferred stock of Foreign Subsidiaries
permitted to be incurred subsequent to the Issue Date pursuant to the provisions
of Section 10.10 that impose restrictions solely on the Foreign
Subsidiaries party thereto; and


 


(13)         any
encumbrances or restrictions of the type referred to in clauses (a), (b) and
(c) above imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (1) through
(12) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Issuer’s
Board of Directors, no more restrictive, taken as a whole, with respect to such
encumbrance and other restrictions than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.


 


Section 10.14         Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries.


 


If the Issuer or any of its
Restricted Subsidiaries acquires or creates another Wholly-Owned Subsidiary
that is a Domestic Subsidiary after the date of this Indenture, then that newly
acquired or created Wholly-Owned Subsidiary that is a Domestic Subsidiary will
become a Guarantor and execute a supplemental indenture in accordance with this
Indenture within 30 days of the date on which it was acquired or created.


 


The Issuer will 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 Issuer
or any other Guarantor, unless such Restricted Subsidiary within 30 days
executes and delivers a supplemental indenture to this Indenture providing for
the Guarantee of the payment of the Notes by such Restricted Subsidiary; provided, that if the Indebtedness being
guaranteed is subordinated or pari passu
with the Notes, then the Guarantee of such Indebtedness must be subordinated or
pari passu, as applicable to the
same extent as the Indebtedness guaranteed.


 


Section 10.15         Change of
Control.


 


If a Change of Control
occurs, the Issuer will make an offer to purchase all of the Notes pursuant to
the offer described below (the “Change of
Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, to, but not including, the date of purchase, subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date. Within 30 days following any Change of
Control, the Issuer will send notice of such Change of Control Offer by first
class mail, with a copy to the Trustee, to each Holder of Notes to the address
of such Holder appearing in the Note Register or otherwise in accordance with
the procedures of DTC, with the following information:


 


(1)           that a Change of Control
Offer is being made pursuant to this Section 10.15 and that all Notes
properly tendered pursuant to such Change of Control Offer will be accepted for
payment;


 


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(2)           the purchase price and the
purchase date, which will be no earlier than 30 days nor later than 60 days
from the date such notice is mailed (the “Change
of Control Payment Date”);


 


(3)           any Note not properly
tendered will remain outstanding and continue to accrue interest, if any; 


 


(4)           unless the Issuer 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, but
not including, the Change of Control Payment Date;


 


(5)           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” on the reverse of the Notes completed, to the Paying Agent specified
in the notice 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;


 


(6)           Holders will be entitled to
withdraw their tendered Notes and their election to require the Issuer to
purchase such Notes; provided
that the Paying Agent receives, not later than the close of business on the
last day of the Change of Control Offer period, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder of the Notes, the principal
amount of Notes tendered for purchase, and a statement that such Holder is
withdrawing his tendered Notes and his election to have such Notes purchased;


 


(7)           if such notice is mailed
prior to the occurrence of a Change of Control, stating that the Change of
Control Offer is conditional on the occurrence of such Change of Control; and


 


(8)           that Holders whose Notes are
being purchased only in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $2,000 in principal amount or an integral multiple of $1,000
in excess thereof.


 


While the Notes are in
global form and the Issuer makes an offer to purchase all of the Notes pursuant
to the Change of Control Offer, a Holder may exercise its option to elect for
the purchase of the Notes through the facilities of Depositary, Euroclear and
Clearstream, subject to its rules and regulations.


 


The Issuer will not be
required to make a Change of Control Offer following a Change of Control if (1) a
third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the Issuer and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer or
(2) notice of redemption has been given pursuant to this Indenture as
described under Section 11.01 unless and until there is a default in
payment of the applicable Redemption Price. Notwithstanding anything to the
contrary herein, a Change of Control Offer may be made in advance of a Change
of Control, conditional upon such Change of Control.


 


The Issuer will 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 or
regulations are applicable in connection with the repurchase of the Notes
pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture,
the Issuer will comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described in this
Indenture by virtue thereof.


 


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On the Change of Control
Payment Date, the Issuer will, to the extent permitted by law,


 


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


 


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


 


(3)           deliver, or cause to be
delivered, to the Trustee for cancellation the Notes so accepted together with
an Officers’ Certificate stating that such Notes or portions thereof have been
tendered to and purchased by the Issuer.


 


The Paying Agent will
promptly deliver to each Holder the Change of Control Payment for each such
Holder’s Notes, and the Trustee will promptly authenticate and deliver to each
Holder a new Note equal in principal amount to any unpurchased portion of Notes
surrendered by each such Holder, if any; provided
that each such new Note will be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof. The Issuer will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.


 


Section 10.16         Asset
Sales.


 


The Issuer will not, and
will not permit any Restricted Subsidiary to, cause, make or suffer to exist an
Asset Sale, unless:


 


(1)           the Issuer or such
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 sold
or otherwise disposed of; and 


 


(2)           except in the case of a
Permitted Asset Swap, at least 75% of the consideration therefor received by
the Issuer or such Restricted Subsidiary, as the case may be, is in the form of
cash or Cash Equivalents.


 


Within 365 days after the
Issuer’s or a Restricted Subsidiary’s receipt of the Net Proceeds of any Asset
Sale, the Issuer or such Restricted Subsidiary, at its option, may apply the
Net Proceeds from such Asset Sale:


 


(1)           to repay any Indebtedness of
the Issuer or a Guarantor that is secured by a Lien, which Lien is permitted
under this Indenture; 


 


(2)           to repay any Indebtedness of
a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed
to the Issuer or another Restricted Subsidiary; 


 


(3)           to make (a) an
investment in any one or more businesses; provided
that such investment in any business is in the form of the acquisition of
Capital Stock and results in the Issuer or a Restricted Subsidiary, as the case
may be, owning an amount of the Capital Stock of such business such that it
constitutes a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions
of other assets that are not classified as current assets under GAAP (including
assets that replace the businesses, properties and assets that are the subject
of such Asset Sale), and in the case of each of clauses (a), (b) and (c),
that are used or useful in a Similar Business; or


 


96

















 


(4)           to make one or more offers
to the Holders (and, at the option of the Issuer, the holders of Other Pari
Passu Obligations) to purchase Notes (and such Other Pari Passu Obligations)
pursuant to and subject to the conditions contained in the following paragraph
(each, an “Asset Sale Offer”) of
this Section 10.16.


 


Any Net Proceeds from the
Asset Sales that are not invested or applied as provided and within the time
period set forth in the immediately preceding paragraph of this Section 10.16
will be deemed to constitute “Excess
Proceeds.” In the case of clause (3) above, a binding
commitment shall be treated as a permitted application of the Net Proceeds from
the date of such commitment; provided
that the Issuer, or such other Restricted Subsidiary, enters into such
commitment with the good faith expectation that such Net Proceeds will be
applied to satisfy such commitment within 180 days of such binding commitment
(an “Acceptable Commitment”); provided, further, that in the event any
Acceptable Commitment is later cancelled or terminated for any reason before
the Net Proceeds are applied in connection therewith, then such Net Proceeds
will be deemed to be Excess Proceeds. When the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Issuer shall make one or more Asset Sale
Offers to the Holders (and, at the option of the Issuer, the holders of Other
Pari Passu Obligations) to purchase Notes (and such Other Pari Passu
Obligations), pursuant to and subject to the conditions and procedures contained
in this Indenture, in a minimum denomination of $2,000 or an integral multiple
of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount
thereof, plus accrued and unpaid interest and Additional Interest, if any, to,
but not including, the date fixed for the closing of such offer, in accordance
with the procedures set forth in this Indenture. The Issuer will commence an
Asset Sale Offer with respect to Excess Proceeds within 30 days after the date
that Excess Proceeds exceeds $15.0 million by mailing the notice required
pursuant to the terms of this Indenture, with a copy to the Trustee. To the
extent that the aggregate amount of Notes and such Other Pari Passu Obligations
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Issuer may use any remaining Excess Proceeds for general corporate purposes,
subject to other covenants contained in this Indenture. If the aggregate
principal amount of Notes or the Other Pari Passu Obligations surrendered by
such holders thereof exceeds the amount of Excess Proceeds, the Notes and such
Other Pari Passu Obligations will be purchased on a pro rata basis (with such
adjustments as needed so that no Notes in unauthorized denominations are
purchased in part) based on the accreted value or principal amount of the Notes
or such Other Pari Passu Obligations tendered. Upon completion of any such
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.


 


For purposes of this Section 10.16,
the following are deemed to be cash or Cash Equivalents: 


 


(1)           any liabilities (as shown on
the Issuer’s or such Restricted Subsidiary’s most recent internally available
balance sheet or in the Notes thereto) of the Issuer or any Restricted
Subsidiary constituting Other Pari Passu Obligations or indebtedness of a
non-Guarantor that are assumed by the transferee (or a third party on behalf of
such transferee) pursuant to a customary novation or other agreement that
releases the Issuer and all Restricted Subsidiaries from further liability; 


 


(2)           any securities received by
the Issuer, a Guarantor or such Restricted Subsidiary from such transferee that
are converted by the Issuer, Guarantor or such Restricted Subsidiary into cash
(to the extent of the cash received) within 180 days following the later of the
closing of such Asset Sale and the receipt of such securities; and 


 


(3)           any Designated Noncash
Consideration received by the Issuer or any Restricted Subsidiary in such Asset
Sale having an aggregate Fair Market Value, taken together with all other
Designated Noncash Consideration received pursuant to this clause (3) that
is at that time outstanding, not to exceed the greater of (x) $10.0
million and (y) 2.5% of Total Assets at the


 


97

















 


time of the receipt of such
Designated Noncash Consideration, with the Fair Market Value of each item of
Designated Noncash Consideration being measured at the time received and without
giving effect to subsequent changes in value.


