Exhibit 4.1


 


EXECUTION VERSION


 


INDENTURE


 


Dated as of October 18, 2010


 


Among


 


DJO FINANCE LLC,


 


DJO FINANCE CORPORATION,


 


THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO


 


and


 


THE BANK OF NEW YORK MELLON,


 


as Trustee


 


93⁄4% SENIOR SUBORDINATED NOTES DUE 2017


 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  14.03

  
	
   

  	
  (c)

  	
   

  	
  14.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06;7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06;14.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.03;14.02; 14.05

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  14.04

  
	
   

  	
  (c)(2)

  	
   

  	
  14.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  14.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05;14.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.14

  
	
  316

  	
  (a)(last
  sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.12;9.04

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.12

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  14.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  14.01

  



 






N.A.
means not applicable.


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


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
   

  	
  31

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  32

  
	
  Section 1.04.

  	
  Rules of Construction

  	
   

  	
  33

  
	
  Section 1.05.

  	
  Acts of Holders

  	
   

  	
  33

  
	
  Section 1.06.

  	
  Timing of Payment

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating; Terms

  	
   

  	
  35

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
   

  	
  37

  
	
  Section 2.03.

  	
  Registrar and Paying Agent

  	
   

  	
  37

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
   

  	
  37

  
	
  Section 2.05.

  	
  Holder Lists

  	
   

  	
  38

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
   

  	
  38

  
	
  Section 2.07.

  	
  Replacement Notes

  	
   

  	
  50

  
	
  Section 2.08.

  	
  Outstanding Notes

  	
   

  	
  50

  
	
  Section 2.09.

  	
  Treasury Notes

  	
   

  	
  51

  
	
  Section 2.10.

  	
  Temporary Notes

  	
   

  	
  51

  
	
  Section 2.11.

  	
  Cancellation

  	
   

  	
  51

  
	
  Section 2.12.

  	
  Defaulted Interest

  	
   

  	
  51

  
	
  Section 2.13.

  	
  CUSIP and ISIN Numbers

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  
	
  REDEMPTION

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
   

  	
  52

  
	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed or Purchased

  	
   

  	
  52

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
   

  	
  53

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
   

  	
  54

  
	
  Section 3.05.

  	
  Deposit of Redemption or Purchase Price

  	
   

  	
  54

  
	
  Section 3.06.

  	
  Notes Redeemed or Purchased in Part

  	
   

  	
  54

  
	
  Section 3.07.

  	
  Optional Redemption

  	
   

  	
  54

  
	
  Section 3.08.

  	
  Mandatory Redemption

  	
   

  	
  55

  
	
  Section 3.09.

  	
  Offers to Repurchase by Application of Excess Proceeds

  	
   

  	
  56

  



 


i

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Notes

  	
   

  	
  57

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
   

  	
  58

  
	
  Section 4.03.

  	
  Reports and Other Information

  	
   

  	
  58

  
	
  Section 4.04.

  	
  Compliance Certificate

  	
   

  	
  59

  
	
  Section 4.05.

  	
  Taxes

  	
   

  	
  60

  
	
  Section 4.06.

  	
  Stay, Extension and Usury Laws

  	
   

  	
  60

  
	
  Section 4.07.

  	
  Limitation on Restricted Payments

  	
   

  	
  60

  
	
  Section 4.08.

  	
  Dividend and Other Payment Restrictions Affecting
  Restricted Subsidiaries

  	
   

  	
  67

  
	
  Section 4.09.

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

  	
   

  	
  69

  
	
  Section 4.10.

  	
  Asset Sales

  	
   

  	
  74

  
	
  Section 4.11.

  	
  Transactions with Affiliates

  	
   

  	
  76

  
	
  Section 4.12.

  	
  Liens

  	
   

  	
  78

  
	
  Section 4.13.

  	
  Corporate Existence

  	
   

  	
  79

  
	
  Section 4.14.

  	
  Offer to Repurchase Upon Change of Control

  	
   

  	
  79

  
	
  Section 4.15.

  	
  Limitation on Guarantees of Indebtedness by Restricted
  Subsidiaries

  	
   

  	
  81

  
	
  Section 4.16.

  	
  Limitation on Layering

  	
   

  	
  81

  
	
  Section 4.17.

  	
  Limitation on Business Activities of the Co-Issuer

  	
   

  	
  82

  
	
  Section 4.18.

  	
  Covenant Suspension

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Merger, Consolidation or Sale of All or Substantially All
  Assets

  	
   

  	
  82

  
	
  Section 5.02.

  	
  Successor Corporation Substituted

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events of Default

  	
   

  	
  85

  
	
  Section 6.02.

  	
  Acceleration

  	
   

  	
  87

  
	
  Section 6.03.

  	
  Other Remedies

  	
   

  	
  88

  
	
  Section 6.04.

  	
  Waiver of Past Defaults

  	
   

  	
  88

  
	
  Section 6.05.

  	
  Control by Majority

  	
   

  	
  88

  
	
  Section 6.06.

  	
  Limitation on Suits

  	
   

  	
  89

  
	
  Section 6.07.

  	
  Rights of Holders of Notes to Receive Payment

  	
   

  	
  89

  
	
  Section 6.08.

  	
  Collection Suit by Trustee

  	
   

  	
  89

  
	
  Section 6.09.

  	
  Restoration of Rights and Remedies

  	
   

  	
  89

  
	
  Section 6.10.

  	
  Rights and Remedies Cumulative

  	
   

  	
  90

  
	
  Section 6.11.

  	
  Delay or Omission Not Waiver

  	
   

  	
  90

  
	
  Section 6.12.

  	
  Trustee May File Proofs of Claim

  	
   

  	
  90

  
	
  Section 6.13.

  	
  Priorities

  	
   

  	
  90

  



 


ii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.14.

  	
  Undertaking for Costs

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties of Trustee

  	
   

  	
  91

  
	
  Section 7.02.

  	
  Rights of Trustee

  	
   

  	
  92

  
	
  Section 7.03.

  	
  Individual Rights of Trustee

  	
   

  	
  93

  
	
  Section 7.04.

  	
  Trustee’s Disclaimer

  	
   

  	
  93

  
	
  Section 7.05.

  	
  Notice of Defaults

  	
   

  	
  94

  
	
  Section 7.06.

  	
  Reports by Trustee to Holders of the Notes

  	
   

  	
  94

  
	
  Section 7.07.

  	
  Compensation and Indemnity

  	
   

  	
  94

  
	
  Section 7.08.

  	
  Replacement of Trustee

  	
   

  	
  95

  
	
  Section 7.09.

  	
  Successor Trustee by Merger, etc.

  	
   

  	
  96

  
	
  Section 7.10.

  	
  Eligibility; Disqualification

  	
   

  	
  96

  
	
  Section 7.11.

  	
  Preferential Collection of Claims Against Issuers

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  96

  
	
  Section 8.02.

  	
  Legal Defeasance and Discharge

  	
   

  	
  97

  
	
  Section 8.03.

  	
  Covenant Defeasance

  	
   

  	
  97

  
	
  Section 8.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  98

  
	
  Section 8.05.

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

  	
   

  	
  99

  
	
  Section 8.06.

  	
  Repayment to Issuers

  	
   

  	
  100

  
	
  Section 8.07.

  	
  Reinstatement

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Without Consent of Holders of Notes

  	
   

  	
  100

  
	
  Section 9.02.

  	
  With Consent of Holders of Notes

  	
   

  	
  101

  
	
  Section 9.03.

  	
  Compliance with Trust Indenture Act

  	
   

  	
  103

  
	
  Section 9.04.

  	
  Revocation and Effect of Consents

  	
   

  	
  103

  
	
  Section 9.05.

  	
  Notation on or Exchange of Notes

  	
   

  	
  103

  
	
  Section 9.06.

  	
  Trustee to Sign Amendments, etc.

  	
   

  	
  104

  
	
  Section 9.07.

  	
  Payment for Consent

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  
	
  SUBORDINATION

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Agreement To Subordinate

  	
   

  	
  104

  
	
  Section 10.02.

  	
  Liquidation, Dissolution, Bankruptcy

  	
   

  	
  104

  



 


iii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.03.

  	
  Default on Senior Indebtedness of the Issuers

  	
   

  	
  105

  
	
  Section 10.04.

  	
  Acceleration of Payment of Notes

  	
   

  	
  106

  
	
  Section 10.05.

  	
  When Distribution Must Be Paid Over

  	
   

  	
  106

  
	
  Section 10.06.

  	
  Subrogation

  	
   

  	
  106

  
	
  Section 10.07.

  	
  Relative Rights

  	
   

  	
  106

  
	
  Section 10.08.

  	
  Subordination May Not Be Impaired by Issuers

  	
   

  	
  107

  
	
  Section 10.09.

  	
  Rights of Trustee and Paying Agent

  	
   

  	
  107

  
	
  Section 10.10.

  	
  Distribution or Notice to Representative

  	
   

  	
  107

  
	
  Section 10.11.

  	
  Article 10 Not To Prevent Events of Default or Limit
  Right To Accelerate

  	
   

  	
  107

  
	
  Section 10.12.

  	
  Trust Moneys Not Subordinated

  	
   

  	
  107

  
	
  Section 10.13.

  	
  Trustee Entitled To Rely

  	
   

  	
  108

  
	
  Section 10.14.

  	
  Trustee To Effectuate Subordination

  	
   

  	
  108

  
	
  Section 10.15.

  	
  Trustee Not Fiduciary for Holders of Senior
  Indebtedness of the Issuers

  	
   

  	
  108

  
	
  Section 10.16.

  	
  Reliance by Holders of Senior Indebtedness of the Issuers
  on Subordination Provisions

  	
   

  	
  108

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Guarantee

  	
   

  	
  109

  
	
  Section 11.02.

  	
  Limitation on Guarantor Liability

  	
   

  	
  110

  
	
  Section 11.03.

  	
  Execution and Delivery

  	
   

  	
  111

  
	
  Section 11.04.

  	
  Subrogation

  	
   

  	
  111

  
	
  Section 11.05.

  	
  Benefits Acknowledged

  	
   

  	
  111

  
	
  Section 11.06.

  	
  Release of Guarantees

  	
   

  	
  112

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
   

  
	
  SUBORDINATION OF GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Agreement To Subordinate

  	
   

  	
  112

  
	
  Section 12.02.

  	
  Liquidation, Dissolution, Bankruptcy

  	
   

  	
  113

  
	
  Section 12.03.

  	
  Default on Senior Indebtedness of a Guarantor

  	
   

  	
  113

  
	
  Section 12.04.

  	
  Demand for Payment

  	
   

  	
  114

  
	
  Section 12.05.

  	
  When Distribution Must Be Paid Over

  	
   

  	
  114

  
	
  Section 12.06.

  	
  Subrogation

  	
   

  	
  115

  
	
  Section 12.07.

  	
  Relative Rights

  	
   

  	
  115

  
	
  Section 12.08.

  	
  Subordination May Not Be Impaired by a Guarantor

  	
   

  	
  115

  
	
  Section 12.09.

  	
  Rights of Trustee and Paying Agent

  	
   

  	
  115

  
	
  Section 12.10.

  	
  Distribution or Notice to Representative

  	
   

  	
  116

  
	
  Section 12.11.

  	
  Article 12 Not To Prevent Events of Default or Limit
  Right To Demand Payment

  	
   

  	
  116

  
	
  Section 12.12.

  	
  Trust Moneys Not Subordinated

  	
   

  	
  116

  
	
  Section 12.13.

  	
  Trustee Entitled To Rely

  	
   

  	
  116

  
	
  Section 12.14.

  	
  Trustee To Effectuate Subordination

  	
   

  	
  117

  
	
  Section 12.15.

  	
  Trustee Not Fiduciary for Holders of Senior
  Indebtedness of Guarantors

  	
   

  	
  117

  



 


iv

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.16.

  	
  Reliance by Holders of Senior Indebtedness of a Guarantor
  on Subordination Provisions

  	
   

  	
  117

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
   

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Satisfaction and Discharge

  	
   

  	
  117

  
	
  Section 13.02.

  	
  Application of Trust Money

  	
   

  	
  118

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Trust Indenture Act Controls

  	
   

  	
  119

  
	
  Section 14.02.

  	
  Notices

  	
   

  	
  119

  
	
  Section 14.03.

  	
  Communication by Holders of Notes with Other Holders of
  Notes

  	
   

  	
  120

  
	
  Section 14.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  120

  
	
  Section 14.05.

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  120

  
	
  Section 14.06.

  	
  Rules by Trustee and Agents

  	
   

  	
  121

  
	
  Section 14.07.

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
   

  	
  121

  
	
  Section 14.08.

  	
  Governing Law

  	
   

  	
  121

  
	
  Section 14.09.

  	
  Waiver of Jury Trial

  	
   

  	
  121

  
	
  Section 14.10.

  	
  Force Majeure

  	
   

  	
  121

  
	
  Section 14.11.

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  122

  
	
  Section 14.12.

  	
  Successors

  	
   

  	
  122

  
	
  Section 14.13.

  	
  Severability

  	
   

  	
  122

  
	
  Section 14.14.

  	
  Counterpart Originals

  	
   

  	
  122

  
	
  Section 14.15.

  	
  Table of Contents, Headings, etc.

  	
   

  	
  122

  
	
  Section 14.16.

  	
  Qualification of Indenture

  	
   

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Note

  	
   

  	
   

  
	
  Exhibit B

  	
  Form of
  Certificate of Transfer

  	
   

  	
   

  
	
  Exhibit C

  	
  Form of
  Certificate of Exchange

  	
   

  	
   

  
	
  Exhibit D

  	
  Form of
  Supplemental Indenture to Be Delivered by Subsequent Guarantors

  	
   

  	
   

  



 


v
















 


INDENTURE,
dated as of October 18, 2010, among DJO Finance LLC, a Delaware limited
liability company (the “Company”), DJO Finance Corporation, a Delaware
corporation wholly owned by the Company (the “Co-Issuer” and, together
with the Company, the “Issuers”), the Guarantors (as defined herein)
listed on the signature pages hereto and The Bank of New York Mellon, a
New York banking corporation, as Trustee.


 


W  I  T  N  E  S  S
E  T  H


 


WHEREAS,
the Issuers have duly authorized the creation of an issue of $300,000,000
aggregate principal amount of 93⁄4% Senior Subordinated Notes due 2017 (the “Initial
Notes”);


 


WHEREAS,
the Issuers will be jointly and severally liable for all obligations under the
Notes; and


 


WHEREAS,
each of the Issuers and each of the Guarantors has duly authorized the
execution and delivery of this Indenture.


 


NOW,
THEREFORE, each of the Issuers, the Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the Notes.


 


ARTICLE 1


 


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


Section 1.01.                          Definitions.


 


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


 


“Acquired
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 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.


 


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


 


“Additional
Notes” means additional Notes (other than the Initial Notes and other than
Exchange Notes for such Initial Notes) issued from time to time under this
Indenture in accordance with Sections 2.01 and 4.09 hereof.


 


“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,”



 

















 


“controlled
by” and “under common control with”), 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.


 


“Agent”
means any Registrar or Paying Agent.


 


“Agent’s
Message” means a message transmitted by DTC to, and received by, the
Depositary and forming a part of the Book-Entry Confirmation, which states that
DTC has received an express acknowledgment from each participant in DTC
tendering the Notes that such participants have received the Letter of
Transmittal and agree to be bound by the terms of the Letter of Transmittal and
the Issuers may enforce such agreement against such participants.


 


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


 


(1)           1.0% of the
principal amount of such Note; and


 


(2)           the excess, if any,
of (a) the present value at such Redemption Date of (i) the
redemption price of such Note at October 15, 2013 (each such redemption
price being set forth in Section 3.07(d) hereof), plus (ii) all
required interest payments due on such Note through October 15, 2013 (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 such Note.


 


“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/or 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 Lease-Back Transaction) of the Company or any of its Restricted
Subsidiaries (each referred to in this definition as a “disposition”);
or


 


(2)           the issuance or sale
of Equity Interests of any Restricted Subsidiary (other than Preferred Stock of
Restricted Subsidiaries issued in compliance with Section 4.09 hereof),
whether in a single transaction or a series of related transactions;


 


in
each case, other than:


 


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


 


(b)           the disposition of
all or substantially all of the assets of the Company governed by, and in a
manner permitted pursuant to the provisions described under Section 5.01
hereof or any disposition that constitutes a Change of Control pursuant to this
Indenture;


 


2

















 


(c)           the making of any
Restricted Payment or Permitted Investment that is permitted to be made, and is
made, under Section 4.07 hereof;


 


(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 $10.0 million;


 


(e)           any disposition of
property or assets or issuance of securities by a Restricted Subsidiary of the
Company to the Company or by the Company or a Restricted Subsidiary of the
Company to another Restricted Subsidiary of the Company;


 


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


 


(g)           the lease,
assignment or sub-lease 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 on
assets;


 


(j)            sales of accounts
receivable, or participations therein, in connection with any Receivables
Facility; and


 


(k)           any financing
transaction with respect to the acquisition or construction of property by the
Company or any Restricted Subsidiary after the Issue Date, including Sale and
Lease-Back Transactions and asset securitizations permitted by this Indenture.


 


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


 


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


 


“Business
Day” means each day which is not a Legal Holiday.


 


“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.


 


3

















 


“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)          (a)           €, or
any national currency of any participating member state of the EMU; or


 


(b)           such local currencies held by the Company or any
Restricted Subsidiary from time to time in the ordinary course of business;


 


(3)           securities issued or
directly and fully and unconditionally guaranteed or insured by the U.S.
government (or any agency or instrumentality thereof the securities of which
are unconditionally guaranteed as a full faith and credit obligation of the
U.S. government) with maturities of 24 months or less from the date of
acquisition;


 


(4)           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 of not less than $500.0 million
in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as
of the date of determination) in the case of non-U.S. banks;


 


(5)           repurchase obligations
for underlying securities of the types described in clauses (3) and (4) entered
into with any financial institution meeting the qualifications specified in
clause (4) above;


 


(6)           commercial paper
rated at least P-1 by Moody’s or at least A-1 by S&P and in each case
maturing within 24 months after the date of creation thereof;


 


(7)           marketable
short-term money market and similar securities having a rating of at least P-2
or A-2 from either Moody’s or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from
another Rating Agency) and in each case maturing within 24 months after
the date of creation thereof;


 


(8)           investment funds
investing 95% of their assets in securities of the types described in clauses (1) through
(7) above;


 


(9)           readily marketable
direct obligations issued by any state, commonwealth or territory of the United
States or any political subdivision or taxing authority thereof having an
Investment Grade Rating 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 24 months or less from
the date of acquisition; and


 


4

















 


(11)         Investments with
average maturities of 24 months or less from the date of acquisition in money
market funds rated AAA- (or the equivalent thereof) or better by S&P or
Aaa3 (or the equivalent thereof) or better by Moody’s.


 


Notwithstanding
the foregoing, Cash Equivalents shall include amounts denominated in currencies
other than those set forth in clauses (1) and (2) above, provided that such amounts are
converted into any currency listed in clauses (1) and (2) as
promptly as practicable and in any event within ten Business Days following the
receipt of such amounts.


 


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


 


(1)           the sale, lease or
transfer, in one or a series of related transactions, of all or substantially
all of the assets of the Company and its Subsidiaries, taken as a whole, to any
Person other than a Permitted Holder; or


 


(2)           the Company becomes
aware (by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the
Permitted Holders, in a single transaction or in a related series of
transactions, by way of merger, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act, or any successor provision) of 50% or more of the total
voting power of the Voting Stock of the Company or any of its direct or
indirect parent companies holding directly or indirectly 100% of the total
voting power of the Voting Stock of the Company.


 


“Clearstream”
means Clearstream Banking, Société Anonyme.


 


“Co-Issuer”
has the meaning set forth in the recitals hereto until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter “Co-Issuer” shall mean such successor Person.


 


“Company”
has the meaning set forth in the recitals hereto until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Person.


 


“Consolidated Depreciation and Amortization
Expense” means with respect to any Person for any period, the total
amount of depreciation and amortization expense, including the amortization of
deferred financing fees 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, without duplication, the sum
of:


 


(1)           consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, to the extent such expense was deducted (and not added back) in
computing Consolidated Net Income (including (a) amortization of original
issue discount or premium resulting from the issuance of Indebtedness at less
than or greater than par, as applicable, (b) all 


 


5

















 


commissions,
discounts and other fees and charges owed with respect to letters of credit or
bankers acceptances, (c) 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
GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net
payments, if any, pursuant to interest rate Hedging Obligations with respect to
Indebtedness and excluding (t) accretion or accrual of discounted
liabilities not constituting Indebtedness, (u) interest expense
attributable to Indebtedness of a parent entity resulting from push-down
accounting to the extent such Person and its Restricted Subsidiaries are not
liable for payment of such Indebtedness, (v) any expense resulting from
the discounting of any outstanding Indebtedness in connection with the
application of purchase accounting in connection with any acquisition, (w) any
Additional Interest and any comparable “additional interest” with respect to
other securities, (x) amortization of deferred financing fees, debt
issuance costs, commissions, fees and expenses, (y) any expensing of
bridge, commitment and other financing fees and (z) commissions,
discounts, yield and other fees and charges (including any interest expense)
related to any Receivables Facility); plus


 


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


 


(3)           interest income for
such period.


 


For
purposes of this definition, interest on a Capitalized Lease Obligation shall
be deemed to accrue at an interest rate reasonably determined by such Person to
be the rate of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP.


 


“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, without
duplication,


 


(1)           any after-tax effect
of extraordinary, non-recurring or unusual gains or losses (less all fees and
expenses relating thereto) or expenses (including relating to the Transaction
to the extent incurred on or prior to September 27, 2008), severance,
relocation costs and curtailments or modifications to pension and
post-retirement employee benefit plans and other restructuring costs shall be
excluded,


 


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


 


(3)           any after-tax effect
of income (loss) from disposed, abandoned, transferred, closed or discontinued
operations and any net after-tax gains or losses on disposal of disposed,
abandoned, transferred, closed or discontinued operations shall be excluded,


 


(4)           any after-tax effect
of 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 Company, shall be excluded,


 


(5)           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 


 


6

















 


excluded;
provided that
Consolidated Net Income of the Company 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,


 


(6)           solely for the
purpose of determining the amount available for Restricted Payments under
clause (3)(a) of Section 4.07(a) hereof, 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 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 similar distributions has been legally waived, provided that Consolidated Net
Income of the Company 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) or Cash Equivalents to the Company or a Restricted
Subsidiary thereof in respect of such period, to the extent not already
included therein,


 


(7)           effects of
adjustments (including the effects of such adjustments pushed down to the
Company and its Restricted Subsidiaries) in the property and equipment,
inventory and other intangible assets, deferred revenue and debt line items in
such Person’s consolidated financial statements pursuant to GAAP resulting from
the application of purchase accounting in relation to the Transaction or any
consummated acquisition or the amortization or write-off of any amounts
thereof, net of taxes, shall be excluded,


 


(8)           any after-tax effect
of income (loss) from the early extinguishment of Indebtedness or Hedging
Obligations or other derivative instruments shall be excluded,


 


(9)           any impairment
charge or asset write-off, in each case, pursuant to GAAP and the amortization
of intangibles arising pursuant to GAAP shall be excluded,


 


(10)         any non-cash
compensation expense recorded from grants of stock appreciation or similar
rights, stock options, restricted stock or other rights shall be excluded,


 


(11)         any fees and expenses
incurred during such period, or any amortization thereof for such period, in
connection with any acquisition, disposition, recapitalization, Investment,
Asset Sale, issuance or repayment of Indebtedness, issuance of Equity
Interests, refinancing transaction or amendment or modification of any debt
instrument (in each case, including any such transaction consummated prior to
the Issue Date and any such transaction undertaken but not completed) and any
charges or non-recurring merger costs incurred during such period as a result
of any such transaction shall be excluded,


 


(12)         accruals and reserves
that are established or adjusted within twelve months after the Issue Date that
are so required to be established or adjusted as a result of the Transaction in
accordance with GAAP or changes as a result of a modification of accounting
policies shall be excluded, and


 


7

















 


(13)         to the extent covered
by insurance and actually reimbursed, or, so long as the Issuer has made a
determination that there exists reasonable evidence that such amount will in
fact be reimbursed by the insurer and only to the extent that such amount is (a) not
denied by the applicable carrier in writing within 180 days and (b) in
fact reimbursed within 365 days of the date such evidence (with a deduction for
any amount so added back to the extent not so reimbursed within 365 days),
expenses with respect to liability or casualty events or business interruption
shall be excluded.


 


Notwithstanding
the foregoing, for the purpose of Section 4.07 hereof only (other than
clause (3)(d) of Section 4.07(a) hereof), there shall be
excluded from Consolidated Net Income any income arising from any sale or other
disposition of Restricted Investments made by the Company and its Restricted
Subsidiaries, any repurchases and redemptions of Restricted Investments from
the Company and its Restricted Subsidiaries, any repayments of loans and
advances which constitute Restricted Investments by the Company or any of its
Restricted Subsidiaries, 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 (3)(d) of Section 4.07(a) hereof.


 


“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.


 


“Corporate
Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 14.02 hereof or such other address as to which the
Trustee may give notice to the Holders and the Issuers.


 


“Covenant
Suspension Event” means the concurrent occurrence of both of the
following:  (i) the Notes having Investment
Grade Ratings from both Rating Agencies, and (ii) no Default having
occurred and is continuing under this Indenture.


 


“Credit
Facilities” means, with respect to the Company or any of its Restricted
Subsidiaries, one or more debt facilities, including the Senior Credit
Facilities, or other financing arrangements (including, without limitation,
commercial paper facilities or indentures) providing for revolving credit
loans, term loans, letters of credit or other long-term indebtedness, including
any notes, 


 


8

















 


mortgages,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof and any indentures or
credit facilities or commercial paper facilities that replace, refund or
refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility
or indenture that increases the amount permitted to be borrowed thereunder or
alters the maturity thereof (provided
that such increase in borrowings is permitted under Section 4.09 hereof)
or adds Restricted Subsidiaries as additional borrowers or guarantors
thereunder and whether by the same or any other agent, lender or group of
lenders.


 


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


 


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


 


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


 


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


 


“Designated Non-cash Consideration”
means the fair market value of non-cash consideration received by the Company
or a Restricted Subsidiary in connection with an Asset Sale that is so
designated as Designated Non-cash Consideration pursuant to an Officer’s
Certificate, setting forth the basis of such valuation, executed by the
principal financial officer of the Company, less the amount of cash or Cash
Equivalents received in connection with a subsequent sale of or collection on
such Designated Non-cash Consideration.


 


“Designated Preferred Stock” means
Preferred Stock of the Company or any parent corporation thereof (in each case
other than Disqualified Stock) that is issued for cash (other than to a
Restricted Subsidiary or an employee stock ownership plan or trust established
by the Company or any of its Subsidiaries) and is so designated as Designated
Preferred Stock, pursuant to an Officer’s Certificate executed by the principal
financial officer of the Company or the applicable parent corporation thereof,
as the case may be, on the issuance date thereof, the cash proceeds of which
are excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof
and are not otherwise applied to make any other Restricted Payment.


 


“Designated
Senior Indebtedness” means:


 


(1) any Indebtedness outstanding under the Senior Credit
Facilities; and


 


(2) any
other Senior Indebtedness permitted under this Indenture, the principal amount
of which is $50.0 million or more and that has been designated by the Company
as “Designated Senior Indebtedness”.


 


9

















 


“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 (other than solely as a
result of a change of control or asset sale) pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof
(other than solely as a result of a change of control or asset sale), in whole
or in part, in each case prior to the date 91 days after the maturity date of
the Notes; provided, however, that if such
Capital Stock is issued to any plan for the benefit of employees of the Company
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 Company or its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations.


