Exhibit 4.2


 


Execution Version


 




 





 


 


ONCURE HOLDINGS, INC.


 


AND EACH OF THE GUARANTORS
PARTY HERETO


 


113/4% SENIOR SECURED NOTES DUE 2017


 






 


INDENTURE


 


Dated as of May 13,
2010


 






 


Wilmington Trust FSB


 


Trustee and Collateral Agent


 




 





 

















 


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)

  	
   

  	
  7.03

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  13.03

  
	
  (c)

  	
   

  	
  13.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  10.03

  
	
  (b)(2)

  	
   

  	
  7.06; 7.07

  
	
  (c)

  	
   

  	
  7.06; 13.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03;13.02; 13.05

  
	
  (b)

  	
   

  	
  10.02

  
	
  (c)(1)

  	
   

  	
  13.04

  
	
  (c)(2)

  	
   

  	
  13.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  10.03; 10.04; 10.05

  
	
  (e)

  	
   

  	
  13.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05; 13.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  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(b)

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  13.01

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  13.01

  



 






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

  	
   

  	
  22

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  22

  
	
  Section 1.04

  	
  Rules of Construction

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Form and Dating

  	
   

  	
  23

  
	
  Section 2.02

  	
  Execution and Authentication

  	
   

  	
  24

  
	
  Section 2.03

  	
  Registrar and Paying Agent

  	
   

  	
  25

  
	
  Section 2.04

  	
  Paying Agent to Hold Money in Trust

  	
   

  	
  25

  
	
  Section 2.05

  	
  Holder Lists

  	
   

  	
  25

  
	
  Section 2.06

  	
  Transfer and Exchange

  	
   

  	
  26

  
	
  Section 2.07

  	
  Replacement Notes

  	
   

  	
  38

  
	
  Section 2.08

  	
  Outstanding Notes

  	
   

  	
  39

  
	
  Section 2.09

  	
  Treasury Notes

  	
   

  	
  39

  
	
  Section 2.10

  	
  Temporary Notes

  	
   

  	
  39

  
	
  Section 2.11

  	
  Cancellation

  	
   

  	
  39

  
	
  Section 2.12

  	
  Defaulted Interest

  	
   

  	
  40

  
	
  Section 2.13

  	
  CUSIP Numbers

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices to Trustee

  	
   

  	
  40

  
	
  Section 3.02

  	
  Selection of Notes to Be Redeemed

  	
   

  	
  41

  
	
  Section 3.03

  	
  Notice of Redemption

  	
   

  	
  41

  
	
  Section 3.04

  	
  Effect of Notice of Redemption

  	
   

  	
  42

  
	
  Section 3.05

  	
  Deposit of Redemption or Purchase Price

  	
   

  	
  42

  
	
  Section 3.06

  	
  Notes Redeemed or Purchased in Part

  	
   

  	
  42

  
	
  Section 3.07

  	
  Optional Redemption

  	
   

  	
  42

  
	
  Section 3.08

  	
  Mandatory Redemption

  	
   

  	
  43

  
	
  Section 3.09

  	
  Offer to Purchase by Application of Excess Proceeds

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes

  	
   

  	
  45

  
	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
   

  	
  46

  
	
  Section 4.03

  	
  Reports

  	
   

  	
  46

  
	
  Section 4.04

  	
  Compliance Certificate

  	
   

  	
  48

  
	
  Section 4.05

  	
  Taxes

  	
   

  	
  48

  
	
  Section 4.06

  	
  Stay, Extension and Usury Laws

  	
   

  	
  49

  
	
  Section 4.07

  	
  Restricted Payments

  	
   

  	
  49

  
	
  Section 4.08

  	
  Dividend and Other Payment Restrictions Affecting Subsidiaries

  	
   

  	
  51

  
	
  Section 4.09

  	
  Incurrence of Indebtedness and Issuance of Preferred Stock

  	
   

  	
  53

  



 

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.10

  	
  Asset Sales

  	
   

  	
  57

  
	
  Section 4.11

  	
  Transactions with Affiliates

  	
   

  	
  58

  
	
  Section 4.12

  	
  Liens

  	
   

  	
  59

  
	
  Section 4.13

  	
  Business Activities

  	
   

  	
  59

  
	
  Section 4.14

  	
  Corporate Existence

  	
   

  	
  59

  
	
  Section 4.15

  	
  Offer to Repurchase Upon Change of Control

  	
   

  	
  60

  
	
  Section 4.16

  	
  Payments for Consent

  	
   

  	
  61

  
	
  Section 4.17

  	
  Additional Note Guarantees

  	
   

  	
  62

  
	
  Section 4.18

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
   

  	
  62

  
	
  Section 4.19

  	
  Impairment of Security Interest

  	
   

  	
  62

  
	
  Section 4.20

  	
  Information Regarding Collateral

  	
   

  	
  63

  
	
  Section 4.21

  	
  Landlord Waivers

  	
   

  	
  63

  
	
  Section 4.22

  	
  Further Assurances

  	
   

  	
  63

  
	
  Section 4.23

  	
  Post-Closing Matters

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger, Consolidation, or Sale of Assets

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
   

  	
  65

  
	
  Section 6.02

  	
  Acceleration

  	
   

  	
  67

  
	
  Section 6.03

  	
  Other Remedies

  	
   

  	
  67

  
	
  Section 6.04

  	
  Waiver of Past Defaults

  	
   

  	
  67

  
	
  Section 6.05

  	
  Control by Majority

  	
   

  	
  68

  
	
  Section 6.06

  	
  Limitation on Suits

  	
   

  	
  68

  
	
  Section 6.07

  	
  Rights of Holders of Notes to Receive Payment

  	
   

  	
  68

  
	
  Section 6.08

  	
  Collection Suit by Trustee

  	
   

  	
  69

  
	
  Section 6.09

  	
  Trustee May File Proofs of Claim

  	
   

  	
  69

  
	
  Section 6.10

  	
  Priorities

  	
   

  	
  69

  
	
  Section 6.11

  	
  Undertaking for Costs

  	
   

  	
  70

  
	
  Section 6.12

  	
  Restoration of Rights and Remedies

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee

  	
   

  	
  70

  
	
  Section 7.02

  	
  Rights of Trustee

  	
   

  	
  71

  
	
  Section 7.03

  	
  Individual Rights of Trustee

  	
   

  	
  72

  
	
  Section 7.04

  	
  Trustee’s Disclaimer

  	
   

  	
  72

  
	
  Section 7.05

  	
  Notice of Defaults

  	
   

  	
  72

  
	
  Section 7.06

  	
  Reports by Trustee to Holders of the Notes

  	
   

  	
  73

  
	
  Section 7.07

  	
  Compensation and Indemnity

  	
   

  	
  73

  
	
  Section 7.08

  	
  Replacement of Trustee

  	
   

  	
  74

  
	
  Section 7.09

  	
  Successor Trustee by Merger, etc.