 


Pending the final
application of any Net Proceeds pursuant to this Section 10.16, the holder
of such Net Proceeds may apply such Net Proceeds temporarily to reduce
Indebtedness outstanding under a revolving credit facility or otherwise invest
such Net Proceeds in any manner not prohibited by this Indenture.


 


The Issuer will 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 or
regulations are applicable in connection with the repurchase of the Notes
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture,
the Issuer will comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described in this
Indenture by virtue thereof.


 


Section 10.17         Waiver of
Certain Covenants.


 


The Issuer and the
Restricted Subsidiaries may omit in any particular instance to comply with any
term, provision or condition set forth in or Sections 10.05 through 10.07,
inclusive, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Notes, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Issuer and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.


 


Section 10.18         Business
Activities.


 


The Issuer will not, and
will not permit any of its Restricted Subsidiaries to, engage in any business
other than Similar Businesses, except to such extent as would not be material
to the Issuer and its Restricted Subsidiaries taken as a whole.


 


ARTICLE 11


REDEMPTION
OF NOTES


 


Section 11.01         Right of
Redemption.


 


(a)           Except as set forth below,
the Notes are not redeemable at the Issuer’s option until May 15, 2014.
From and after May 15, 2014, the Issuer may redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days’ prior notice by
first-class mail, postage prepaid, with a copy to the Trustee, to each Holder
of Notes to the address of such Holder appearing in the Note Register at the
Redemption Prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Additional Interest thereon, if
any, to, but not including, the applicable Redemption Date, subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date, if redeemed during the twelve-month
period beginning on May 15 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  104.875

  	
  %

  
	
  2015

  	
   

  	
  102.438

  	
  %

  
	
  2016
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


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(b)           In addition to the optional
redemption of the Notes in accordance with the provisions of subclause (a) above,
at any time prior to May 15, 2013, the Issuer may, at its option, redeem
up to 35% of the aggregate principal amount of Notes issued under this
Indenture at a Redemption Price equal to 109.750% of the aggregate principal
amount thereof, plus accrued and unpaid interest and Additional Interest
thereon, if any, to, but not including, the Redemption Date, subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date, with the net proceeds of one or more
Equity Offerings of the Issuer or any direct or indirect parent of the Issuer
to the extent such net proceeds are contributed to the capital of the Issuer; provided that at least 65% of the sum of
the aggregate principal amount of Notes originally issued under this Indenture
and any Additional Notes issued under this Indenture after the Issue Date (in
each case excluding Notes held by the Issuer and its Subsidiaries) remains
outstanding immediately after the occurrence of each such redemption; provided, further,
that each such redemption occurs within 90 days of the date of closing of each
such Equity Offering.


 


(c)           At any time prior to May 15,
2014, the Issuer may also redeem all or a part of the Notes, upon not less than
30 nor more than 60 days’ prior notice mailed by first-class mail to each
Holder’s registered address, with a copy to the Trustee, at a Redemption Price
equal to 100% of the principal amount of Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest and Additional Interest to, but
not including, the Redemption Date, subject to the rights of Holders of record
on the relevant Record Date to receive interest due on the relevant Interest
Payment Date.


 


(d)           Notice of redemption upon
any Equity Offering or in connection with a transaction (or series of related
transactions) that constitute a Change of Control may, at the Issuer’s option
and discretion, be subject to one or more conditions precedent, including, but
not limited to, completion of an Equity Offering or Change of Control, as the
case may be.


 


Section 11.02         Applicability
of Article.


 


Redemption of Notes at the
election of the Issuer or otherwise, as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article.


 


Section 11.03         Election
To Redeem; Notice to Trustee.


 


The election of the Issuer
to redeem any Notes pursuant to Section 11.01 above shall be evidenced by
an Issuer Order. In case of any redemption at the election of the Issuer, the
Issuer shall, at least 30 days prior to the Redemption Date fixed by the Issuer
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of Notes to be redeemed and
shall deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Notes to be redeemed pursuant to Section 11.04.


 


Section 11.04         Selection
by Trustee of Notes To Be Redeemed.


 


If less than all of the
Notes or such Other Pari Passu Obligations are to be redeemed at any time,
selection of such Notes for redemption, will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed, or, if such Notes are not so listed, on
a pro rata basis unless otherwise required by law or depository requirements; provided that no Notes of $2,000 or less
shall be purchased or redeemed in part.


 


Notices of purchase or
redemption shall be mailed by the Issuer by first class mail, postage prepaid,
at least 30 but not more than 60 days before the purchase or Redemption Date to
each Holder of


 


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Notes to be purchased or
redeemed at such Holder’s registered address with a copy to the Trustee. If any
Note is to be purchased or redeemed in part only, any notice of purchase or
redemption that relates to such Note shall state the portion of the principal
amount thereof that has been or is to be purchased or redeemed.


 


A new Note in principal
amount equal to the unpurchased or unredeemed portion of any Note purchased or
redeemed in part will be issued in the name of the Holder thereof upon cancellation
of the original Note. On and after the purchase or Redemption Date, unless the
Issuer defaults in payment of the purchase or Redemption Price, interest shall
cease to accrue on Notes or portions thereof purchased or called for
redemption.


 


Section 11.05         Notice of
Redemption.


 


Notice of redemption shall
be given in the manner provided for in Section 1.06 not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder whose Notes are
to be redeemed. Except as set forth in Section 11.01(d), notices of
redemption may not be conditional.


 


All notices of redemption
shall state:


 


(1)           the Redemption
Date,


 


(2)           the Redemption
Price and the amount of accrued interest to the Redemption Date payable as
provided in Section 11.07, if any,


 


(3)           if less than all Outstanding
Notes are to be redeemed, the identification (and, in the case of a partial
redemption, the principal amounts) of the particular Notes to be redeemed,


 


(4)           in case any Note is to be
redeemed in part only, the notice which relates to such Note shall state that
on and after the Redemption Date, upon surrender of such Note, the holder will
receive, without charge, a new Note or Notes of authorized denominations for
the principal amount thereof remaining unredeemed, 


 


(5)           that on the Redemption Date
the Redemption Price (and accrued interest, if any, to the Redemption Date
payable as provided in Section 11.07) will become due and payable upon
each such Note, or the portion thereof, to be redeemed, and that interest
thereon will cease to accrue on and after said date, 


 


(6)           the place or places where
such Notes are to be surrendered for payment of the Redemption Price and
accrued interest, if any,


 


(7)           the name and
address of the Paying Agent,


 


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


 


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


 


(10)         the paragraph
of the Notes pursuant to which the Notes are to be redeemed; and


 


(11)         any condition
to such redemption.


 


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Notice of redemption of
Notes to be redeemed at the election of the Issuer shall be given by the Issuer
or, at the Issuer’s request, by the Trustee in the name and at the expense of
the Issuer; provided, however,
that the Issuer has delivered to the Trustee, at least 45 days prior to the
Redemption Date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph of this Section 11.05.


 


Section 11.06         Deposit
of Redemption Price.


 


On or before 10:00 a.m.
New York City time on the Redemption Date, the Issuer shall deposit with the
Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount
of money sufficient to pay the Redemption Price of, and accrued interest, if
any, on, all the Notes which are to be redeemed on that date. The Trustee or
the Paying Agent will promptly return to the Issuer any money deposited with
the Trustee or the Paying Agent by the Issuer in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest, if
any, on, all Notes to be redeemed or purchased.


 


Section 11.07         Notes
Payable on Redemption Date.


 


Notice of redemption having
been given as aforesaid, the Notes so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified
(together with accrued interest to the Redemption Date) (except as provided in Section 11.01(e)),
and from and after such date (unless the Issuer shall default in the payment of
the Redemption Price and accrued interest) such Notes shall cease to bear
interest. Upon surrender of any such Note for redemption in accordance with
said notice, such Note shall be paid by the Issuer at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.07.


 


If any Note called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate borne by the Notes.


 


Section 11.08         Notes
Redeemed in Part.


 


Any Note which is to be
redeemed only in part (pursuant to the provisions of this Article) shall be
surrendered at the office or agency of the Issuer maintained for such purpose
pursuant to Section 10.02 (with, if the Issuer or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Issuer and the Trustee duly executed by, the Holder thereof or such
Holder’s attorney duly authorized in writing), and the Issuer shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Note
without service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Note so
surrendered.


 


ARTICLE 12


GUARANTEES


 


Section 12.01         Guarantees.


 


Each Guarantor hereby
jointly and severally, unconditionally and irrevocably guarantees the Notes and
obligations of the Issuer hereunder and thereunder, and guarantees to each
Holder of a Note


 


101

















 


authenticated and delivered
by the Trustee, and to the Trustee on behalf of such Holder, that: (a) the
principal of (and premium, if any) and interest on the Notes will be paid in
full when due, whether at Stated Maturity, by acceleration or otherwise
(including, without limitation, the amount that would become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Law), together with interest on the overdue principal, if any, and
interest on any overdue interest, to the extent lawful, and all other
obligations of the Issuer to the Holders or the Trustee hereunder or thereunder
will be 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 of any such other obligations, the same shall be paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at Stated Maturity, by acceleration or otherwise, subject, however, in
the case of clauses (a) and (b) above, to the limitation set forth in
Section 12.05 hereof.


 


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


 


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


 


If any Holder or the Trustee
is required by any court or otherwise to return to the Issuer or any Guarantor,
or any custodian, trustee, liquidator or other similar official acting in
relation to either the Issuer or any Guarantor, any amount paid by any of them
to the Trustee or such Holder, the Guarantee of each of the Guarantors, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between each Guarantor, on the one hand,
and the Holders and the Trustee on the other hand, (x) subject to this
Article 12, the Maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 5 hereof for the purposes of the
Guarantee of such Guarantor notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such
obligation as provided in Article 5 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of the Guarantee of such Guarantor.