 


“EBITDA” means, with respect to
any Person for any period, the Consolidated Net Income of such Person for such
period


 


(1)           increased (without
duplication) by:


 


(a)           provision for taxes based on income
or profits or capital gains, including, without limitation, federal, state,
foreign, franchise and similar taxes and foreign withholding taxes (including
penalties and interest related to such taxes or arising from tax examinations)
of such Person paid or accrued during such period to the extent the same was
deducted (and not added back) in computing Consolidated Net Income; plus


 


(b)           Fixed Charges of such Person for such
period (including (x) net losses or Hedging Obligations or other
derivative instruments entered into for the purpose of hedging interest rate
risk and (y) costs of surety bonds in connection with financing
activities, in each case, to the extent included in Fixed Charges), together
with items excluded from the definition of “Consolidated Interest Expense”
pursuant to clauses 1(t) through 1(z) thereof, to the extent the same
were deducted (and not added back) in calculating such Consolidated Net Income;
plus


 


(c)           Consolidated Depreciation and
Amortization Expense of such Person for such period to the extent the same were
deducted (and not added back) in computing Consolidated Net Income; plus


 


(d)           any expenses or charges (other than
depreciation or amortization expense) related to any Equity Offering, Permitted
Investment, acquisition, disposition, recapitalization or the incurrence of
Indebtedness permitted to be incurred by this Indenture (including a
refinancing thereof) (whether or not successful), including (i) such fees,
expenses or charges related to the offering of the Notes and the Credit
Facilities and (ii) any amendment or other modification of the Notes, and,
in each case, deducted (and not added back) in computing Consolidated Net
Income; plus


 


(e)           the amount of any restructuring
charges, integration costs or other business optimization expenses or reserves
deducted (and not added back) in such period in computing Consolidated Net
Income, including any one-time costs incurred in connection with acquisitions
after the Issue Date and costs related to the closure and/or consolidation of
facilities; plus


 


10
















 


(f)            any other non-cash charges,
including any write offs or write downs, reducing Consolidated Net Income for
such period (provided that if any such non-cash charges represent an
accrual or reserve for potential cash items in any future period, the cash payment
in respect thereof in such future period shall be subtracted from EBITDA to
such extent, and excluding amortization of a prepaid cash item that was paid in
a prior period); plus


 


(g)           the amount of any minority interest
expense consisting of Subsidiary income attributable to minority equity
interests of third parties in any non-Wholly Owned Subsidiary deducted (and not
added back) in such period in calculating Consolidated Net Income; plus


 


(h)           the amount of management,
monitoring, consulting and advisory fees and related expenses paid in such
period to the Investors to the extent otherwise permitted under Section 4.11
hereof; plus


 


(i)            [Reserved]


 


(j)            the
amount of loss on sale of receivables and related assets to the Receivables
Subsidiary in connection with a Receivables Facility; plus


 


(k)           any costs or expense incurred by the
Company or a Restricted Subsidiary pursuant to any management equity plan or
stock option plan or any other management or employee benefit plan or agreement
or any stock subscription or shareholder agreement, to the extent that such
cost or expenses are funded with cash proceeds contributed to the capital of
the Company or net cash proceeds of an issuance of Equity Interest of the
Company (other than Disqualified Stock) solely to the extent that such net cash
proceeds are excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof;


 


(2)           decreased by
(without duplication) non-cash gains increasing Consolidated Net Income of such
Person for such period, excluding any non-cash gains to the extent they
represent the reversal of an accrual or reserve for a potential cash item that
reduced EBITDA in any prior period; and


 


(3)           increased or
decreased by (without duplication):


 


(a)           any
net gain or loss resulting in such period from Hedging Obligations and the
application of Financial Accounting Standards Codification No. 815–Derivatives
and Hedging; plus or minus, as applicable,


 


(b)           any
net gain or loss resulting in such period from currency translation gains or
losses related to currency remeasurements of Indebtedness (including any net
loss or gain resulting from hedge agreements for currency exchange risk and
revaluations of intercompany balances).


 


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


 


11

















 


“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 Company (excluding Disqualified Stock) or any of its direct or
indirect parent companies (to the extent contributed to the Company as Equity
(other than Disqualified Stock), other than:


 


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


 


(2)           issuances to any
Subsidiary of the Company; and


 


(3)           any such public or private
sale that constitutes an Excluded Contribution.


 


“€”
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.


 


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


 


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


 


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


 


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


 


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


 


(1)           contributions to its
common equity capital, and


 


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


 


in
each case after the Issue Date and in each case designated as Excluded
Contributions pursuant to an officer’s certificate executed by the principal
financial officer of the Company 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 (3) of Section 4.07(a) hereof.


 


“Existing
Senior Notes” means the 10.875% Senior Notes due 2014 issued by the
Issuers, pursuant to an indenture, dated November 20, 2007, among the
Issuers, certain subsidiaries of the Company, as guarantors, and The Bank of
New York Mellon (formerly known as The Bank of New York), as trustee.


 


12

















 


“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 Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
retires or extinguishes any Indebtedness (other than Indebtedness incurred
under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) 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
simultaneously with the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the “Fixed
Charge Coverage Ratio Calculation Date”), then the Fixed Charge
Coverage Ratio shall be calculated giving pro
forma effect to such incurrence, assumption, guarantee, 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 disposed operations (as
determined in accordance with GAAP) that have been made by the Company or any
of its Restricted Subsidiaries during the four-quarter reference period or
subsequent to such reference period and on or prior to or simultaneously with
the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro forma basis, assuming that all such
Investments, acquisitions, dispositions, mergers, consolidations and disposed
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 Company or any of its Restricted
Subsidiaries since the beginning of such period shall have made any Investment,
acquisition, disposition, merger, consolidation or disposed 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
Company.  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 Fixed Charge Coverage Ratio 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 Company 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 except as set forth in the first
paragraph of this definition.  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 Company
may designate.


 


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


 


(1)           Consolidated
Interest Expense of such Person for such period;


 


13

















 


(2)           all cash dividends
or other distributions paid (excluding items eliminated in consolidation) on
any series of Preferred Stock of any Restricted Subsidiary during such period;
and


 


(3)           all dividends or
other distributions accrued (excluding items eliminated in consolidation) on
any series of Disqualified Stock during such period.


 


“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 and any Restricted Subsidiary of such Foreign
Subsidiary.


 


“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 2.06(g)(ii) hereof, which is required to be
placed on all Global Notes issued under this Indenture.


 


“Global
Notes” means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A
hereto, issued in accordance with Section 2.01, 2.06(b), 2.06(d) or
2.06(f) 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
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 Issuers’ Obligations under this
Indenture.


 


14

















 


“Guarantor”
means, each Restricted Subsidiary that Guarantees the Notes in accordance with
the terms of this Indenture and its successors and assigns, until released from
its obligations under its Guarantee in accordance with the terms of this
Indenture.


 


“Hedging
Obligations” means, with respect to any Person, the obligations of such
Person under any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, commodity swap agreement, commodity cap
agreement, commodity collar agreement, foreign exchange contract, currency swap
agreement or similar agreement providing for the transfer or mitigation of
interest rate or currency risks either generally or under specific
contingencies.


 


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


 


“Indebtedness”
means, with respect to any Person, without duplication:


 


(1)           any indebtedness of
such Person, whether or not contingent:


 


(a)           in
respect of borrowed money;


 


(b)           evidenced
by bonds, notes, debentures or similar instruments or letters of credit or
bankers’ acceptances (or, without duplication, reimbursement agreements in
respect thereof);


 


(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, after 30 days of becoming due and payable, has not been paid
and such obligation becomes a liability on the balance sheet of such Person in
accordance with GAAP; or


 


(d)           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 obligations of the type referred to
in clause (1) of a third Person (whether or not such items would appear
upon the balance sheet of such obligor or guarantor), other than by endorsement
of negotiable instruments for collection in the ordinary course of business;
and


 


(3)           to the extent not
otherwise included, the obligations of the type referred to in clause (1) of
a third Person secured by a Lien on any asset owned by such first Person,
whether or not such Indebtedness is assumed by such first Person;


 


provided,
however, that notwithstanding the foregoing, Indebtedness
shall be deemed not to include (a) Contingent Obligations incurred in the
ordinary course of business or (b) obligations under or in respect of
Receivables Facilities.


 


15

















 


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


 


“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 Company, 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
Notes” has the meaning set forth in the recitals hereto.


 


“Initial Purchasers” means Credit
Suisse Securities (USA) LLC, Nomura Securities North America, LLC, and Wells
Fargo Securities, LLC.


 


“Interest
Payment Date” means April 15 and October 15 of each year to
stated maturity.


 


“Investment
Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an
equivalent rating by any other Rating Agency.


 


“Investment
Grade Securities” means:


 


(1)           securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof (other than Cash Equivalents);


 


(2)           debt securities or
debt instruments with an Investment Grade Rating, but excluding any debt
securities or instruments constituting loans or advances among the Company and
its Subsidiaries;


 


(3)           investments in any
fund that invests exclusively in investments of the type described in clauses (1) and
(2) which fund may also hold immaterial amounts of cash pending investment
or distribution; and


 


(4)           corresponding
instruments in countries other than the United States customarily utilized for
high quality investments.


 


“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, commission, travel and similar advances to officers 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 Company
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 4.07 hereof:


 


(1)           “Investments” shall
include the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the fair market value of the net assets of a Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, 


 


16

















 


however, that upon a redesignation
of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent “Investment” in an Unrestricted Subsidiary in an
amount (if positive) equal to:


 


(a)           the
Company’s “Investment” in such Subsidiary at the time of such redesignation;
less


 


(b)           the
portion (proportionate to the Company’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 Company.


 


“Investors” means The Blackstone
Group and each of its Affiliates, but not including any of its portfolio
companies.


 


“Issue
Date” means October 18, 2010.


 


“Issuers”
has the meaning set forth in the recitals hereto until a successor Person or
Persons shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Issuers” shall mean such successor Person or
Persons.


 


“Issuers’
Order” means a written request or order signed on behalf of each Issuer by
an Officer of such Issuer, who must be the principal executive officer, the
principal financial officer, the treasurer, the principal accounting officer or
an executive vice president of such Issuer, and delivered to the Trustee.


 


“Legal
Holiday” means a Saturday, a Sunday or a day on which commercial banking
institutions are not required to be open in the State of New York.


 


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


 


“Lien”
means, with respect to any asset, any mortgage, lien (statutory or otherwise),
pledge, hypothecation, charge, security interest, preference, priority 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.


 


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


 


“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.


 


17

















 


“Net
Proceeds” means the aggregate cash proceeds received by the Company or any
of its Restricted Subsidiaries in respect of any Asset Sale, including any cash
received upon the sale or other disposition of any Designated Non-cash
Consideration received in any Asset Sale, net of the direct costs relating to
such Asset Sale and the sale or disposition of such Designated Non-cash
Consideration, including 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 interest on Senior Indebtedness required (other than required by clause (1) of
Section 4.10(b) hereof) to be paid as a result of such transaction
and any deduction of appropriate amounts to be provided by the Company or any
of its Restricted Subsidiaries as a reserve in accordance with GAAP against any
liabilities associated with the asset disposed of in such transaction and
retained by the Company or any of its Restricted Subsidiaries after such sale
or other disposition thereof, including 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.


 


“Notes”
means the Initial Notes and more particularly means any Note authenticated and
delivered under this Indenture.  For all
purposes of this Indenture, the term “Notes” shall also include any Additional
Notes that may be issued under a supplemental indenture.  For purposes of this Indenture, all
references to Notes to be issued or authenticated upon transfer, replacement or
exchange shall be deemed to refer to Notes of the applicable series.


 


“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
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
Circular” means the offering circular, dated October 5, 2010, relating
to the sale of the Initial Notes.


 


“Officer”
means the Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the Chief Operating Officer, the President, any Executive
Vice President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the applicable Issuer or Guarantor.


 


“Officer’s
Certificate” means a certificate signed on behalf of an Issuer by an
Officer of such Issuer or on behalf of a Guarantor by an Officer of such
Guarantor, who must be the principal executive officer, the principal financial
officer, the treasurer, the principal accounting officer or executive vice
president of such Issuer that meets the requirements set forth in this
Indenture.


 


“Opinion
of Counsel” means a written opinion from legal counsel who is acceptable to
the Trustee.  The counsel may be an
employee of or counsel to the Company, a Subsidiary of the Company or the
Trustee.


 


18

















 


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


 


“Permitted
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 Company or any of its Restricted Subsidiaries and
another Person; provided, that any cash or Cash Equivalents received
must be applied in accordance with Section 4.10 hereof.


 


“Permitted
Holders” means each of the Investors and members of management of the
Company (or its direct parent) on the Issue Date who are holders of Equity
Interests of the Company (or any of its direct or indirect parent companies)
and 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, such Investors and members of management,
collectively, have beneficial ownership of more than 50% of the total voting
power of the Voting Stock of the Company or any of its direct or indirect
parent companies.  Any Person or group whose
acquisition of beneficial ownership constitutes a Change of Control in respect
of which a Change of Control Offer is made in accordance with the requirements
of this Indenture will thereafter, together with its Affiliates, constitute an
additional Permitted Holder.


 


“Permitted
Investment” means:


 


(1)           any Investment in
the Company or any of its Restricted Subsidiaries;


 


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


 


(3)           any Investment by
the Company or any of its Restricted Subsidiaries in a Person that is engaged
in a Similar Business 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 or
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company 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 or transfer;


 


(4)           any Investment in
securities or other assets, including earnouts, not constituting cash and Cash
Equivalents and received in connection with an Asset Sale made pursuant to the
provisions of Section 4.10 hereof or any other disposition of assets not
constituting an Asset Sale;


 


(5)           any Investment
existing on the Issue Date;


 


(6)           any Investment
acquired by the Company or any of its Restricted Subsidiaries:


 


(a)           in
exchange for any other Investment or accounts receivable held by the Company or
any such Restricted Subsidiary in connection with or as a result of a 


 


19

















 


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 Company or any of its Restricted Subsidiaries
with respect to any secured Investment or other transfer of title with respect
to any secured Investment in default;


 


(7)           Hedging Obligations
permitted under clause (10) of Section 4.09(b) hereof;


 


(8)           any Investment in a
Similar Business having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (8) that are at that
time outstanding, not to exceed 2.5% 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);


 


(9)           Investments the
payment for which consists of Equity Interests (exclusive of Disqualified
Stock) of the Company, or any of its direct or indirect parent companies; provided, however, that such Equity Interests will not increase
the amount available for Restricted Payments under clause (3) of Section 4.07(a) hereof;


 


(10)         guarantees of
Indebtedness of the Company and any Restricted Subsidiary permitted under Section 4.09
hereof;


 


(11)         any transaction to
the extent it constitutes an Investment that is permitted and made in
accordance with the provisions of Section 4.11(b) hereof (except
transactions described in clauses (2), (5) and (9) of Section 4.11(b) hereof);


 


(12)         Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment;


 


(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 or marketable
securities), not to exceed 3.5% 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)         Investments relating
to a Receivables Subsidiary that, in the good faith determination of the
Company are necessary or advisable to effect any Receivables Facility;


 


(15)         advances to, or
guarantees of Indebtedness of, employees not in excess of $10.0 million
outstanding at any one time, in the aggregate;


 


(16)         loans and advances to
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 or consistent with past practices or to fund such Person’s
purchase of Equity Interests of the Company or any direct or indirect parent
company thereof; and


 


20






 












 


(17)         loans and advances to
independent sales persons against commissions not in excess of $15.0 million
outstanding at any one time, in the aggregate.


 


“Permitted
Junior Securities” means:


 


(1)           Equity Interests in
an Issuer, any Guarantor or any direct or indirect parent of the Company; or


 


(2)           unsecured debt
securities that are subordinated to all Senior Indebtedness (and any debt
securities issued in exchange for Senior Indebtedness) to substantially the
same extent as, or to a greater extent than, the Notes and the related
Guarantees are subordinated to Senior Indebtedness under this Indenture;


 


provided that the term “Permitted Junior Securities” shall
not include any securities distributed pursuant to a plan of reorganization if
the Indebtedness under the Senior Credit Facilities is treated as part of the
same class as the Notes for purposes of such plan of reorganization; provided
further that to the extent that any Senior Indebtedness of an Issuer or the
Guarantors outstanding on the date of consummation of any such plan of
reorganization is not paid in full in cash on such date, the holders of any
such Senior Indebtedness not so paid in full in cash have consented to the
terms of such plan of reorganization.


 


“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
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 if adequate reserves
with respect thereto are maintained on the books of such Person in accordance
with GAAP;


 


(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 diligently conducted,
if adequate reserves with respect thereto are maintained on the books of such
Person in accordance with GAAP;


 


(4)           Liens in favor of
issuers of 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 


 


21

















 


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 securing
Indebtedness permitted to be incurred pursuant to clause (4) of Section 4.09(b) hereof
(including, during any Suspension Period, Indebtedness of the type and in
the amounts specified under such clause);


 


(7)           Liens existing on
the Issue Date;


 


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


 


(9)           Liens on property at
the time the Company or a Restricted Subsidiary acquired the property,
including any acquisition by means of a merger or consolidation with or into
the Company 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, however, that
the Liens may not extend to any other property owned by the Company or any of
its Restricted Subsidiaries;


 


(10)         Liens securing
Indebtedness or other obligations of a Restricted Subsidiary owing to the
Company or another Restricted Subsidiary permitted to be incurred in accordance
with Section 4.09 hereof;


 


(11)         customary Liens
securing Hedging Obligations entered into in the ordinary course of business by
an Issuer or its Restricted Subsidiaries;


 


(12)         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;


 


(13)         leases, subleases,
licenses or sublicenses granted to others in the ordinary course of business
which do not materially interfere with the ordinary conduct of the business of
the Company or any of its Restricted Subsidiaries and do not secure any
Indebtedness;


 


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


 


(15)         Liens in favor of the
Company, the Co-Issuer or any Guarantor;


 


(16)         Liens on equipment of
the Company or any of its Restricted Subsidiaries granted in the ordinary
course of business to the Company’s clients;


 


22

















 


(17)         Liens on accounts
receivable and related assets incurred in connection with a Receivables
Facility;


 


(18)         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 (7), (8) and
(9); provided, however, that (a) 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 (b) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (i) the outstanding principal amount or, if
greater, committed amount of the Indebtedness described under clauses (7), (8) and
(9) at the time the original Lien became a Permitted Lien under this
Indenture, and (ii) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, extension, renewal
or replacement;


 


(19)         deposits made in the
ordinary course of business to secure liability to insurance carriers;


 


(20)         other Liens securing
obligations incurred in the ordinary course of business which obligations do
not exceed $65.0 million at any one time outstanding;


 


(21)         Liens securing
Indebtedness of any Foreign Subsidiary permitted to be incurred under this
Indenture, to the extent such Liens relate only to the assets and properties of
such Foreign Subsidiary;


 


(22)         Liens securing
judgments for the payment of money not constituting an Event of Default under
clause (5) under Section 6.01 hereof
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;


 


(23)         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;


 


(24)         Liens (i) of a
collection bank arising under Section 4-210 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 encumbering deposits
(including the right of set-off) and which are within the general parameters
customary in the banking industry;


 


(25)         Liens deemed to exist
in connection with Investments in repurchase agreements permitted under Section 4.09 hereof; provided that such
Liens do not extend to any assets other than those that are the subject of such
repurchase agreement;


 


(26)         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; and


 


23

















 


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


 


(28)         during a Suspension
Period only, Liens securing Indebtedness (other than Indebtedness that is
secured equally and ratably with (or on a basis subordinated to) the Notes) in
an amount not to exceed 5% of Total Assets at any one time outstanding.


 


For purposes of this definition, the term “Indebtedness”
shall be deemed to include interest on such Indebtedness.


 


“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.


 


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


 


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


 


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


 


“Qualified 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 Company in good faith.


 


“Rating
Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall
not make a rating on the Notes publicly available, a nationally recognized
statistical rating agency or agencies, as the case may be, selected by the
Issuers which shall be substituted for Moody’s or S&P or both, as the case may
be.


 


“Receivables Facility” means any
of one or more receivables financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time, the
Obligations of which are non-recourse (except for customary representations,
warranties, covenants and indemnities made in connection with such facilities)
to the Company or any of its Restricted Subsidiaries (other than a Receivables
Subsidiary) pursuant to which the Company or any of its Restricted Subsidiaries
sells its accounts receivable to either (a) a Person that is not a
Restricted Subsidiary or (b) a Receivables Subsidiary that in turn sells
its accounts receivable to a Person that is not a Restricted Subsidiary.


 


“Receivables Fees” means
distributions or payments made directly or by means of discounts with respect
to any accounts receivable or participation interest therein issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.


 


24

















 


“Receivables
Subsidiary” means any Subsidiary formed for the purpose of, and that solely
engages only in one or more Receivables Facilities and other activities
reasonably related thereto.


 


“Record
Date” for the interest or Additional Interest, if any, payable on any
applicable Interest Payment Date means April 1 or October 1 (whether
or not a Business Day) next preceding such Interest Payment Date.


 


“Registration
Rights Agreement” means the Registration Rights Agreement with respect to
the Notes dated as of the Issue Date, among the Issuers, the Guarantors and the
Initial Purchasers, as such agreement may be amended, modified or supplemented
from time to time and, with respect to any Additional Notes, one or more
registration rights agreements among the Issuers and the other parties thereto,
as such agreement(s) may be amended, modified or supplemented from time to
time, relating to rights given by the Issuers to the purchasers of Additional
Notes to register such Additional Notes under the Securities Act.


 


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


 


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


 


“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.


 


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


 


“Regulation
S Temporary Global Note Legend” means the legend set forth in Section 2.06(g)(iii) hereof.


 


“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 Company or a Restricted Subsidiary in exchange for
assets transferred by the Company or a Restricted Subsidiary shall not be
deemed to be Related Business Assets if they consist of securities of a Person,
unless upon receipt of the securities of such Person, such Person would become
a Restricted Subsidiary.


 


“Representative” means any
trustee, agent or representative (if any) for an issue of Senior Indebtedness
of the Issuers.


 


“Responsible
Officer” means, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of such Person’s knowledge of and 


 


25

















 


familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Indenture.


 


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


 


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


 


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


 


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


 


“Restricted
Subsidiary” means, at any time, any direct or indirect Subsidiary of the
Company (including the Co-Issuer and 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.”


 


“Reversion
Date” means on any date subsequent to a Suspension Date, one or both of the
Rating Agencies withdraw their Investment Grade Rating or downgrade the rating
assigned to the Notes below an Investment Grade Rating.


 


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


 


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


 


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


 


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


 


“S&P”
means Standard & Poor’s and any successor to its rating agency
business.


 


“Sale and Lease-Back Transaction”
means any arrangement providing for the leasing by the Company or any of its
Restricted Subsidiaries of any real or tangible personal property, which
property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to a third Person in contemplation of such leasing.


 


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


 


“Secured Indebtedness” means any
Indebtedness of the Company or any of its Restricted Subsidiaries secured by a
Lien.


 


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


 


“Senior Credit Facilities” means
the Credit Facility under the Credit Agreement entered into as of November 20,
2007 by and among the Company, the Guarantors, the lenders party thereto in their
capacities as lenders thereunder and Credit Suisse, Cayman Islands Branch, as
Administrative Agent, including any guarantees, collateral documents,
instruments and agreements executed in 


 


26

















 


connection
therewith, and any amendments, supplements, modifications, extensions,
renewals, restatements, refundings or refinancings thereof and any indentures
or credit facilities or commercial paper facilities with banks or other
institutional lenders or investors that replace, refund or refinance any part
of the loans, notes, other credit facilities or commitments thereunder,
including any such replacement, refunding or refinancing facility or indenture
that increases the amount borrowable thereunder or alters the maturity thereof
(provided that such
increase in borrowings is permitted under Section 4.09 hereof).


 


“Senior
Indebtedness” means:


 


(1)           all Indebtedness of
the Issuers or any Guarantor outstanding under the Senior Credit Facilities
(including interest accruing on or after the filing of any petition in
bankruptcy or similar proceeding or for reorganization of the Issuers or any
Guarantor (at the rate provided for in the documentation with respect thereto,
regardless of whether or not a claim for post-filing interest is allowed in
such proceedings)), and any and all other fees, expense reimbursement
obligations, indemnification amounts, penalties, and other amounts (whether
existing on the Issue Date or thereafter created or incurred) and all
obligations of the Issuers or any Guarantor to reimburse any bank or other
Person in respect of amounts paid under letters of credit, acceptances or other
similar instruments;


 


(2)           all Hedging
Obligations (and guarantees thereof) owing to a Lender (as defined in the
Senior Credit Facilities) or any Affiliate of such Lender (or any Person that
was a Lender or an Affiliate of such Lender at the time the applicable
agreement giving rise to such Hedging Obligation was entered into), provided
that such Hedging Obligations are permitted to be incurred under the terms of
this Indenture;


 


(3)           any other
Indebtedness of the Issuers or any Guarantor permitted to be incurred under the
terms of this Indenture, unless the instrument under which such Indebtedness is
incurred expressly provides that it is subordinate in right of payment to the
Notes or any related Guarantee; and


 


(4)           all Obligations with
respect to the items listed in the preceding clauses (1), (2) and (3);


 


provided,
however, that Senior Indebtedness shall not include:


 


(a)           any obligation of
such Person to the Issuers or any of their Subsidiaries;


 


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


 


(c)           any accounts payable
or other liability to trade creditors arising in the ordinary course of
business;


 


(d)           any Indebtedness or
other Obligation of such Person which is subordinate or junior in any respect
to any other Indebtedness or other Obligation of such Person; or


 


(e)           that portion of any
Indebtedness which at the time of incurrence is incurred in violation of this
Indenture; provided, however that such Indebtedness shall be
deemed not to have been incurred in violation of this Indenture for purposes of
this clause if such Indebtedness 


 


27

















 


consists
of Designated Senior Indebtedness, and the holder(s) of such Indebtedness
or their agent or representative (i) had no actual knowledge at the time
of incurrence that the incurrence of such Indebtedness violated this Indenture
and (ii) shall have received a certificate from an officer of the Company
to the effect that the incurrence of such Indebtedness does not violate the
provisions of this Indenture.


 


“Senior
Subordinated Indebtedness” means:


 


(1)           with respect to the
Issuers, Indebtedness which ranks equal in right of payment to the Notes
issued by the Issuers; and


 


(2)           with respect to any
Guarantor, Indebtedness which ranks equal in right of payment to the
Guarantee of such entity of Notes.


 


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


 


“Significant
Subsidiary” means (i) the Co-Issuer and (ii) 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 Issue Date.


 


“Similar Business” means any
business conducted or proposed to be conducted by the Company and its
Restricted Subsidiaries on the Issue Date or any business that is similar,
reasonably related, incidental or ancillary thereto.


 


“Sponsor
Management Agreement” means the management agreement between certain of the
management companies associated with the Investors and the Company and/or one
of its direct or indirect parent companies as in effect on the Issue Date.


 


“Subordinated Indebtedness” means,
with respect to the Notes,


 


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


 


(2)           any Indebtedness of
any Guarantor which is by its terms subordinated in right of payment to the
Guarantee of such entity of the Notes


 


“Subsidiary”
means, with respect to any Person:


 


(1)           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 or is consolidated under GAAP with such
Person at such time; and


 


28

















 


(2)           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 general partner or
otherwise controls such entity.


 


“Suspended
Covenants” means:


 


(1)           Section 4.07;


 


(2)           Section 4.08;


 


(3)           Section 4.09;


 


(4)           Section 4.10;


 


(5)           Section 4.11;


 


(6)           Section 4.14;


 


(7)           Section 4.15;
and


 


(8)           Section 5.01(a)(4).


 


“Suspension
Date” means a date upon which a Covenant Suspension Event occurs.


 


“Suspension
Period” means the period of time between the Suspension Date and the
Reversion Date.


 


“Total Assets” means the total
assets of the Company, except where expressly provided otherwise, and its
Restricted Subsidiaries on a consolidated basis, as shown on the most recent
balance sheet of such other Person.