  	
   

  	
  75

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
   

  	
  75

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  LEGAL DEFEASANCE AND
  COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  76

  



 


ii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.02

  	
  Legal Defeasance and Discharge

  	
   

  	
  76

  
	
  Section 8.03

  	
  Covenant Defeasance

  	
   

  	
  76

  
	
  Section 8.04

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  77

  
	
  Section 8.05

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

  	
   

  	
  78

  
	
  Section 8.06

  	
  Repayment to Company

  	
   

  	
  78

  
	
  Section 8.07

  	
  Reinstatement

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  AMENDMENT, SUPPLEMENT AND
  WAIVER

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without Consent of Holders of Notes

  	
   

  	
  79

  
	
  Section 9.02

  	
  With Consent of Holders of Notes

  	
   

  	
  80

  
	
  Section 9.03

  	
  Compliance with Trust Indenture Act

  	
   

  	
  82

  
	
  Section 9.04

  	
  Revocation and Effect of Consents

  	
   

  	
  82

  
	
  Section 9.05

  	
  Notation on or Exchange of Notes

  	
   

  	
  82

  
	
  Section 9.06

  	
  Trustee to Sign Amendments, etc.

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  COLLATERAL AND SECURITY

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Grant of Security Interest

  	
   

  	
  83

  
	
  Section 10.02

  	
  Recording and Opinions

  	
   

  	
  86

  
	
  Section 10.03

  	
  Release of Collateral

  	
   

  	
  86

  
	
  Section 10.04

  	
  Specified Releases of Collateral

  	
   

  	
  87

  
	
  Section 10.05

  	
  Release upon Satisfaction or Defeasance of all Outstanding
  Obligations

  	
   

  	
  87

  
	
  Section 10.06

  	
  Form and Sufficiency of Release

  	
   

  	
  88

  
	
  Section 10.07

  	
  Purchaser Protected

  	
   

  	
  88

  
	
  Section 10.08

  	
  Authorization of Actions to be Taken by the Collateral Agent Under
  the Collateral Agreements

  	
   

  	
  88

  
	
  Section 10.09

  	
  Authorization of Receipt of Funds by the Trustee Under the Collateral
  Agreements

  	
   

  	
  88

  
	
  Section 10.10

  	
  Action by the Collateral Agent

  	
   

  	
  89

  
	
  Section 10.11

  	
  Compensation and Indemnity

  	
   

  	
  89

  
	
  Section 10.12

  	
  Resignation; Successor Collateral Agent

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  NOTE GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee

  	
   

  	
  90

  
	
  Section 11.02

  	
  Limitation on Guarantor Liability

  	
   

  	
  91

  
	
  Section 11.03

  	
  Execution and Delivery of Note Guarantee

  	
   

  	
  91

  
	
  Section 11.04

  	
  Guarantors May Consolidate, etc., on Certain Terms

  	
   

  	
  92

  
	
  Section 11.05

  	
  Releases

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Satisfaction and Discharge

  	
   

  	
  93

  
	
  Section 12.02

  	
  Application of Trust Money

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Trust Indenture Act Controls

  	
   

  	
  95

  
	
  Section 13.02

  	
  Notices

  	
   

  	
  95

  



 


iii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.03

  	
  Communication by Holders of Notes with Other Holders of Notes

  	
   

  	
  96

  
	
  Section 13.04

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  96

  
	
  Section 13.05

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  97

  
	
  Section 13.06

  	
  Rules by Trustee and Agents

  	
   

  	
  97

  
	
  Section 13.07

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
   

  	
  97

  
	
  Section 13.08

  	
  Governing Law

  	
   

  	
  97

  
	
  Section 13.09

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  98

  
	
  Section 13.10

  	
  Successors

  	
   

  	
  98

  
	
  Section 13.11

  	
  Severability

  	
   

  	
  98

  
	
  Section 13.12

  	
  Counterpart Originals

  	
   

  	
  98

  
	
  Section 13.13

  	
  Table of Contents, Headings, etc.

  	
   

  	
  98

  



 


EXHIBITS


 


	
  Exhibit A

  	
  FORM OF GLOBAL NOTE

  
	
  Exhibit B

  	
  FORM OF CERTIFICATE OF TRANSFER

  
	
  Exhibit C

  	
  FORM OF CERTIFICATE OF EXCHANGE

  
	
  Exhibit D

  	
  FORM OF CERTIFICATE OF ACQUIRING ACCREDITED INVESTOR

  
	
  Exhibit E

  	
  FORM OF NOTATION OF GUARANTEE

  
	
  Exhibit F

  	
  FORM OF SUPPLEMENTAL INDENTURE

  
	
  Exhibit G

  	
  POST CLOSING DELIVERABLES

  



 


iv






 










 


INDENTURE dated as of May 13, 2010 among OnCure
Holdings, Inc., a Delaware corporation, the Guarantors and Wilmington
Trust FSB, as trustee and collateral agent.


 


The Company, the Guarantors, the Trustee and the
Collateral Agent agree as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the 113/4% Senior Secured Notes due 2017 (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.


 


“Accredited Investor” means
“accredited investor” as defined in Rule 501(a) under the Securities
Act, who are not also QIBs.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“AI 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


 


1

















 


in the name of the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Notes sold to
Accredited Investors.


 


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


 


“Asset Sale”
means:


 


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


 


(2)     the issuance of Equity Interests in any of the Company’s
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries.


 


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


 


(1)     any single transaction or series of related transactions that
involves assets having a Fair Market Value of less than $2.5 million;


 


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


 


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


 


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


 


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


 


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


 


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


 


“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act, except that in calculating the beneficial ownership of
any particular “person” (as that term is used in Section 13(d)(3) of
the Exchange Act), such “person” will be deemed to have beneficial ownership of
all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms “Beneficially Owns” and
“Beneficially Owned” have a corresponding meaning.