 


Each Guarantee shall remain
in full force and effect and continue to be effective should any petition be
filed by or against the Issuer for liquidation, reorganization, should the
Issuer become


 


102

















 


insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer’s assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee on the Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as
though such payment or performance had not been made. In the event that any
payment or any part thereof, is rescinded, reduced, restored or returned, the
Notes shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or returned.


 


Section 12.02         Severability.


 


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


 


Section 12.03         Restricted
Subsidiaries.


 


(a)           The Issuer shall cause any Restricted
Subsidiary required to guarantee payment of the Notes pursuant to the terms and
provisions of Section 10.14 to execute and deliver to the Trustee a
supplemental indenture in the form of Exhibit E hereto in accordance with
the provisions of Article 9 of this Indenture pursuant to which such
Restricted Subsidiary shall guarantee all of the obligations on the Notes,
whether for principal, premium, if any, interest (including interest accruing
after the filing of, or which would have accrued but for the filing of, a
petition by or against the Issuer under Bankruptcy Law, whether or not such
interest is allowed as a claim after such filing in any proceeding under such
law) and other amounts due in connection therewith (including any fees,
expenses and indemnities), on a senior unsecured basis.  Upon the execution of any such amendment or
supplement, the obligations of the Guarantors and any such Restricted
Subsidiary under their respective Guarantees shall become joint and several and
each reference to the “Guarantor”
in this Indenture shall, subject to Section 12.08, be deemed to refer to
all Guarantors, including such Restricted Subsidiary. Such Guarantee shall be
released in accordance with Section 8.03 and Section 12.09.


 


Section 12.04         Ranking
of Guarantee.


 


The Guarantee issued by any
Guarantor shall be a senior unsecured obligation of such Guarantor. The
Guarantees shall be: (a) pari passu
in right of payment with any existing and future senior unsecured Indebtedness
of the Guarantor, (b) senior in right of payment to any future
Subordinated Indebtedness of such Guarantor, (c) structurally subordinated
to all liabilities and preferred stock of any Subsidiaries of such Guarantor
that are not Guarantors; and (d) effectively subordinated to the Guarantee
of such Guarantor under any existing and future secured Indebtedness, including
any Indebtedness under the Credit Agreement, to the extent of the value of the
collateral owned by such Guarantor securing such Indebtedness.


 


Section 12.05         Limitation
of Guarantors’ Liability.


 


Each Guarantor and by its
acceptance hereof each Holder confirms that it is the intention of all such
parties that the guarantee by each such Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law or the provisions of its local law relating
to fraudulent transfer or conveyance. To effectuate the foregoing intention,
the Trustee, the Holders and each such Guarantor hereby irrevocably agree that
the obligations


 


103

















 


of such Guarantor under its
Guarantee shall be limited to the maximum amount that will not, after giving
effect to all other contingent and fixed liabilities of such Guarantor and
after giving effect to any collections from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
its Guarantee or pursuant to this Section 12.05, result in the obligations
of such Guarantor under its Guarantee constituting such fraudulent transfer or
conveyance.


 


Section 12.06         Contribution.


 


In order to provide for just
and equitable contribution among the Guarantors, the Guarantors agree, inter
se, that in the event any payment or distribution is made by any Guarantor (a “Funding Guarantor”) under a Guarantee,
such Funding Guarantor shall be entitled to a contribution from all other
Guarantors in a pro rata amount based on the respective net assets of each
Guarantor (including the Funding Guarantor) determined in accordance with GAAP
for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Issuer’s obligations with respect to the Notes or any other
Guarantor’s obligations with respect to the Guarantee of such Guarantor.


 


Section 12.07         Subrogation.


 


Each Guarantor shall be
subrogated to all rights of Holders against the Issuer in respect of any
amounts paid by any Guarantor pursuant to the provisions of Section 12.01;
provided, however, that, if an
Event of Default has occurred and is continuing, no Guarantor shall be entitled
to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under this
Indenture or the Notes shall have been paid in full.


 


Section 12.08         Reinstatement.


 


Each Guarantor hereby agrees
(and each Person who becomes a Guarantor shall agree) that the Guarantee
provided for in Section 12.01 shall continue to be effective or be
reinstated, as the case may be, if at any time, payment, or any part thereof,
of any obligations or interest thereon is rescinded or must otherwise be restored
by a Holder to the Issuer upon the bankruptcy or insolvency of the Issuer or
any Guarantor.


 


Section 12.09         Release
of a Guarantor.


 


The Guarantee of any
Guarantor other than Parent will be automatically and unconditionally released
upon the occurrence of any of the following:


 


(1)           in connection with any sale
or other disposition of all or substantially all of the assets of that
Guarantor, by way of merger, consolidation or otherwise, to a Person that is
not (either before or after giving effect to such transaction) the Issuer or a
Restricted Subsidiary of the Issuer, if the sale or other disposition does not
violate Section 10.16 hereof;


 


(2)           in connection with any sale
or other disposition of Capital Stock of that Guarantor to a Person that is not
(either before or after giving effect to such transaction) the Issuer or a
Restricted Subsidiary of the Issuer, if the sale or other disposition does not
violate Section 10.16 hereof and the Guarantor ceases to be a Restricted
Subsidiary of the Issuer as a result of the sale or other disposition;


 


(3)           if the Issuer designates any
Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in
accordance with the applicable provisions of this Indenture; or


 


104

















 


(4)           Concurrently
with the discharge of the Notes under Section 4.01, the Legal Defeasance
of the Notes under Section 13.02 hereof, or the Covenant Defeasance of the
Notes under Section 13.03 hereof, the Guarantors shall be released from
all their obligations under their Guarantees under this Article 12.


 


(5)           if such
Guarantee was created pursuant to the provisions set forth in the second
paragraph of Section 10.14, upon the release or discharge of the guarantee
by such Guarantor of Indebtedness that resulted in the creation of such
Guarantee, except a release or discharge by or as a result of payment under
such guarantee.


 


Any direct or indirect
parent of the Issuer may Guarantee the Notes on or after the Issue Date, but no
value should be assigned to such Guarantee, and such Guarantor will not be
subject to the covenants of this Indenture and such Guarantee may be released
at any time, including the Guarantee by Parent. Upon the Issue Date, the Notes
will be unconditionally guaranteed by Parent. Parent will not be subject to the
covenants in this Indenture and no value should be assigned to such Guarantee.
Further, the Issuer may, upon notice to the Trustee, automatically release and
discharge the Guarantee of any Guarantor (including the Guarantee of Parent)
that was not obligated to become a Guarantor pursuant to the terms of this
Indenture.


 


Section 12.10         Benefits
Acknowledged.


 


Each Guarantor acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and from its guarantee and waivers
pursuant to its Guarantees under this Article 12.


 


ARTICLE 13


DEFEASANCE
AND COVENANT DEFEASANCE


 


Section 13.01         Issuer’s
Option To Effect Legal Defeasance or Covenant Defeasance.


 


The Issuer may, at its
option by Board Resolution, at any time, with respect to the Notes, elect to
have either Section 13.02 or Section 13.03 applied to all Outstanding
Notes upon compliance with the conditions set forth below in this Article 13.


 


Section 13.02         Legal
Defeasance and Discharge.


 


Upon the Issuer’s exercise
under Section 13.01 of the option applicable to this Section 13.02,
each of the Issuer and the Guarantors shall be deemed to have been discharged
from its respective obligations with respect to all Outstanding Notes on the
date the conditions set forth in Section 13.04 are satisfied (hereinafter,
“Legal Defeasance”). For this
purpose, such Legal Defeasance means that each of the Issuer and the Guarantors
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Notes (including the Guarantees), which shall thereafter be
deemed to be “Outstanding” only
for the purposes of Section 13.05 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Notes, the Guarantees and this Indenture insofar as such
Notes are concerned (and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of Outstanding Notes to receive payments in respect of the
principal of, premium, if any, and interest, and Additional Interest, if any,
on such Notes when such payments are due solely out of the trust described in
Section 13.04, (B) the Issuer’s obligations with respect to such
Notes under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, and the
obligations of each of the Issuer


 


105

















 


and the Guarantors in
connection therewith and (D) this Article 13. Subject to compliance
with this Article 13, the Issuer may exercise its option under this
Section 13.02 notwithstanding the prior exercise of its option under
Section 13.03 with respect to the Notes.


 


Section 13.03         Covenant
Defeasance.


 


Upon the Issuer’s exercise
under Section 13.01 of the option applicable to this Section 13.03,
each of the Issuer and the Guarantors shall be released from its respective
obligations under any covenant contained in Sections 8.01, 8.02 and in Sections
10.05, 10.06, 10.07, 10.08 through 10.18 with respect to the Outstanding Notes
on and after the date the conditions set forth below are satisfied
(hereinafter, “Covenant Defeasance”),
and the Notes shall thereafter be deemed not to be “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.  For this purpose, such
Covenant Defeasance means that, with respect to the Outstanding Notes and
Guarantees, the Issuer or any Guarantor, as applicable, 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 Sections 5.01(3), 5.01(4), 5.01(5) and 5.01(7) and, with
respect to only any Significant Subsidiary and not the Issuer, Section 5.01(6),
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.


 


Section 13.04         Conditions
to Legal Defeasance or Covenant Defeasance.