 


“Transaction” means the merger
contemplated by the Transaction Agreement, the issuance of the Existing Senior
Notes and borrowings under the Senior Credit Facilities as of November 20,
2007, to finance the merger and repay certain debt as described in the Offering
Circular, dated November 7, 2007.


 


“Transaction Agreement” means the
Agreement and Plan of Merger, dated as of July 15, 2007, by and among
ReAble Therapeutics Finance LLC, Reaction Acquisition Merger Sub., Inc.
and DJO Incorporated.


 


29

















 


“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 October 15, 2013; provided, however,
that if the period from the Redemption Date to October 15, 2013 is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year will be used.


 


“Trust Indenture Act” means the
Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-777bbbb).


 


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


 


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


 


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


 


“Unrestricted
Subsidiary” means:


 


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


 


(2)           any Subsidiary of an
Unrestricted Subsidiary.


 


The
Company may designate any Subsidiary of the Company, other than the Co-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 Company or any Subsidiary of the Company
(other than solely any Subsidiary of the Subsidiary to be so designated); provided that


 


(1)           any Unrestricted
Subsidiary must be an entity of which the Equity Interests entitled to cast at
least a majority of the votes that may be cast by all Equity Interests having
ordinary voting power for the election of directors or Persons performing a
similar function are owned, directly or indirectly, by the Company;


 


(2)           such designation
complies with Section 4.07 hereof; and


 


(3)           each of:


 


(a)           the
Subsidiary to be so designated; and


 


(b)           its
Subsidiaries


 


30
















 


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 Company or any Restricted Subsidiary.


 


The
Company may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided
that, immediately after giving effect to such designation, no Default shall
have occurred and be continuing and either:


 


(1)           the Company could
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test described in Section 4.09(a) hereof; or


 


(2)           the Fixed Charge
Coverage Ratio for the Company and its Restricted Subsidiaries would be greater
than such ratio for the Company 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 Company shall be notified by the Company to the Trustee
by promptly filing with the Trustee a copy of the resolution of the board of
directors of the Company or any committee thereof giving effect to such
designation and an Officer’s Certificate certifying that such designation
complied with the foregoing provisions.


 


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


 


“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 Equity 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.                          Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Acceptable
  Commitment”

  	
   

  	
  4.10

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Asset
  Sale Offer”

  	
   

  	
  4.10

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  



 


31

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Blockage
  Notice”

  	
   

  	
  10.03

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.14

  
	
  “Change
  of Control Payment”

  	
   

  	
  4.14

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.14

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.10

  
	
  “Guarantee
  Blockage Notice”

  	
   

  	
  12.03

  
	
  “Guarantee
  Payment Blockage Period”

  	
   

  	
  12.03

  
	
  “Guarantor
  Payment Default”

  	
   

  	
  12.03

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Non
  Guarantor Payment Default”

  	
   

  	
  12.03

  
	
  “Non
  Payment Default”

  	
   

  	
  10.03

  
	
  “Note
  Register”

  	
   

  	
  2.03

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Pari
  Passu Indebtedness”

  	
   

  	
  4.10

  
	
  “pay
  its Guarantee”

  	
   

  	
  12.03

  
	
  “pay
  the Notes”

  	
   

  	
  10.03

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Blockage Period”

  	
   

  	
  10.03

  
	
  “Payment
  Default”

  	
   

  	
  10.03

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Redemption
  Date”

  	
   

  	
  3.07

  
	
  “Refinancing Indebtedness”

  	
   

  	
  4.09

  
	
  “Refunding
  Capital Stock”

  	
   

  	
  4.07

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.07

  
	
  “Second
  Commitment”

  	
   

  	
  4.10

  
	
  “Successor
  Company”

  	
   

  	
  5.01

  
	
  “Successor Person”

  	
   

  	
  5.01

  
	
  “Treasury
  Capital Stock”

  	
   

  	
  4.07

  



 


Section 1.03.                          Incorporation by Reference of Trust Indenture
Act.


 


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


 


The
following Trust Indenture Act terms used in this Indenture have the following
meanings:


 


“indenture
securities” means the Notes;


 


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


 


32

















 


“indenture
to be qualified” means this Indenture;


 


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


 


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


 


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


 


Section 1.04.                          Rules of Construction.


 


Unless
the context otherwise requires:


 


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


 


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


 


(c)           “or” is not
exclusive;


 


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


 


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


 


(f)            provisions apply to
successive events and transactions;


 


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


 


(h)           unless the context
otherwise requires, any reference to an “Article,” “Section” or “clause” refers
to an Article, Section or clause, as the case may be, of this Indenture;
and


 


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


 


Section 1.05.                          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 an agent
duly appointed in writing.  Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Issuers.  Proof of execution of any such instrument or
of a writing appointing any such agent, or the holding by any Person of a Note,
shall be sufficient for any purpose of 


 


33

















 


this Indenture and (subject to Section 7.01)
conclusive in favor of the Trustee and the Issuers, if made in the manner
provided in this Section 1.05.


 


(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 the certificate of any notary public or other 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 or
on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute proof of the authority of the Person executing
the same.  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 ownership of Notes shall be proved by the Note
Register.


 


(d)           Any request, demand, authorization, direction, notice,
consent, waiver or other action by 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 any action taken, suffered or omitted by the Trustee or the Issuers
in reliance thereon, whether or not notation of such action is made upon such
Note.


 


(e)           The Issuers may, in the circumstances permitted by the
Trust Indenture Act, set a record date for purposes of determining the identity
of Holders entitled to give any request, demand, authorization, direction,
notice, consent, waiver or take any other act, or to vote or consent to any
action by vote or consent authorized or permitted to be given or taken by
Holders.  Unless otherwise specified, if
not set by the Issuers prior to the first solicitation of a Holder made by any
Person in respect of any such action, or in the case of any such vote, prior to
such vote, any such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation.


 


(f)            Without limiting the foregoing, a Holder entitled to take
any action hereunder with regard to any particular Note may do so with regard
to all or any part of the principal amount of such Note or by one or more duly
appointed agents, each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.  Any notice given or action taken by a Holder
or its agents with regard to different parts of such principal amount pursuant
to this paragraph shall have the same effect as if given or taken by separate
Holders of each such different part.


 


(g)           Without limiting the generality of the foregoing, a
Holder, including DTC that is the Holder of a Global Note, may make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and DTC as the Holder of
a Global Note may provide its proxy or proxies to the beneficial owners of
interests in any such Global Note through such depositary’s standing
instructions and customary practices.


 


(h)           The Issuers may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any Global
Note held by DTC entitled under the procedures of such depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders.  If such a record date is fixed, the Holders
on such record date or their duly appointed proxy or proxies, and only such
Persons, shall be entitled to make, give or take such request, 


 


34

















 


demand, authorization, direction, notice, consent,
waiver or other action, whether or not such Holders remain Holders after such
record date.  No such request, demand,
authorization, direction, notice, consent, waiver or other action shall be
valid or effective if made, given or taken more than 90 days after such record
date.


 


Section 1.06.                          Timing of Payment.


 


Notwithstanding
anything herein to the contrary, if the date on which any payment is to be made
pursuant to this Indenture or the Notes is not a Business Day, the payment
otherwise payable on such date shall be payable on the next succeeding Business
Day with the same force and effect as if made on such scheduled date and
(provided such payment is made on such succeeding Business Day) no interest
shall accrue on the amount of such payment from and after such scheduled date
to the time of such payment on such next succeeding Business Day and the amount
of any such payment that is an interest payment will reflect accrual only
through the original payment date and not through the next succeeding Business
Day.


 


ARTICLE 2


 


THE
NOTES


 


Section 2.01.                          Form and Dating; Terms.


 


(a)           General.  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 rules or usage.  Each
Note shall be dated the date of its authentication.  The Notes shall be in denominations of $2,000
and integral multiples of $1,000 in excess thereof.


 


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


 


(c)           Temporary Global Notes.  Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note, which shall 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 Issuers and authenticated by the Trustee
as hereinafter provided.  The Restricted
Period shall be terminated upon the receipt by the Trustee of:


 


35

















 


(i)            a written
certificate from the Depositary, if available, together with copies of
certificates from Euroclear and Clearstream, if available, certifying that they
have received certification of non-United States beneficial ownership of 100%
of the aggregate principal amount of the Regulation S Temporary Global Note
(except to the extent of any beneficial owners thereof who acquired an interest
therein during the Restricted Period pursuant to another exemption from
registration under the Securities Act and who shall take delivery of a
beneficial ownership interest in a 144A Global Note bearing a Private Placement
Legend, all as contemplated by Section 2.06(b) hereof); and


 


(ii)           an Officer’s
Certificate from the Issuers.


 


Following
the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Note shall be exchanged for beneficial interests
in the Regulation S Permanent Global Note pursuant to the Applicable
Procedures.  Simultaneously with the
authentication of the Regulation S Permanent Global Note, the Trustee shall
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.


 


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


 


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


 


The
Notes shall be subject to repurchase by the Issuers pursuant to an Asset Sale
Offer as provided in Section 4.10 hereof or a Change of Control Offer as
provided in Section 4.14 hereof. 
The Notes shall not be redeemable, other than as provided in Article 3.


 


Additional
Notes ranking pari  passu
with the Initial Notes may be created and issued from time to time by the
Issuers without notice to or consent of the Holders and shall be consolidated
with and form a single class with the Initial Notes and shall have the same
terms as to status, redemption or otherwise as the Initial Notes; provided
that the Issuers’ ability to issue Additional Notes shall be subject to the
Issuers’ compliance with Section 4.09 hereof.  Any Additional Notes shall be issued with the
benefit of an indenture supplemental to this Indenture.


 


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


 


36

















 


Section 2.02.                          Execution and Authentication.


 


At
least one Officer of each Issuer shall execute the Notes on behalf of such
Issuer by manual or facsimile signature.


 


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


 


A
Note shall not be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose until authenticated substantially in the form of Exhibit A
attached hereto, as the case may be, by the manual signature of the
Trustee.  The signature shall be
conclusive evidence that the Note has been duly authenticated and delivered
under this Indenture.


 


On
the Issue Date, the Trustee shall, upon receipt of an Issuers’ Order (an “Authentication
Order”), authenticate and deliver the Initial Notes.  In addition, at any time, from time to time,
the Trustee shall upon an Authentication Order authenticate and deliver any
Additional Notes and Exchange Notes for an aggregate principal amount specified
in such Authentication Order for such Additional Notes or Exchange Notes issued
hereunder.


 


The
Trustee may appoint an authenticating agent acceptable to the Issuers 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 Issuers.


 


Section 2.03.                          Registrar and Paying Agent.


 


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


 


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


 


The
Issuers initially appoint the Trustee to act as the Paying Agent and Registrar
for the Notes and to act as Custodian with respect to the Global Notes.


 


Section 2.04.                          Paying Agent to Hold Money in Trust.


 


The
Issuers shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or Additional Interest, if any, or interest on the Notes, and
will notify the Trustee of any default by the Issuers in making any such
payment.  While any 


 


37

















 


such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee.  The Issuers at any
time may require a Paying Agent to pay all money held by it to the
Trustee.  Upon payment over to the
Trustee, the Paying Agent (if other than an Issuer or a Subsidiary) shall have
no further liability for the money.  If
an Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent.  Upon any bankruptcy or
reorganization proceedings relating to the Issuers, the Trustee shall serve as
Paying Agent for the Notes.


 


Section 2.05.                          Holder Lists.


 


The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders and
shall otherwise comply with Trust Indenture Act Section 312(a).  If the Trustee is not the Registrar, the
Issuers shall furnish to the Trustee at least five 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 Issuers
shall otherwise comply with Trust Indenture Act Section 312(a).


 


Section 2.06.                          Transfer and Exchange.


 


(a)           Transfer and Exchange of Global Notes.  Except as otherwise set forth in this Section 2.06,
a Global Note may be transferred, in whole and not in part, only to another
nominee of the Depositary or to a successor Depositary or a nominee of such
successor Depositary.  A beneficial
interest in a Global Note may not be exchanged for a Definitive Note unless (i) the
Depositary (x) notifies the Issuers that it is unwilling or unable to
continue as Depositary for such Global Note or (y) has ceased to be a
clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Issuers within 120 days or
(ii) there shall have occurred and be continuing an Event of Default with
respect to the Notes.  Upon the
occurrence of any of the preceding events in (i) or (ii) above,
Definitive Notes delivered in exchange for any Global Note or beneficial
interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depositary (in accordance with
its customary procedures).  Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections
2.07 and 2.10 hereof.  Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Section 2.07 or
2.10 hereof, shall be authenticated and delivered in the form of, and shall be,
a Global Note, except for Definitive Notes issued subsequent to any of the
preceding events in (i) or (ii) above and pursuant to Section 2.06(c) hereof.  A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a); provided, however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.


 


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


 


(i)            Transfer of Beneficial Interests
in the Same Global Note.  Beneficial
interests in any Restricted Global Note may be transferred to Persons who take
delivery thereof in the form 


 


38

















 


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 Regulation S Temporary Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser).  Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note.  No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).


 


(ii)           All Other Transfers and Exchanges
of Beneficial Interests in Global Notes. 
In connection with all transfers and exchanges of beneficial interests
that are not subject to Section 2.06(b)(i) hereof, the transferor of such beneficial interest must deliver
to the Registrar either (A) (1) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no
event shall Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar
of any certificates required pursuant to Rule 903.  Upon consummation of an Exchange Offer by the
Issuers in accordance with Section 2.06(f) hereof, the requirements
of this Section 2.06(b)(ii) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes.  Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.


 


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


 


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


 


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


 


(iv)          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 


 


39

















 


Note may be exchanged by
any holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.06(b)(ii) hereof and:


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Issuers;


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


40
















 


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


 


(i)            Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes.  If any
holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon the occurrence of any of the
events in paragraph (i) or (ii) of Section 2.06(a) hereof and receipt by the Registrar
of the following documentation:


 


(A)          if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder substantially 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 substantially in the form of 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 substantially in the form of 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 substantially in the form of Exhibit B hereto,
including the certifications in item (3)(a) thereof;


 


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


 


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


 


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


 


(ii)           Beneficial Interests in Regulation
S Temporary Global Note to Definitive Notes.   Notwithstanding Sections 2.06(c)(i)(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 (A) the
expiration of the Restricted Period and 


 


41

















 


(B) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) of the
Securities Act, except in the case of a transfer pursuant to an exemption from
the registration requirements of the Securities Act other than Rule 903 or
Rule 904.


 


(iii)          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 upon the occurrence of any of the events in subsection (i) or (ii) of
Section 2.06(a) hereof
and if:


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Issuers;


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


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


 


and,
in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar 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.


 


(iv)          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 the occurrence of
any of the events in subsection (i) or (ii) of Section 2.06(a) hereof and satisfaction of the
conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the
Issuers shall execute and the Trustee 


 


42

















 


shall authenticate and mail to the Person designated
in the instructions a Definitive Note in the applicable principal amount.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iv) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from or through the Depositary and the
Participant or Indirect Participant.  The
Trustee shall mail 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 2.06(c)(iv) shall
not bear the Private Placement Legend.


 


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


 


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


 


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


 


(B)          if
such Restricted Definitive Note is being transferred to a QIB in accordance
with Rule 144A, a certificate substantially in the form of 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 substantially in the form of 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 substantially in the form of Exhibit B hereto,
including the certifications in item (3)(a) thereof;


 


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


 


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


 


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


 


(ii)           Restricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an 


 


43

















 


Unrestricted Global Note or transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if:


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuers;


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


44

















 


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


 


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


 


(A)          if
the transfer will be made pursuant to a QIB in accordance with Rule 144A,
then the transferor must deliver a certificate substantially 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; or


 


(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 required by item (3) thereof, if applicable.


 


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


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuers;


 


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


 


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


 


(D)          the
Registrar receives the following:


 


(1)           if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such 


 


45

















 


Holder substantially in
the form of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or


 


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


 


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


 


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


 


(f)            Exchange Offer. 
Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal or through an Agent’s
Message through the DTC Automated Tender Offer Program that (x) they are
not Broker-Dealers, (y) they are not participating in a distribution of
the Exchange Notes and (z) they are not affiliates (as defined in Rule 144)
of the Issuers, and accepted for exchange in the Exchange Offer and
(ii) Unrestricted Definitive Notes in an aggregate principal amount equal
to the principal amount of the Restricted Definitive Notes tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal
that (x) they are not Broker-Dealers, (y) they are not participating
in a distribution of the Exchange Notes and (z) they are not affiliates
(as defined in Rule 144) of the Issuers, and accepted for exchange in the
Exchange Offer.  Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Issuers shall execute and the Trustee shall authenticate and mail to the
Persons designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the applicable principal amount.  Any Notes that remain outstanding after the
consummation of the Exchange Offer, and Exchange Notes issued in connection
with the Exchange Offer, shall be treated as a single class of securities under
this Indenture.


 


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


 


(i)            Private Placement Legend.


 


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


 


46

















 


“THIS NOTE AND THE GUARANTEES ENDORSED HEREON
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. 
NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, 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, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.  THE
HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS WAS THE OWNER OF
THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE
AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”)
ONLY (A) TO THE ISSUERS OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED
INSTITUTIONAL BUYER’’ DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE
END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO
THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”


 


(B)          Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or



 


47

















 


(f) of
this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.


 


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


 


“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE ISSUERS.  UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.  UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”


 


(iii)          Regulation S Temporary Global Note
Legend.  The Regulation S Temporary
Global Note shall 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).”


 


48

















 


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


 


(i)            General Provisions Relating to Transfers and Exchanges.


 


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


 


(ii)           No service charge shall be made to a
holder of a beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Issuers may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05 hereof).


 


(iii)          Neither the Registrar nor the Issuers
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.


 


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


 


(v)           The Issuers shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the transfer
of or to exchange a Note between a Record Date and the next succeeding Interest
Payment Date.


 


(vi)          Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent and the Issuers
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 premium, if any) and interest (including Additional Interest, if any)
on such Notes and for all other purposes, and none of the Trustee, any Agent or
the Issuers shall be affected by notice to the contrary.


 


49

















 


(vii)         Upon surrender for registration of
transfer of any Note at the office or agency of the Issuers designated pursuant
to Section 4.02 hereof,
the Issuers shall execute, and the Trustee shall authenticate and mail, in the
name of the designated transferee or transferees, one or more replacement Notes
of any authorized denomination or denominations of a like aggregate principal
amount.


 


(viii)        At the option of the Holder, Notes may
be exchanged for other Notes of any authorized denomination or denominations of
a like aggregate principal amount upon surrender of the Notes to be exchanged
at such office or agency.  Whenever any
Global Notes or Definitive Notes are so surrendered for exchange, the Issuers
shall execute, and the Trustee shall authenticate and mail, the replacement
Global Notes and Definitive Notes which the Holder making the exchange is
entitled to in accordance with the provisions of Section 2.02 hereof.


 


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


 


Section 2.07.                          Replacement Notes.


 


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


 


Every
replacement Note is a contractual obligation of the Issuers and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


Section 2.08.                          Outstanding Notes.


 


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


 


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


 


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


 


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


 


50
















 


Section 2.09.                          Treasury Notes.


 


In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by an Issuer, or by
any Affiliate of an Issuer, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that
a Responsible Officer of the Trustee knows are so owned shall be so
disregarded.  Notes so owned which have
been pledged in good faith shall not be disregarded if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right to deliver any such
direction, waiver or consent with respect to the Notes and that the pledgee is
not an Issuer or any obligor upon the Notes or any Affiliate of an Issuer or of
such other obligor.


 


Section 2.10.                          Temporary Notes.


 


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


 


Holders
and beneficial holders, as the case may be, of temporary Notes shall be
entitled to all of the benefits accorded to Holders, or beneficial holders,
respectively, of Notes under this Indenture.


 


Section 2.11.                          Cancellation.


 


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


 


Section 2.12.                          Defaulted Interest.


 


If
the Issuers default in a payment of interest on the Notes, they shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof.  The
Issuers 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 Issuers 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 provided in this Section 2.12. 
The Trustee shall fix or cause to be fixed each such special record date
and payment date; provided that no such special record date shall be
less than ten days prior to the related payment date for such defaulted 


 


51

















 


interest. 
The Trustee shall promptly notify the Issuers of such special record
date.  At least 15 days before the
special record date, the Issuers (or, upon the written request of the Issuers,
the Trustee in the name and at the expense of the Issuers) shall mail or cause
to be mailed, first-class postage prepaid, to each Holder a notice at his or
her address as it appears in the Note Register that states the special record
date, the related payment date and the amount of such interest to be paid.


 


Subject
to the foregoing provisions of this Section 2.12 and for greater
certainty, 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 2.13.                          CUSIP and ISIN Numbers.


 


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


 


ARTICLE 3


 


REDEMPTION


 


Section 3.01.                          Notices to Trustee.


 


If
the Issuers elect to redeem Notes pursuant to Section 3.07 hereof, they
shall furnish to the Trustee, at least two Business Days before notice of
redemption is required to be mailed or caused to be mailed to Holders pursuant
to Section 3.03 hereof but not more than 60 days before a redemption date,
an Officer’s Certificate setting forth (i) the paragraph or subparagraph of
such Note and/or Section of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal
amount of the Notes to be redeemed and (iv) the redemption price.


 


Section 3.02.                          Selection of Notes to Be Redeemed or Purchased.


 


If
less than all of the Notes are to be redeemed or purchased in an offer to
purchase at any time, the Trustee shall select the Notes to be redeemed or
purchased (a) if the Notes are listed on any national securities exchange,
in compliance with the requirements of the principal national securities
exchange on which the Notes are listed or (b) on a pro rata
basis or, to the extent that selection on a pro rata basis
is not practicable, by lot or by such other similar method in accordance with
the procedures of DTC.  In the event of
partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased shall be selected, unless otherwise provided herein, not less than 30
days nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption or purchase.


 


The
Trustee shall promptly notify the Issuers in writing of the Notes selected for
redemption or purchase and, in the case of any Note selected for partial
redemption or purchase, the principal amount thereof to be redeemed or
purchased.  Notes and portions of Notes
selected shall be in 


 


52

















 


an
integral multiple of $1,000 (but in a minimum amount of $2,000); no Notes of
$2,000 or less can be redeemed in part, except that if all of the Notes of a
Holder are to be redeemed or purchased, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000 (or a minimum amount of
$2,000), shall be redeemed or purchased. 
Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption or purchase also apply to
portions of Notes called for redemption or purchase.


 


Section 3.03.                          Notice of Redemption.


 


Subject
to Section 3.09 hereof, the Issuers shall mail or cause to be mailed by
first-class mail notices of redemption at least 30 days but not more than 60
days prior to the redemption date to each Holder of Notes to be redeemed at
such Holder’s registered address, except that redemption notices may be mailed
more than 60 days prior to a redemption date if the notice is issued in
connection with Article 8 or Article 13 hereof.  Except as set forth in Section 3.07(b) hereof,
notices of redemption may not be conditional.


 


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


 


(a)           the redemption date;


 


(b)           the redemption price;


 


(c)           if any Note is to be redeemed in part
only, the portion of the principal amount of that Note that is to be redeemed
and that, after the redemption date upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion of the original Note
representing the same indebtedness to the extent not redeemed will be issued in
the name of the Holder of the Notes upon cancellation of the original Note;


 


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


 


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


 


(f)            that, unless the Issuers default in
making such redemption payment, interest on Notes called for redemption ceases
to accrue on and after the redemption date;


 


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


 


(h)           that no representation is made as to
the correctness or accuracy of the CUSIP number, if any, listed in such notice
or printed on the Notes; and


 


(i)            if in connection with a redemption
pursuant to Section 3.07(b) hereof, any condition to such redemption.


 


At
the Issuers’ request, the Trustee shall give the notice of redemption in the
names of the Issuers’ and at their expense; provided that the Issuers
shall have delivered to the Trustee, at least two Business Days before notice
of redemption is required to be mailed or caused to be mailed to Holders
pursuant to this Section 3.03 (unless a shorter notice shall be agreed to
by the Trustee), an Officer’s 


 


53

















 


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.


 


Section 3.04.                          Effect of Notice of Redemption.


 


Once
notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price (except as provided for in Section 3.07(b) hereof).  The notice, if mailed in a manner herein
provided, shall be conclusively presumed to have been given, whether or not the
Holder receives such notice.  In any
case, failure to give such notice by mail or any defect in the notice to the
Holder of any Note designated for redemption in whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Note.  Subject to Section 3.05
hereof, on and after the redemption date, interest ceases to accrue on Notes or
portions of Notes called for redemption.


 


Section 3.05.                          Deposit of Redemption or Purchase Price.


 


Prior
to 10:00 a.m. (New York City time) on the redemption or purchase date, the
Issuers shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued and unpaid
interest (including Additional Interest, if any) on all Notes to be redeemed or
purchased on that date.  The Trustee or
the Paying Agent shall promptly return to the Issuers any money deposited with
the Trustee or the Paying Agent by the Issuers in excess of the amounts
necessary to pay the redemption price of, and accrued and unpaid interest on,
all Notes to be redeemed or purchased.


 


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


 


Section 3.06.                          Notes Redeemed or Purchased in Part.


 


Upon
surrender of a Note that is redeemed or purchased in part, the Issuers shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Issuers a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered representing the same indebtedness to the
extent not redeemed or purchased; provided that each new Note will be in
a principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof.  It is understood that,
notwithstanding anything in this Indenture to the contrary, only an
Authentication Order and not an Opinion of Counsel or Officer’s Certificate is
required for the Trustee to authenticate such new Note.


 


Section 3.07.                          Optional Redemption.


 


(a)           At any time prior to October 15, 2013, the Issuers
may 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 the registered 


 


54

















 


address of each Holder or otherwise delivered in
accordance with the procedures of DTC, at a redemption price equal to 100% of
the principal amount of the Notes redeemed plus the Applicable Premium as of,
and accrued and unpaid interest and Additional Interest, if any, to the date of
redemption (the “Redemption Date”),
subject to the rights of Holders on the relevant Record Date to receive
interest due on the relevant Interest Payment Date.


 


(b)           Until October 15, 2013, the Issuers may, at their
option, redeem up to 35% of the aggregate principal amount of Notes issued by
them at a redemption price equal to 109.75% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon and Additional Interest, if
any, to the applicable Redemption Date, subject to the right of Holders of
Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, with the net cash proceeds of one or more
Equity Offerings; provided
that at least 65% of the aggregate principal amount of Notes originally issued
under this Indenture and any Additional Notes that are Notes issued under this
Indenture after the Issue Date (excluding Notes and Additional Notes held by
the Issuers or Subsidiaries or Affiliates of the Issuers) 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.  Notice of any redemption upon any Equity
Offering may be given prior to the completion thereof, and any such redemption
or notice may, at the Issuers’ discretion, be subject to one or more conditions
precedent, including, but not limited to, the completion of the related Equity
Offering.


 


(c)           Except pursuant to clause (a) or (b) of this Section 3.07,
the Notes will not be redeemable at the Issuers’ option prior to October 15,
2013.


 


(d)           On and after October 15, 2013, the Issuers 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 at the address of such Holder appearing in the security
register, at the redemption prices (expressed as percentages of principal
amount of the Notes to be redeemed) set forth below, plus accrued and unpaid
interest thereon and Additional Interest, if any, to the applicable Redemption
Date, subject to the right of Holders of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date, if redeemed during
the twelve-month period beginning on October 15 of each of the years
indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2013

  	
   

  	
  107.313

  	
  %

  
	
  2014

  	
   

  	
  104.875

  	
  %

  
	
  2015

  	
   

  	
  102.438

  	
  %

  
	
  2016

  	
   

  	
  100.000

  	
  %

  



 


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


 


Section 3.08.                          Mandatory Redemption.


 


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


 


55

















 


Section 3.09.                          Offers to Repurchase by Application of Excess
Proceeds.