 


“Board of
Directors” means:


 


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


 


2

















 


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


 


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


 


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


 


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


 


“Capital Lease”
means, with respect to any Person, any lease of any property (whether real,
personal or mixed) of which the discounted present value of the rental
obligations of such Person as lessee is required to be capitalized on the
balance sheet of such Person pursuant to GAAP as in effect as of the date of
this Indenture.


 


“Capital Lease Obligation” means, at the
time any determination is to be made, the amount of the liability in respect of
a Capital Lease that would at that time be required to be capitalized on a
balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the
lessee without payment of a penalty.


 


“Capital Stock” means:


 


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


 


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


 


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


 


(4)     any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.


 


“Cash Equivalents” means:


 


(1)     United States dollars;


 


(2)     securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the United
States government (provided that
the full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than six months from the date of
acquisition;


 


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


 


3

















 


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


 


(5)     commercial paper having one of the two highest ratings
obtainable from Moody’s or S&P and, in each case, maturing within six
months after the date of acquisition; and


 


(6)     money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through
(5) of this definition.


 


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


 


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


 


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


 


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


 


(4)     the consummation of the first transaction (including, without
limitation, any merger or consolidation) the result of which is that any
“person” (as defined above) other than a Permitted Holder becomes the
Beneficial Owner, directly or indirectly, of more of the Voting Stock of the
Company (measured by voting power rather than number of shares) than is at the
time Beneficially Owned by the Permitted Holders in the aggregate.


 


“Clearstream” means
Clearstream Banking, S.A.


 


“Collateral” means
collateral as such term is defined in the security agreements, and any other
property, whether now owned or hereafter acquired, upon which a Lien securing
the Obligations under this Indenture, the Collateral Agreements, the Notes or
the Note Guarantees is granted or purported to be granted under any Collateral
Agreement; provided, however,
that “Collateral” shall not include any Excluded Collateral.


 


“Collateral Agent” means the party
named as the collateral agent for the Second Lien Secured Parties in this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means any such successor.


 


“Collateral
Agreements” means, collectively, the Intercreditor Agreement, each
security agreement or other collateral agreement, and each other document or
instrument creating Liens in favor of the Collateral Agent as required by this
Indenture, in each case, as the same may be in force from time to time.


 


“Company”
means OnCure Holdings, Inc., and any and all successors thereto.


 


4

















 


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


 


(1)     an amount equal
to any extraordinary loss plus any net loss realized by such Person or any of
its Restricted Subsidiaries in connection with an Asset Sale, to the extent
such losses were deducted in computing such Consolidated Net Income; plus


 


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


 


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


 


(4)     depreciation,
amortization (including amortization of intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of such Person and
its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; plus


 


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


 


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


 


(7)     the amount of
net cost savings projected by the Company in good faith to be realized as a
result of specified actions taken or initiated during or prior to such period
(calculated on a pro forma basis as though such cost savings had been realized
on the first day of such period), net of the amount of actual benefits realized
during such period from such actions; provided
that such cost savings are reasonably identifiable and factually supportable
(which adjustments may be incremental to pro forma cost savings adjustments
made pursuant to the definition of “Leverage Ratio”), plus


 


(8)     the amount of management, monitoring, consulting and advisory
fees and related expenses paid pursuant to the Management Agreement, minus


 


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


 


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


 


5

















 


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


 


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


 


(1)     the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of dividends or
similar distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person;


 


(2)     solely for the purpose of determining the amount available for
Restricted Payments pursuant to Section 4.07(a)(iii)(1) hereof, the
Net Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or, directly
or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders;


 


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


 


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


 


(5)     the effects of adjustments resulting from the application of
purchase accounting in relation to any acquisition that is consummated after
the date of this Indenture, net of taxes, shall be excluded;


 


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


 


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


 


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


 


6

















 


“continuing”
means, with respect to any Default or Event of Default, that such Default or
Event of Default has not been cured or waived.


 


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


 


“Credit Facilities” means, one or
more debt facilities (including, without limitation, the New Revolving Credit
Facility) or commercial paper facilities, in each case, with banks or other
institutional lenders providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated,
modified, renewed, refunded, replaced (whether upon or after termination or
otherwise) or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time. The only Credit
Facility in effect on the date of this Indenture will be the New Revolving
Credit Facility.


 


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


 


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


 


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


 


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


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or by the terms
of any security into which it is convertible, or for which it is exchangeable,
in each case, at the option of the holder of the Capital Stock), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
of the Capital Stock, in whole or in part, on or prior to the date that is 91
days after the date on which the Notes mature. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the right to require the Company
to repurchase such Capital Stock upon the occurrence of a change of control or
an asset sale will not constitute Disqualified Stock if the terms of such
Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07 hereof. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.


 


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


 


7

















 


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


 


“Equity Offering”
means any public or private sale of common stock or preferred stock of the
Issuer or any of its direct or indirect parents (excluding Disqualified Stock),
other than


 


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


 


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


 


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


 


“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 Commission 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
Collateral” means:


 


(1)     the Voting Stock of any Foreign Subsidiary
in excess of 66% of the outstanding Voting Stock of such Foreign Subsidiary;


 


(2)     any permit or license or any contractual
obligation entered into by the Company or any Guarantor (A) that prohibits
or requires the consent of any Person other than the Company or any of its
Affiliates as a condition to the creation by the Company or such Guarantor of a
Lien on any right, title or interest in such permit, license or contractual
agreement or any Capital Stock or equivalent related thereto or (B) to the
extent that any requirement of law applicable thereto prohibits the creation of
a Lien thereon, but only, with respect to the prohibition in (A) and (B),
to the extent, and for as long as, such prohibition is not terminated or
rendered unenforceable or otherwise deemed ineffective by the Uniform
Commercial Code or any other requirement of law;


 


(3)     fixed or capital assets owned by the
Company or any Guarantor that is subject to a purchase money Lien or a capital
lease if the contractual obligation pursuant to which such Lien is granted (or
in the document providing for such capital lease) prohibits or requires the
consent of any Person other than the Company or any of its Affiliates as a
condition to the creation of any other Lien on such equipment;


 


(4)     any “intent to use” trademark applications
for which a statement of use has not been filed (but only until such statement
is filed); and


 


(5)     any leasehold interests of the Company or
any Guarantor in real estate;


 


8

















 


provided, however, “Excluded Collateral” shall not include any
proceeds, products, substitutions or replacements of Excluded Collateral
(unless such proceeds, products, substitutions or replacements would otherwise
constitute Excluded Collateral ).