 


The following shall be the
conditions to application of either Section 13.02 or Section 13.03 to
the Outstanding Notes:


 


(1)           The Issuer shall irrevocably
have deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.08 who shall agree to comply with
the provisions of this Article 13 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to the benefit of the Holders of such Notes;
(A) cash in U.S. dollars, or (B) Government Securities, or (C) a
combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized investment banking firm, appraisal firm or firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, the principal
of (and premium, if any) and interest, and Additional Interest, if any, on the
Outstanding Notes on the Stated Maturity (or Redemption Date, if applicable); provided that the Trustee shall have been
irrevocably instructed to apply such cash or the proceeds of such Government
Securities to said payments with respect to the Notes. Before such a deposit,
the Issuer may give to the Trustee, in accordance with Section 11.03
hereof, a notice of its election to redeem all of the Outstanding Notes at a
future date in accordance with Article 11 hereof, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given effect
in applying the foregoing;


 


(2)           in the case of Legal
Defeasance, the Issuer shall have delivered to the Trustee an Opinion of
Counsel in the United States (such counsel to be reasonably acceptable to the
Trustee) confirming that, subject to customary assumptions and exclusions,


 


106

















 


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


 


(B)           since the
issuance of the Notes, there has been a change in the applicable U.S. Federal
income tax law,


 


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


 


(3)           in the case of Covenant
Defeasance, the Issuer shall have delivered to the Trustee an Opinion of
Counsel in the United States (such counsel to be reasonably acceptable to the
Trustee) confirming that, subject to customary assumptions and exclusions, the
Holders of the Outstanding Notes will not recognize income, gain or loss for
U.S. Federal income tax purposes as a result of such Covenant Defeasance and
will be subject to U.S. 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;


 


(4)           no Default or Event of
Default (other than that resulting from borrowing funds to be applied to make
such deposit or the granting of Liens in connection therewith) shall have
occurred and be continuing on the date of such deposit; 


 


(5)           such Legal Defeasance or
Covenant Defeasance shall not result in a breach or violation of, or constitute
a default under the Credit Agreement or any other material agreement or
instrument (other than this Indenture) to which, the Issuer or any Guarantor is
a party or by which the Issuer or any Guarantor is bound (other than that
resulting from borrowing funds to be applied to make such deposit and the
granting of Liens in connection therewith);


 


(6)           the Issuer shall have
delivered to the Trustee an Officers’ Certificate stating that the deposit was
not made by the Issuer with the intent of defeating, hindering, delaying or
defrauding any creditors of the Issuer or any Guarantor or others; and


 


(7)           the Issuer shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in
the United States (which Opinion of Counsel may be subject to customary
assumptions and exclusions), each stating that all conditions precedent
provided for or relating to the Legal Defeasance or the Covenant Defeasance, as
the case may be, have been complied with.


 


Section 13.05         Deposited
Money and Government Securities To Be Held in Trust; Other Miscellaneous
Provisions.


 


Subject to the provisions of
the last paragraph of Section 10.03, all cash and Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04
in respect of the Outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as its own 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
(and premium, if any) and interest, but such


 


107

















 


money or Government
Securities need not be segregated from other funds except to the extent
required by law.


 


The Issuer shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Securities deposited pursuant to Section 13.04
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
Outstanding Notes.


 


Anything in this Article 13
to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer
from time to time upon Issuer Request any money or Government Securities held
by it as provided in Section 13.04 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance, as applicable, in accordance with this
Article.


 


Section 13.06         Reinstatement.


 


If the Trustee or any Paying
Agent is unable to apply any money or Government Securities in accordance with
Section 13.05 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuer’s and each Guarantor’s obligations under this
Indenture and the Outstanding Notes shall be revived and reinstated as though
no deposit had occurred pursuant to Section 13.02 or 13.03, as the case
may be, until such time as the Trustee or Paying Agent is permitted to apply
all such money or Government Securities in accordance with Section 13.05; provided, however, that if the Issuer
makes any payment of principal of (or premium, if any) or interest on any Note
following the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent.


 


Signature Pages Follow


 


108






 










 


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


 


	
   

  	
  LANTHEUS MEDICAL
  IMAGING, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald Kiepert

  
	
   

  	
   

  	
  Name:  Donald Kiepert

  
	
   

  	
   

  	
  Title:  President, Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LANTHEUS MI
  INTERMEDIATE, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald Kiepert

  
	
   

  	
   

  	
  Name:  Donald Kiepert

  
	
   

  	
   

  	
  Title:  President, Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LANTHEUS MI REAL ESTATE,
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald Kiepert

  
	
   

  	
   

  	
  Name:  Donald Kiepert

  
	
   

  	
   

  	
  Title:  President, Chief Executive Officer

  



 


Lantheus Indenture


 

















 


	
   

  	
  WILMINGTON TRUST FSB

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph P O’Donnell

  
	
   

  	
   

  	
  Name:  Joseph P O’Donnell

  
	
   

  	
   

  	
  Title:  Vice President

  



 


Lantheus Indenture


 

















 


Guarantors


 


	
   

  	
   

  	
  STATE OF

  
	
  NAME OF COMPANY

  	
   

  	
  INCORPORATION

  
	
  Lantheus MI
  Intermediate, Inc.

  	
   

  	
  Delaware

  
	
  Lantheus MI Real Estate

  	
   

  	
  Delaware

  



 

















 


EXHIBIT A


 


LANTHEUS
MEDICAL IMAGING, INC.


 


9.750%
SENIOR NOTE DUE 2017


 


	
  Certificate No.     

  	
  CUSIP
  No.

  	
   

  
	
   

  	
  U.S.$

  	
   

  



 


LANTHEUS MEDICAL IMAGING, INC.,
a Delaware corporation (the “Issuer”),
for value received, promises to pay to
                    ,
or its registered assigns, the principal sum of
                              
Dollars
($                              ),
on May 15, 2017 and interest thereon as hereinafter set forth.


 


	
  Interest Rate:

  	
   

  	
  9.750% per annum.

  
	
  Interest Payment Dates:

  	
   

  	
  May 15 and
  November 15 of each year Commencing                        ,
  20        

  
	
  Regular Record Dates:

  	
   

  	
  May 1 and
  November 1 of each year

  



 


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
Issuer has caused this Note to be signed manually or by facsimile by its duly
authorized officer as of the date first written above.


 


	
   

  	
  LANTHEUS MEDICAL
  IMAGING, INC.

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:
                      
        , 20

  	
   

  	
   

  



 


A-2

















 


TRUSTEE
CERTIFICATE OF AUTHENTICATION


 


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


 


 


	
   

  	
  WILMINGTON TRUST FSB, as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  
	
  Dated:
                      
        , 20

  	
   

  



 


A-3














 


LANTHEUS
MEDICAL IMAGING, INC.


 


9.750%
SENIOR NOTE DUE 2017


 


[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 have the meanings assigned to them in the Indenture referred to below
unless otherwise indicated.


 


1.             Interest.


 


The Notes shall be known and
designated as the “9.750% Senior Notes due 2017” of the Issuer. The Stated
Maturity of the Notes shall be May 15, 2017, and the Notes shall bear
interest at the rate of 9.750% per annum from
                    
      ,
          , or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, payable on                     
      , 20       
and semi-annually thereafter on May 15 and November 15 in each year
and at said Stated Maturity, until the principal thereof is paid or duly
provided for and to the Person in whose name the Note (or any Predecessor Note)
is registered at the close of business on May 1 and November 1
immediately preceding such Interest Payment Date (each, a “Regular Record Date”).


 


Interest on this Note will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from
                    
      ,
          ; provided that, if there is no existing
default in the payment of interest and if this Note is authenticated between a
Regular Record Date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such Interest Payment Date.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.


 


2.             Method of Payment.


 


The Issuer will pay interest
on the Notes (except defaulted interest) by the close of business on each
May 15 and November 15 commencing
                    
      ,
           to the Persons who
are Holders (as reflected in the Note Register at the close of business on
May 1 and November 1 immediately preceding the Interest Payment
Date), in each case, even if such Notes are cancelled after such Regular Record
Date and on or before such Interest Payment Date, except as provided in
Section 3.07 of the Indenture with respect to Defaulted Interest.


 


The principal of, premium, if
any, and interest on the Notes shall be payable at the office or agency of the
Issuer maintained for such purpose or, at the option of the Issuer, payment of
interest may be made by check mailed to the Holders at their respective
addresses set forth in the Note Register; provided
that all payments of principal, premium, if any, interest and Additional
Interest, if any, with respect to Notes represented by one or more Global Notes
registered in the name of or held by the Depositary or its nominee will be made
by wire transfer of immediately available funds to the accounts specified by
the Holder or Holders thereof. Until otherwise designated by the Issuer, the
Issuer’s office or agency will be the office of the Trustee maintained for such
purpose. If a payment date is a date other than a Business Day at a place of
payment, payment may be made at that place on the next succeeding day that is a
Business Day and no interest shall accrue for the intervening period.


 


A-4

















 


3.             Paying Agent and Note
Registrar.


 


Initially, the Trustee will
act as Paying Agent and Note Registrar. The Issuer may change any Paying Agent
or Note Registrar without written notice to any Holder. The Issuer or any
Restricted Subsidiary may act as Paying Agent or Note Registrar.


 


4.             Indenture; Limitations.


 


The Issuer issued the Notes
under an Indenture dated as of May 10, 2010 (the “Indenture”), among the Issuer, the
Guarantors and Wilmington Trust FSB, as trustee (the “Trustee”). The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.


 


The Notes are general senior
unsecured obligations of the Issuer. The Indenture does not limit the aggregate
principal amount of the Notes.