 


(a)           In the event that, pursuant to Section 4.10 hereof,
the Issuers shall be required to commence an Asset Sale Offer, they shall
follow the procedures specified below.


 


(b)           The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the “Offer Period”).  No later than five Business Days after the
termination of the Offer Period (the “Purchase Date”), the Issuers shall
apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes
and, if required, Pari Passu Indebtedness (on a pro rata
basis, if applicable), or, if less than the Offer Amount has been tendered, all
Notes and Pari Passu Indebtedness tendered in response to the Asset Sale
Offer.  Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.


 


(c)           If the Purchase Date is on or after a Record Date and on
or before the related Interest Payment Date, any accrued and unpaid interest
and Additional Interest, if any, up to but excluding the Purchase Date, shall
be paid to the Person in whose name a Note is registered at the close of
business on such Record Date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.


 


(d)           Upon the commencement of an Asset Sale Offer, the Issuers
shall send, by first-class mail, a notice to each of the Holders, with a copy
to the Trustee.  The notice shall contain
all instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Asset Sale Offer.  The
Asset Sale Offer shall be made to all Holders and holders of Pari Passu
Indebtedness.  The notice, which shall
govern the terms of the Asset Sale Offer, shall state:


 


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


 


(ii)           the Offer Amount, the purchase price
and the Purchase Date;


 


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


 


(iv)          that, unless the Issuers default in
making such payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Purchase Date;


 


(v)           that Holders electing to have a Note
purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in
integral multiples of $1,000 (but in a minimum amount of $2,000);


 


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


 


(vii)         that Holders shall be entitled to
withdraw their election if any of the Issuers, the Depositary or the Paying
Agent, as the case may be, receives, not later than the expiration of the 


 


56

















 


Offer Period, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such Note purchased;


 


(viii)        that, if the aggregate principal amount
of Notes and Pari Passu Indebtedness surrendered by the holders thereof exceeds
the Offer Amount, the Trustee shall select the Notes and such Pari Passu
Indebtedness to be purchased on a pro rata basis
based on the accreted value or principal amount of the Notes or such Pari Passu
Indebtedness tendered (with such adjustments as may be deemed appropriate by
the Trustee so that only Notes in denominations of $2,000, or integral
multiples of $1,000 in excess thereof, shall be purchased); and


 


(ix)          that Holders whose Notes were
purchased only in part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or transferred by book-entry
transfer) representing the same indebtedness to the extent not repurchased.


 


(e)           On or before the Purchase Date, the Issuers shall, to the
extent lawful, (1) accept for payment, on a pro rata
basis to the extent necessary, the Offer Amount of Notes or portions thereof
validly tendered pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Notes tendered and (2) deliver or cause to
be delivered to the Trustee the Notes properly accepted together with an
Officer’s Certificate stating the aggregate principal amount of Notes or
portions thereof so tendered.


 


(f)            The Issuers, the Depositary or the Paying Agent, as the
case may be, shall promptly mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes properly tendered by such Holder and
accepted by the Issuers for purchase, and the Issuers shall promptly issue a
new Note, and the Trustee, upon receipt of an Authentication Order, shall
authenticate and mail or deliver (or cause to be transferred by book-entry)
such new Note to such Holder (it being understood that, notwithstanding
anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s
Certificate is required for the Trustee to authenticate and mail or deliver
such new Note) in a principal amount equal to any unpurchased portion of the
Note surrendered representing the same indebtedness to the extent not
repurchased; provided, that each such new Note shall be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess thereof.  Any Note not so accepted shall be promptly
mailed or delivered by the Issuers to the Holder thereof.  The Issuers shall publicly announce the
results of the Asset Sale Offer on or as soon as practicable after the Purchase
Date.


 


Other
than as specifically provided in this Section 3.09 or Section 4.10
hereof, any purchase pursuant to this Section 3.09 shall be made pursuant
to the applicable provisions of Sections 3.01 through 3.06 hereof.


 


ARTICLE 4


 


COVENANTS


 


Section 4.01.                          Payment of Notes.


 


The
Issuers shall pay or cause to be paid the principal of, premium, if any,
Additional Interest, if any, and interest on the Notes on the dates and in the
manner provided in the Notes.  Principal,
premium, if any, Additional Interest, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than an Issuer or a
Subsidiary, holds as of noon Eastern Time on the due date 


 


57

















 


money
deposited by the Issuers in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.


 


The
Issuers shall pay all Additional Interest, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.


 


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


 


Section 4.02.                          Maintenance of Office or Agency.


 


The
Issuers shall maintain in the Borough of Manhattan in the City of New York an
office or agency (which may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Issuers in respect of the Notes and this Indenture may be served.  The Issuers shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Issuers
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.


 


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


 


The
Issuers hereby designate the Corporate Trust Office of the Trustee as one such
office or agency of the Issuers in accordance with Section 2.03 hereof.


 


Section 4.03.                          Reports and Other Information.


 


(a)           Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act or
otherwise report on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and regulations
promulgated by the SEC, the Company shall file with the SEC (and make available
to the Trustee and Holders of the Notes (without exhibits), without cost to any
Holder, within 15 days after the Company files them with the SEC) from and
after the Issue Date,


 


(1)           within 90 days
(or any other time period then in effect under the rules and regulations
of the Exchange Act with respect to the filing of a Form 10-K by a
non-accelerated filer) after the end of each fiscal year, annual reports on
Form 10-K, or any successor or comparable form, containing the information
required to be contained therein, or required in such successor or comparable
form;


 


58

















 


(2)           within 45 days after
the end of each of the first three fiscal quarters of each fiscal year, reports
on Form 10-Q containing all quarterly information that would be required
to be contained in Form 10-Q, or any successor or comparable form;


 


(3)           promptly from time
to time after the occurrence of an event required to be therein reported, such
other reports on Form 8-K, or any successor or comparable form; and


 


(4)           any other
information, documents and other reports that the Company would be required to
file with the SEC if it were subject to Section 13 or 15(d) of the
Exchange Act;


 


in each case, in a manner that complies in all material respects with the
requirements specified in such form; provided that the Company
shall not be so obligated to file such reports with the SEC if the SEC does not
permit such filing, in which event the Company shall make available such
information to prospective purchasers of Notes, in addition to providing such
information to the Trustee and the Holders of the Notes, in each case within 15
days after the time the Company would be required to file such information with
the SEC, if it were subject to Section 13 or 15(d) of the Exchange
Act.  In addition, to the extent not
satisfied by the foregoing, for so long as any Notes are outstanding, the Company
shall furnish to Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


(b)           In the event that any direct or indirect parent company of
the Company becomes a guarantor of the Notes, the Company may satisfy its
obligations under this Section 4.03 with respect to financial information
relating to the Company by furnishing financial information relating to such
parent company; provided
that the same is accompanied by consolidating information that explains in
reasonable detail the differences between the information relating to such
parent, on the one hand, and the information relating to the Company and its
Restricted Subsidiaries on a standalone basis, on the other hand.


 


(c)           Notwithstanding the foregoing, the requirements of this Section 4.03
shall be deemed satisfied prior to the commencement of the Exchange Offer or
the effectiveness of the Shelf Registration Statement (1) by the filing
with the SEC of the Exchange Offer Registration Statement or Shelf Registration
Statement (or any other registration statement), and any amendments thereto,
with such financial information that satisfies Regulation S-X of the Securities
Act or (2) by posting reports that would be required to be filed
substantially in the form required by the SEC on the Company’s website (or on
the website of any of its parent companies) or providing such reports to the
Trustee, with financial information that satisfied Regulation S-X of the
Securities Act, subject to exceptions consistent with the presentation of
financial information in the Offering Circular, to the extent filed within the
times specified above.


 


Section 4.04.                          Compliance Certificate.


 


(a)           Each Issuer and Guarantor (to the extent that such
Guarantor is so required under the Trust Indenture Act) shall deliver to the
Trustee, within 90 days after the end of each fiscal year ending after the
Issue Date, a certificate from the principal executive officer, principal
financial officer or principal accounting officer stating that a review of the
activities of such Issuer and, in the case of the Company, its Restricted
Subsidiaries, during the preceding fiscal year has been made under the
supervision of the signing Officer with a view to determining whether such
Issuer has kept, observed, performed and 


 


59

















 


fulfilled its obligations under this Indenture, and
further stating, as to such Officer signing such certificate, that to the best
of his or her knowledge such Issuer has kept, observed, performed and fulfilled
each and every condition and covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions, covenants
and conditions of this Indenture (or, if a Default shall have occurred,
describing all such Defaults of which he or she may have knowledge and what
action such Issuer is taking or proposes to take with respect thereto).


 


(b)           When any Default has occurred and is continuing under this
Indenture, or if the Trustee or the holder of any other evidence of
Indebtedness of the Issuers or any of their respective Subsidiaries gives any
notice or takes any other action with respect to a claimed Default, the Issuers
shall promptly (which shall be no more than five Business Days) deliver to the
Trustee by registered or certified mail or by facsimile transmission an Officer’s
Certificate specifying such event and what action the Issuers propose to take
with respect thereto.


 


Section 4.05.                          Taxes.


 


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


 


Section 4.06.                          Stay, Extension and Usury Laws.


 


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


 


Section 4.07.                          Limitation on Restricted Payments.


 


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


 


(I)            declare or pay any
dividend or make any payment or distribution on account of the Company’s, or
any of its Restricted Subsidiaries’ Equity Interests, including, without
limitation, payable in connection with any merger or consolidation other than:


 


(A)          dividends
or distributions by the Company payable solely in Equity Interests (other than
Disqualified Stock) of the Company; or


 


(B)          dividends,
payments or distributions by a Restricted Subsidiary so long as, in the case of
any dividend, payment 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 Company 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;


 


60
















 


(II)          purchase, redeem,
defease or otherwise acquire or retire for value any Equity Interests of the
Company, or any direct or indirect parent of the Company, including, without
limitation, in connection with any merger or consolidation;


 


(III)        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 (a) Indebtedness
permitted under clauses (7) and (8) of the covenant described under Section 4.09
(other than, in the event any Default has occurred and is continuing, Indebtedness
owing to any Restricted Subsidiary that is not a Guarantor) or (b) 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; or


 


(IV)         make any Restricted
Investment


 


(all
such payments and other actions set forth in clauses (I) through (IV) above
(other than any exceptions thereof) being collectively referred to as “Restricted Payments”), unless, at
the time of such Restricted Payment:


 


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


 


(2)           immediately after giving effect to
such transaction on a pro forma
basis, the Company could incur $1.00 of additional Indebtedness under Section 4.09(a);
and


 


(3)           such Restricted Payment, together
with the aggregate amount of all other Restricted Payments made by the Company
and its Restricted Subsidiaries after the Issue Date (including Restricted
Payments permitted by clauses (1), (2) (with respect to the payment of
dividends on Refunding Capital Stock pursuant to clause (b) thereof only),
(6)(c), (9) and (14) (to the extent not deducted in calculating
Consolidated Net Income) of Section 4.07(b), but excluding all other
Restricted Payments permitted by Section 4.07(b)), is less than the sum of
(without duplication):


 


(a)           50% of the Consolidated Net Income of
the Company for the period (taken as one accounting period) beginning September 30,
2007, to the end of the Company’s most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted
Payment, or, in the case such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit; plus


 


(b)           100% of the aggregate net
cash proceeds and the fair market value, as determined in good faith by the
Company, of marketable securities or other property received by the Company
since immediately after November 20, 2007 (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 (12)(a) of Section 4.09(b) hereof)
from the issue or sale of:


 


(i)            (A) Equity
Interests of the Company, including Treasury Capital Stock, but excluding cash
proceeds and the fair market value, as determined in 


 


61

















 


good
faith by the Company, of marketable securities or other property received from
the sale of:


 


(x)           Equity
Interests to employees, directors or consultants of the Company, any direct or
indirect parent company of the Company and the Company’s Subsidiaries after November 20,
2007, to the extent such amounts have been applied to Restricted Payments made
in accordance with clause (4) of Section 4.07(b) hereof; and


 


(y)           Designated
Preferred Stock; and


 


(B) to the extent such net cash proceeds are
actually contributed to the Company as equity (other than Disqualified Stock),
Equity Interests of any of the Company’s direct or indirect parent companies
(excluding contributions of the proceeds from the sale of Designated Preferred
Stock of any such companies or contributions to the extent such amounts have
been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b) hereof);
or


 


(ii)           debt
securities of the Company that have been converted into or exchanged for such
Equity Interests of the Company;


 


provided,
however, that this clause (b) shall not include the
proceeds from (W) Refunding Capital Stock, (X) Equity Interests or
debt securities of the Company sold to a Restricted Subsidiary, as the case may
be, (Y) Disqualified Stock or debt securities that have been converted
into Disqualified Stock or (Z) Excluded Contributions; plus


 


(c)           100%
of the aggregate amount of cash and the fair market value, as determined in
good faith by the Company, of marketable securities or other property
contributed to the capital of the Company (other than as Disqualified Stock)
after November 20, 2007 (other than (i) net cash proceeds to the
extent such net cash proceeds have been used to incur Indebtedness,
Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b) hereof,
(ii) contributions from a Restricted Subsidiary or (iii) any Excluded
Contribution); plus


 


(d)           100% of the aggregate amount
received in cash and the fair market value, as determined in good faith by the
Company, of marketable securities or other property received by the Issuer or
any Restricted Subsidiary by means of:


 


(i)            the
sale or other disposition (other than to the Company or a Restricted
Subsidiary) of Restricted Investments made by the Company or its Restricted
Subsidiaries and repurchases and redemptions of such Restricted Investments
from the Company or its Restricted Subsidiaries and repayments of loans or
advances, and releases of guarantees, which constitute Restricted Investments
by the Company or its Restricted Subsidiaries, in each case after November 20,
2007; or


 


(ii)           the
sale (other than to the Company or a Restricted Subsidiary) of the stock of an
Unrestricted Subsidiary or a distribution or dividend from an 


 


62

















 


Unrestricted
Subsidiary (other than in each case to the extent the Investment in such
Unrestricted Subsidiary was made by the Company or a Restricted Subsidiary
pursuant to clause (7) of Section 4.07(b) hereof or to the
extent such Investment constituted a Permitted Investment) after November 20,
2007; plus


 


(e)           in
the case of the redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary after November 20, 2007, the fair market value of the
Investment in such Unrestricted Subsidiary, as determined by the Company in
good faith or if, in the case of an Unrestricted Subsidiary, such fair market
value may exceed $20.0 million, in writing by an Independent Financial
Advisor, at the time of the redesignation of such Unrestricted Subsidiary as a
Restricted Subsidiary other than an Unrestricted Subsidiary to the extent the
Investment in such Unrestricted Subsidiary was made by the Company or a
Restricted Subsidiary pursuant to clause (7) of Section 4.07(b) hereof
or to the extent such Investment constituted a Permitted Investment.


 


(b)           The foregoing provisions of Section 4.07(a) hereof
shall 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;


 


(2)           (a) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
(“Treasury Capital Stock”)
or Subordinated Indebtedness of the Company or any Equity Interests of any
direct or indirect parent company of the Company, in exchange for, or out of
the proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of, Equity Interests of the Company or any direct or indirect
parent company of the Company to the extent contributed to the Company (in each
case, other than any Disqualified Stock or Designated Preferred Stock) (“Refunding Capital Stock”) and (b) if
immediately prior to the retirement of Treasury Capital Stock, the declaration
and payment of dividends thereon was permitted under clause (6) of this Section 4.07(b),
the declaration and payment of dividends on the Refunding Capital Stock (other
than Refunding Capital Stock the proceeds of which were used to redeem,
repurchase, retire or otherwise acquire any Equity Interests of any direct or
indirect parent company of the Company) in an aggregate amount no greater than
the aggregate amount per year of dividends per annum that were declarable and
payable on such Treasury Capital Stock immediately prior to such retirement;


 


(3)           the redemption,
repurchase, defeasance or other acquisition or retirement of Subordinated
Indebtedness of the Issuers or a Guarantor made in exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the
Issuers or a Guarantor, as the case may be, which is incurred in compliance
with Section 4.09 hereof so long as:


 


(a)           the
principal amount (or accreted value, if applicable) of such new Indebtedness
does not exceed the principal amount of (or accreted value, if applicable),
plus any accrued and unpaid interest on, the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired for value, plus the amount of any
reasonable premium to be paid (including reasonable premiums) and any
reasonable fees and expenses incurred in connection with the issuance of such
new Indebtedness;


 


63

















 


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


 


(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, defeased, acquired or retired; and


 


(d)           such
new Indebtedness has a Weighted Average Life to Maturity equal to or greater
than the remaining Weighted Average Life to Maturity of the Subordinated
Indebtedness being so redeemed, repurchased, defeased, acquired or retired;


 


(4)           a Restricted Payment
to pay for the repurchase, redemption or other acquisition or retirement for
value of Equity Interests (other than Disqualified Stock) of the Company or any
of its direct or indirect parent companies held by any future, present or
former employee, director or consultant of the Company, any of its Restricted
Subsidiaries or any of its direct or indirect parent companies pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement, including any Equity Interests in DJO Incorporated
(which for purposes of this sentence, means the entity named DJO Incorporated
immediately prior to the consummation of the Transactions) rolled over by
management of the Company in connection with the Transactions; provided, however, that the aggregate Restricted Payments made
under this clause (4) do not exceed in any calendar year
$10.0 million (which shall increase to $20.0 million subsequent to the
consummation of an underwritten public Equity Offering by the Company or any
direct or indirect parent corporation of the Company) (with unused amounts in
any calendar year being carried over to succeeding calendar years subject to a
maximum (without giving effect to the following proviso) of $20.0 million
in any calendar year (which shall increase to $40.0 million subsequent to the
consummation of an underwritten public Equity Offering by the Company or any
direct or indirect parent of the Company)); 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 Company and, to the extent contributed to the Company, Equity Interests
of any of the Company’s direct or indirect parent companies, in each case to
members of management, directors or consultants of the Company, any of its
Subsidiaries or any of its direct or indirect parent companies that occurs
after the Issue Date, to the extent the cash proceeds from the sale of such
Equity Interests have not otherwise been and are not thereafter applied to the payment
of Restricted Payments by virtue of clause (3) of Section 4.07(a) hereof
or otherwise; plus


 


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


 


(c)           the
amount of any Restricted Payments previously made with the cash proceeds
described in clauses (a) and (b) of this clause (4);


 


and
provided  further
that cancellation of Indebtedness owing to the Company or any of its Restricted
Subsidiaries from members of management of the Company, any of the Company’s
direct or indirect parent companies or any of the Company’s Subsidiaries in
connection with a repurchase of Equity Interests of the Company or any of its
direct or indirect parent companies 


 


64

















 


will
not be deemed to constitute a Restricted Payment for purposes of this Section 4.07
or any other provision of this Indenture;


 


(5)           the declaration and
payment of dividends to holders of any class or series of Disqualified Stock of
the Company or any of its Restricted Subsidiaries and of Preferred Stock of any
Restricted Subsidiary issued in accordance with Section 4.09 hereof to the
extent such dividends are included in the definition of “Fixed Charges”;


 


(6)           (a) the
declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued by the
Company after the Issue Date;


 


(b)           the declaration and
payment of dividends to a direct or indirect parent company of the Company, the
proceeds of which will be used to fund the payment of dividends to holders of
any class or series of Designated Preferred Stock (other than Disqualified
Stock) of such parent corporation issued after the Issue Date, provided
that the amount of dividends paid pursuant to this clause (b) shall not
exceed the aggregate amount of cash actually contributed to the Company from
the sale of such Designated Preferred Stock; or


 


(c)           the declaration and
payment of dividends on Refunding Capital Stock that is Preferred Stock in
excess of the dividends declarable and payable thereon pursuant to clause (2) of
this Section 4.07(b);


 


provided, however,
in the case of each of (a) and (c) of this clause (6), that for the
most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of such
Designated Preferred Stock or the declaration of such dividends on Refunding
Capital Stock that is Preferred Stock, after giving effect to such issuance or
declaration on a pro forma basis, the Company and
its Restricted Subsidiaries on a consolidated basis would have had a Fixed
Charge Coverage Ratio of at least 2.00 to 1.00;


 


(7)           Investments in
Unrestricted Subsidiaries having an aggregate fair market value, taken together
with all other Investments made pursuant to this clause (7) that are at
the 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 or marketable
securities, not to exceed 2.0% 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);


 


(8)           repurchases of
Equity Interests 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;


 


(9)           the declaration and
payment of dividends on the Company’s common stock (or the payments of
dividends to any direct or indirect parent entity to fund payments of dividends
on such entity’s common stock), following the consummation of an underwritten
public offering of the Company’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 Company in or from
any such public offering, other than public offerings with respect to the
Company’s common stock registered on Form S-8 and other than any public
sale constituting an Excluded Contribution;


 


65

















 


(10)         Restricted Payments
in any amount that do not in the aggregate exceed all Excluded Contributions
made since the Issue Date;


 


(11)         other Restricted
Payments in an aggregate amount taken together with all other Restricted
Payments made pursuant to this clause (11) not to exceed 1.75% of Total Assets
at the time made;


 


(12)         distributions or
payments of Receivables Fees;


 


(13)         any Restricted
Payment made as part of the Transactions, and the fees and expenses related
thereto, or used to fund amounts owed to Affiliates (including dividends to any
direct or indirect parent of the Company to permit payment by such parent of
such amounts), in each case to the extent permitted by (or, in the case of a
dividend to fund such payment, to the extent such payment, if made by the
Company, would be permitted by) Section 4.11 hereof;


 


(14)         the repurchase,
redemption or other acquisition or retirement for value of any Subordinated
Indebtedness in accordance with the provisions similar to those described under
Sections 4.10 and Section 4.14 hereof; provided that all Notes tendered by Holders in connection
with a Change of Control Offer or Asset Sale Offer, as applicable, have been
repurchased, redeemed or acquired for value;


 


(15)         the declaration and
payment of dividends by the Company to, or the making of loans to, any direct
or indirect parent in amounts required for any direct or indirect parent companies
to pay, in each case without duplication,


 


(a)           franchise
and excise taxes and other fees, taxes and expenses, in each case to the extent
required to maintain their corporate existence;


 


(b)           federal,
state, foreign and local income taxes, to the extent such income taxes are
attributable to the income of the Company and its Restricted Subsidiaries and,
to the extent of the amount actually received from its Unrestricted
Subsidiaries, in amounts required to pay such taxes to the extent attributable to
the income of such Unrestricted Subsidiaries; provided that in each case
the amount of such payments in any fiscal year does not exceed the amount that
the Company and its Restricted Subsidiaries would be required to pay in respect
of federal, state and local taxes for such fiscal year were the Company, its
Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent
described above) to pay such taxes separately from any such parent entity;


 


(c)           customary
salary, bonus and other benefits payable to officers and employees of any
direct or indirect parent company of the Company to the extent such salaries,
bonuses and other benefits are attributable to the ownership or operation of
the Company and its Restricted Subsidiaries;


 


(d)           general
corporate operating and overhead costs and expenses of any direct or indirect
parent company of the Company to the extent such costs and expenses are
attributable to the ownership or operation of the Company and its Restricted
Subsidiaries; and


 


66

















 


(e)           fees
and expenses other than to Affiliates of the Company related to any
unsuccessful equity or debt offering of such parent entity; and


 


(16)         the distribution, by
dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to
the Company or a Restricted Subsidiary by Unrestricted Subsidiaries (other than
Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash
Equivalents or were contributed to such Unrestricted Subsidiary in anticipation
of such distribution, dividend or other payment);


 


provided,
however, that at the time of, and after giving effect to,
any Restricted Payment permitted under clauses (7), (11) and (16) of this Section 4.07(b),
no Default shall have occurred and be continuing or would occur as a
consequence thereof.


 


(c)           The Company shall not permit any Unrestricted Subsidiary
to become a Restricted Subsidiary except pursuant to the last sentence of the
definition of “Unrestricted Subsidiary.” 
For purposes of designating any Restricted Subsidiary as an Unrestricted
Subsidiary, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid) in the Subsidiary so designated
shall be deemed to be Restricted Payments in an amount determined as set forth
in the last sentence of the definition of “Investment.”  Such designation shall be permitted only if a
Restricted Payment in such amount would be permitted at such time, whether
pursuant to Section 4.07(a) hereof or under clause (7), (10) or
(11) of Section 4.07(b) hereof, or pursuant to the definition of “Permitted
Investments,” and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.


 


Section 4.08.                          Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.


 


(a)           The Company shall not, and shall not permit any of its
Restricted Subsidiaries that are not Guarantors 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 Restricted
Subsidiary that is not a Guarantor to:


 


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


 


(B)  pay any liabilities owed to the Company or
any of its Restricted Subsidiaries;


 


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


 


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


 


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


 


(1)           contractual
encumbrances or restrictions in effect on the Issue Date, including pursuant to
the Senior Credit Facilities and the related documentation and Hedging
Obligations and pursuant to the terms of 
the Existing Senior Notes;


 


67

















 


(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 (3) of Section 4.08(a) hereof
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 Company or any Restricted
Subsidiaries 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
and its Subsidiaries, or the property or assets of the Person and its
Subsidiaries, so acquired;


 


(6)           contracts for the
sale of assets, including customary restrictions with respect to a Subsidiary
of the Company 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;


 


(7)           Secured Indebtedness
otherwise permitted to be incurred pursuant to Section 4.09 hereof and Section 4.12
hereof 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)           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 4.09
hereof;


 


(10)         customary provisions
in joint venture agreements and other similar agreements relating solely to
such joint venture;


 


(11)         customary provisions
contained in leases or licenses of intellectual property and other agreements,
in each case, entered into in the ordinary course of business;


 


(12)         any encumbrances or
restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.08(a) hereof
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 (11) of this
Section 4.08(b); provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Company, no more
restrictive with respect to such encumbrance and other restrictions taken as a
whole than those prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing; and


 


(13)         restrictions created
in connection with any Receivables Facility that, in the good faith
determination of the Company are necessary or advisable to effect the
transactions contemplated under such Receivables Facility.


 


68

















 


Section 4.09.                          Limitation on Incurrence of Indebtedness and
Issuance of Disqualified Stock and Preferred Stock.


 


(a)           The Company shall not, and shall 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 Company shall not issue any shares of
Disqualified Stock and shall not permit any Restricted Subsidiary to issue any
shares of Disqualified Stock or Preferred Stock; provided, however,
that the Company may incur Indebtedness (including Acquired Indebtedness) or
issue shares of Disqualified Stock, and any of its Restricted Subsidiaries may
incur Indebtedness (including Acquired Indebtedness), issue shares of
Disqualified Stock and issue shares of Preferred Stock, if the Fixed Charge
Coverage Ratio on a consolidated basis for the Company and its Restricted
Subsidiaries’ most recently ended four 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 2.00 to 1.00, 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.