 


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


 


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


 


“First Lien
Collateral Agent” means the collateral agent for the First Lien
Secured Parties named in any Credit Facility and any successor or replacement
collateral agent designated as such by the holders of First Lien Obligations.


 


“First Lien
Obligations” shall have the meaning ascribed to such term pursuant
to the Intercreditor Agreement.


 


“First Lien
Secured Parties” means the holders of the First Lien Obligations and
the First Lien Collateral Agent.


 


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


 


(1)     the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers’ acceptance financings, and net of the
effect of all payments made or received pursuant to Hedging Obligations in
respect of interest rates; plus


 


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


 


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


 


(4)     the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of such Person or
any of its Restricted Subsidiaries, other than dividends on Equity Interests
payable solely in Equity Interests of the Company (other than Disqualified
Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the numerator
of which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person, expressed
as a decimal, in each case, determined on a consolidated basis in accordance
with GAAP.


 


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


 


9

















 


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


 


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


 


“Global Notes” means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes deposited with or on behalf of and registered in the
name of the Depository or its nominee, substantially in the form of Exhibit A
hereto and that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, issued in
accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4),
2.06(d)(1), 2.06(d)(2) or 2.06(f) hereof.


 


“Government Securities” means direct
obligations of, or obligations guaranteed by, the United States of America, and
the payment for which the United States pledges its full faith and credit.


 


“Guarantee” means a
guarantee other than by endorsement of negotiable instruments for collection in
the ordinary course of business, direct or indirect, in any manner including,
without limitation, by way of a pledge of assets or through letters of credit
or reimbursement agreements in respect thereof, of all or any part of any
Indebtedness (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services, to
take or pay or to maintain financial statement conditions or otherwise).


 


“Guarantors” means (1) each
Domestic Subsidiary of the Company on the date of this Indenture and (2) each
other Subsidiary of the Company that executes a Note Guarantee in accordance
with the provisions of this Indenture, in each case, together with their
respective successors and assigns until the Note Guarantee of such Person has
been released in accordance with the provisions of this Indenture.


 


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


 


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


 


(6)     other agreements or arrangements designed to manage interest
rates or interest rate risk; and


 


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


 


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


 


10






 










 


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


 


“Indebtedness” means, with respect to any
specified Person, any indebtedness of such Person (excluding accrued expenses
and trade payables), whether or not contingent:


 


(1)           in respect of borrowed money;


 


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


 


(3)           in respect of banker’s acceptances;


 


(4)           representing Capital Lease
Obligations;


 


(5)           representing the balance deferred and
unpaid of the purchase price of any property or services due more than six
months after such property is acquired or such services are completed; or


 


(6)           representing any Hedging Obligations,


 


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


 


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


 


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


 


“Initial Notes” means the first
$210,000,000 aggregate principal amount of Notes issued under this Indenture on
the date hereof.


 


“Initial Purchaser” means, with
respect to the Initial Notes, Jefferies & Company, Inc.


 


“Intercreditor Agreement” means an intercreditor
agreement that is entered into in connection with entering into the New
Revolving Credit Facility, among the Trustee, the Collateral Agent and the
First Lien Collateral Agent, and acknowledged and agreed by the Company and the
Guarantors, and the other signatories thereto, as the same may be amended,
supplemented, restated or modified from time to time.


 


“Investments” means with respect to any
Person, all direct or indirect investments by such Person in other Persons
(including Affiliates) in the forms of loans (including Guarantees or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of


 


11

















 


Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company will be deemed to have made
an Investment on the date of any such sale or disposition equal to the Fair
Market Value of the Company’s Investments in such Subsidiary that were not sold
or disposed of in an amount determined as provided in Section 4.07(c) hereof.
The acquisition by the Company or any Subsidiary of the Company of a Person
that holds an Investment in a third Person will be deemed to be an Investment
by the Company or such Subsidiary in such third Person in an amount equal to
the Fair Market Value of the Investments held by the acquired Person in such
third Person in an amount determined as provided in Section 4.07(c) hereof.
Except as otherwise provided in this Indenture, the amount of an Investment
will be determined at the time the Investment is made and without giving effect
to subsequent changes in value.


 


“Legal Holiday” means a Saturday, a Sunday
or a day on which banking institutions in the City of New York or at a place of
payment are authorized or required by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue on such payment for the intervening
period.


 


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


 


“Leverage Ratio” means with respect to any specified Person
as of any date of determination, the ratio of the aggregate amount of
Indebtedness of such Person and its Restricted Subsidiaries outstanding as of
such date of determination (including the amount of Indebtedness proposed to be
incurred by such Person and its Restricted Subsidiaries giving rise to the
calculation of such Leverage Ratio), determined on a consolidated basis, to the
Consolidated Cash Flow of such Person for the most recently ended four full fiscal
quarters of such Person for which internal financial statements are available
immediately preceding such date of determination.


 


For purposes of calculating
the Leverage Ratio:


 


(1)           acquisitions that have been made by
the specified Person or any of its Restricted Subsidiaries, including through
mergers or consolidations, or any Person or any of its Restricted Subsidiaries
acquired by the specified Person or any of its Restricted Subsidiaries, and
including any related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period
or subsequent to such reference period and on or prior to the date of
determination will be given pro forma effect as if they had occurred on the
first day of the four-quarter reference period;


 


(2)           the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses (and ownership interests therein) disposed of
prior to the date of determination, will be excluded;


 


(3)           any Person that is a Restricted
Subsidiary on the date of determination will be deemed to have been a
Restricted Subsidiary at all times during such four-quarter period; and


 


(4)           any Person that is not a Restricted
Subsidiary on the date of determination will be deemed not to have been a
Restricted Subsidiary at any time during such four-quarter period.


 


12

















 


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


 


“Management Agreement” means that certain Advisory Services
Agreement, dated as of August 18, 2006, by and among Genstar Capital, LLC
and OnCure Medical Corp., as the same may be amended, supplemented, waived or
otherwise modified from time in accordance with the terms thereof.


 


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


 


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


 


(1)           any gain (but not loss), together
with any related provision for taxes on such gain (but not loss), realized in
connection with (a) any Asset Sale or (b) the disposition of any
securities by such Person or any of its Restricted Subsidiaries or the extinguishment
of any Indebtedness of such Person or any of its Restricted Subsidiaries; and


 


(2)           any extraordinary gain (but not
loss), together with any related provision for taxes on such extraordinary gain
(but not loss).