 


5.             Optional Redemption.


 


(a)           Except as set forth below,
the Notes are not redeemable at the Issuer’s option until May 15, 2014.
From and after May 15, 2014, the Issuer may redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days’ prior notice by
first-class mail, postage prepaid, with a copy to the Trustee, to each Holder
of Notes to the address of such Holder appearing in the Note Register at the Redemption
Prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and Additional Interest thereon, if any, to, but
not including, the applicable Redemption Date, subject to the right of Holders
of record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date, if redeemed during the twelve-month period beginning on
May 15 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  104.875

  	
  %

  
	
  2015

  	
   

  	
  102.438

  	
  %

  
	
  2016
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           In addition to the optional
redemption of the Notes in accordance with the provisions of subclause
(a) above, at any time prior to May 15, 2013, the Issuer may, at its
option, redeem up to 35% of the aggregate principal amount of Notes issued
under the Indenture at a Redemption Price equal to 109.750% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Additional
Interest thereon, if any, to, but not including, the Redemption Date, subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant Interest Payment Date, with the net proceeds of
one or more Equity Offerings of the Issuer or any direct or indirect parent of
the Issuer to the extent such net proceeds are contributed to the capital of
the Issuer; provided that at
least 65% of the sum of the aggregate principal amount of Notes originally
issued under the Indenture and any Additional Notes issued under the Indenture
after the Issue Date (in each case excluding Notes held by the Issuer and its
Subsidiaries) remains outstanding immediately after the occurrence of each such
redemption; provided, further, that each such redemption occurs
within 90 days of the date of closing of each such Equity Offering.


 


A-5

















 


(c)           At any time prior to
May 15, 2014, the Issuer may also redeem all or a part of the Notes, upon
not less than 30 nor more than 60 days’ prior notice mailed by first-class mail
to each Holder’s registered address, with a copy to the Trustee, at a
Redemption Price equal to 100% of the principal amount of Notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest and Additional
Interest, if any, to, but not including, the Redemption Date, subject to the
rights of Holders of record on the relevant record date to receive interest due
on the relevant Interest Payment Date.


 


6.             Mandatory Redemption.


 


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


 


7.             Repurchase upon a Change in
Control and Asset Sales.


 


(a)           If a Change of Control
occurs, the Issuer will make an offer to purchase all of the Notes pursuant to
the offer described below (the “Change of
Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, to, but not including, the date of purchase, subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant Interest Payment Date. Within 30 days following any Change of
Control, the Issuer shall send notice of such Change of Control Offer by first
class mail, with a copy to the Trustee, to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.


 


(b)           If the Issuer or a
Restricted Subsidiary of the Issuer consummates any Asset Sales and the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuer shall
make one or more Asset Sale Offers to the Holders (and, at the option of the
Issuer, the holders of Other Pari Passu Obligations) to purchase Notes (and
such Other Pari Passu Obligations), pursuant to and subject to the conditions
and procedures contained in the Indenture, in a minimum denomination of $2,000
or an integral multiple of $1,000 in excess thereof that may be purchased out
of the Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to, but not including, the date fixed for the closing of such
offer, in accordance with the procedures set forth in the Indenture. The Issuer
shall commence an Asset Sale Offer with respect to Excess Proceeds within 30
days after the date that Excess Proceeds exceed $15.0 million by mailing the
notice required pursuant to the terms of the Indenture, with a copy to the
Trustee. To the extent that the aggregate amount of Notes and such Other Pari Passu
Obligations tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Issuer may use any remaining Excess Proceeds for general
corporate purposes, subject to other covenants contained in the Indenture. If
the aggregate principal amount of Notes or the Other Pari Passu Obligations
surrendered by such holders thereof exceeds the amount of Excess Proceeds, the
Notes and such Other Pari Passu Obligations will be purchased on a pro rata
basis (with such adjustments as needed so that no Notes in unauthorized
denominations are purchased in part) based on the accreted value or principal
amount of the Notes or such Other Pari Passu Obligations tendered. Holders of
Notes that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Issuer prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled “Option of Holder to Elect
Purchase” attached to the Notes.


 


8.             Notice of Redemption.


 


Notice of redemption shall
be given in the manner provided for in the Indenture not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder whose Notes are to be
redeemed.


 


A-6

















 


9.             Denominations; Transfer;
Exchange.


 


The Notes are in registered
form without coupons in minimum denominations of $2,000 and integral multiples
of $1,000 in excess thereof. A Holder may register the transfer or exchange of
Notes in accordance with the Indenture. The Note Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.
The Note Registrar need not register the transfer or exchange of any Notes
(i) during a period beginning at the opening of business 15 days before
the day of any selection of Notes for redemption under Section 11.04 of
the Indenture and ending at the close of business on the day of such selection,
(ii) selected for redemption (except the unredeemed portion of any Note
being redeemed in part) and (iii) between a Record Date and the next
succeeding Interest Payment Date.


 


10.           Persons Deemed Owners.


 


A
registered Holder may be treated as the owner of a Note for all purposes.


 


11.           Unclaimed Money.


 


Subject to any applicable
abandoned property law, if money for the payment of principal (premium, if any)
or interest on any Note remains unclaimed for two years after such principal,
premium or interest becomes due and payable, the Trustee and the Paying Agent
will pay the money back to the Issuer at its written request. After that,
Holders entitled to the money must look to the Issuer for payment and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.


 


12.           Discharge and Defeasance
Prior to Redemption or Maturity.


 


Subject to certain
conditions, the Issuer at any time shall be entitled to terminate its
obligations under the Notes and the Indenture if the Issuer or any Guarantor
irrevocably deposits or causes to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
Government Securities, or a combination thereof, in such amounts as will be
sufficient without consideration of any reinvestment of interest to pay and discharge
the entire indebtedness on such Notes not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any and accrued interest on the
Stated Maturity or Redemption Date, as the case may be.


 


13.           Amendment; Supplement;
Waiver.


 


Subject to certain
exceptions, the Indenture, any related Guarantee and the Notes issued
thereunder may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Outstanding Notes, and any existing
Default or Event of Default or compliance with any provision of the Indenture
or the Notes issued thereunder may be waived with the consent of the Holders of
a majority in principal amount of the Outstanding Notes. Without notice to or
the consent of any Holder, the parties thereto may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency and make any change that does not adversely affect the rights of
any Holder.


 


14.           Restrictive Covenants.


 


The Indenture contains
certain covenants, including, without limitation, covenants with respect to the
following matters: (i) Limitation on Incurrence of Indebtedness and
Issuance of Disqualified Stock and Preferred Stock; (ii) Limitation on
Restricted Payments; (iii) Limitation on Transactions with Affiliates;
(iv) Limitation on Liens; (v) Change of Control; (vi) Asset
Sales; (vii) Limitation on


 


A-7

















 


Guarantees of Indebtedness
by Restricted Subsidiaries; (viii) Limitations on Dividend and Other
Payment Restrictions Affecting Restricted Subsidiaries; and (ix) Merger,
Consolidation or Sale of all or Substantially all Assets.


 


15.           Successor Persons.


 


When a successor Person or
other entity assumes all the obligations of its predecessor under the Notes and
the Indenture, the predecessor Person will be released from those obligations.


 


16.           Remedies for Events of
Default.


 


If an Event of Default, as
defined in the Indenture, occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Outstanding Notes may declare all
the Notes to be immediately due and payable. If a bankruptcy or insolvency
default with respect to the Issuer or any of its Significant Subsidiaries
occurs and is continuing, the Outstanding Notes will automatically become
immediately due and payable. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity
reasonably satisfactory to it before it enforces the Indenture or the Notes.
Subject to certain limitations, Holders of at least a majority in aggregate
principal amount of the Outstanding Notes may direct the Trustee in its
exercise of any trust or power.


 


17.           Guarantees.


 


The Issuer’s obligations
under the Notes are fully, unconditionally and irrevocably guaranteed, to the
extent set forth in the Indenture, by each of the Guarantors.


 


18.           Trustee Dealings with Issuer.


 


The Trustee, any Paying
Agent, any Note Registrar or any other agent of the Issuer or of the Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Notes and, subject to the TIA, may make loans to, accept deposits from, perform
services for, and otherwise deal with, the Issuer and its Affiliates as if it
were not the Trustee, Paying Agent, Note Registrar or such other agent. 


 


19.           Authentication.


 


This Note shall not be valid
until the Trustee signs the certificate of authentication by manual signature
on the other side of this Note.


 


20.           Abbreviations.


 


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


 


21.           GOVERNING LAW. THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.


 


The Issuer will furnish to
any Holder upon written request and without charge a copy of the Indenture. Requests
may be made to Lantheus Medical Imaging, Inc., Inc., 331 Treble Cove
Road, Building 600, North Billerica, Massachusetts 01862, Attention: General
Counsel.


 


A-8














 


ASSIGNMENT
FORM


 


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


 


I or we assign and transfer
this Note to:




 





 


 




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

social security or tax ID number)





 


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


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  	
   

  
						



 


In connection with any
transfer of this Note occurring prior to the date which is the earlier of
(i) the date of the declaration by the Commission of the effectiveness of
a registration statement under the U.S. Securities Act of 1933, as amended (the
“Securities Act”), covering
resales of this Note (which effectiveness shall not have been suspended or
terminated at the date of the transfer) and
(ii)                     
20     , the undersigned confirms that it has not utilized
any general solicitation or general advertising in connection with the transfer
and that this Note is being transferred:


 


[Check One]


 


	
  (1)

  	
   

  	
  o

  	
   

  	
  to the Issuer or a
  subsidiary thereof; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  o

  	
   

  	
  pursuant to and in
  compliance with Rule 144A under the Securities Act; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  o

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  o

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (5)

  	
   

  	
  o

  	
   

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

  



 


Unless one of the boxes is
checked, the Trustee will refuse to register any of the Notes evidenced by this
certificate in the name of any person other than the registered Holder thereof;
provided that if box (3),
(4) or (5) is checked, the Issuer or the Trustee may require, prior
to registering any such transfer of the Notes, in its sole discretion, such
legal opinions, certifications (including an investment letter in the case of
box (3) or (4)) and other information as the Trustee or the Issuer has
reasonably requested to confirm that such


 


A-9

















 


transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.