 


(b)           The provisions of Section 4.09(a) hereof shall
not apply to:


 


(1)           the incurrence of
Indebtedness under Credit Facilities by the Company or any of its Restricted
Subsidiaries and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being
deemed to have a principal amount equal to the face amount thereof), up to an
aggregate principal amount of $1,325.0 million outstanding at any one time;


 


(2)           the incurrence by
the Company and any Guarantor of Indebtedness represented by the Notes
(including any Guarantee) (other than any Additional Notes) and any notes
(including Guarantees thereof) issued in exchange for the Notes pursuant to the
Registration Rights Agreement or similar agreement;


 


(3)           Indebtedness of the
Company and its Restricted Subsidiaries in existence on the Issue Date (other
than Indebtedness described in clauses (1) and (2) of this Section 4.09(b));


 


(4)           Indebtedness
(including Capitalized Lease Obligations), Disqualified Stock and Preferred
Stock incurred by the Company or any of its Restricted Subsidiaries, to finance
the purchase, lease or improvement of property (real or personal) or equipment
(other than software) 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 at the date of such incurrence
(including all Refinancing Indebtedness Incurred to refinance any other
Indebtedness incurred pursuant to this Section 4.09(b)(4)) not to exceed
4.0% of Total Assets; provided, however, that such Indebtedness
exists at the date of such purchase or transaction or is created within 270
days thereafter (it being understood that any Indebtedness, Disqualified Stock
or Preferred Stock incurred pursuant to this clause (4) shall cease to be
deemed incurred or outstanding for purposes of this Section 4.09(b)(4) but
shall be deemed incurred for the purposes of Section 4.09(a) hereof
from and after the first date on which the Company or such Restricted 


 


69

















 


Subsidiary
could have incurred such Indebtedness, Disqualified Stock or Preferred Stock
under Section 4.09(a) hereof without reliance on this Section 4.09(b)(4));


 


(5)           Indebtedness
incurred by the Company or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including letters of credit in respect of workers’
compensation claims, 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 Company or 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 such Indebtedness is not reflected on the balance sheet of the Company, or
any of its Restricted Subsidiaries (Contingent Obligations referred to in a
footnote to financial statements and not otherwise reflected on the balance
sheet will not be deemed to be reflected on such balance sheet for purposes of this
clause (6));


 


(7)           Indebtedness of the
Company to a Restricted Subsidiary; provided
that any such Indebtedness owing to a Restricted Subsidiary that is not the
Co-Issuer or a Guarantor is expressly subordinated in right of payment to the
Notes; provided  further that any subsequent
issuance or transfer of any Capital Stock or any other event which results in
the Restricted Subsidiary holding such Indebtedness ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except to
the Company or another Restricted Subsidiary) shall be deemed, in each case, to
be an incurrence of such Indebtedness not permitted by this clause;


 


(8)           Indebtedness of a
Restricted Subsidiary to the Company or another Restricted Subsidiary; provided that if a Guarantor
incurs such Indebtedness to a Restricted Subsidiary that is not the Co-Issuer
or a Guarantor, such Indebtedness is expressly subordinated in right of payment
to the Guarantee of the Notes of such Guarantor; provided  further
that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Indebtedness being held by a person other than
the Company or a Restricted Subsidiary or any subsequent  transfer of any such Indebtedness (except to
the Company or another Restricted Subsidiary) shall be deemed, in each case, to
be an incurrence of such Indebtedness not permitted by this clause;


 


(9)           shares of Preferred
Stock of a Restricted Subsidiary issued to the Company 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 Company 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;


 


(10)         Hedging Obligations
(excluding Hedging Obligations entered into for speculative purposes) for the
purpose of limiting interest rate risk with respect to any Indebtedness of the


 


70
















 


Company
or any Restricted Subsidiary permitted to be incurred pursuant to this Section 4.09,
exchange rate risk or commodity pricing risk;


 


(11)         obligations in
respect of performance, bid, appeal and surety bonds and completion guarantees
provided by the Company or any of its Restricted Subsidiaries in the ordinary
course of business;


 


(12)         (a) Indebtedness
or Disqualified Stock of the Company and Indebtedness, Disqualified Stock or
Preferred Stock of the Company or any Restricted Subsidiary equal to 200.0% of
the net cash proceeds received by the Company since immediately after the Issue
Date from the issue or sale of Equity Interests of the Company or cash
contributed to the capital of the Company (in each case, other than proceeds of
Disqualified Stock or sales of Equity Interests to the Company or any of its
Subsidiaries) as determined in accordance with clauses (3)(b) and (3)(c) of
Section 4.07(a) hereof to the extent such net cash proceeds or cash
have not been applied to make Restricted Payments or to make other Investments,
payments or exchanges pursuant to such clauses or pursuant to Section 4.07(b) or
to make Permitted Investments (other than Permitted Investments specified in
clauses (1), (2) and (3) of the definition thereof) and
(b) Indebtedness or Disqualified Stock of the Company and Indebtedness,
Disqualified Stock or Preferred Stock of the Company or any Restricted
Subsidiary 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 Section 4.09(b)(12),
does not at any one time outstanding exceed $175.0 million (it being understood
that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant
to this Section 4.09(b)(12) shall cease to be deemed incurred or
outstanding for purposes of this Section 4.09(b)(12) but shall be deemed
incurred for the purposes of Section 4.09(a) from and after the first
date on which the Company or such Restricted Subsidiary could have incurred
such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without
reliance on this Section 4.09(b)(12));


 


(13)         the incurrence or
issuance by the Company or any Restricted Subsidiary of Indebtedness,
Disqualified Stock or Preferred Stock which serves to refund, refinance,
replace, renew, extend or defease any Indebtedness, Disqualified Stock or
Preferred Stock of the Company or any Restricted Subsidiary incurred as
permitted under Section 4.09(a) hereof and clauses (2), (3), (4) and
(12)(a) of this Section 4.09(b), this clause (13) and clause
(14) of this Section 4.09(b) or any Indebtedness, Disqualified Stock
or Preferred Stock issued to so refund, refinance, replace, renew, extend or
defease such Indebtedness, Disqualified Stock or Preferred Stock including
additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay
premiums (including reasonable tender premiums), defeasance costs and fees in
connection therewith (the “Refinancing
Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing Indebtedness:


 


(A)          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, refinanced, replaced, renewed, extended or defeased,


 


(B)          to
the extent such Refinancing Indebtedness refinances (i) Indebtedness
subordinated or pari passu to the
Notes or any Guarantee thereof, such Refinancing Indebtedness is subordinated
or pari passu to the Notes or the
Guarantee at least to the 


 


71

















 


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)          shall
not include Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary
of the Company that is not a Co-Issuer or a Guarantor that refinances
Indebtedness, Disqualified Stock or Preferred Stock of the Company, the
Co-Issuer or a Guarantor;


 


provided  further that subclause
(A) of this clause (13) will not apply to any refunding or
refinancing of any Secured Indebtedness;


 


(14)         Indebtedness,
Disqualified Stock or Preferred Stock of (x) the Company or a Restricted
Subsidiary incurred to finance an acquisition or (y) Persons that are
acquired by the Company or any Restricted Subsidiary or merged into the Company
or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect
to such acquisition or merger, either (a) the Company would be permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09(a) hereof, or (b) the
Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries is
greater than immediately prior to such acquisition or merger;


 


(15)         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 two Business Days of its incurrence;


 


(16)         Indebtedness of the
Company or any of its Restricted Subsidiaries supported by a letter of credit
issued pursuant to the Credit Facilities, in a principal amount not in excess
of the stated amount of such letter of credit;


 


(17)         (A) any
guarantee by the Company or a Restricted Subsidiary of Indebtedness or other
obligations of any Restricted Subsidiary so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of this Indenture,


 


(B)          any
guarantee by a Restricted Subsidiary of Indebtedness of the Company provided
that such guarantee is incurred in accordance with Section 4.15 hereof, or


 


(C)          any
incurrence by the Co-Issuer of Indebtedness as a co-issuer of Indebtedness of
the Company that was permitted to be incurred by another provision of this
covenant;


 


(18)         Indebtedness of
Foreign Subsidiaries of the Company in an amount not to exceed, at any one time
outstanding and together with any other Indebtedness incurred under this clause
(18) of Section 4.09(b) hereof, 10.0% of the Total Assets of the
Foreign Subsidiaries (it being understood that any Indebtedness incurred
pursuant to this clause (18) of Section 4.09(b) hereof shall cease to
be deemed incurred or outstanding for purposes of this clause (18) of Section 4.09(b) hereof
but shall be deemed incurred for the purposes of Section 4.09(a) from
and after the first date on which the Company or its Restricted Subsidiaries could
have incurred such 


 


72

















 


Indebtedness
under Section 4.09(a) hereof without reliance on this clause (18) of Section 4.09(b) hereof);


 


(19)         Indebtedness of the
Company or any of its Restricted Subsidiaries consisting of (i) the
financing of insurance premiums or (ii) take-or-pay obligations contained
in supply arrangements in each case, incurred in the ordinary course of
business; and


 


(20)         Indebtedness
consisting of Indebtedness issued by the Company or any of its Restricted
Subsidiaries to current or former officers, directors and employees thereof,
their respective estates, spouses or former spouses, in each case to finance
the purchase or redemption of Equity Interests of the Company or any direct or
indirect parent company of the Company to the extent described in clause (4) of
Section 4.07(b) hereof.


 


(c)           For purposes of determining compliance with this Section 4.09:


 


(1)           in the event that an
item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion
thereof) meets the criteria of more than one of the categories of permitted
Indebtedness, Disqualified Stock or Preferred Stock described in clauses (1) through
(20) of Section 4.09(b) hereof or is entitled to be incurred pursuant
to Section 4.09(a) hereof, the Company, in its sole discretion, shall
classify or reclassify such item of Indebtedness, Disqualified Stock or
Preferred Stock (or any portion thereof) and shall only be required to include
the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock
in one of the above clauses; and


 


(2)           at the time of
incurrence, the Company shall be entitled to divide and classify an item of
Indebtedness in more than one of the types of Indebtedness described in
Sections 4.09(a) and 4.09(b) hereof; provided that all
Indebtedness outstanding under the Credit Facilities on the Issue Date will be
treated as incurred on the Issue Date under clause (1) of Section 4.09(b) hereof.


 


Accrual
of interest or dividends, the accretion of accreted value, the accretion or
amortization of original issue discount, the payment of interest in the form of
additional Indebtedness and the payment of dividends in the form of additional
Disqualified Stock or Preferred Stock, as applicable, shall in each case not be
deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred
Stock for purposes of this Section 4.09.


 


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.


 


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 


 


73

















 


currency
exchange rate applicable to the currencies in which such respective
Indebtedness is denominated that is in effect on the date of such refinancing.


 


Section 4.10.                          Asset Sales.


 


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


 


(1)           the Company 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 (as determined in
good faith by the Company) 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 Company or such Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents; provided
that the following shall be deemed to be cash for purposes of this Section and
for no other purpose:


 


(A)          any
liabilities (as reflected in the Company’s or such Restricted Subsidiary’s most
recent balance sheet or in the footnotes thereto, or if incurred or accrued
subsequent to the date of such balance sheet, such liabilities that would have
been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in
the footnotes thereto if such incurrence or accrual had taken place on the date
of such balance sheet) of the Company or such Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes or to liabilities
to the extent owed to the Company or any Affiliate of the Company) that are
assumed by the transferee of any such assets and for which the Company and all
of its Restricted Subsidiaries have been validly released by all creditors in
writing,


 


(B)          any
securities, notes or other similar obligations received by the Company or such
Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash (to the extent of the cash received)
within 180 days following the closing of such Asset Sale, and


 


(C)          any
Designated Non-cash Consideration received by the Company or such Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Non-cash Consideration received pursuant to
this clause (C) that is at that time outstanding, not to exceed 2.5%
of Total Assets at the time of the receipt of such Designated Non-cash
Consideration, with the fair market value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value.


 


(b)           Within 450 days after the receipt of any Net Proceeds of
any Asset Sale, the Company or such Restricted Subsidiary, at its option, may
apply the Net Proceeds from such Asset Sale,


 


(1)           to permanently
reduce:


 


(A)          Obligations
under Senior Indebtedness, and to correspondingly reduce commitments with
respect thereto;


 


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(B)          Obligations
under other Senior Subordinated Indebtedness (and to correspondingly reduce
commitments with respect thereto), provided that the Issuers shall equally and
ratably reduce (or offer to reduce, as applicable) Obligations under the Notes;
provided  further that all reductions of Obligations under the
Notes shall be made as provided under Section 3.07 hereof through
open-market purchases (to the extent such purchases are at or above 100% of the
principal amount thereof plus accrued and unpaid interest) or by making an
offer (in accordance with the procedures set forth under Section 4.10(c) hereof)
to all Holders to purchase their Notes at 100% of the principal amount thereof,
plus the amount of accrued but unpaid interest, if any, on the amount of Notes
that would otherwise be prepaid; or


 


(C)          Indebtedness
of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness
owed to the Company or any Affiliate of the Company,


 


(2)           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 Company or another of
its Restricted Subsidiaries, 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, in each of (A), (B) and (C), used or useful in a Similar Business,
or


 


(3)           to make an
investment in (A) 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 Company or another of
its Restricted Subsidiaries, as the case may be, owning an amount of the
Capital Stock of such business such that it constitutes a Restricted
Subsidiary, (B) properties or (C) acquisitions of other assets that,
in each of (A), (B) and (C), replace the businesses, properties and/or
assets that are the subject of such Asset Sale;


 


provided  that, in the
case of clauses (2) and (3) above, a binding commitment shall be
treated as a permitted application of the Net Proceeds from the date of such
commitment so long as the Company, or such other Restricted Subsidiary enters
into such commitment with the good faith expectation that such Net Proceeds
shall be applied to satisfy such commitment within 180 days of such commitment
(an “Acceptable Commitment”)
and, in the event any Acceptable Commitment is later cancelled or terminated
for any reason before the Net Proceeds are applied in connection therewith, the
Company or such Restricted Subsidiary enters into another Acceptable Commitment
(a “Second Commitment”) within 180 days of such cancellation or
termination; provided  further that if any Second Commitment is
later cancelled or terminated for any reason before such Net Proceeds are
applied, then such Net Proceeds shall constitute Excess Proceeds.


 


(c)           Any Net Proceeds from the Asset Sale that are not invested
or applied as provided and within the time period set forth in Section 4.10(b) shall
be deemed to constitute “Excess
Proceeds.”  When the aggregate
amount of Excess Proceeds exceeds $20.0 million, the Issuers shall make an
offer to all Holders of the Notes and, if required by the terms of any
Indebtedness that is pari passu
with the Notes  or any Guarantee (“Pari Passu Indebtedness”), to the
holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate
principal amount of the Notes and such Pari Passu Indebtedness that is an
integral multiple of $1,000 (but in minimum amounts of $2,000) 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 the date fixed for the closing of such
offer, in accordance with the procedures set forth in this Indenture.  


 


75

















 


The Issuers shall commence an Asset Sale Offer with
respect to Excess Proceeds within ten Business Days after the date that Excess
Proceeds exceed $20.0 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 Pari Passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company 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 Pari Passu Indebtedness surrendered by such holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such Pari
Passu Indebtedness to be purchased on a pro rata basis
based on the accreted value or principal amount of the Notes or such Pari Passu
Indebtedness tendered.  Additionally, the
Issuers may, at their option, make an Asset Sale Offer using proceeds from any
Asset Sale at any time after consummation of such Asset Sale.  Upon consummation of any Asset Sale Offer,
any Net Proceeds not used to purchase Notes in such Asset Sale Offer shall not
be deemed Excess Proceeds and the Company may use any Net Proceeds not required
to be used for general corporate purposes, subject to other covenants contained
in this Indenture.


 


(d)           Pending the final application of any Net Proceeds pursuant
to this Section 4.10, 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.


 


(e)           The Issuers shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws 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 Issuers shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached their obligations described in this
Indenture by virtue thereof.


 


Section 4.11.                          Transactions with Affiliates.


 


(a)           The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any property
or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”) involving
aggregate payments or consideration in excess of $12.5 million, unless:


 


(1)           such Affiliate
Transaction is on terms that are not materially less favorable to the Company
or its relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Restricted Subsidiary with
an unrelated Person on an arm’s-length basis; and


 


(2)           the Company delivers
to the Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate payments or consideration in excess
of $25.0 million, a resolution adopted by the majority of the board of
directors of the Company approving such Affiliate Transaction and set forth in
an Officer’s Certificate certifying that such Affiliate Transaction complies
with clause (1) of this Section 4.11(a).


 


76

















 


(b)           The provisions of Section 4.11(a) hereof shall
not apply to the following:


 


(1)           transactions between
or among the Company or any of its Restricted Subsidiaries;


 


(2)           Restricted Payments
permitted by Section 4.07 hereof and the definition of “Permitted
Investments”;


 


(3)           the payment of
management, consulting, monitoring and advisory fees and related expenses to
the Investors pursuant to the Sponsor Management Agreement in an aggregate
amount in any fiscal year not to exceed the greater of $7.0 million and 2.0% of
EBITDA for such fiscal year (calculated, solely for the purpose of this clause
(3), assuming (a) that such fees and related expenses had not been paid,
when calculating Net Income, and (b) without giving effect to clause (h) of
the definition of EBITDA) (plus any unpaid management, consulting, monitoring
and advisory fees and related expenses within such amount accrued in any prior
year) and the termination fees pursuant to the Sponsor Management Agreement not
to exceed the amount set forth in the Sponsor Management Agreement as in effect
on the Issue Date or any amendment thereto (so long as any such amendment is
not disadvantageous to the Holders when taken as a whole as compared to the
Sponsor Management Agreement in effect on the Issue Date);


 


(4)           the payment of
reasonable and customary fees paid to, and indemnities provided for the benefit
of, former, current or future officers, directors, employees or consultants of
Company, any of its direct or indirect parent companies or any of its
Restricted Subsidiaries;


 


(5)           transactions in
which the Company or any of its Restricted Subsidiaries, as the case may be,
delivers to the Trustee a letter from an Independent Financial Advisor stating
that such transaction is fair to the Company or such Restricted Subsidiary from
a financial point of view or stating that such terms are not materially less
favorable to the Company or its relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person on an arm’s-length basis;


 


(6)           any agreement as in
effect as of the Issue Date, or any amendment thereto (so long as any such
amendment is not disadvantageous to the Holders when taken as a whole as
compared to the applicable agreement as in effect on the Issue Date);


 


(7)           the existence of, or
the performance by the Company 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 Company or any of its Restricted Subsidiaries 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 are not otherwise disadvantageous to the Holders when taken as a
whole;


 


(8)           the Transaction and
the payment of all fees and expenses related to the Transaction;


 


77

















 


(9)           transactions with
customers, clients, suppliers, or purchasers or sellers of goods or services,
in each case in the ordinary course of business and otherwise in compliance
with the terms of this Indenture which are fair to the Company and its
Restricted Subsidiaries, in the reasonable determination of the board of
directors of the Company or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party;


 


(10)         the issuance of
Equity Interests (other than Disqualified Stock) of the Company to any
Permitted Holder or to any director, officer, employee or consultant (or their
respective estates, investment funds, investment vehicles, spouses or former
spouses) of the Company or any direct or indirect parent companies of any of
its Subsidiaries;


 


(11)         sales of accounts
receivable, or participations therein, in connection with any Receivables
Facility;


 


(12)         payments by the
Company or any of its Restricted Subsidiaries to any of the Investors made for
any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures which payments are approved by
a majority of the board of directors of the Company in good faith;


 


(13)         payments or loans (or
cancellation of loans) to employees or consultants of the Company, any of its
direct or indirect parent companies or any of its Restricted Subsidiaries and
employment agreements, stock option plans and other similar arrangements with
such employees or consultants which, in each case, are approved by the Company
in good faith; and


 


(14)         investments by the
Investors in securities of the Company or any of its Restricted Subsidiaries so
long as (i) the investment is being offered generally to other investors
on the same or more favorable terms and (ii) the investment constitutes
less than 5.0% of the proposed or outstanding issue amount of such class of
securities.


 


Section 4.12.                          Liens.


 


The
Company shall not, and shall not permit the Co-Issuer or any Guarantor to,
directly or indirectly, create, incur, assume or otherwise cause or suffer to
exist any Lien (except Permitted Liens) that secures obligations under any
Indebtedness ranking pari passu with, or subordinate to, the Notes or any
related Guarantee, on any asset or property of the Company, the Co-Issuer or
any Guarantor, or any income or profits therefrom, or assign or convey any
right to receive income therefrom, unless:


 


(1)           in the case of Liens
securing Subordinated Indebtedness, the Notes and related Guarantees are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; or


 


(2)           in all other cases,
the Notes or the Guarantees are equally and ratably secured, except that the
foregoing shall not apply to Liens securing the Notes and the related
Guarantees.


 


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Section 4.13.                          Corporate Existence.


 


Subject
to Article 5 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries; provided
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries (other than the Co-Issuer), if the Company in good
faith shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Restricted Subsidiaries,
taken as a whole.


 


Section 4.14.                          Offer to Repurchase Upon Change of Control.


 


(a)           If a Change of Control occurs, unless the Issuers have
previously or concurrently mailed a redemption notice with respect to all the
outstanding Notes as described under Section 3.07 hereof, the Issuers
shall 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 the date of purchase, subject to the right of Holders of
the Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date.  Within
60 days following any Change of Control, the Issuers shall 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 security
register or otherwise in accordance with the procedures of DTC with a copy to
the Trustee, with the following information:


 


(1)           that a Change of
Control Offer is being made pursuant to this Section 4.14 and that all
Notes properly tendered pursuant to such Change of Control Offer will be
accepted for payment by the Issuers;


 


(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)           that any Note not
properly tendered will remain outstanding and continue to accrue interest;


 


(4)           that unless the
Issuers default 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 the Change of Control Payment Date;


 


(5)           that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer will
be required to surrender such Notes, with the form entitled “Option of Holder
to Elect Purchase” on the reverse of such 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;


 


79

















 


(6)           that Holders shall
be entitled to withdraw their tendered Notes and their election to require the
Issuers to purchase such Notes; provided
that the paying agent receives, not later than the close of business on the
expiration date of the Change of Control Offer, 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 its tendered Notes and its election to have such Notes
purchased;


 


(7)           that if the Issuers
are repurchasing less than all of the Notes, the Holders of the remaining Notes
will be issued new Notes and such new Notes will be equal in principal amount
to the unpurchased portion of the Notes surrendered.  The unpurchased portion of the Notes must be
equal to $2,000 or an integral multiple of $1,000 in excess thereof;


 


(8)           the other
instructions, as determined by the Issuers, consistent with this Section 4.14,
that a Holder must follow; and


 


(9)           if such notice is
mailed prior to the occurrence of a Change of Control, stating that the Change
of Control Offer is conditional upon the occurrence of such Change of Control.


 


The
notice, if mailed in a manner herein provided, shall be conclusively presumed
to have been given, whether or not the Holder receives such notice.  If (a) the notice is mailed in a manner
herein provided and (b) any Holder fails to receive such notice or a
Holder receives such notice but it is defective, such Holder’s failure to
receive such notice or such defect shall not affect the validity of the proceedings
for the purchase of the Notes as to all other Holders that properly received
such notice without defect.  The Issuers
shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws or regulations are applicable in connection with the repurchase of 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 Section 4.14, the Issuers shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under this Section 4.14 by
virtue thereof.


 


(b)           On the Change of Control Payment Date, the Issuers shall,
to the extent permitted by law,


 


(1)           accept for payment
all Notes issued by them 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 Officer’s Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to, and purchased by, the Issuers.


 


(c)           The Issuers shall not be required to make a Change of
Control Offer following a Change of Control if a third party makes the Change
of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14 applicable to a Change of
Control Offer made by the Issuers and purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer.  Notwithstanding anything to the contrary
herein, a Change of Control Offer


 


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may be made in advance of a Change of Control,
conditional upon such Change of Control, if a definitive agreement is in place
for the Change of Control at the time of making of the Change of Control Offer.


 


(d)           Other than as specifically provided in this Section 4.14,
any purchase pursuant to this Section 4.14 shall be made pursuant to the
provisions of Sections 3.02, 3.05 and 3.06 hereof.


 


Section 4.15.                          Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries.


 


The
Company shall not permit any of its Wholly-Owned Subsidiaries that are
Restricted Subsidiaries (and non-Wholly-Owned Subsidiaries if such
non-Wholly-Owned Subsidiaries guarantee other capital markets debt securities),
other than a Guarantor, the Co-Issuer or a Foreign Subsidiary guaranteeing
Indebtedness of another Foreign Subsidiary, to guarantee the payment of any
Indebtedness of the Company, the Co-Issuer or any other Guarantor unless such
Restricted Subsidiary within 30 days executes and delivers a supplemental
indenture to this Indenture, the form of which is attached as Exhibit D
hereto, providing for a Guarantee by such Restricted Subsidiary, except that
with respect to a guarantee of Indebtedness of the Company, the Co-Issuer or
any Guarantor:


 


(a)           if
the Notes or such Guarantor’s Guarantee are subordinated in right of payment to
such Indebtedness, the Guarantee under the supplemental indenture shall be
subordinated to such Restricted Subsidiary’s guarantee with respect to such
Indebtedness substantially to the same extent as the Notes are subordinated to
such Indebtedness; and


 


(b)           if
such Indebtedness is by its express terms subordinated in right of payment to
the Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted
Subsidiary with respect to such Indebtedness shall be subordinated in right of
payment to such Guarantee substantially to the same extent as such Indebtedness
is subordinated to the Notes; and


 


(c)           such
Restricted Subsidiary waives and shall not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee;


 


provided that this Section 4.15
shall not be applicable to any guarantee of any Restricted Subsidiary that
existed at the time such Person became a Restricted Subsidiary and was not
incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary.


 


Section 4.16.                          Limitation on Layering.


 


Notwithstanding
anything to the contrary, the Company shall not, and shall not permit the
Co-Issuer or any Guarantor to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) that is subordinate in right of payment to
any Senior Indebtedness of the Company, the Co-Issuer or such Guarantor, as the
case may be, unless such Indebtedness is either:


 


(a) 
equal in right of payment with the Notes or such Guarantor’s Guarantee of the
Notes, as the case may be; or


 


(b) 
expressly subordinated in right of payment to the Notes or such Guarantor’s
Guarantee of the Notes, as the case may be.


 


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For
purposes of this Indenture, Indebtedness that is unsecured is not deemed
to be subordinated or junior to Secured Indebtedness merely because it is
unsecured, and Senior Indebtedness is not deemed to be subordinated or junior
to any other Senior Indebtedness merely because it has a junior priority with
respect to the same collateral.


 


Section 4.17.                          Limitation on Business Activities of the
Co-Issuer.


 


The
Co-Issuer may not hold any assets, become liable for any obligations or engage
in any business activities; provided that it may be a co-obligor with respect
to the Notes or any other Indebtedness issued by the Company, and may engage in
any activities directly related thereto or necessary in connection
therewith.  The Co-Issuer shall be a
Wholly-Owned Subsidiary of the Company at all times.


 


Section 4.18.                          Covenant Suspension.


 


(a)           During any Suspension Period, the Company and the
Restricted Subsidiaries will not be subject to the Suspended Covenants.  In addition, the Guarantees of the Guarantors
will be suspended during any Suspension Period. Additionally, upon the occurrence
of a Covenant Suspension Event, the amount of Excess Proceeds from Net Proceeds
shall be reset at zero.


 


(b)           Notwithstanding the foregoing, in the event of a Reversion
Date, no action taken or omitted to be taken by the Company or any of its Restricted
Subsidiaries prior to such Reversion Date will give rise to a Default or Event
of Default under this Indenture; provided that (1) with respect to
Restricted Payments made after any such reinstatement, the amount of Restricted
Payments made will be calculated as though the covenant described under Section 4.07
hereof had been in effect prior to, but not during the Suspension Period,
provided that any Subsidiaries designated as Unrestricted Subsidiaries during
the Suspension Period shall automatically become Restricted Subsidiaries on the
Reversion Date (subject to the Company’s right to subsequently designate them
as Unrestricted Subsidiaries in compliance with the covenants set forth in this
Indenture) and (2) all Indebtedness incurred, or Disqualified Stock
issued, during the Suspension Period will be classified to have been incurred
or issued pursuant to clause (3) of Section 4.09(b) In addition,
for purposes of clause (3) of the Section 4.07(a) all events
(including the accrual of Consolidated Net Income) set forth in such clause (3) occurring
during a Suspension Period shall be disregarded for purposes of determining the
amount of Restricted Payments the Company or any Restricted Subsidiary is
permitted to make pursuant to such clause (3).


 


(c)           The Issuers shall deliver promptly to the Trustee an
Officer’s Certificate notifying the Trustee of any such occurrence under Section 4.18.