 


“Net Proceeds” means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
(1) the direct costs relating to such Asset Sale, including, without
limitation, legal, accounting and investment banking fees, sales commissions,
relocation expenses incurred as a result of the Asset Sale and taxes paid or
payable as a result of the Asset Sale, after taking into account any available
tax credits or deductions and any tax sharing arrangements, (2) amounts
required to be applied to the repayment of Indebtedness, other than
Indebtedness under a Credit Facility, secured by a Lien on the asset or assets
that were the subject of such Asset Sale and (3) any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP.


 


“New Revolving Credit Facility” means that certain Credit
Agreement, to be dated the date of this Indenture, by and among First Lien
Collateral Agent, General Electric Capital Corporation, as administrative
agent, the Company, as guarantor, and all direct and indirect Subsidiaries of
the Company, as borrowers, and the lenders from time to time party thereto,
together with any related notes, Guarantees, collateral documents, instruments
and agreements executed in connection therewith, and, in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time.


 


“Non-Recourse
Debt” means Indebtedness:


 


(1)           as to which neither the Company nor
any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender; and


 


13

















 


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


 


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


 


“Note Documents”
means (a) the Notes, the Notes Guarantees, the Indenture, the Collateral
Agreements and the Registration Rights Agreement and (b) any other related
documents or instruments executed and delivered pursuant to any document
described in clause (a) above evidencing or governing any Obligations
thereunder.


 


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


 


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


 


“Obligations” means any principal,
interest, penalties, fees, indemnifications, reimbursements, letters of credit,
Hedging Obligations, damages and other liabilities payable under the
documentation governing or relating to any Indebtedness.


 


“Offering Memorandum” means the Company’s
offering memorandum, dated May 6, 2010, relating to the initial offering
of the Notes.


 


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


 


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


 


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


 


“Parent” means any
direct parent company of the Company.


 


“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).


 


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


 


14

















 


“Permitted Business” means a business in which
the Company and its Restricted Subsidiaries were engaged on the date of this
Indenture, as described in the Offering Memorandum, any business reasonably
related, ancillary or complimentary thereto.


 


“Permitted Holders” means (1) any Beneficial Owner of
Capital Stock of the Company as of the date hereof and (2) any Related
Person of a Person described in clause (1).


 


“Permitted Investments” means:


 


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


 


(2)       any Investment in Cash Equivalents;


 


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


 


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


 


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


 


(4)       any Investment made as a result of the receipt of non-cash
consideration from (i) an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;


 


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


 


(6)       any Investments received in compromise or resolution of
(a) obligations of trade creditors or customers that were incurred in the
ordinary course of business of the Company or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or
customer; or (b) litigation, arbitration or other disputes;


 


(7)       Investments represented by Hedging Obligations;


 


(8)       loans or advances to employees made in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company in an
aggregate principal amount not to exceed $1.0 million at any one time
outstanding;


 


(9)       repurchases of the Notes;


 


(10)     Investments in Permitted Joint Ventures in an amount since the
date of this Indenture that does not exceed the greater of (i) $10.0
million and (ii) 3.0% of the Company’s Total Assets;


 


(11)     other Investments in any Person having an aggregate Fair Market
Value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (11) that are at the time outstanding,
not to exceed $5.0 million;


 


15

















 


(12)     any Investment existing on, or made pursuant to binding
commitments existing on, the date of this Indenture and any Investment
consisting of an extension, modification or renewal of any Investment existing
on, or made pursuant to a binding commitment existing on, the date of this
Indenture; provided that the amount of any such Investment may be increased
(a) as required by the terms of such Investment as in existence on the
date of this Indenture or (b) as otherwise permitted under this Indenture;
and


 


(13)     Investments acquired after the date of this Indenture as a
result of the acquisition by the Company or any Restricted Subsidiary of the
Company of another Person, including by way of a merger, amalgamation or
consolidation with or into the Company or any of its Restricted Subsidiaries in
a transaction that is not prohibited by Section 5.01 hereof, after
the date of this Indenture to the extent that such Investments were not made in
contemplation of such acquisition, merger, amalgamation or consolidation and
were in existence on the date of such acquisition, merger, amalgamation or
consolidation.


 


“Permitted Joint
Venture” means a Person, other than the Company or a Subsidiary of
the Company, that is engaged in a Permitted Business.


 


“Permitted Liens” means:


 


(1)       Liens on assets of the Company or any of its Restricted
Subsidiaries securing Indebtedness and other Obligations under Credit
Facilities that was permitted to be incurred pursuant to clause (1) of the
definition of Permitted Debt, and/or securing Hedging Obligations related
thereto;


 


(2)       subject to the terms of the Intercreditor Agreement, Liens on
assets of the Company or any of its Restricted Subsidiaries securing
Indebtedness and other Obligations under the New Revolving Credit Facility;


 


(3)       Liens in favor of the Company or the Guarantors;


 


(4)       Liens on property of a Person existing at the time such Person
is merged with or into or consolidated with the Company or any Subsidiary of
the Company; provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or consolidated
with the Company or the Subsidiary;


 


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


 


(6)       Liens to secure the performance of statutory obligations,
insurance, surety or appeal bonds, workers’ compensation obligations,
performance bonds or other obligations of a like nature incurred in the
ordinary course of business (including Liens to secure letters of credit issued
to assure payment of such obligations);


 


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


 


16

















 


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


 


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


 


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


 


(11)     minor defects or irregularities in title, survey exceptions,
easements or reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real property that
were not incurred in connection with Indebtedness and that do not 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;


 


(12)     Liens created for the benefit of (or to secure) notes issued
under this Indenture, the Collateral Agreements or the Note Guarantees;


 


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


 


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


 


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


 


(14)     Liens securing Indebtedness permitted by Section 4.09(b)(14)
hereof or otherwise incurred in the ordinary course of business of the Company
or any of its Restricted Subsidiaries with respect to obligations that do not
exceed $5.0 million in the aggregate at any one time outstanding.