 


If none of the foregoing boxes
is checked, the Trustee or Registrar shall not be obligated to register this
Note in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth herein and in
Section 3.11 of the Indenture shall have been satisfied.


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  	
   

  
						



 






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


 


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


 


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


 




	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [NOTICE: To be executed by
  an executive officer of the qualified institutional buyer]

  






 


A-10

















 


OPTION
OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have
this Note purchased by the Issuer pursuant to Section 10.15 or 10.16 of
the Indenture, check the appropriate box below:


 


o Section 10.15             o Section 10.16


 


If you want to elect to have
only part of the Note purchased by the Issuer pursuant to Section 10.15 or
Section 10.16 of the Indenture, state the amount you elect to have
purchased:


 


$                               


(multiple
of $1, 000)


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name appears on the other side 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

  	
   

  	
  Signature of

  
	
   

  	
   

  	
  Amount of

  	
   

  	
  Amount of

  	
   

  	
  of this Global Note

  	
   

  	
  authorized

  
	
   

  	
   

  	
  decrease in

  	
   

  	
  increase in

  	
   

  	
  following such

  	
   

  	
  signatory of

  
	
   

  	
   

  	
  Principal Amount

  	
   

  	
  Principal Amount

  	
   

  	
  decrease (or

  	
   

  	
  Trustee or

  
	
  Date of Exchange

  	
   

  	
  of this Global Note

  	
   

  	
  of this Global Note

  	
   

  	
  increase)

  	
   

  	
  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*This schedule should be
included only if the Note is issued in global form.


 


A-12

















 


EXHIBIT A-1


 


[Form of
Regulation S Temporary Global Note]


 


LANTHEUS
MEDICAL IMAGING, INC.


9.750%
SENIOR NOTE DUE 2017


 


	
  Certificate No.

  	
   

  	
  CUSIP
  No.                 

  
	
   

  	
   

  	
  U.S.$                 

  



 


Lantheus Medical
Imaging, Inc., a Delaware corporation (the “Issuer”), for value received, promises to pay to               ,
or its registered assigns, the principal sum
of                     
Dollars ($                                 ),
on May 15, 2017 and interest thereon as hereinafter set forth.


 


	
  Interest Rate:

  	
  9.750% per annum.

  
	
  Interest Payment Dates:

  	
  May 15 and
  November 15 of each year Commencing                     ,
  20      

  
	
  Regular Record Dates:

  	
  May 1 and
  November 1 of each year

  



 


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.


 


A1-1

















 


IN
WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by
facsimile by its duly authorized officer as of the date first written above.


 


	
   

  	
  LANTHEUS MEDICAL
  IMAGING, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Dated:
                       ,
20          


 


A1-2

















 


TRUSTEE
CERTIFICATE OF AUTHENTICATION


 


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


 


 


	
   

  	
  WILMINGTON TRUST FSB, as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


Dated:
                       ,
20        


 


A1-3






 










 


LANTHEUS
MEDICAL IMAGING, INC.


 


9.750%
SENIOR NOTE DUE 2017


 


THE RIGHTS ATTACHING TO THIS
REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING
ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
INTEREST HEREON.


 


UNLESS THIS CERTIFICATE IS
PRESENTED, BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.11 OF THE
INDENTURE.


 


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


 


THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (C) IT
IS AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR (AN
“INSTITUTIONAL ACCREDITED INVESTOR”)) AND (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO
THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) 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


 


A1-4

















 


ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR
HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.


 


A1-5

















 


LANTHEUS
MEDICAL IMAGING, INC.


 


9.750%
SENIOR NOTES DUE 2017


 


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


 


1.            Interest.


 


The
Notes shall be known and designated as the “9.750% Senior Notes due 2017” of
the Issuer. The Stated Maturity of the Notes shall be May 15, 2017, and
the Notes shall bear interest at the rate of 9.750% per annum from
                       ,
20      , or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, payable on
                       ,
20       and semi-annually thereafter on May 15
and November 15 in each year and at said Stated Maturity, until the
principal thereof is paid or duly provided for and to the Person in whose name
the Note (or any Predecessor Note) is registered at the close of business on
May 1 and November 1 immediately preceding such Interest Payment Date
(each, a “Regular Record Date”).


 


Interest
on this Note will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from                          ,
20      ; provided
that, if there is no existing default in the payment of interest and if this
Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue
from such Interest Payment Date. Interest will be computed on the basis of a
360-day year of twelve 30-day months.


 


Until
this Regulation S Temporary Global Note is exchanged for one or more Regulation
S Permanent Global Notes, the Holder hereof shall not be entitled to receive
payments of interest hereon; until so exchanged in full, this Regulation S
Temporary Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.


 


2.            Method of Payment.


 


The
Issuer will pay interest on the Notes (except defaulted interest) by the close
of business on each May 15 and November 15
commencing                    
      , 20       to
the Persons who are Holders (as reflected in the Note Register at the close of
business on May 1 and November 1 immediately preceding the Interest
Payment Date), in each case, even if such Notes are cancelled after such
Regular Record Date and on or before such Interest Payment Date, except as
provided in Section 3.07 of the Indenture with respect to Defaulted
Interest.


 


The
principal of, premium, if any, and interest on the Notes shall be payable at
the office or agency of the Issuer maintained for such purpose or, at the
option of the Issuer, payment of interest may be made by check mailed to the
Holders at their respective addresses set forth in the Note Register; provided that all payments of principal,
premium, if any, interest and Additional Interest, if any, with respect to
Notes represented by one or more Global Notes registered in the name of or held
by the Depositary or its nominee will be made by wire transfer of immediately
available funds to the accounts specified by the Holder or Holders thereof.
Until otherwise designated by the Issuer, the Issuer’s office or agency will be
the office of the Trustee maintained for such purpose. If a payment date is a
date other than a Business Day at a place of payment, payment may be made at
that place on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.


 


A1-6

















 


3.            Paying Agent and Note Registrar.


 


Initially,
the Trustee will act as Paying Agent and Note Registrar. The Issuer may change
any Paying Agent or Note Registrar without written notice to any Holder. The
Issuer or any Restricted Subsidiary may act as Paying Agent or Note Registrar.


 


4.            Indenture; Limitations.


 


The
Issuer issued the Notes under an Indenture dated as of May 10, 2010 (the “Indenture”), among the Issuer, the
Guarantors and Wilmington Trust FSB, as trustee (the “Trustee”). The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.


 


The
Notes are general senior unsecured obligations of the Issuer. The Indenture
does not limit the aggregate principal amount of the Notes.


 


5.            Optional Redemption.


 


(a)           Except as set forth below, the Notes
are not redeemable at the Issuer’s option until May 15, 2014. From and
after May 15, 2014, the Issuer may redeem the Notes, in whole or in part,
upon not less than 30 nor more than 60 days’ prior notice by first-class mail,
postage prepaid, with a copy to the Trustee, to each Holder of Notes to the
address of such Holder appearing in the Note Register at the Redemption Prices
(expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest and Additional Interest thereon, if any, to, but not
including, the applicable Redemption Date, subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date, if redeemed during the twelve-month period beginning on
May 15 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  104.875

  	
  %

  
	
  2015

  	
   

  	
  102.438

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           In addition to the optional
redemption of the Notes in accordance with the provisions of subclause (a) above,
at any time prior to May 15, 2013, the Issuer may, at its option, redeem
up to 35% of the aggregate principal amount of Notes issued under the Indenture
at a Redemption Price equal to 109.750% of the aggregate principal amount
thereof, plus accrued and unpaid interest and Additional Interest thereon, if
any, to, but not including, the Redemption Date, subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date, with the net proceeds of one or more Equity
Offerings of the Issuer or any direct or indirect parent of the Issuer to the
extent such net proceeds are contributed to the capital of the Issuer; provided that at least 65% of the sum of
the aggregate principal amount of Notes originally issued under the Indenture
and any Additional Notes issued under the Indenture after the Issue Date (in
each case excluding Notes held by the Issuer and its Subsidiaries) remains
outstanding immediately after the occurrence of each such redemption; provided, further,
that each such redemption occurs within 90 days of the date of closing of each
such Equity Offering.


 


A1-7

















 


(c)           At any time prior to May 15,
2014, the Issuer may also redeem all or a part of the Notes, upon not less than
30 nor more than 60 days’ prior notice mailed by first-class mail to each
Holder’s registered address, with a copy to the Trustee, at a Redemption Price
equal to 100% of the principal amount of Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest and Additional Interest, if any,
to, but not including, the Redemption Date, subject to the rights of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date.


 


6.            Mandatory Redemption.


 


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


 


7.            Repurchase upon a
Change in Control and Asset Sales.


 


(a)           If a Change of Control occurs, the
Issuer will make an offer to purchase all of the Notes pursuant to the offer
described below (the “Change of Control
Offer”) at a price in cash (the “Change
of Control Payment”) equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Additional Interest, if any, to,
but not including, the date of purchase, subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date. Within 30 days following any Change of Control, the
Issuer shall send notice of such Change of Control Offer by first class mail,
with a copy to the Trustee, to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.