 


ARTICLE 5


 


SUCCESSORS


 


Section 5.01.                          Merger, Consolidation or Sale of All or
Substantially All Assets.


 


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


 


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(1)           either:  (x) the Company is the surviving
corporation; or (y) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been made is a
corporation, partnership (including a limited partnership), trust or limited
liability company organized or existing under the laws of the jurisdiction of
organization of the Company or 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 Company”);


 


(2)           the Successor
Company, if other than the Company, expressly assumes all the obligations of
the Company under the Notes pursuant to supplemental indentures or other
documents or instruments in form reasonably satisfactory to the Trustee, and the
Registration Rights Agreement if the exchange offer contemplated therein has
not been consummated or if the Issuers continue to have an obligation to file
or maintain the effectiveness of a shelf registration statement as provided
under such agreement;


 


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


 


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


 


(A)          the
Company or the Successor Company, as applicable, would be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) hereof, or


 


(B)          the
Fixed Charge Coverage Ratio for the Company (or, if applicable, the Successor
Company) and its Restricted Subsidiaries would be greater than such Ratio for
the Company and its Restricted Subsidiaries immediately prior to such
transaction;


 


(5)           each Guarantor, unless
it is the other party to the transactions described above, in which case Section 5.01(c)(1)(B) hereof
shall apply, shall have by supplemental indenture confirmed that its Guarantee
shall apply to such Person’s obligations under this Indenture, the Notes and
the Registration Rights Agreement if the exchange offer contemplated therein
has not been consummated or if the Issuers continue to have an obligation to
file or maintain the effectiveness of a shelf registration statement as
provided under such agreement;


 


(6)           the Co-Issuer,
unless it is the party to the transactions described above, in which case
clause (3) of Section 5.01(e) hereof shall apply, shall have by
supplemental indenture confirmed that it continues to be a co-obligor of the
Notes; and


 


(7)           the Company (or, if
applicable, the Successor Company) shall have delivered to the Trustee an
Officer’s 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 Company shall succeed to, and be substituted
for the Company, as the case may be, under this Indenture, the Guarantees and
the Notes, as applicable. 
Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,


 


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


 


(2)           the Company may
merge with an Affiliate of the Company, as the case may be, solely for the
purpose of reincorporating the Company in the United States, any state thereof,
the District of Columbia or any territory thereof so long as the amount of
Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.


 


(c)           Guarantors. 
Subject to certain limitations described in this Indenture governing
release of a Guarantee upon the sale, disposition or transfer of a guarantor,
no Guarantor shall, and the Company shall not permit any Guarantor to,
consolidate or merge with or into or wind up into (whether or not the Company
or 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)           (A) such
Guarantor is the surviving corporation 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 corporation, partnership, trust or limited liability company
organized or existing under the laws of the jurisdiction of organization of
such Guarantor, as the case may be, or 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”);


 


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


 


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


 


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


 


(2)           the transaction is
made in compliance with Section 4.10 hereof.


 


(d)           Subject to certain limitations described in this
Indenture, 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 (i) merge into or transfer all or part of its properties and assets to
another Guarantor or the Company, (ii) merge with an Affiliate of the
Company solely for the purpose of reincorporating the Guarantor in the United
States, any state thereof, the District of Columbia or any territory thereof or
(iii) convert into a corporation, partnership, limited partnership,
limited liability company or trust organized under the laws of the jurisdiction
of organization of such Guarantor, in each case without regard to the
requirements set forth in Section 5.01(c) hereof.


 


(e)           Co-Issuer. 
The Co-Issuer shall not, directly or indirectly, consolidate or merge
with or into or wind up into (whether or not the Co-Issuer is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of the Co-Issuer’s properties or assets, in one or
more related transactions, to any Person unless:


 


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(1)           (A) concurrently
therewith, a corporate Wholly-Owned Restricted Subsidiary of the Company
organized and validly existing under the laws of the United States, any state
thereof, the District of Columbia or any territory thereof (which may be the
continuing Person as a result of such transaction) expressly assumes all the
obligations of the Co-Issuer under the Notes, pursuant to supplemental
indentures or other documents or instruments in form reasonably satisfactory to
the Trustee, and the Registration Rights Agreement if the exchange offer
contemplated therein has not been consummated or if the Issuers continue to
have an obligation to file or maintain the effectiveness of a shelf
registration statement as provided under such agreement; or


 


(B) after giving effect thereto, at least one
obligor on the notes shall be a corporation organized and validly existing
under the laws of the United States, any state thereof, the District of
Columbia or any territory thereof;


 


(2)           immediately after
such transaction, no Default or Event of Default shall have occurred and be
continuing; and


 


(3)           The Co-Issuer shall
have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture, if any, comply with this Indenture.


 


Section 5.02.                          Successor Corporation Substituted.


 


Upon
any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company, any Guarantor or the Co-Issuer in accordance with Section 5.01
hereof, the successor corporation formed by such consolidation or into or with
which the Company, such Guarantor or the Co-Issuer, as the case may be, is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the Company, such
Guarantor or the Co-Issuer, as the case may be, shall refer instead to the
successor corporation and not to the Company, such Guarantor or the Co-Issuer,
as the case may be), and may exercise every right and power of the Company,
such Guarantor or the Co-Issuer, as the case may be, under this Indenture with
the same effect as if such successor Person had been named as the Company, such
Guarantor or the Co-Issuer, as the case may be, herein; provided that the
predecessor, as the case may be, shall not be relieved from the obligation to
pay the principal of and interest and Additional Interest, if any, on the Notes
except in the case of a sale, assignment, transfer, conveyance or other
disposition of all of the assets of the Company, such Guarantor or the
Co-Issuer, as the case may be, that meets the requirements of Section 5.01
hereof.


 


ARTICLE 6


 


DEFAULTS
AND REMEDIES


 


Section 6.01.                          Events of Default.


 


(a)           An “Event of Default” wherever used herein, means any
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):


 


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


 


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


 


(3)           failure by the
Company, the Co-Issuer or any Guarantor for 60 days after receipt of written
notice given by the Trustee or the Holders of not less than 25% in principal
amount of the Notes to comply with any of its obligations, covenants or
agreements (other than a default referred to in Sections 6.01(a) (1) and
(2) above);


 


(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 Company or
any of its Restricted Subsidiaries or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries, other than Indebtedness owed to
the Company 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 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 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 which has been so accelerated, aggregate $50.0 million or more at
any one time outstanding;


 


(5)           failure by the
Company or any Significant Subsidiary (including the Co-Issuer) to pay final
judgments aggregating in excess of $50.0 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)           the Company or any
Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy
Law:


 


(i)            commences
proceedings to be adjudicated bankrupt or insolvent;


 


(ii)           consents
to the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under applicable Bankruptcy law;


 


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(iii)          consents
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
or other similar official of it or for all or substantially all of its
property;


 


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


 


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


 


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


 


(i)            is
for relief against the Company or any Significant Subsidiary, in a proceeding
in which the Company or any Significant Subsidiary is to be adjudicated bankrupt
or insolvent;


 


(ii)           appoints
a receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Significant Subsidiary, or for all or
substantially all of the property of the Company or any Significant Subsidiary;
or


 


(iii)          orders
the liquidation of the Company or any Significant Subsidiary;


 


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


 


(8)           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.


 


(b)           In the event of any Event of Default specified in clause (4) of
Section 6.01(a) hereof, such Event of Default and all consequences
thereof (excluding any resulting payment default, other than as a result of
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:


 


(1)           the Indebtedness or
Guarantee that is the basis for such Event of Default has been discharged; or


 


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


 


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


 


Section 6.02.                          Acceleration.


 


(a)           If any Event of Default (other than an Event of Default
specified in clause (6) or (7) of Section 6.01(a) hereof)
occurs and is continuing under this Indenture, the Trustee or the Holders of at
least 25% in principal amount of the then total outstanding Notes may declare
the principal, premium, if any, interest and any other monetary obligations on
all the then outstanding Notes to be due and payable immediately.


 


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Upon
the effectiveness of such declaration, such principal and interest shall be due
and payable immediately.  The Trustee
shall have no obligation to accelerate the Notes if and so long as a committee
of its Responsible Officers in good faith determines acceleration is not in the
best interest of the Holders.


 


Notwithstanding
the foregoing, in the case of an Event of Default arising under clause (6) or
(7) of Section 6.01(a) hereof, all outstanding Notes shall be
due and payable immediately without further action or notice.


 


The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest, Additional Interest, if any, or
premium that has become due solely because of the acceleration) have been cured
or waived.


 


Section 6.03.                          Other Remedies.


 


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


 


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


 


Section 6.04.                          Waiver of Past Defaults.


 


Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default and its consequences hereunder, except
a continuing Default in the payment of the principal of, premium, if any,
Additional Interest, if any, or interest on, any Note held by a non-consenting
Holder (including in connection with an Asset Sale Offer or a Change of Control
Offer) and rescind any acceleration with respect to the Notes and its
consequences (provided such rescission would not conflict with any judgment of
a court of competent jurisdiction); provided, subject to Section 6.02
hereof, that the Holders of a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such
acceleration.  Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


 


Section 6.05.                          Control by Majority.


 


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


 


88

















 


Section 6.06.                         Limitation on Suits.


 


Subject
to Section 6.07 hereof, no
Holder of a Note may pursue any remedy with respect to this Indenture or the
Notes unless:


 


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


 


(2)           Holders of at least
25% in principal amount of the total outstanding Notes have requested the
Trustee to pursue the remedy;


 


(3)           Holders of the Notes
have offered the Trustee reasonable security or indemnity against any loss,
liability or expense;


 


(4)           the Trustee has not
complied with such request within 60 days after the receipt thereof and the
offer of security or indemnity; and


 


(5)           Holders of a
majority in principal amount of the total outstanding Notes have not given the
Trustee a direction inconsistent with such request within such 60-day period.


 


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


 


Section 6.07.                          Rights of Holders of Notes to Receive Payment.


 


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


 


Section 6.08.                          Collection Suit by Trustee.


 


If
an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Issuers for the whole amount of principal of,
premium, if any, and Additional Interest, if any, and interest remaining unpaid
on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.


 


Section 6.09.                          Restoration of Rights and Remedies.


 


If
the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceedings, the Issuers, 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 has been instituted.


 


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Section 6.10.                          Rights and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07 hereof, 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 6.11.                          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 6.12.                          Trustee May File Proofs of Claim.


 


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


 


Section 6.13.                          Priorities.


 


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


 


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


 


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


 


(iii) to the Company or to such party as a
court of competent jurisdiction shall direct, including the Co-Issuer or a
Guarantor, if applicable.


 


The
Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.13.


 


Section 6.14.          Undertaking for Costs.


 


In
any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant.  This Section 6.14 does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.


 


ARTICLE 7


 


TRUSTEE


 


Section 7.01.          Duties of Trustee.


 


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


 


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


 


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


 


(ii)           in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.  However, in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall 


 


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examine
the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.


 


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


 


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


 


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


 


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


 


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


 


(e)           The Trustee shall be under no obligation to exercise any of its rights or
powers under this Indenture at the request or direction of any of the Holders
of the Notes unless the Holders have offered to the Trustee reasonable indemnity
or security against any loss, liability or expense.


 


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


 


Section 7.02.          Rights of Trustee.


 


(a)           The Trustee may conclusively rely upon any document believed by it to be
genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or
matter stated in the document, 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 Issuers,
personally or by agent or attorney at the sole cost of the Issuers and shall
incur no liability or additional liability of any kind by reason of such
inquiry or investigation.


 


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


 


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


 


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


 


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


 


(f)            None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise to incur any liability, financial or
otherwise, 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 indemnity satisfactory to it against
such risk or liability is not assured to it.


 


(g)           The Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a Default
is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Indenture.  Delivery of reports to the Trustee pursuant
to Section 4.03 hereof shall not constitute knowledge of, or notice of,
the Trustee of the information contained therein.


 


(h)           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.


 


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


 


(j)            In the event the Issuers are required to pay Additional Interest, the
Issuers will provide written notice to the Trustee of the Issuers’ obligation
to pay Additional Interest no later than 15 days prior to the next Interest
Payment Date, which notice shall set forth the amount of the Additional
Interest to be paid by the Issuers.  The
Trustee shall not at any time be under any duty or responsibility to any
Holders to determine whether the Additional Interest is payable and the amount
thereof.


 


Section 7.03.          Individual Rights of Trustee.


 


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


 


Section 7.04.          Trustee’s Disclaimer.


 


The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuers’ use of the proceeds from the Notes or any money
paid to the Issuers or upon the Issuers’ direction under any provision of this 


 


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Indenture,
it shall not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee, and it shall not be responsible for
any statement or recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to this Indenture
other than its certificate of authentication.


 


Section 7.05.          Notice of Defaults.


 


If
a Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to Holders of Notes a notice of the Default within 90 days
after it occurs.  Except in the case of a
Default relating to the payment of principal, premium, if any, or interest on
any Note, the Trustee may withhold from the Holders notice of any continuing
Default if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of
the Notes.  The Trustee shall not be
deemed to know of any Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is such a
Default is received by the Trustee at the Corporate Trust Office of the
Trustee.


 


Section 7.06.          Reports by Trustee to Holders of the Notes.


 


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


 


A
copy of each report at the time of its mailing to the Holders of Notes shall be
mailed to the Issuers and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with Trust Indenture Act Section 313(d).  The Issuers shall promptly notify the Trustee
when the Notes are listed on any stock exchange.


 


Section 7.07.          Compensation and Indemnity.


 


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


 


The
Issuers and the Guarantors, jointly and severally, shall indemnify the Trustee
for, and hold the Trustee harmless against, any and all loss, damage, claims,
liability or expense (including attorneys’ fees) incurred by it in connection
with the acceptance or administration of this trust and the performance of its
duties hereunder (including the costs and expenses of enforcing this Indenture
against the Issuers or any of the Guarantors (including this Section 7.07)
or defending itself against any claim whether asserted by any Holder, the
Issuers or any Guarantor, or liability in connection with the acceptance,
exercise or performance of any of its powers or duties hereunder).  The Trustee shall notify the Issuers promptly
of any claim for which it may seek indemnity. 
Failure by the Trustee to so notify the 


 


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Issuers
shall not relieve the Issuers of their obligations hereunder.  The Issuers shall defend the claim and the
Trustee may have separate counsel and the Issuers shall pay the fees and
expenses of such counsel.  The Issuers
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 Issuers under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture or the earlier resignation or
removal of the Trustee.


 


Notwithstanding
anything to the contrary in Section 4.12, to secure the payment
obligations of the Issuers and the Guarantors in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes.  Such Lien
shall survive the satisfaction and discharge of this Indenture.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(a)(6) or (7) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.


 


The
Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to
the extent applicable.


 


Section 7.08.          Replacement of Trustee.


 


A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.  The Trustee may resign in writing at any time
and be discharged from the trust hereby created by so notifying the
Issuers.  The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuers in writing.  The Issuers may remove the Trustee if:


 


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


 


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


 


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


 


(d)           the Trustee
becomes incapable of acting.


 


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


 


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


 


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


 


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


 


Section 7.09.          Successor Trustee by Merger, etc.


 


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


 


Section 7.10.          Eligibility; Disqualification.


 


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


 


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


 


Section 7.11.          Preferential Collection of Claims Against
Issuers.


 


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


 


ARTICLE 8


 


LEGAL
DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01.          Option to Effect Legal Defeasance or Covenant
Defeasance.


 


The
Issuers may, at their option and at any time, elect to have either Section 8.02
or 8.03 hereof applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.


 


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Section 8.02.          Legal Defeasance and Discharge.


 


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


 


(a)           the rights of
Holders of Notes to receive payments in respect of the principal of, premium,
if any, and interest on the Notes when such payments are due solely out of the
trust created pursuant to this Indenture referred to in Section 8.04 hereof;


 


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


 


(c)           the rights,
powers, trusts, duties and immunities of the Trustee, and the Issuers’
obligations in connection therewith; and


 


(d)           this Section 8.02.


 


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


 


Section 8.03.          Covenant Defeasance.


 


Upon
the Issuers’ exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, the Issuers and the Guarantors shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from their obligations under the covenants contained in Sections 4.03,
4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 hereof and
clauses (4) and (5) of Section 5.01(a), Sections 5.01(c) and
5.01(d) hereof with respect to the outstanding Notes on and after the date
the conditions set forth in Section 8.04 hereof are satisfied (“Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes).  For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Issuers may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.  In
addition, upon the Issuers’ exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to 


 


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the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3), 6.01(4), 6.01(5), 6.01(6) (solely with respect to Restricted
Subsidiaries that are Significant Subsidiaries), 6.01(7) (solely with
respect to Restricted Subsidiaries that are Significant Subsidiaries) and 6.01(8) hereof
shall not constitute Events of Default.


 


Section 8.04.          Conditions to Legal or Covenant Defeasance.


 


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


 


In
order to exercise either Legal Defeasance or Covenant Defeasance with respect
to the Notes:


 


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


 


(2)           in the case of
Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions,


 


(a)           the Issuers have 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 shall
confirm that, subject to customary assumptions and exclusions, the Holders of
the Notes will not recognize income, gain or loss for U.S. federal income tax
purposes, as applicable, 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 Issuers shall have delivered to the Trustee an Opinion
of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders of the 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
(other than that resulting from borrowing funds to be applied to make the
deposit required to effect such Legal Defeasance or Covenant Defeasance and any
similar and simultaneous deposit relating to other Indebtedness, and, in each
case, the granting of Liens in connection therewith) shall have occurred and be
continuing on the date of such deposit;


 


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(5)           such Legal
Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under the Senior Credit Facilities or any other
material agreement or instrument (other than this Indenture) to which, the
Issuers or any Guarantor is a party or by which the Issuers or any Guarantor is
bound (other than that resulting with respect to any Indebtedness being
defeased from any borrowing of funds to be applied to make the deposit required
to effect such Legal Defeasance or Covenant Defeasance and any similar and
simultaneous deposit relating to such Indebtedness, and the granting of Liens
in connection therewith);


 


(6)           the Issuers
shall have delivered to the Trustee an Opinion of Counsel to the effect that,
as of the date of such opinion and subject to customary assumptions and
exclusions following the deposit, the trust funds will not be subject to the
effect of Section 547 of Title 11 of the United States Code;


 


(7)           the Issuers
shall have delivered to the Trustee an Officer’s Certificate stating that the
deposit was not made by the Issuers with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuers or any Guarantor or others;
and


 


(8)           the Issuers
shall have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel (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 8.05.          Deposited Money and Government Securities to
Be Held in Trust; Other Miscellaneous Provisions.


 


Subject
to Section 8.06 hereof, all money and Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes 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 an Issuer or a Guarantor acting as Paying Agent) as
the Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Additional Interest, if
any, and interest, but such money need not be segregated from other funds
except to the extent required by law.


 


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


 


Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall
deliver or pay to the Issuers from time to time upon the request of the Issuers
any money or Government Securities held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


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Section 8.06.          Repayment to Issuers.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Issuers, in trust for the payment of the principal of, premium and Additional
Interest, if any, or interest on any Note and remaining unclaimed for two years
after such principal, and premium and Additional Interest, if any, or interest
has become due and payable shall be paid to the Issuers on their request or (if
then held by the Issuers) shall be discharged from such trust; and the Holder
of such Note shall thereafter look only to the Issuers for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuers as trustee thereof, shall thereupon
cease.


 


Section 8.07.          Reinstatement.


 


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


 


ARTICLE 9


 


AMENDMENT,
SUPPLEMENT AND WAIVER


 


Section 9.01.          Without Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 hereof, the Issuers, any Guarantor (with respect to a
Guarantee or this Indenture) and the Trustee may amend or supplement this
Indenture and any Guarantee or Notes without the consent of any Holder:


 


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


 


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


 


(3)           to comply with Section 5.01
hereof;


 


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


 


(5)           to make any
change that would provide any additional rights or benefits to the Holders or
that does not adversely affect the legal rights under 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 Issuers or any Guarantor;


 


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(7)           to comply with
requirements of the SEC 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 thereunder pursuant to the requirements thereof;


 


(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 provide for
the issuance of Additional Notes in accordance with this Indenture;


 


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


 


(12)         to conform the
text of this Indenture, Guarantees or the Notes to any provision of the “Description
of Notes” section of the Offering Circular to the extent that such provision in
such “Description of Notes” section was intended to be a verbatim recitation of
a provision of this Indenture, Guarantee or Notes;


 


(13)         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 Holders to transfer the Notes; or


 


(14)         to make any
other modifications to the Notes or the Indenture of a formal, minor or
technical nature, or necessary to correct a manifest error, so long as such
modification does not adversely affect the rights of any Holders in any
material respect.


 


Upon
the request of the Issuers accompanied by a resolution of their respective
boards of directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Issuers
and the Guarantors in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
indenture that affects its 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 D hereto, and delivery of
an Officer’s Certificate.


 


Section 9.02.                             With Consent of Holders of Notes.


 


Except
as provided below in this Section 9.02, the Issuers and the Trustee may
amend or supplement this Indenture, the Notes and the Guarantees with the
consent of the Holders of at least a majority in principal amount of the Notes
(including Additional Notes, if any) then outstanding voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing 


 


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Default
or Event of Default (other than a Default or Event of Default in the payment of
the principal of, premium and Additional Interest, if any, or interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Guarantees
or the Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including Additional Notes, if any)
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes).  Section 2.08 hereof and Section 2.09
hereof shall determine which Notes are considered to be “outstanding” for the
purposes of this Section 9.02.


 


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


 


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


 


After
an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Issuers shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver.  Any failure of the Issuers to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental indenture or waiver.


 


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


 


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


 


(2)           reduce the
principal of or change the fixed final maturity of any such Note or alter or
waive the provisions with respect to the redemption of such Notes (other than
provisions relating to Section 3.09, Section 4.10 and Section 4.14
hereof to the extent that any such amendment or waiver does not have the effect
of reducing the principal of or changing the fixed final maturity of any such
Note or altering or waiving the provisions with respect to the redemption of
such Notes);


 


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


 


(4)           waive a Default
in the payment of principal of or premium, if any, or interest on the Notes,
except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the 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;


 


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(5)           make any Note
payable in money other than U.S. dollars;


 


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


 


(7)           make any change
in these amendment and waiver provisions;


 


(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 or the
Guarantees;


 


(9)           make any change
in the subordination provisions hereof that would adversely affect the Holders;
or


 


(10)         except as
expressly permitted by this Indenture, modify the Guarantees of any Significant
Subsidiary in any manner adverse to the Holders of the Notes or release the
Co-Issuer from its obligations under this Indenture.


 


Section 9.03.                             Compliance with Trust Indenture Act.


 


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


 


Section 9.04.                             Revocation and Effect of Consents.


 


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


 


The
Issuers may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to consent to any amendment, supplement, or
waiver.  If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date.  No such consent
shall be valid or effective for more than 120 days after such record date
unless the consent of the requisite number of Holders has been obtained.


 


Section 9.05.                             Notation on or Exchange of Notes.


 


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


 


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


 


Section 9.06.                             Trustee to Sign Amendments, etc.


 


The
Trustee shall sign any amendment, supplement or waiver authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee.  The Issuers may not sign an amendment,
supplement or waiver until the board of directors approves it.  In executing any amendment, supplement or
waiver, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 14.04 hereof, an Officer’s Certificate and an Opinion
of Counsel stating that the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture and that such amendment,
supplement or waiver is the legal, valid and binding obligation of the Issuers
and any Guarantors party thereto, enforceable against them in accordance with
its terms, subject to customary exceptions, and complies with the provisions
hereof (including Section 9.03). 
Notwithstanding the foregoing, no Opinion of Counsel will be required
for the Trustee to execute any amendment or supplement adding a new Guarantor
under this Indenture.


 


Section 9.07.                             Payment for Consent.


 


Neither
the Issuers nor any Affiliate of the Issuers shall, directly or indirectly, pay
or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to all Holders and is paid to all Holders
that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.


 


ARTICLE 10


 


SUBORDINATION


 


Section 10.01.                       Agreement To Subordinate.


 


The
Issuers agree, and each Holder by accepting a Note agrees, that the payment of
all Obligations owing in respect of the Notes is subordinated in right of
payment, to the extent and in the manner provided in this Article 10, to
the prior payment in full of all existing and future Senior Indebtedness of the
Issuers and that the subordination is for the benefit of and enforceable by the
holders of such Senior Indebtedness.  The
Notes shall in all respects rank pari passu in
right of payment with all existing and future Senior Subordinated Indebtedness
of the Issuers, and will be senior in right of payment to all existing and
future Subordinated Indebtedness of the Issuers; and only Indebtedness of the
Issuers that is Senior Indebtedness shall rank senior to the Notes in
accordance with the provisions set forth herein.  All provisions of this Article 10 shall
be subject to Section 10.12.


 


Section 10.02.                       Liquidation, Dissolution, Bankruptcy.


 


Upon
any payment or distribution of the assets of either Issuer to creditors upon a
total or partial liquidation or a total or partial dissolution of such Issuer
or in a reorganization of or similar proceeding relating to such Issuer or its
property:


 


104

















 


(i)            the holders of
Senior Indebtedness of such Issuer shall be entitled to receive payment in full
in cash of such Senior Indebtedness before Holders shall be entitled to receive
any payment; and


 


(ii)           until the
Senior Indebtedness of such Issuer is paid in full in cash, any payment or
distribution to which Holders would be entitled but for the subordination
provisions of this Indenture shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Holders may receive
Permitted Junior Securities.


 


Section 10.03.                       Default on Senior Indebtedness of the Issuers.


 


Neither
the Issuers nor any Guarantor shall pay principal of, premium, if any, or
interest on the Notes (or pay any other Obligations relating to the Notes,
including Additional Interest, fees, costs, expenses, indemnities and
rescission or damage claims) or make any deposit pursuant to Article 8 or Article 13
hereof and may not purchase, redeem or otherwise retire any Notes
(collectively, “pay the Notes”) (except in the form of Permitted Junior
Securities) if either of the following occurs (a “Payment Default”):


 


(i)            any Obligation
on any Designated Senior Indebtedness of such Issuer is not paid in full in
cash when due, after giving effect to any applicable grace period; or


 


(ii)           any other
default on Designated Senior Indebtedness of such Issuer occurs and the
maturity of such Designated Senior Indebtedness is accelerated in accordance
with its terms;


 


unless,
in either case, the Payment Default has been cured or waived and any such
acceleration has been rescinded or such Designated Senior Indebtedness has been
paid in full in cash; provided, however, the Issuers shall be
entitled to pay the Notes without regard to the foregoing if the Issuers and
the Trustee receive written notice approving such payment from the
Representatives of all Designated Senior Indebtedness with respect to which the
Payment Default has occurred and is continuing.


 


During
the continuance of any default other than a Payment Default (a “Non-Payment
Default”) with respect to any Designated Senior Indebtedness pursuant to
which the maturity thereof may be accelerated without further notice (except
such notice as may be required to effect such acceleration) or the expiration
of any applicable grace periods, the Issuers shall not pay the Notes (except in
the form of Permitted Junior Securities) for a period (a “Payment Blockage
Period”) commencing upon the receipt by the Trustee (with a copy to the
Issuers) of written notice (a “Blockage Notice”) of such Non-Payment
Default from the Representative of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending
179 days thereafter.  So long as
there shall remain outstanding any Senior Indebtedness under the Senior Credit
Facilities, a Blockage Notice may be given only by the administrative agent
thereunder unless otherwise agreed to in writing by the requisite lenders named
therein.  The Payment Blockage Period
shall end earlier if such Payment Blockage Period is terminated (i) by written
notice to the Trustee and the Issuers from the Person or Persons who gave such
Blockage Notice; (ii) because the default giving rise to such Blockage
Notice is cured, waived or otherwise no longer continuing; or (iii) because
such Designated Senior Indebtedness has been discharged or repaid in full in
cash.