 


“Permitted Payments to Parent” means, for so long as the
Company is a member of a group filing a consolidated or combined tax return
with Parent, payments to Parent in respect of an allocable portion of the tax
liabilities of such group that is attributable to the Company and its
Subsidiaries (“Tax Payments”); provided that the Tax Payments do not
exceed the lesser of (a) the amount of the relevant tax (including any
penalties and interest) that the Company would owe if the Company were filing a
separate tax return (or a separate consolidated or combined return with its
Subsidiaries that are members of the consolidated or combined group), taking
into account any carryovers and carrybacks of tax attributes (such as net
operating losses) of the Company and such Subsidiaries from other taxable years
and (b) the net amount of the relevant tax that the Parent actually owes
to the appropriate taxing authority.


 


“Permitted Refinancing Indebtedness” means any
Indebtedness of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to renew, refund,


 


17

















 


refinance, replace, defease or discharge other
Indebtedness of the Company or any of its Restricted Subsidiaries (other than
intercompany Indebtedness); provided that:


 


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


 


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


 


(17)     if the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and is subordinated in right of payment to,
the Notes on terms at least as favorable to the holders of notes as those
contained in the documentation governing the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged; and


 


(18)     such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged.


 


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


 


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


 


“Purchase Option
Event” means the acceleration of the First Lien Obligations. 


 


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


 


“Registration Rights Agreement” means the
Registration Rights Agreement, dated as of May 13, 2010, among the
Company, the Guarantors and Jefferies & Company, Inc., as Initial
Purchaser, as such agreement may be amended, modified or supplemented from time
to time and, with respect to any Additional Notes, one or more registration
rights agreements among the Company, the Guarantors and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented
from time to time, relating to rights given by the Company to the purchasers of
Additional Notes to register such Additional Notes under the Securities Act.


 


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


 


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


 


“Regulation S Permanent Global Note” means a
permanent Global Note in the form of Exhibit A hereto bearing the
Global Note Legend and the Private Placement Legend and deposited with or on
behalf


 


18

















 


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 deposited
with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.


 


“Related Party”
means:


 


(1)   any controlling stockholder, 80% (or more) owned Subsidiary, or
immediate family member (in the case of an individual) of a Person described in
clause (1) of the definition of Permitted Holder; or


 


(2)   any trust, corporation, partnership, limited liability company or
other entity, the beneficiaries, stockholders, partners, members, owners or
Persons beneficially holding an 80% or more controlling interest of which
consist of any one or more Permitted Holder.


 


“Responsible Officer,” when used with respect to
the Trustee or the Collateral Agent, means any officer or authorized
representative of the Trustee or the Collateral Agent, as applicable, within the
corporate trust office of the Trustee or the Collateral Agent, as applicable,
with direct responsibility for the administration of this Indenture and/or the
Collateral Agreements and also, with respect to a particular matter, any other
officer of the Trustee or the Collateral Agent, as applicable, to whom such
matter is referred because of such officer’s knowledge and familiarity with the
particular subject.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“S&P” means Standard & Poor’s Ratings Services,
a division of the McGraw Hill Companies, Inc., and its successors.


 


“SEC” means the Securities and Exchange Commission.


 


“Second Lien Secured Parties” means the holders of the Notes,
the Trustee and the Collateral Agent.


 


19














 


“Secured Parties” means, collectively, the First Lien Secured
Parties and the Second Lien Secured Parties.


 


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


 


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


 


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


 


“Specified Acquisition” means the acquisition, or any series
of related acquisitions, of any Person or Persons whose (i) total assets
exceed $30.0 million, or (ii) income from continuing operations before
income taxes, extraordinary items and cumulative effect of a change in
accounting principle exclusive of amounts attributable to any noncontrolling
interests exceeds $12.5 million for the most recently completed fiscal year of
such Person or Persons.


 


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


 


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


 


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


 


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


 


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


 


“Total Assets” means, with respect to any Person as of any
date of determination, the consolidated total assets of such Person and its
Restricted Subsidiaries on such date of determination.


 


“Trustee” means Wilmington Trust FSB
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.


 


“Uniform Commercial Code” means the Uniform Commercial Code
as in effect in the State of New York, and any successor statute, as in effect
from time to time (except that terms used herein which are defined in the Uniform
Commercial Code as in effect in the State of New York on the date hereof


 


20

















 


shall continue to have the same meaning
notwithstanding any replacement or amendment of such statute except as the
Collateral Agent may otherwise determine).


 


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


 


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


 


“Unrestricted Subsidiary” means any Subsidiary of the Company
that is designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors, but only to the
extent that such Subsidiary:


 


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


 


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


 


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


 


(4)   has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.


 


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


 


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


 


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


 


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


 


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


 


21

















 


Section 1.02         Other Definitions.


 


	
  Term

  	
   

  	
  Defined

  in

  Section

  
	
   

  	
   

  	
   

  
	
  “Action”

  	
   

  	
  10.10

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Asset Sale Offer”

  	
   

  	
  3.09

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  
	
  “Change of Control Payment”

  	
   

  	
  4.15

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant Defeasance “

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  3.09

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Intercreditor Order”

  	
   

  	
  10.01

  
	
  “Legal Defeasance “

  	
   

  	
  8.02

  
	
  “Offer Period”

  	
   

  	
  3.09

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  
	
  “Payment Default”

  	
   

  	
  6.01

  
	
  “Purchase Date”

  	
   

  	
  3.09

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  



 


Section 1.03         Incorporation by Reference of Trust Indenture Act.


 


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


 


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


 


“indenture securities” means the
Notes;


 


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


 


“indenture to be qualified” means this
Indenture;


 


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


 


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


 


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


 


Section 1.04         Rules of Construction.


 


Unless the context otherwise requires:


 


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


 


22

















 


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


 


(3)   “or” is not exclusive;


 


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


 


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


 


(6)   provisions apply to successive events and transactions;


 


(7)   all references to the “Intercreditor Agreement” herein and in any
other Note Document, other than such references related to the authorization
of, or initial entry into, the Intercreditor Agreement (including as set forth
in Section 10.01(j) hereof), shall mean the Intercreditor
Agreement if then in effect; and


 


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


 


ARTICLE 2


THE NOTES


 


Section 2.01         Form and Dating.


 


(a)          General. The Notes and
the Trustee’s certificate of authentication will be substantially in the form
of Exhibit A hereto; provided,
that the form of the Exchange Notes shall include such variations as are
permitted or required by the Registration Rights Agreement (as evidenced by the
Company’s execution of such Exchange Notes). The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage.
Each Note will be dated the date of its authentication. The Notes shall be in
denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Notwithstanding any provision of this Indenture or the Notes (a) any pro rata redemptions or repurchases of the
Notes by the Company pursuant to this Indenture shall be made in a manner that
preserves the authorized denominations of the Notes, and (b) in the case
of Global Notes, the selection of Notes to be redeemed or repurchased will be
based on a method that most nearly approximates pro rata selection that the Trustee deems fair and
appropriate, including by lot or other method.