 


(b)           If the Issuer or a Restricted
Subsidiary of the Issuer consummates any Asset Sales and the aggregate amount
of Excess Proceeds exceeds $15.0 million, the Issuer shall make one or more
Asset Sale Offers to the Holders (and, at the option of the Issuer, the holders
of Other Pari Passu Obligations) to purchase Notes (and such Other Pari Passu Obligations),
pursuant to and subject to the conditions and procedures contained in the
Indenture, in a minimum denomination of $2,000 or an integral multiple of
$1,000 in excess thereof that may be purchased out of the Excess Proceeds at an
offer price in cash in an amount equal to 100% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest, if any, to, but not
including, the date fixed for the closing of such offer, in accordance with the
procedures set forth in the Indenture. The Issuer shall commence an Asset Sale
Offer with respect to Excess Proceeds within 30 days after the date that Excess
Proceeds exceed $15.0 million by mailing the notice required pursuant to the
terms of the Indenture, with a copy to the Trustee. To the extent that the
aggregate amount of Notes and such Other Pari Passu Obligations tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer
may use any remaining Excess Proceeds for general corporate purposes, subject
to other covenants contained in the Indenture. If the aggregate principal
amount of Notes or the Other Pari Passu Obligations surrendered by such holders
thereof exceeds the amount of Excess Proceeds, the Notes and such Other Pari
Passu Obligations will be purchased on a pro rata basis (with such adjustments
as needed so that no Notes in unauthorized denominations are purchased in part)
based on the accreted value or principal amount of the Notes or such Other Pari
Passu Obligations tendered. Holders of Notes that are the subject of an offer
to purchase will receive an Asset Sale Offer from the Issuer prior to any
related purchase date and may elect to have such Notes purchased by completing
the form entitled “Option of Holder to Elect Purchase” attached to the Notes.


 


8.            Notice of
Redemption.


 


Notice
of redemption shall be given in the manner provided for in the Indenture not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
whose Notes are to be redeemed.


 


A1-8

















 


9.            Denominations;
Transfer; Exchange.


 


The
Notes are in registered form without coupons in minimum denominations of $2,000
and integral multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Note Registrar need not register the
transfer or exchange of any Notes (i) during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 11.04 of the Indenture and ending at the close of
business on the day of such selection, (ii) selected for redemption
(except the unredeemed portion of any Note being redeemed in part) and (iii) between
a Record Date and the next succeeding Interest Payment Date.


 


This
Regulation S Temporary Global Note is exchangeable in whole or in part for one
or more Global Notes only after the termination of the 40-day distribution
compliance period (as defined in Regulation S). Upon exchange of this
Regulation S Temporary Global Note for one or more Global Notes, the Trustee
shall cancel this Regulation S Temporary Global Note.


 


10.          Persons Deemed
Owners.


 


A
registered Holder may be treated as the owner of a Note for all purposes.


 


11.          Unclaimed Money.


 


Subject
to any applicable abandoned property law, if money for the payment of principal
(premium, if any) or interest on any Note remains unclaimed for two years after
such principal, premium or interest becomes due and payable, the Trustee and
the Paying Agent will pay the money back to the Issuer at its written request.
After that, Holders entitled to the money must look to the Issuer for payment
and all liability of the Trustee and such Paying Agent with respect to such
money shall cease.


 


12.          Discharge and Defeasance Prior to Redemption or Maturity.


 


Subject
to certain conditions, the Issuer at any time shall be entitled to terminate
its obligations under the Notes and the Indenture if the Issuer or any
Guarantor irrevocably deposits or causes to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in U.S.
dollars, Government Securities, or a combination thereof, in such amounts as
will be sufficient without consideration of any reinvestment of interest to pay
and discharge the entire indebtedness on such Notes not theretofore delivered
to the Trustee for cancellation, for principal, premium, if any and accrued
interest on the Stated Maturity or Redemption Date, as the case may be.


 


13.          Amendment; Supplement; Waiver.


 


Subject
to certain exceptions, the Indenture, any related Guarantee and the Notes
issued thereunder may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Outstanding Notes,
and any existing Default or Event of Default or compliance with any provision
of the Indenture or the Notes issued thereunder may be waived with the consent
of the Holders of a majority in principal amount of the Outstanding Notes.
Without notice to or the consent of any Holder, the parties thereto may amend
or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not adversely
affect the rights of any Holder.


 


A1-9

















 


14.          Restrictive Covenants.


 


The
Indenture contains certain covenants, including, without limitation, covenants
with respect to the following matters: (i) Limitation on Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred Stock; (ii) Limitation
on Restricted Payments; (iii) Limitation on Transactions with Affiliates;
(iv) Limitation on Liens; (v) Change of Control; (vi) Asset
Sales; (vii) Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries; (viii) Limitations on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries; and (ix) Merger,
Consolidation or Sale of all or Substantially all Assets.


 


15.          Successor Persons.


 


When
a successor Person or other entity assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor Person will be
released from those obligations.


 


16.          Remedies for Events of Default.


 


If
an Event of Default, as defined in the Indenture, occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Outstanding
Notes may declare all the Notes to be immediately due and payable. If a
bankruptcy or insolvency default with respect to the Issuer or any of its
Significant Subsidiaries occurs and is continuing, the Outstanding Notes will
automatically become immediately due and payable. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity reasonably satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Outstanding Notes may direct the
Trustee in its exercise of any trust or power.


 


17.          Guarantees.


 


The
Issuer’s obligations under the Notes are fully, unconditionally and irrevocably
guaranteed, to the extent set forth in the Indenture, by each of the
Guarantors.


 


18.          Trustee Dealings with Issuer.


 


The
Trustee, any Paying Agent, any Note Registrar or any other agent of the Issuer
or of the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to the TIA, may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Issuer and
its Affiliates as if it were not the Trustee, Paying Agent, Note Registrar or
such other agent.


 


19.          Authentication.


 


This
Note shall not be valid until the Trustee signs the certificate of
authentication by manual signature on the other side of this Note.


 


20.          Abbreviations.


 


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


 


A1-10

















 


21.           GOVERNING LAW. 
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.


 


The
Issuer will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to Lantheus Medical Imaging, Inc.,
331 Treble Cove Road, Building 600, North Billerica, Massachusetts 01862,
Attention: General Counsel.


 


A1-11






 










 


ASSIGNMENT
FORM


 


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


 


I or we assign and transfer
this Note to:




 





 


 




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

social security or tax ID number)





 


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


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  	
   

  
						



 


In connection with any
transfer of this Note occurring prior to the date which is the earlier of (i) the
date of the declaration by the Commission of the effectiveness of a
registration statement under the U.S. Securities Act of 1933, as amended (the “Securities Act”), covering resales of this
Note (which effectiveness shall not have been suspended or terminated at the
date of the transfer) and (ii)                     
20    , the undersigned confirms that it has not utilized
any general solicitation or general advertising in connection with the transfer
and that this Note is being transferred:


 


[Check One]


 


	
  (1)

  	
   

  	
  o

  	
   

  	
  to the Issuer or a
  subsidiary thereof; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  o

  	
   

  	
  pursuant to and in
  compliance with Rule 144A under the Securities Act; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  o

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  o

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (5)

  	
   

  	
  o

  	
   

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

  



 


Unless one of the boxes is
checked, the Trustee will refuse to register any of the Notes evidenced by this
certificate in the name of any person other than the registered Holder thereof;
provided that if box (3), (4) or
(5) is checked, the Issuer or the Trustee may require, prior to
registering any such transfer of the Notes, in its sole discretion, such legal
opinions, certifications (including an investment letter in the case of box (3) or
(4)) and other information as the Trustee or the Issuer has reasonably
requested to confirm that such


 


A1-12

















 


transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.


 


If none of the foregoing
boxes is checked, the Trustee or Registrar shall not be obligated to register
this Note in the name of any person other than the Holder hereof unless and
until the conditions to any such transfer of registration set forth herein and
in Section 3.11 of the Indenture shall have been satisfied.


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  	
   

  
						



 


 






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


 


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


 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [NOTICE: To be executed by
  an executive officer of the qualified institutional buyer]

  



 


A1-13

















 


OPTION
OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have
this Note purchased by the Issuer pursuant to Section 10.15 or 10.16 of
the Indenture, check the appropriate box below:


 


o
Section 10.15            o Section 10.16


 


If you want to elect to have
only part of the Note purchased by the Issuer pursuant to Section 10.15 or
Section 10.16 of the Indenture, state the amount you elect to have
purchased:


 


$                                  


(multiple of $1, 000)


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  
							



 






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


 


A1-14

















 


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

  	
   

  	
  Signature of

  	
   

  
	
   

  	
   

  	
  Amount of

  	
   

  	
  Amount of

  	
   

  	
  of this Global Note

  	
   

  	
  authorized

  	
   

  
	
   

  	
   

  	
  decrease in

  	
   

  	
  increase in

  	
   

  	
  following such

  	
   

  	
  signatory of

  	
   

  
	
   

  	
   

  	
  Principal Amount

  	
   

  	
  Principal Amount

  	
   

  	
  decrease (or

  	
   

  	
  Trustee or

  	
   

  
	
  Date of Exchange

  	
   

  	
  of this Global Note

  	
   

  	
  of this Global Note

  	
   

  	
  increase)

  	
   

  	
  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*This schedule should be
included only if the Note is issued in global form.


 


A1-15






 










 


EXHIBIT B


 


FORM OF
CERTIFICATE OF TRANSFER


 


Lantheus Medical Imaging, Inc.


331 Treble Cove Road,
Building 600


North Billerica,
Massachusetts 01862


 


Wilmington Trust FSB


Corporate Capital Markets


246 Goose Lane, Suite 105


Guilford, CT 06437


 


Re:
9.750% Senior Notes due 2017


 


Reference is hereby made to
the Indenture, dated as of May 10, 2010 (the “Indenture”), among Lantheus Medical Imaging, Inc., a
Delaware corporation (the “Issuer”),
the Guarantors party thereto and Wilmington Trust FSB, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.