 


Notwithstanding
the provisions described in the immediately preceding two sentences (but
subject to the provisions contained in the first sentence of this Section 10.03
and Section 10.02 hereof), unless the holders of such Designated Senior
Indebtedness or the Representative of such 


 


105

















 


Designated
Senior Indebtedness shall have accelerated the maturity of such Designated
Senior Indebtedness or a Payment Default has occurred and is continuing, the
Issuers and related Guarantors shall be entitled to resume paying the Notes
after the end of such Payment Blockage Period. 
The Notes shall not be subject to more than one Payment Blockage Period
in any consecutive 360-day period irrespective of the number of defaults with
respect to Designated Senior Indebtedness of the Issuers during such
period.  However, in no event shall the
total number of days during which any Payment Blockage Period or Periods on the
Notes is in effect exceed 179 days in the aggregate during any consecutive
360-day period, and there must be at least 181 days during any consecutive
360-day period during which no Payment Blockage Period is in effect.  Notwithstanding the foregoing, however, no
default that existed or was continuing on the date of delivery of any Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Blockage
Notice unless such default shall have been waived for a period of not less than
90 days (it being acknowledged that any subsequent action, or any breach of any
financial covenants during the period after the date of delivery of a Blockage
Notice, that, in either case, would give rise to a Non-Payment Default pursuant
to any provisions under which a Non-Payment Default previously existed or was
continuing shall constitute a new Non-Payment Default for this purpose).


 


Section 10.04.        Acceleration of Payment of Notes.If payment of the Notes is
accelerated because of an Event of Default, the Issuers shall promptly notify
the holders of the Designated Senior Indebtedness of the Issuers or the
Representative of such Designated Senior Indebtedness of the acceleration; provided
that any failure to give such notice shall have no effect whatsoever on the provisions
of this Article 10.  If any
Designated Senior Indebtedness of the Issuers is outstanding, the Issuers may
not pay the Notes until five Business Days after the Representatives of all the
holders of such Designated Senior Indebtedness receive notice of such
acceleration and, thereafter, may pay the Notes only if this Indenture
otherwise permits payment at that time.


 


Section 10.05.                       When Distribution Must Be Paid Over.


 


If
a distribution is made to Holders that, due to the subordination provisions, should
not have been made to them, such Holders are required to hold it in trust for
the holders of Senior Indebtedness of the Issuers and pay it over to them as
their interests may appear.


 


Section 10.06.                       Subrogation.


 


After
all Senior Indebtedness of an Issuer is paid in full and until the Notes are
paid in full, Holders shall be subrogated to the rights of holders of such
Senior Indebtedness to receive distributions applicable to such Senior
Indebtedness.  A distribution made under
this Article 10 to holders of such Senior Indebtedness which otherwise
would have been made to Holders is not, as between the Issuers and Holders, a
payment by the Issuers on such Senior Indebtedness.


 


Section 10.07.                       Relative Rights.


 


This
Article 10 defines the relative rights of Holders and holders of Senior
Indebtedness of the Issuers.  Nothing in
this Indenture shall:


 


(i)            impair, as
between the Issuers and Holders, the obligation of the Issuers, which is
absolute and unconditional, to pay principal of and interest on the Notes in
accordance with their terms;


 


106

















 


(ii)           prevent the
Trustee or any Holder from exercising its available remedies upon a Default,
subject to the rights of holders of Senior Indebtedness of the Issuers to
receive payments or distributions otherwise payable to Holders and such other
rights of such holders of Senior Indebtedness as set forth herein; or


 


(iii)          affect the
relative rights of Holders and creditors of the Issuers other than their rights
in relation to holders of Senior Indebtedness.


 


Section 10.08.                       Subordination May Not Be Impaired by
Issuers.


 


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


 


Section 10.09.                       Rights of Trustee and Paying Agent.


 


Notwithstanding
Section 10.03 hereof, the Trustee or any Paying Agent may continue to make
payments on the Notes and shall not be charged with knowledge of the existence
of facts that would prohibit the making of any payments unless, not less than
two Business Days prior to the date of such payment, a Responsible Officer of
the Trustee receives notice satisfactory to him that payments may not be made
under this Article 10.  The Issuers,
the Registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness of the Issuers shall be entitled to give the notice; provided,
however, that, if an issue of Senior Indebtedness of the Issuers has a
Representative, only the Representative shall be entitled to give the notice.


 


The
Trustee in its individual or any other capacity shall be entitled to hold
Senior Indebtedness of the Issuers with the same rights it would have if it
were not Trustee.  The Registrar and the
Paying Agent shall be entitled to do the same with like rights.  The Trustee shall be entitled to all the
rights set forth in this Article 10 with respect to any Senior
Indebtedness of the Issuers which may at any time be held by it, to the same
extent as any other holder of such Senior Indebtedness; and nothing in Article 7
shall deprive the Trustee of any of its rights as such holder.  Nothing in this Article 10 shall apply
to claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof or any other Section of this Indenture.


 


Section 10.10.                       Distribution or Notice to Representative.


 


Whenever
a distribution is to be made or a notice given to holders of Senior
Indebtedness of the Issuers, the distribution may be made and the notice given
to their Representative (if any).


 


Section 10.11.                       Article 10 Not To Prevent Events of
Default or Limit Right To Accelerate.


 


The
failure to make a payment pursuant to the Notes by reason of any provision in
this Article 10 shall not be construed as preventing the occurrence of a
Default.  Nothing in this Article 10
shall have any effect on the right of the Holders or the Trustee to accelerate
the maturity of the Notes.


 


Section 10.12.                       Trust Moneys Not Subordinated.


 


Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of Government Securities held in trust by the Trustee for the payment of
principal of and interest 


 


107

















 


on
the Notes pursuant to Article 8 or Article 13 hereof shall not be
subordinated to the prior payment of any Senior Indebtedness of the Issuers or
subject to the restrictions set forth in this Article 10, and none of the
Holders shall be obligated to pay over any such amount to the Issuers or any
holder of Senior Indebtedness of the Issuers or any other creditor of the
Issuers, provided that the subordination provisions of this Article 10
were not violated at the time the applicable amounts were deposited in trust
pursuant to Article 8 or Article 13 hereof, as the case may be.


 


Section 10.13.                       Trustee Entitled To Rely.


 


Upon
any payment or distribution pursuant to this Article 10, the Trustee and
the Holders shall be entitled to rely (a) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature referred
to in Section 10.02 hereof are pending, (b) upon a certificate of the
liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or to the Holders or (c) upon the
Representatives of Senior Indebtedness of the Issuers for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such Senior Indebtedness and other Indebtedness of
the Issuers, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article 10.  In the event that the Trustee determines, in
good faith, that evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness of the Issuers to participate in any payment
or distribution pursuant to this Article 10, the Trustee shall be entitled
to request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of such Senior Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 10, and, if such evidence is not furnished, the Trustee shall be
entitled to defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.  The provisions of Sections 7.01 and 7.02
hereof shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 10.


 


Section 10.14.                       Trustee To Effectuate Subordination.


 


A
Holder by its acceptance of a Note agrees to be bound by this Article 10
and authorizes and expressly directs the Trustee, on his behalf, to take such
action as may be necessary or appropriate to effectuate the subordination
between the Holders and the holders of Senior Indebtedness of the Issuers as
provided in this Article 10 and appoints the Trustee as attorney-in-fact
for any and all such purposes.


 


Section 10.15.                       Trustee Not Fiduciary for Holders of
Senior Indebtedness of the Issuers.


 


The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Issuers and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or the Issuers or any other
Person, money or assets to which any holders of Senior Indebtedness of the
Issuers shall be entitled by virtue of this Article 10 or otherwise.


 


Section 10.16.                       Reliance by Holders of Senior Indebtedness of
the Issuers on Subordination Provisions.


 


Each
Holder by accepting a Note acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness of the Issuers, whether
such Senior Indebtedness was created or acquired before or after the issuance
of the Notes, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of such Senior Indebtedness shall be deemed
conclusively to have relied on 


 


108

















 


such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.


 


Without
in any way limiting the generality of the foregoing paragraph, the holders of
Senior Indebtedness of the Issuers may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article 10 or the obligations
hereunder of the Holders to the holders of the Senior Indebtedness of the
Issuers, do any one or more of the following:  (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness of the Issuers, or otherwise amend or supplement in
any manner Senior Indebtedness of the Issuers, or any instrument evidencing the
same or any agreement under which Senior Indebtedness of the Issuers is
outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness of the
Issuers; (iii) release any Person liable in any manner for the payment or
collection of Senior Indebtedness of the Issuers; and (iv) exercise or
refrain from exercising any rights against the Issuers and any other Person.


 


ARTICLE 11


 


GUARANTEES


 


Section 11.01.                       Guarantee.


 


Subject
to this Article 11, from and after the consummation of the Acquisition,
each of the Guarantors hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
Issuers hereunder or thereunder, that: (a) the principal of, premium or
interest on, or Additional Interest in respect of the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Issuers to the Holders or
the Trustee hereunder or thereunder shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. 
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors shall be jointly and
severally obligated to pay the same immediately.  Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.


 


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


 


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Each
Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing
any rights under this Section 11.01.


 


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


 


Each
Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, as between
the Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Guarantee.  The Guarantors shall have the
right to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the
Guarantees.


 


Each
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuers for liquidation,
reorganization, should the Issuers become 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 Issuers’ 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 or Guarantees, 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.


 


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.


 


The
Guarantee issued by any Guarantor shall be a general unsecured senior
subordinated obligation of such Guarantor and shall be subordinated  in right of
payment to all existing and future Senior Indebtedness of such Guarantor, if
any.


 


Each
payment to be made by a Guarantor in respect of its Guarantee shall be made
without set-off, counterclaim, reduction or diminution of any kind or nature.


 


Section 11.02.                       Limitation on Guarantor Liability.


 


Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any
Guarantee.  To


 


110






 












 


effectuate
the foregoing intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of each Guarantor shall be limited to
the maximum amount as will, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant
under such laws and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this Article 11,
result in the obligations of such Guarantor under its Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under applicable
law.  Each Guarantor that makes a payment
under its Guarantee shall be entitled upon payment in full of all guaranteed
obligations under this Indenture to a contribution from each other Guarantor in
an amount equal to such other Guarantor’s pro rata
portion of such payment based on the respective net assets of all the Guarantors
at the time of such payment determined in accordance with GAAP.


 


Section 11.03.        Execution and Delivery.


 


To
evidence its Guarantee set forth in Section 11.01 hereof, each Guarantor hereby agrees that this Indenture shall
be executed on behalf of such Guarantor by its President, one of its Vice
Presidents or one of its Assistant Vice Presidents.


 


Each
Guarantor hereby agrees that its Guarantee set forth in Section 11.01 hereof shall remain in full force and
effect notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.


 


If
an Officer whose signature is on this Indenture no longer holds that office at
the time the Trustee authenticates the Note, the Guarantee shall be valid
nevertheless.


 


The
delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Guarantors.


 


If
required by Section 4.15 hereof, the Company shall cause any newly created
or acquired Restricted Subsidiary that is not a Guarantor to comply with the
provisions of Section 4.15 hereof
and this Article 11, to the extent applicable.


 


Section 11.04.        Subrogation.


 


Each
Guarantor shall be subrogated to all rights of Holders of Notes against the Issuers
in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 11.01 hereof; provided 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 Issuers under this
Indenture or the Notes shall have been paid in full.


 


Section 11.05.        Benefits Acknowledged.


 


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


 


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Section 11.06.        Release of Guarantees.


 


A
Guarantee by a Guarantor shall be automatically and unconditionally released
and discharged, and no further action by such Guarantor, the Issuers or the
Trustee is required for the release of such Guarantor’s Guarantee, upon:


 


(1)           (A)  ANY
SALE, EXCHANGE OR TRANSFER (BY MERGER OR OTHERWISE) OF THE CAPITAL STOCK OF
SUCH GUARANTOR (INCLUDING ANY SALE, EXCHANGE OR TRANSFER, AFTER WHICH THE
APPLICABLE GUARANTOR IS NO LONGER A RESTRICTED SUBSIDIARY), IF SUCH SALE,
EXCHANGE OR TRANSFER IS MADE IN COMPLIANCE WITH THE APPLICABLE PROVISIONS OF
THIS INDENTURE;


 


(B)           THE RELEASE OR
DISCHARGE OF THE GUARANTEE BY SUCH GUARANTOR OF THE SENIOR CREDIT FACILITIES OR
THE GUARANTEE WHICH RESULTED IN THE CREATION OF SUCH GUARANTEE, EXCEPT A
DISCHARGE OR RELEASE BY OR AS A RESULT OF PAYMENT UNDER SUCH GUARANTEE;


 


(C)           the proper
designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in accordance with Section 4.07 hereof and the definition of “Unrestricted
Subsidiary” in Section 1.01 hereof; or


 


(D)          the Issuers
exercising their Legal Defeasance option or Covenant Defeasance option in
accordance with Article 8 hereof or the Issuers’ obligations under this
Indenture being discharged in accordance with the terms of this Indenture; and


 


(2)           such Guarantor delivering to
the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for in this Indenture relating to such
transaction have been complied with.


 


ARTICLE 12


 


SURORDINATION
OF GUARANTEE


 


Section 12.01.        Agreement To Subordinate.


 


Each
Guarantor agrees, and each Holder by accepting a Note agrees, that the
obligations of such Guarantor under its Guarantee are subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to
the prior payment in full of all existing and future Senior Indebtedness of
such Guarantor and that the subordination is for the benefit of and enforceable
by the holders of such Senior Indebtedness. 
A Guarantor’s obligations under its Guarantee shall in all respects rank
pari passu in right of payment with all
existing and future Senior Subordinated Indebtedness of such Guarantor, and
will be senior in right of payment to all existing and future Subordinated
Indebtedness of such Guarantor; and only Indebtedness of such Guarantor that is
Senior Indebtedness shall rank senior to the obligations of such Guarantor
under its Guarantee in accordance with the provisions set forth herein.  All provisions of this Article 12 shall
be subject to Section 12.12.


 


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Section 12.02.        Liquidation, Dissolution, Bankruptcy.


 


Upon
any payment or distribution of the assets of a Guarantor to creditors upon a
total or partial liquidation or a total or partial dissolution of such
Guarantor or in a reorganization of or similar proceeding relating to such
Guarantor or its property:


 


(i)            the holders of
Senior Indebtedness of such Guarantor shall be entitled to receive payment in
full in cash of such Senior Indebtedness before Holders shall be entitled to
receive any payment; and


 


(ii)           until the
Senior Indebtedness of such Guarantor is paid in full in cash, any payment or
distribution to which Holders would be entitled but for the subordination
provisions of this Indenture shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Holders may receive
Permitted Junior Securities.


 


Section 12.03.        Default on Senior Indebtedness of a Guarantor.


 


A
Guarantor shall not make any payment pursuant to its Guarantee (or pay any
other Obligations relating to its Guarantee, including Additional Interest,
fees, costs, expenses, indemnities and rescission or damage claims) and may not
purchase, redeem or otherwise retire any Notes (collectively, “pay its
Guarantee”) (except in the form of Permitted Junior Securities) if either
of the following occurs (a “Guarantor Payment Default”):


 


(i)            any Obligation
on any Designated Senior Indebtedness of such Guarantor is not paid in full in
cash when due (after giving effect to any applicable grace period); or


 


(ii)           any other
default on Designated Senior Indebtedness of such Guarantor occurs and the
maturity of such Designated Senior Indebtedness is accelerated in accordance
with its terms;


 


unless,
in either case, the Guarantor Payment Default has been cured or waived and any
such acceleration has been rescinded or such Designated Senior Indebtedness has
been paid in full in cash; provided, however, that such Guarantor
shall be entitled to pay its Guarantee without regard to the foregoing if such
Guarantor and the Trustee receive written notice approving such payment from
the Representatives of all Designated Senior Indebtedness with respect to which
the Guarantor Payment Default has occurred and is continuing.


 


During
the continuance of any default (other than a Guarantor Payment Default) (a “Non-Guarantor
Payment Default”) with respect to any Designated Senior Indebtedness of a
Guarantor pursuant to which the maturity thereof may be accelerated without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, such Guarantor
shall not pay its Guarantee (except in the form of Permitted Junior Securities)
for a period (a “Guarantee Payment Blockage Period”) commencing upon the
receipt by the Trustee (with a copy to such Guarantor and the Issuers) of
written notice (a “Guarantee Blockage Notice”) of such Non-Guarantor
Payment Default from the Representative of such Designated Senior Indebtedness
specifying an election to effect a Guarantee Payment Blockage Period and ending
179 days thereafter.  So long as
there shall remain outstanding any Senior Indebtedness under the Senior Credit
Facilities, a Guarantee Blockage Notice may be given only by the administrative
agent thereunder unless otherwise agreed to in writing by the requisite lenders
named therein.  The Guarantee Payment
Blockage Period shall end earlier if such Guarantee 


 


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Payment
Blockage Period is terminated (i) by written notice to the Trustee, the
relevant Guarantor and the Issuers from the Person or Persons who gave such
Guarantee Blockage Notice; (ii) because the default giving rise to such
Guarantee Blockage Notice is cured, waived or otherwise no longer continuing;
or (iii) because such Designated Senior Indebtedness has been discharged
or repaid in full in cash.


 


Notwithstanding
the provisions described in the immediately preceding two sentences (but
subject to the provisions contained in the first sentence of this Section 12.03
and Section 12.02 hereof), unless the holders of such Designated Senior
Indebtedness or the Representative of such Designated Senior Indebtedness shall
have accelerated the maturity of such Designated Senior Indebtedness or a
Guarantor Payment Default has occurred and is continuing, the relevant
Guarantor shall be entitled to resume paying its Guarantee after the end of
such Guarantee Payment Blockage Period.  Each
Guarantee shall not be subject to more than one Guarantee Payment Blockage
Period in any consecutive 360-day period irrespective of the number of defaults
with respect to Designated Senior Indebtedness of the relevant Guarantor during
such period; provided
that if any Guarantee Blockage Notice is delivered to the Trustee by or on
behalf of the holders of Designated Senior Indebtedness of such Guarantor
(other than the holders of Indebtedness under the Senior Credit Facilities), a
Representative of holders of Indebtedness under the Senior Credit Facilities
may give another Guarantee Blockage Notice within such period.  However, in no event shall the total number
of days during which any Guarantee Payment Blockage Period or Periods on a
Guarantee is in effect exceed 179 days in the aggregate during any consecutive
360-day period, and there must be at least 181 days during any consecutive
360-day period during which no Guarantee Payment Blockage Period is in
effect.  Notwithstanding the foregoing,
however, no default that existed or was continuing on the date of delivery of
any Guarantee Blockage Notice to the Trustee shall be, or be made, the basis
for a subsequent Guarantee Blockage Notice unless such default shall have been
waived for a period of not less than 90 days (it being acknowledged that any
subsequent action, or any breach of any financial covenants during the period
after the date of delivery of a Guarantee Blockage Notice, that, in either
case, would give rise to a Non-Guarantor Payment Default pursuant to any
provisions under which a Non-Guarantor Payment Default previously existed or
was continuing shall constitute a new Non-Guarantor Payment Default for this
purpose).


 


Section 12.04.        Demand for Payment.


 


If
payment of the Notes is accelerated because of an Event of Default and a demand
for payment is made on a Guarantor pursuant to Article 11 hereof, the
Issuers or such Guarantor shall promptly notify the holders of the Designated
Senior Indebtedness of such Guarantor or the Representative of such Designated
Senior Indebtedness of such demand; provided that any failure to give
such notice shall have no effect whatsoever on the provisions of this Article 12.  If any Designated Senior Indebtedness of a
Guarantor is outstanding, such Guarantor may not pay its Guarantee until five
Business Days after the Representatives of all the issuers of such Designated
Senior Indebtedness receive notice of such acceleration and, thereafter, may
pay its Guarantee only if this Indenture otherwise permits payment at that
time.


 


Section 12.05.        When Distribution Must Be Paid Over.


 


If
a distribution is made to Holders that, due to the subordination provisions,
should not have been made to them, such Holders are required to hold it in
trust for the holders of Senior Indebtedness of the relevant Guarantor and pay
it over to them as their interests may appear.


 


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Section 12.06.        Subrogation.


 


After
all Senior Indebtedness of a Guarantor is paid in full and until the Notes are
paid in full, Holders shall be subrogated to the rights of holders of such
Senior Indebtedness to receive distributions applicable to such Senior
Indebtedness.  A distribution made under
this Article 12 to holders of such Senior Indebtedness which otherwise
would have been made to Holders is not, as between the relevant Guarantor and
Holders, a payment by such Guarantor on such Senior Indebtedness.


 


Section 12.07.        Relative Rights.


 


This
Article 12 defines the relative rights of Holders and holders of Senior
Indebtedness of a Guarantor.  Nothing in
this Indenture shall:


 


(i)            impair, as
between such Guarantor and Holders, the obligation of such Guarantor, which is
absolute and unconditional, to make payments under its Guarantee in accordance
with its terms;


 


(ii)           prevent the
Trustee or any Holder from exercising its available remedies upon a default by
such Guarantor under its obligations with respect to its Guarantee, subject to
the rights of holders of Senior Indebtedness of such Guarantor to receive payments
or distributions otherwise payable to Holders and such other rights of such
holders of Senior Indebtedness as set forth herein; or


 


(iii)          affect the
relative rights of Holders and creditors of such Guarantor other than their
rights in relation to holders of Senior Indebtedness.


 


Section 12.08.        Subordination May Not Be Impaired by a
Guarantor.


 


No
right of any holder of Senior Indebtedness of a Guarantor to enforce the
subordination of the obligations of such Guarantor under its Guarantee shall be
impaired by any act or failure to act by such Guarantor or by its failure to
comply with this Indenture.


 


Section 12.09.        Rights of Trustee and Paying Agent.


 


Notwithstanding
Section 12.03 hereof, the Trustee or any Paying Agent may continue to make
payments on the Notes and shall not be charged with knowledge of the existence
of facts that would prohibit the making of any payments unless, not less than
two Business Days prior to the date of such payment, a Responsible Officer of
the Trustee receives notice satisfactory to him that payments may not be made
under this Article 12.  A Guarantor,
the Registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness of such Guarantor shall be entitled to give the notice; provided,
however, that, if an issue of Senior Indebtedness of such Guarantor has
a Representative, only the Representative shall be entitled to give the notice.


 


The
Trustee in its individual or any other capacity shall be entitled to hold
Senior Indebtedness of a Guarantor with the same rights it would have if it
were not Trustee.  The Registrar and the
Paying Agent shall be entitled to do the same with like rights.  The Trustee shall be entitled to all the rights
set forth in this Article 12 with respect to any Senior Indebtedness of a Guarantor
which may at any time be held by it, to the same extent as any other holder of
such Senior Indebtedness; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. 
Nothing in this Article 12 shall 


 


115

















 


apply
to claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof or any other Section of this Indenture.


 


Section 12.10.        Distribution or Notice to Representative.


 


Whenever
a distribution is to be made or a notice given to holders of Senior
Indebtedness of a Guarantor, the distribution may be made and the notice given
to their Representative (if any).


 


Section 12.11.        Article 12 Not To Prevent Events of
Default or Limit Right To Demand Payment.


 


The
failure of a Guarantor to make a payment pursuant its Guarantee by reason of
any provision in this Article 12 shall not be construed as preventing the
occurrence of a default by such Guarantor under its Guarantee.  Nothing in this Article 12 shall have any
effect on the right of the Holders or the Trustee to make a demand for payment
on a Guarantor pursuant to Article 11 hereof.


 


Section 12.12.        Trust Moneys Not Subordinated.


 


Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of  Government Securities held in trust by the Trustee for the payment of
principal of and interest on the Notes pursuant to Article 8 or Article 13
hereof shall not be subordinated to the prior payment of any Senior
Indebtedness of any Guarantor or subject to the restrictions set forth in this Article 12,
and none of the Holders shall be obligated to pay over any such amount to such
Guarantor or any holder of Senior Indebtedness of such Guarantor or any other
creditor of such Guarantor, provided that the subordination provisions
of this Article 12 were not violated at the time the applicable amounts
were deposited in trust pursuant to Article 8 or Article 13 hereof,
as the case may be


 


Section 12.13.        Trustee Entitled To Rely.


 


Upon
any payment or distribution pursuant to this Article 12, the Trustee and
the Holders shall be entitled to rely (a) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature referred
to in Section 12.02 hereof are pending, (b) upon a certificate of the
liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or to the Holders or (c) upon the
Representatives of Senior Indebtedness of a Guarantor for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such Senior Indebtedness and other Indebtedness of
such Guarantor, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article 12.  In the event that the Trustee determines, in
good faith, that evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness of a Guarantor to participate in any payment
or distribution pursuant to this Article 12, the Trustee shall be entitled
to request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of such Senior Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 12, and, if such evidence is not furnished, the Trustee shall be
entitled to defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.  The provisions of Sections 7.01 and 7.02
hereof shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 12.


 


116

















 


Section 12.14.        Trustee To Effectuate Subordination.


 


A
Holder by its acceptance of a Note agrees to be bound by this Article 12
and authorizes and expressly directs the Trustee, on his behalf, to take such
action as may be necessary or appropriate to effectuate the subordination
between the Holders and the holders of Senior Indebtedness of a Guarantor as
provided in this Article 12 and appoints the Trustee as attorney-in-fact
for any and all such purposes.


 


Section 12.15.        Trustee Not Fiduciary for Holders of
Senior Indebtedness of Guarantors.


 


The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of a Guarantor and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or such Guarantor or any
other Person, money or assets to which any holders of Senior Indebtedness of
such Guarantor shall be entitled by virtue of this Article 12 or
otherwise.


 


Section 12.16.        Reliance by Holders of Senior Indebtedness of
a Guarantor on Subordination Provisions.


 


Each
Holder by accepting a Note acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness of a Guarantor, whether
such Senior Indebtedness was created or acquired before or after the issuance
of the Notes, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of such Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness.


 


Without
in any way limiting the generality of the foregoing paragraph, the holders of
Senior Indebtedness of a Guarantor may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article 12 or the obligations
hereunder of the Holders to the holders of the Senior Indebtedness of such
Guarantor, do any one or more of the following:  (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness of such Guarantor, or otherwise amend or supplement
in any manner Senior Indebtedness of such Guarantor, or any instrument
evidencing the same or any agreement under which Senior Indebtedness of such
Guarantor is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Indebtedness
of such Guarantor; (iii) release any Person liable in any manner for the
payment or collection of Senior Indebtedness of such Guarantor; and
(iv) exercise or refrain from exercising any rights against such Guarantor
and any other Person.


 


ARTICLE 13


 


SATISFACTION
AND DISCHARGE


 


Section 13.01.        Satisfaction and Discharge.


 


This
Indenture shall be discharged and shall cease to be of further effect as to all
Notes, when:


 


(1)


 


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


 


(b)           all Notes not
theretofore delivered to the Trustee for cancellation have become due and
payable by reason of the making of a notice of redemption or otherwise, shall
become due and payable 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
Issuers and the Issuers or any Guarantor have irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit
of the Holders of the Notes, 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 the Notes not theretofore delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date
of maturity or redemption;


 


(2)           no Default
(other than that resulting from borrowing funds to be applied to make such
deposit or any similar and simultaneous deposit relating to other Indebtedness)
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 will not result in a breach or violation of, or
constitute a default under the Senior Credit Facilities, the indenture
governing the Existing Senior Notes or any other material agreement or
instrument (other than this Indenture) to which the Issuers or any Guarantor is
a party or by which the Issuers or any Guarantor is bound (other than resulting
from borrowing funds to be applied to make such deposit and any similar and simultaneous
deposit relating to other Indebtedness and, in each case, the granting of Liens
in connection therewith);


 


(3)           the Issuers
have paid or caused to be paid all sums payable by it under this Indenture; and


 


(4)           the Issuers
have delivered irrevocable instructions to the Trustee to apply the deposited
money toward the payment of the Notes at maturity or the redemption date, as
the case may be.