 


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


 


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


 


23

















 


reflect exchanges and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Notes represented thereby will be
made by the Trustee or the Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section 2.06
hereof.


 


(c)          Temporary Global Notes.
Notes offered and sold in reliance on Regulation S will be issued initially in
the form of the Regulation S Temporary Global Note, which will be deposited on
behalf of the purchasers of the Notes represented thereby with Custodian, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or
Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Restricted Period will be terminated upon the receipt
by the Trustee of:


 


(1)   a written certificate from the Depositary, together with copies of
certificates from Euroclear and Clearstream, 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 will take delivery of a beneficial ownership
interest in a 144A Global Note or an AI Global Note bearing a Private Placement
Legend, all as contemplated by Section 2.06(b) hereof); or


 


(2)   an Officer’s Certificate from the Company.


 


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


 


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


 


Section 2.02         Execution and Authentication.


 


At least one Officer of the
Company must sign the Notes for the Company and at least one Officer of each of
the Guarantors must sign the Note Guarantee for such Guarantor, in each case,
by manual or facsimile signature. If an Officer whose signature is on a Note no
longer holds that office at the time a Note is authenticated, the Note will
nevertheless be valid.


 


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


 


The Trustee shall
authenticate and deliver: (i) on the date of this Indenture, an aggregate
principal amount of $210.0 million of 113/4% Senior Secured Notes due 2017, (ii) any Additional Notes in
accordance with Section 4.09 hereof, and (iii) Exchange Notes
for issue only in an Exchange Offer


 


24

















 


pursuant to a Registration Rights Agreement, for a
like principal amount of Notes, in each case upon receipt of a written order of
the Company signed by two Officers (an “Authentication
Order”). Such Authentication Order shall specify the amount of the
Notes to be authenticated and the date on which the original issue of the Notes
is to be authenticated. The aggregate principal amount of Notes outstanding at
any time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except
as provided in Section 2.07 hereof.


 


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


 


Section 2.03         Registrar and Paying Agent.


 


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


 


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


 


The Company initially
appoints the Trustee to act as the Registrar and Paying Agent under this
Indenture.


 


The Company initially
appoints Wilmington Trust FSB to act as Custodian with respect to the Global
Notes.


 


Section 2.04         Paying Agent to Hold Money in Trust.


 


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


 


Section 2.05         Holder Lists.


 


The Trustee will preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of all Holders. If the Trustee is not the
Registrar, the Company


 


25

















 


will furnish to the Trustee at least seven Business
Days before each regular record date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the
Company shall otherwise comply with TIA § 312(a).


 


Section 2.06         Transfer and Exchange.


 


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


 


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


 


(2)   the Company, at its option, notifies the Trustee in writing that
it elects to cause the issuance of the Definitive Notes; provided that in no event shall the
Regulation S Temporary Global Note be exchanged for Definitive Notes prior to
(a) the expiration of the Restricted Period and (b) the receipt of
any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act; or


 


(3)   there has occurred and is continuing a Default or Event of Default
with respect to the Notes and the Depositary or the applicable depository
requests issuance of Definitive Notes.


 


Upon the occurrence of any
of the preceding events in (1), (2) or (3) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee.
Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Sections
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
pursuant to subparagraphs (1), (2) and (3) of this Section 2.06(a) and
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),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (f) hereof.


 


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


 


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


 


26

















 


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 the Initial
Purchaser). Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).


 


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


 


(A)          both:


 


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


 


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


 


(B)           both:


 


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


 


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


 


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


 


(3)   Transfer of Beneficial
Interests to Another Restricted Global Note. A beneficial interest
in any Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the


 


27

















 


transfer complies with the requirements of Section 2.06(b)(2) above
and the Registrar receives the following:


 


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


 


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


 


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


 


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


 


(A)        such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and Section 2.06(f) hereof
and the holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Participating
Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Company;


 


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


 


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


 


(D)         the Registrar receives the following:


 


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


 


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


 


28

















 


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 Company
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain compliance
with the Securities Act.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


29














 


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


 


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


 


(2)   Beneficial
Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(1)(A) and 2.06(c)(1)(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 (B) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under 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.


 


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


 


(A)          such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and Section 2.06(f) hereof and the holder of
such beneficial interest, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (i) a Participating Broker-Dealer, (ii) a Person participating
in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;


 


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


 


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


 


(D)          the Registrar receives the
following:


 


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


 


30

















 


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


 


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


 


(4)   Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder
of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof,
the Trustee will cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company will execute and the Trustee will authenticate and deliver to
the Person designated in the instructions a Definitive Note in the designated
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) will be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive
Notes to the 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)(4) 
will not bear the Private Placement Legend.


 


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


 


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


 


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


 


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


 


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


 


(D)          if such Restricted
Definitive Note is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with


 


31

















 


Rule 144, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item
(3)(a) thereof;


 


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


 


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


 


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


 


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


 


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


 


(A)          such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and Section 2.06(f) hereof and the Holder, in
the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Participating Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Company;


 


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


 


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


 


(D)          the Registrar receives the
following:


 


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


 


32

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


33

















 


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


 


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


 


(A)          such exchange or transfer is
effected pursuant to 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 (i) a Participating Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;


 


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


 


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


 


(D)          the Registrar receives the
following:


 


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


 


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


 


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


 


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


 


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


 


34

















 


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


 


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


 


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


 


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


 


(1)   Private
Placement Legend.


 


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


 


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


 


THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE
LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS
MADE, OR (C) IT IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501
UNDER THE SECURITIES ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING
PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE
SECURITIES ACT, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL


 


35

















 


BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) 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 AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN
THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) TO AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE,
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C),
(D) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE APPLICABLE
HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144
UNDER THE SECURITIES ACT.”


 


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


 


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


 


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


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN DEFINITIVE FORM, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A


 


36

















 


WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.”


 


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


 


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


 


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


 


(i)              General
Provisions Relating to Transfers and Exchanges.


 


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


 


(2)           No service charge will be
made to a Holder of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15
and 9.05 hereof).


 


37

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 2.07           Replacement Notes.


 


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


 


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


 


38

















 


Section 2.08            Outstanding
Notes.