 


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


 


[CHECK ALL THAT APPLY]


 


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


 


2.                                       o Check if
Transferee will take delivery of a beneficial interest in the Regulation S
Temporary Global Note, the Regulation S Permanent Global Note or a Restricted
Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities
Act and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States
or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and


 


B-1

















 


neither such Transferor nor
any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been
made in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Permanent Global Note, the
Regulation S Temporary Global Note and/or the Restricted Definitive Note and in
the Indenture and the Securities Act.


 


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


 


(a)                                  o such Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act;


 


or


 


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


 


or


 


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


 


or


 


(d)                                 o such Transfer
is being effected to an Institutional Accredited Investor and pursuant to an
exemption from the registration requirements of the Securities Act other than
Rule 144A, Rule 144, Rule 903 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and
the Transfer complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of
Notes at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Restricted Definitive Notes and in the Indenture and the Securities
Act.


 


B-2

















 


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


 


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


 


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


 


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


 


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


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Insert name of Transferor]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

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

  



 


B-3

















 


ANNEX
A TO CERTIFICATE OF TRANSFER


 


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


 


[CHECK ONE OF (a) OR
(b)]


 


(a)                                  o a beneficial
interest in the:


 


(i)                                     o 144A Global
Note (CUSIP
                    ),
or


 


(ii)                                  o Regulation S
Global Note (CUSIP
                    ),
or


 


(iii)                               o IAI Global
Note (CUSIP
                    )or


 


(iv)                              o Unrestricted
Global Note (CUSIP
                    );
or


 


(b)                                 o a Restricted
Definitive Note.


 


2.                                       After the
Transfer the Transferee will hold:


 


[CHECK ONE]


 


(a)                                  o a beneficial
interest in the:


 


(i)                                     o 144A Global
Note (CUSIP
                    
), or


 


(ii)                                  o Regulation S
Global Note (CUSIP
                    ),
or


 


(iii)                               o IAI Global
Note (CUSIP
                    );
or


 


(b)                                 o a Restricted
Definitive Note;


 


(c)                                  o an
Unrestricted Definitive Note,


 


in accordance with the terms
of the Indenture.


 


B-4

















 


EXHIBIT C


 


FORM OF
CERTIFICATE OF EXCHANGE


 


Lantheus Medical Imaging, Inc.


331 Treble Cove Road,
Building 600


North Billerica,
Massachusetts 01862


 


Wilmington Trust FSB


Corporate Capital Markets


246 Goose Lane, Suite 105


Guilford, CT 06437


 


Re:
9.750% Senior Notes due 2017


 


(CUSIP
                  )


 


Reference is hereby made to
the Indenture, dated as of May 10, 2010 (the “Indenture”), among Lantheus Medical Imaging, Inc. a
Delaware corporation (the “Issuer”),
the Guarantors party thereto and Wilmington Trust FSB, 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 Notes or interest in such Notes specified herein, in the principal
amount of
$                    
in such Notes or interests (the “Exchange”).
In connection with the Exchange, the Owner hereby certifies that:


 


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


 


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


 


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


 


C-1

















 


Securities Act and (iv) the
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


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


 


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


 


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


 


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


 


(b)                                 o  Check if Exchange is from Restricted Definitive Note
to beneficial interest in a Restricted Global Note. In connection
with the Exchange of the Owner’s Restricted Definitive Note for a beneficial
interest in the [CHECK ONE] o 144A Global Note, o Regulation S
Global Note, o IAI Global Note with an equal principal amount, the
Owner hereby certifies (i) the beneficial interest is being acquired for
the Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any
state of the United States, Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.


 


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


 


C-2

















 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert name of
  Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
					



 


C-3














 


EXHIBIT D


 


FORM OF
CERTIFICATE FROM


ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR


 


Lantheus Medical
Imaging, Inc.


331 Treble Cove Road,
Building 600


North Billerica,
Massachusetts 01862


 


Wilmington Trust FSB


Corporate Capital Markets


246 Goose Lane, Suite 105


Guilford, CT 06437


 


Re:
9.750% Senior Notes due 2017


 


Reference is hereby made to
the Indenture, dated as of May 10, 2010 (the “Indenture”), among Lantheus Medical Imaging, Inc., a
Delaware corporation (the “Issuer”),
the Guarantors party thereto and Wilmington Trust FSB, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.


 


In connection with our
proposed purchase of
$                    
in aggregate principal amount of:


 


(a)                                  o a
beneficial interest in a Global Note, or


 


(b)                                 o a
Definitive Note,


 


we confirm that:


 


1.                                       We understand
that any subsequent transfer of the Notes or any interest therein is subject to
certain restrictions and conditions set forth in the Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).


 


2.                                       We understand
that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Notes or any interest therein, we will do so
only (A) to the Issuer or any subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a “qualified institutional
buyer” (as defined therein), (C) to an “institutional accredited investor”
(as defined below) that, prior to such transfer, furnishes (or has furnished on
its behalf by a U.S. broker- dealer) to you and to the Issuer a signed letter
substantially in the form of this letter and if such Transfer is in respect of
a principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel in form reasonably acceptable to the Issuer to the effect
that such transfer is in compliance with the Securities Act, (D) outside
the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144 under the
Securities Act or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any Person
purchasing the Definitive Note or beneficial interest in a Global Note from us
in a transaction meeting the requirements of clauses (A) through
(E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.


 


D-1

















 


3.                                       We understand
that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Issuer such certifications, legal
opinions and other information as you and the Issuer may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Notes purchased by us will bear a legend to the foregoing
effect.


 


4.                                       We are an
“institutional accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the economic risk of our
or its investment.


 


5.                                       We are
acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an “institutional
accredited investor”) as to each of which we exercise sole investment
discretion.


 


You and the Issuer are
entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert name of
  Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
					



 


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EXHIBIT E


 


FORM OF
SUPPLEMENTAL INDENTURE


TO
BE DELIVERED BY SUBSEQUENT GUARANTORS


 


SUPPLEMENTAL INDENTURE (this
“Supplemental Indenture”), dated
as of
                    
      , 20       ,
among (the “Guaranteeing Subsidiary”),
a subsidiary of Lantheus Medical Imaging, Inc., a Delaware corporation (or
its permitted successor) (the “Issuer”),
the Issuer, the other Guarantors (as defined in the Indenture referred to
herein) and Wilmington Trust FSB, as trustee under the Indenture referred to
below (the “Trustee”).


 


W
I T N E S S E T H


 


WHEREAS, the Issuer has
heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of May 10,
2010, providing for the issuance of 9.750% Senior Notes due 2017 (the “Notes”);


 


WHEREAS, the Indenture
provides that under certain circumstances the Guaranteeing Subsidiary shall
execute and deliver to the Trustee a supplemental indenture pursuant to which
the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s
Obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the “Guarantee”);
and


 


WHEREAS, pursuant to
Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.


 


NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and
the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Notes as follows:


 


1.                                       CAPITALIZED
TERMS. Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.


 


2.                                       AGREEMENT TO
GUARANTEE. The Guaranteeing Subsidiary hereby agrees as follows:


 


(a)                                  The
Guaranteeing Subsidiary hereby agrees to become a party to the Indenture as a
Guarantor and as such will have all of the rights and be subject to all of the
obligations and agreements of a Guarantor under the Indenture. The Guaranteeing
Subsidiary agrees to be bound by all of the provisions of the Indenture
applicable to a Guarantor and to perform all of the obligations and agreements
of a Guarantor under the Indenture.


 


(b)                                 The
Guaranteeing subsidiary agrees, on a joint and several basis with all the
existing Guarantors, to fully, unconditionally and irrevocably Guarantee to
each Holder of the Notes and the Trustee the Obligations pursuant to and
subject to the other conditions set forth in Article 12 of the Indenture
of a senior basis.


 


3.                                       NO RECOURSE
AGAINST OTHERS. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such,
shall have any liability for any obligations of the Issuer or any Guaranteeing
Subsidiary under the Notes, any Guarantees, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and


 


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releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.


 


4.                                       NEW YORK LAW TO
GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


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


 


6.                                       EFFECT OF
HEADINGS. The Section headings herein are for convenience only and shall
not affect the construction hereof.


 


7.                                       THE TRUSTEE.
The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Indenture or for or in
respect of the recitals contained herein, all of which recitals are made solely
by the Guaranteeing Subsidiary and the Issuer.


 


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


 


Dated:
                    
      , 20


 


	
   

  	
  [GUARANTEEING SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  LANTHEUS MEDICAL
  IMAGING, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  LANTHEUS MI
  INTERMEDIATE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  LANTHEUS MI REAL ESTATE,
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST FSB, as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


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EXHIBIT F


 


INCUMBENCY
CERTIFICATE


 


The undersigned,
                    ,
being the
                    
of
                    
(the “Company”), does hereby
certify that the individuals listed below are qualified and acting officers of
the Company as set forth in the right column opposite their respective names
and the signatures appearing in the extreme right column opposite the name of
each such officer is a true specimen of the genuine signature of such officer
and such individuals have the authority to execute documents to be delivered
to, or upon the request of, WILMINGTON TRUST FSB, as Trustee under the
Indenture dated as of May 10, 2010, by and between the Lantheus Medical
Imaging, Inc. and WILMINGTON TRUST FSB.


 


	
  Name

  	
   

  	
  Title

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


IN WITNESS WHEREOF, the
undersigned has duly executed and delivered this Certificate as of the
           day of                    ,
20       .


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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