 


In
addition, the Issuers must deliver an Officer’s Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.


 


Notwithstanding
the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (A) of clause (2) of
this Section 13.01, the provisions of Section 13.02 and Section 8.06
hereof shall survive.


 


Section 13.02.        Application of Trust Money.


 


Subject
to the provisions of Section 8.06 hereof, all money deposited with the
Trustee pursuant to Section 13.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuers acting as their own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium and
Additional Interest, if any) and interest for whose payment 


 


118

















 


such
money has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.


 


If
the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 13.01 hereof by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Issuers’ 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 13.01
hereof; provided that if the Issuers have made any payment of principal
of, premium and Additional Interest, if any, or interest on any Notes because
of the reinstatement of its obligations, the Issuers 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 14


 


MISCELLANEOUS


 


Section 14.01.        Trust Indenture Act Controls.


 


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


 


Section 14.02.        Notices.


 


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


 


If
to the Issuers and/or any Guarantor:


 


c/o
DJO Finance LLC


1430
Decision Street


Vista,
California 92081


Attention:  General Counsel


Fax
No.: (760) 734-3536


 


If
to the Trustee:


 


The
Bank of New York Mellon


101
Barclay Street, Floor 8W


New
York, New York 10286


Attention:  Corporate Trust Administration


Fax
No.: (212) 815-5704


 


The
Issuers, any Guarantor or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.


 


All
notices and communications (other than those sent to Holders) shall be deemed
to have been duly given: at the time delivered by hand, if personally
delivered; five calendar days after being 


 


119

















 


deposited
in the mail, postage prepaid, if 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.


 


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


 


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


 


If
the Issuers mail a notice or communication to Holders, they shall mail a copy
to the Trustee and each Agent at the same time.


 


Section 14.03.        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 Issuers, the Trustee, the
Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).


 


Section 14.04.        Certificate and Opinion as to Conditions
Precedent.


 


Upon
any request or application by the Issuers or any of the Guarantors to the
Trustee to take any action under this Indenture, the Issuers or such Guarantor,
as the case may be, shall furnish to the Trustee:


 


(a)           An Officer’s
Certificate in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 14.05 hereof) stating
that, in the opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action have been
satisfied; and


 


(b)           An Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 14.05 hereof) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been
satisfied.


 


Section 14.05.        Statements Required in Certificate or Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to Section 4.04
hereof or Trust Indenture Act Section 314(a)(4)) shall comply with the
provisions of Trust Indenture Act Section 314(e) and shall include:


 


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


 


120






 












 


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


 


(c)           a statement
that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with (and, in
the case of an Opinion of Counsel, may be limited to reliance on an Officer’s
Certificate as to matters of fact); and


 


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


 


Section 14.06.        Rules by Trustee and Agents.


 


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


 


Section 14.07.        No Personal Liability of Directors, Officers,
Employees and Stockholders.


 


No
director, officer, employee, incorporator or stockholder of any Issuer or
Guarantor or any of their parent companies shall have any liability for any
obligations of the Issuers 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 Notes waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes.


 


Section 14.08.        Governing Law.


 


THIS
INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 14.09.        Waiver of Jury Trial.


 


EACH
OF THE ISSUERS, THE GUARANTORS 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 TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 14.10.        Force Majeure.


 


In
no event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations under this Indenture arising out of or
caused by, directly or indirectly, forces beyond its reasonable 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 or hardware) services.


 


121

















 


Section 14.11.        No Adverse Interpretation of Other Agreements.


 


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


 


Section 14.12.        Successors.


 


All
agreements of the Issuers in this Indenture and the Notes shall bind its
successors.  All agreements of the
Trustee in this Indenture shall bind their successors.  All agreements of each Guarantor in this
Indenture shall bind its successors, except as otherwise provided in Section 11.05 hereof.


 


Section 14.13.        Severability.


 


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


 


Section 14.14.        Counterpart Originals.


 


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


 


Section 14.15.        Table of Contents, Headings, etc.


 


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


 


Section 14.16.        Qualification of Indenture.


 


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


 


[Signatures on following page]


 


122

















 


	
   

  	
  DJO
  FINANCE LLC,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
  /s/
  Vickie L. Capps

  
	
   

  	
   

  	
  Name:

  	
  Vickie
  L. Capps

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DJO
  FINANCE CORPORATION,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
  /s/
  Vickie L. Capps

  
	
   

  	
   

  	
  Name:

  	
  Vickie
  L. Capps

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL PARTNERS, LLC

  
	
   

  	
  ENCORE
  MEDICAL GP, LLC

  
	
   

  	
  EMPI, INC.

  
	
   

  	
  EMPI CORP.

  
	
   

  	
  ENCORE
  MEDICAL ASSET CORPORATION

  
	
   

  	
  DJO, LLC,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
  /s/
  Vickie L. Capps

  
	
   

  	
   

  	
  Name:

  	
  Vickie
  L. Capps

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL L.P.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
  Encore
  Medical GP, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
  /s/
  Vickie L. Capps

  
	
   

  	
   

  	
  Name:

  	
  Vickie
  L. Capps

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  



 


Signature Page to Indenture


 

















 


	
   

  	
  THE
  BANK OF NEW YORK MELLON, AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
  /s/
  Beata Harvin

  
	
   

  	
   

  	
  Name:
  Beata Harvin

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


Signature Page to Indenture


 

















 


EXHIBIT A


 


[Face of Note]


 


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


 


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


 


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


 


Signature Page to Indenture


 

















 


CUSIP  [                     ]


ISIN  [                     ]


 


[[RULE 144A][REGULATION S] GLOBAL NOTE


representing up to


$                        ]


93⁄4% Senior Subordinated Notes due 2017


 


	
  No.

  	
   

  	
  [$                          ]

  



 


DJO FINANCE LLC

DJO FINANCE CORPORATION


 


promises
to pay to CEDE & CO. or registered assigns, the principal sum [of
                                              
United States Dollars] [as revised by the Schedule of Exchanges of Interests in
the Global Note attached hereto,] on October 15, 2017.


 


Interest
Payment Dates:  April 15 and October 15


 


Record
Dates:  April 1 and October 1


 


A-2

















 


IN
WITNESS HEREOF, the Issuers have caused this instrument to be duly executed.


 


Dated:


 


	
   

  	
  DJO
  FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DJO
  FINANCE CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-3

















 


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


 


 


	
   

  	
  THE
  BANK OF NEW YORK MELLON, AS TRUSTEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


A-4

















 


[Back of Note]


 


93⁄4% Senior Subordinated Notes due 2017


 


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


 


1.             INTEREST.  DJO Finance LLC, a Delaware limited liability
company, and DJO Finance Corporation, a Delaware corporation, jointly and
severally promise to pay interest on the principal amount of this Note at 93⁄4%
per annum from October 18, 2010 until maturity and shall pay the
Additional Interest, if any, payable pursuant to the Registration Rights
Agreement referred to below.  The Issuers
will pay interest and Additional Interest, if any, semi-annually in arrears on April 15
and October 15 of each year, or if any such day is not a Business Day, on
the next succeeding Business Day (each, an “Interest Payment Date”).  Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that the first Interest
Payment Date shall be April 15, 2011. 
The Issuers will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at the interest rate on the Notes; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest, if
any, (without regard to any applicable grace periods) from time to time on
demand at the interest rate on the Notes. 
Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.


 


2.             METHOD OF PAYMENT.  The Issuers will pay interest on the Notes
and Additional Interest, if any, to the Persons who are registered Holders of
Notes at the close of business on April 1 or October 1 (whether or
not a Business Day), as the case may be, next preceding the Interest Payment
Date, even if such Notes are cancelled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. 
Payment of interest and Additional Interest, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium and
Additional Interest, if any, on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Issuers
or the Paying Agent.  Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.


 


3.             PAYING AGENT AND
REGISTRAR.  Initially, The Bank of New
York Mellon, a New York banking corporation, the Trustee under the Indenture,
will act as Paying Agent and Registrar. 
The Issuers may change any Paying Agent or Registrar without notice to
the Holders.  The Company or any of its
Subsidiaries may act in any such capacity.


 


4.             INDENTURE.  The Issuers issued the Notes under an
Indenture, dated as of October 18, 2010 (the “Indenture”), among
DJO Finance LLC, DJO Finance Corporation, the Guarantors named therein and the
Trustee.  This Note is one of a duly
authorized issue of notes of the Issuers, designated as 93⁄4% Senior Subordinated
Notes due 2017.  The Issuers shall be
entitled to issue Additional Notes pursuant to Section 2.01 and Section 4.09
of the Indenture.  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 of 1939, as amended (the “Trust Indenture
Act”).  The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms.  To the extent
any provision of this 


 


A-5

















 


Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling.


 


5.             OPTIONAL REDEMPTION.


 


(a)           Except as described below
under clauses 5(b) and 5(c) hereof, the Notes will not be redeemable
at the Issuers’ option before October 15, 2013.


 


(b)           At any time prior to October 15,
2013, the Issuers may 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 the registered
address of each Holder or otherwise delivered in accordance with the procedures
of DTC, at a redemption price equal to 100% of the principal amount of the
Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Additional Interest, if any, to the date of redemption (the “Redemption Date”), subject to the
rights of Holders on the relevant Record Date to receive interest due on the
relevant Interest Payment Date.


 


(c)           Until October 15, 2013,
the Issuers may, at their option, redeem up to 35% of the aggregate principal
amount of Notes issued by them at a redemption price equal to 109.75% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon
and Additional Interest, if any, to the applicable Redemption Date, subject to
the right of Holders of Notes of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date, with the net cash proceeds
of one or more Equity Offerings; provided
that at least 65% of the aggregate principal amount of Notes originally issued
under the Indenture and any Additional Notes that are Notes issued under the
Indenture after the Issue Date 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.  Notice of any redemption upon
any Equity Offering may be given prior to the redemption thereof, and any such
redemption or notice may, at the Issuers’ discretion, be subject to one or more
conditions precedent, including, but not limited to, the completion of the
related Equity Offering.


 


(d)           On and after October 15,
2013, the Issuers 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 at the address of such
Holder appearing in the security register, at the redemption prices (expressed
as percentages of principal amount of the Notes to be redeemed) set forth
below, plus accrued and unpaid interest thereon and Additional Interest, if
any, to the applicable Redemption Date, subject to the right of Holders of
Notes 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 October 15 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2013

  	
   

  	
  107.313

  	
  %

  
	
  2014

  	
   

  	
  104.875

  	
  %

  
	
  2015

  	
   

  	
  102.483

  	
  %

  
	
  2016

  	
   

  	
  100.000

  	
  %

  



 


(e)           Any redemption pursuant to
this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Indenture.


 


A-6






 












 


6.             MANDATORY REDEMPTION.  The Issuers shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


7.             NOTICE OF REDEMPTION.  Subject to Section 3.03 of the
Indenture, notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date (except that
redemption notices may be mailed more than 60 days prior to a redemption date
if the notice is issued in connection with Article 8 or Article 13 of
the Indenture) to each Holder whose Notes are to be redeemed at its registered
address.  Notes in denominations larger
than $2,000 may be redeemed in part but only in whole multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed.  On and after the redemption date, interest
will cease to accrue on Notes or portions thereof called for redemption.


 


8.             OFFERS TO REPURCHASE.


 


(a)           Upon the occurrence of a Change of
Control, the Issuers shall make an offer (a “Change of Control Offer”)
to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 thereof) of each Holder’s Notes at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest
and Additional Interest thereon, if any, to the date of purchase (the “Change
of Control Payment”), subject to the right of the Holders of the Notes of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date.  The Change of
Control Offer shall be made in accordance with Section 4.14 of the
Indenture.


 


(b)           If the Company or any of its
Restricted Subsidiaries consummates an Asset Sale, within ten Business Days of
each date that Excess Proceeds exceed $20.0 million, the Issuers shall
commence, an offer to all Holders of the Notes and, if required by the terms of
any Indebtedness that is pari passu
with the Notes or any Guarantee (“Pari
Passu Indebtedness”), to the holders of such Pari Passu Indebtedness
(an “Asset Sale Offer”),
to purchase the maximum principal amount of Notes (including any Additional
Notes) and such other Pari Passu Indebtedness that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof; plus accrued and unpaid interest and Additional
Interest thereon, if any, to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture.  To the extent that the aggregate amount of
Notes (including any Additional Notes) and such Pari Passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Issuers 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 Pari Passu Indebtedness surrendered by such holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such Pari
Passu Indebtedness to be purchased on a pro rata basis
based on the accreted value or principal amount of the Notes or such Pari Passu
Indebtedness tendered.  Additionally, the
Issuers may, at their option, make an Asset Sale Offer using proceeds from any
Asset Sale at any time after consummation of such Asset Sale.  Upon completion of any Asset Sale Offer, any
Net Proceeds not used to purchase Notes in such Asset Sale Offer shall not be
deemed Excess Proceeds and the Company may use any Net Proceeds not required to
be used for general corporate purposes, subject to other covenants contained in
the Indenture.  Holders of Notes that are
the subject of an offer to purchase will receive an Asset Sale Offer from the
Issuers 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.


 


9.             DENOMINATIONS, TRANSFER,
EXCHANGE.  The Notes are in registered
form without coupons in denominations of $2,000 and integral multiples of
$1,000 in excess thereof.  The 


 


A-7

















 


transfer
of Notes may be registered and Notes may be exchanged as provided in the
Indenture.  The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the Issuers may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture.  The Issuers need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part.  Also, the Issuers need not exchange or
register the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed.


 


10.           SUBORDINATION.  The Notes and the Guarantees are subordinated
to Senior Indebtedness of the Issuers and the Guarantors on the terms and
subject to the conditions set forth in the Indenture.  To the extent provided in the Indenture,
Senior Indebtedness must be paid before the Notes and Guarantees may be
paid.  The Issuers agree, and each Holder
by accepting a Note agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.


 


11.           PERSONS DEEMED OWNERS.  The registered Holder of a Note may be
treated as its owner for all purposes.


 


12.           AMENDMENT, SUPPLEMENT AND
WAIVER.  The Indenture, the Guarantees or
the Notes may be amended or supplemented as provided in the Indenture.


 


13.           DEFAULTS AND REMEDIES.  The Events of Default relating to the Notes
are defined in Section 6.01 of the Indenture.  If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare the principal, premium, if any, interest
and any other monetary obligations on all the then outstanding Notes to be due
and payable immediately.  Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, all outstanding Notes will become due and payable
immediately without further action or notice. 
Holders may not enforce the Indenture, the Notes or the Guarantees
except as provided in the Indenture. 
Subject to certain limitations, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power.  The
Trustee may withhold from Holders of the Notes notice of any continuing Default
(except a Default relating to the payment of principal, premium, if any,
Additional Interest, if any, or interest) if it determines that withholding
notice is in their interest.  The Holders
of not less than a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default and its consequences under the Indenture,
except a continuing Default in payment of the principal of, premium, if any,
Additional Interest, if any, or interest on, any of the Notes held by a
non-consenting Holder and rescind any acceleration with respect to the Notes
and its consequences (provided such rescission would not conflict with any
judgment of a court of competent jurisdiction). 
The Issuers and each Guarantor (to the extent that such Guarantor is so
required under the Trust Indenture Act) are required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Issuers
are required within five Business Days after becoming aware of any Default, to
deliver to the Trustee a statement specifying such Default and what action the
Issuers propose to take with respect thereto.


 


14.           GUARANTEES.  The Issuers’ obligations under the Notes are
fully and unconditionally guaranteed, jointly and severally, by the Guarantors.


 


A-8

















 


15.           AUTHENTICATION.  This Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of the Trustee.


 


16.           ADDITIONAL RIGHTS OF HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.  In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement, dated as of October 18, 2010, among DJO Finance LLC, DJO
Finance Corporation, the Guarantors named therein and the other parties named
on the signature pages thereof (the “Registration Rights Agreement”),
including the right to receive Additional Interest (as defined in the
Registration Rights Agreement).


 


17.           GOVERNING LAW.  THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTEES.


 


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


 


The
Issuers will furnish to any Holder upon written request and without charge a
copy of the Indenture and/or the Registration Rights Agreement.  Requests may be made to the Issuers at the
following address:


 


c/o
DJO Finance LLC


1430
Decision Street


Vista,
California 92081


Facsimile:  (760) 734-3536


Attention:  General Counsel


 


A-9

















 


ASSIGNMENT
FORM


 


To
assign this Note, fill in the form below:


 


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


 


	
                                                             (Insert
  assignee’ legal name)

  
	
   

  
	
   

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

  



 


 


	
   

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

  



 


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


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

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

  



 


 


	
  Signature
  Guarantee*:

  	
   

  	
   

  	
   

  



 






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


 


A-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Issuers pursuant to
Section 4.10 or 4.14 of the Indenture, check the appropriate box below:


 


o  Section 4.10         o  Section 4.14


 


If
you want to elect to have only part of this Note purchased by the Issuer
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:


 


$                  


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tax
  Identification No.:

  	
   

  
							



 


	
  Signature
  Guarantee*:

  	
   

  	
   

  	
   

  



 






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


 


A-11

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*


 


The
initial outstanding principal amount of this Global Note is
$                    .  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 or Definitive Note for an interest in
this Global Note, have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of

  decrease

  in Principal

  Amount

  	
   

  	
  Amount of increase

  in Principal

  Amount of this

  Global Note

  	
   

  	
  Principal Amount

  of

  this Global Note

  following such

  decrease or

  increase

  	
   

  	
  Signature of

  authorized officer

  of Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*This
schedule should be included only if the Note is issued in global form.


 


A-12

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


[DJO
Finance LLC/ DJO Finance Corporation] 


1430
Decision Street


Vista,
California, 92081


Attention:  General Counsel


Fax
No.: (760) 734-3536


 


The
Bank of New York Mellon,


101
Barclay Street, Floor 8W


New
York, New York 10286


Fax
No.: (212) 815-5704


Attention:  Corporate Trust Administration


 


Re:  93⁄4% Senior Subordinated Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of October 18, 2010 (the “Indenture”),
among DJO Finance LLC, DJO Finance Corporation, the Guarantors named therein
and the Trustee.  Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


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


 


[CHECK ALL THAT APPLY]


 


1.             o CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE
OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. 
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or 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.


 


2.             o CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S
GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States
or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of 


 


B-1

















 


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 Indenture and the
Securities Act.


 


3.             o CHECK AND
COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
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.


 


4.             o CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.


 


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


 


(b)           o CHECK IF
TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act.  Upon
consummation of the proposed Transfer in accordance with the terms of the 


 


B-2

















 


Indenture,
the transferred beneficial interest or Definitive Note will no longer be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.


 


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


 


B-3

















 


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


 


	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


B-4






 












 


ANNEX A TO CERTIFICATE OF TRANSFER


 


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


 


[CHECK ONE OF (a) OR (b)]


 


(a)           o a beneficial
interest in the:


 


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


 


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


 


(b)           o a Restricted
Definitive Note.


 


2.             After the Transfer the
Transferee will hold:


 


[CHECK ONE]


 


(a)           o a beneficial
interest in the:


 


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


 


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


 


(iii)          o Unrestricted Global Note
(CUSIP [             ]); or


 


(b)           o a Restricted
Definitive Note; or


 


(c)           o an Unrestricted Definitive
Note, in accordance with the terms of the Indenture.


 


B-5

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


[DJO
Finance LLC/ DJO Finance Corporation] 


1430
Decision Street


Vista,
California 92081


Attention:  General Counsel


Fax
No.: (760) 734-3536


 


The
Bank of New York Mellon


101
Barclay Street, Floor 8W


New
York, New York 10286


Fax
No.: (212) 815-5704


Attention:  Corporate Finance Unit


 


Re:  93⁄4% Senior Subordinated Notes due 2017


 


Reference
is hereby made to the Indenture, dated as of October 18, 2010 (the “Indenture”),
among DJO Finance LLC, DJO Finance Corporation, the Guarantors named therein
and the Trustee.  Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


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


 


1)             EXCHANGE OF RESTRICTED
DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR
UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL
NOTE


 


a)             o CHECK IF
EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. 
In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.


 


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 


 


C-1

















 


Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.


 


c)             o CHECK IF
EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE.  In connection
with the Owner’s Exchange of a Restricted Definitive Note for 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]  [   ] 144A Global Note  [   ]
Regulation S Global Note, with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is 


 


C-2

















 


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 Issuers and are dated
                                            .


 


 


	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


C-3

















 


EXHIBIT D


 


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]


 


Supplemental
Indenture (this “Supplemental Indenture”), dated as of
                    ,
among
                                    
(the “Guaranteeing Subsidiary”), a subsidiary of [DJO Finance LLC/ DJO
Finance Corporation], a Delaware [limited liability company/corporation] (the “Issuer”),
and The Bank of New York Mellon, a New York banking corporation, as trustee
(the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS,
each of DJO Finance LLC, DJO Finance Corporation and the Guarantors (as defined
in the Indenture referred to below) has heretofore executed and delivered to
the Trustee an indenture (the “Indenture”), dated as of October 18,
2010, providing for the issuance of an unlimited aggregate principal amount of
93⁄4% Senior Subordinated 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 Issuers’ Obligations under the Notes and the Indenture on the terms
and conditions set forth herein and under the Indenture (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 parties
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)           Along with all
Guarantors named in the Indenture, to jointly and severally unconditionally
guarantee to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Notes or the obligations of the
Issuers hereunder or thereunder, that:


 


(i)            the principal of and
interest, premium and Additional Interest, if any, on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Issuers to
the Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and


 


(ii)           in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by 


 


D-1

















 


acceleration
or otherwise.  Failing payment when due
of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors and the Guaranteeing Subsidiary shall be jointly and
severally obligated to pay the same immediately.  This is a guarantee of payment and not a
guarantee of collection.


 


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


 


(c)           The following
is hereby waived:  diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuers, any right to require a proceeding
first against the Issuers, protest, notice and all demands whatsoever.


 


(d)           This Guarantee
shall not be discharged except by complete performance of the obligations
contained in the Notes, the Indenture and this Supplemental Indenture, and the
Guaranteeing Subsidiary accepts all obligations of a Guarantor under the
Indenture.


 


(e)           If any Holder
or the Trustee is required by any court or otherwise to return to the Issuers,
the Guarantors (including the Guaranteeing Subsidiary), or any custodian,
trustee, liquidator or other similar official acting in relation to either the
Issuers or the Guarantors, any amount paid either to the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.


 


(f)            The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.


 


(g)           As between the
Guaranteeing Subsidiary, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article 6 of the Indenture for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guaranteeing Subsidiary for the purpose of this Guarantee.


 


(h)           The
Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Guarantee.


 


(i)            Pursuant to Section 11.02
of the Indenture, after giving effect to all other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under Article 11
of the Indenture, this new Guarantee shall be limited to the 


 


D-2

















 


maximum
amount permissible such that the obligations of such Guaranteeing Subsidiary
under this Guarantee will not constitute a fraudulent transfer or conveyance.


 


(j)            This Guarantee
shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Issuers for liquidation, reorganization,
should the Issuers become 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 Issuers’ 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 and Guarantee, 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 Note 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.


 


(k)           In case any
provision of this 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.


 


(l)            This Guarantee
shall be a general unsecured senior subordinated obligation of such
Guaranteeing Subsidiary, ranking pari passu with
any other future Senior Subordinated Indebtedness of the Guaranteeing
Subsidiary, if any.


 


(m)          Each payment to
be made by the Guaranteeing Subsidiary in respect of this Guarantee shall be
made without set-off, counterclaim, reduction or diminution of any kind or
nature.


 


(3)           Execution and Delivery.  The Guaranteeing Subsidiary agrees that the
Guarantee shall remain in full force and effect notwithstanding the absence of
the endorsement of any notation of such Guarantee on the Notes.


 


(4)           Merger, Consolidation or
Sale of All or Substantially All Assets.


 


(a)           Except as otherwise provided
in Section 5.01(c) of the Indenture, the Guaranteeing Subsidiary may
not consolidate or merge with or into or wind up into (whether or not the
Company or Guaranteeing Subsidiary 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:


 


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


 


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


 


(C)           immediately
after such transaction, no Default exists; and


 


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


 


(ii)           the transaction
is made in compliance with Section 4.10 of the Indenture;


 


(b)           Subject to certain
limitations described in the Indenture, the Successor Person will succeed to,
and be substituted for, the Guaranteeing Subsidiary under the Indenture and the
Guaranteeing Subsidiary’s Guarantee. 
Notwithstanding the foregoing, the Guaranteeing Subsidiary may merge
into or transfer all or part of its properties and assets to another Guarantor
or the Company.


 


(5)           Releases.


 


The
Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the
Guaranteeing Subsidiary, the Issuers or the Trustee is required for the release
of the Guaranteeing Subsidiary’s Guarantee, upon:


 


(1)           (A)  ANY
SALE, EXCHANGE OR TRANSFER (BY MERGER OR OTHERWISE) OF THE CAPITAL STOCK OF THE
GUARANTEEING SUBSIDIARY (INCLUDING ANY SALE, EXCHANGE OR TRANSFER), AFTER WHICH
THE GUARANTEEING SUBSIDIARY IS NO LONGER A RESTRICTED SUBSIDIARY OR ALL OR
SUBSTANTIALLY ALL THE ASSETS OF THE GUARANTEEING SUBSIDIARY WHICH SALE, EXCHANGE
OR TRANSFER IS MADE IN COMPLIANCE WITH THE APPLICABLE PROVISIONS OF THE
INDENTURE;


 


(B)           THE RELEASE OR
DISCHARGE OF THE GUARANTEE BY THE GUARANTEEING SUBSIDIARY OF THE SENIOR CREDIT
FACILITIES OR THE GUARANTEE WHICH RESULTED IN THE CREATION OF THE GUARANTEE,
EXCEPT A DISCHARGE OR RELEASE BY OR AS A RESULT OF PAYMENT UNDER SUCH
GUARANTEE;


 


(C)           the proper
designation of the Guaranteeing Subsidiary as an Unrestricted Subsidiary; or


 


(D)          the Issuers
exercising their Legal Defeasance option or Covenant Defeasance option in
accordance with Article 8 of the Indenture or the Issuers’ obligations
under the Indenture being discharged in accordance with the terms of the
Indenture; and


 


(2)           the
Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
in the Indenture relating to such transaction have been complied with.


 


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(6)           No Recourse Against Others.  No director, officer, employee, incorporator
or stockholder of the Guaranteeing Subsidiary shall have any liability for any
obligations of the Issuers or the Guarantors (including the 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 by accepting Notes waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes.


 


(7)           Governing Law.  THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


(8)           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.


 


(9)           Effect of Headings.  The Section headings herein are for
convenience only and shall not affect the construction hereof.


 


(10)         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.


 


(11)         Subrogation.  The Guaranteeing Subsidiary shall be
subrogated to all rights of Holders of Notes against the Issuers in respect of
any amounts paid by the Guaranteeing Subsidiary pursuant to the provisions of Section 2
hereof and Section 11.01 of the Indenture; provided that, if an
Event of Default has occurred and is continuing, the Guaranteeing Subsidiary
shall not 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 Issuers under the Indenture or the Notes shall have been paid in full.


 


(12)         Benefits Acknowledged.  The Guaranteeing Subsidiary’s Guarantee is
subject to the terms and conditions set forth in the Indenture.  The Guaranteeing Subsidiary acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by the Indenture and this Supplemental Indenture and that the
guarantee and waivers made by it pursuant to this Guarantee are knowingly made
in contemplation of such benefits.


 


(13)         Successors.  All agreements of the Guaranteeing Subsidiary
in this Supplemental Indenture shall bind its Successors, except as otherwise
provided in Section 2(k) hereof or elsewhere in this Supplemental
Indenture.  All agreements of the Trustee
in this Supplemental Indenture shall bind its successors.


 


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


 


 


	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK MELLON, AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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