 


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


 


If a Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a 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 the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes will be deemed to be no longer outstanding and will
cease to accrue interest.


 


Section 2.09             Treasury
Notes.


 


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


 


Section 2.10           Temporary
Notes.


 


Until certificates representing Notes are ready for
delivery, the Company may prepare and execute, and the Trustee, upon receipt of
an Authentication Order, will authenticate temporary Notes. Temporary Notes
will be substantially in the form of certificated Notes but may have variations
that the Company considers appropriate for temporary Notes, as evidenced by the
execution of the Note.


 


The Company shall cause definitive Notes to be
prepared without unreasonable delay. After the preparation of the definitive
Notes, the temporary Notes shall be exchanged for definitive Notes upon surrender
of the temporary Notes at the office or agency of the Company, without charge
to the Holder. Upon surrender for cancellation of one or more temporary Notes,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefore a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, holders of temporary Notes will be entitled
to all of the same benefits of this Indenture as holders of definitive Notes.


 


Section 2.11            Cancellation.


 


The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent will forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
will destroy canceled Notes (subject to the record retention requirement of the
Exchange Act and the Trustee). Certification of the destruction or


 


39

















 


cancellation of all canceled Notes will be delivered to the Company
upon written request. The Company may not issue new Notes to replace Notes that
it has paid or that have been delivered to the Trustee for cancellation. To the
extent that any Notes are held in the form of Global Notes and less than all of
such Global Notes are to be cancelled, the reduction of the principal amount of
any such Global Note and the Registrar’s notation of such cancellation on its
books and records shall be deemed to satisfy any cancellation requirement, provided that certification of such
cancellation shall be delivered to the Company upon written request.


 


Section 2.12           Defaulted
Interest.


 


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


 


Section 2.13           CUSIP
Numbers.


 


The Company in issuing the Notes may use
CUSIP, ISIN or other such numbers (if then generally in use), and, if so,
the Trustee shall use CUSIP, ISIN or other such numbers in notices of
redemption as a convenience to Holders; provided,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and 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 Company shall
promptly notify the Trustee in writing of any change in the CUSIP, ISIN or
other numbers.


 


ARTICLE 3

REDEMPTION AND PREPAYMENT


 


Section 3.01             Notices to
Trustee.


 


If the Company elects to redeem Notes pursuant to
the optional redemption provisions of Section 3.07 hereof, it must
furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officer’s Certificate setting forth:


 


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


 


(2)       the redemption date;


 


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


 


(4)       the redemption price.


 


40














 


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 will select Notes
for redemption or purchased on a pro rata
basis; by lot or by such other method as the Trustee shall deem appropriate
unless otherwise required by law or applicable stock exchange requirements.


 


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


 


The Trustee will promptly notify the Company in
writing of the Notes selected for redemption 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 will
be in minimum amounts of $2,000 and integral multiples of $1,000 in excess
thereof; 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, 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 the provisions of Section 3.09
hereof, at least 30 days but not more than 60 days before a redemption date,
the Company will mail or cause to be mailed, by first class mail (or in the
case of Notes held in book entry form, by electronic transmission), a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of this Indenture pursuant to
Articles 8 or 12 hereof.


 


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


 


(1)       the redemption date;


 


(2)       the redemption price;


 


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


 


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


 


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


 


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


 


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


 


41

















 


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


 


At the Company’s request, the Trustee will give the
notice of redemption in the Company’s name and at its expense; provided, however, that the Company has
delivered to the Trustee, at least 45 days (unless a shorter time shall be
acceptable to the Trustee) prior to the redemption date, an Officer’s
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. A
notice of redemption may be conditional other than as provided in Section 4.15
hereof.


 


Section 3.05           Deposit
of Redemption or Purchase Price.


 


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


 


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


 


Section 3.06           Notes
Redeemed or Purchased in Part.


 


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


 


Section 3.07           Optional Redemption.


 


(a)           At any time prior to May 15,
2013, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes issued under this Indenture, upon not less than
30 nor more than 60 days’ notice, at a redemption price equal to 111.750% of
the principal amount of the Notes redeemed, plus accrued and unpaid interest
and Additional Interest, if any, to the redemption


 


42

















 


date with the net cash proceeds of a sale of Equity Interests (other
than Disqualified Stock) of the Company or a contribution to the Company’s
common equity capital; provided that:


 


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


 


(2)       the redemption occurs within
90 days of the date of the closing of such Equity Offering.


 


Except pursuant to this Section 3.07(a),
the Notes will not be redeemable at the Company’s option prior to May 15,
2014. The Company is not, however, prohibited under this Indenture from
acquiring Notes by means other than a redemption, whether pursuant to
open-market transactions, tender offers or otherwise so long as such
acquisition does not otherwise violate the terms of this Indenture.


 


(b)             On or after May 15, 2014, the Company may on
any one or more occasions redeem all or a part of the Notes, upon not less than
30 nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest and Additional Interest, if any, on the Notes redeemed, to the
applicable redemption date, if redeemed during the twelve-month period
beginning on May 15 of the years indicated below, subject to the rights of
Holders of Notes on the relevant record date to receive interest on the
relevant interest payment date:


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  105.875

  	
  %

  
	
  2015

  	
   

  	
  102.938

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions
thereof called for redemption on the applicable redemption date.


 


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


 


Section 3.08           Mandatory
Redemption.


 


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


 


Section 3.09           Offer
to Purchase by Application of Excess Proceeds.


 


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


 


Any Net Proceeds from Asset Sales that are not
applied or invested as provided in Section 4.10(b) will constitute
“Excess Proceeds.” When the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will,
within five days thereof, make an Asset Sale Offer to all Holders and all
holders of other Indebtedness that is pari
passu with the Notes containing provisions similar to those set
forth in this Indenture with respect to offers to purchase, prepay or redeem
with the proceeds of sales of assets to purchase the maximum principal amount
of Notes and any other Indebtedness that is secured on a pari passu basis with the Notes (including
all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums and Additional Interest, if any, incurred in
connection therewith)


 


43

















 


that may be purchased, prepaid or redeemed out of the Excess Proceeds.
The Asset Sale Offer will remain open for a period of at least 20 Business Days
following its commencement and not more than 30 Business Days, except to the
extent that a longer period is required by applicable law (the “Offer Period”). No later than three
Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply
all Excess Proceeds to the purchase of Notes and, if applicable, such other pari passu Indebtedness (on a pro rata basis as determined in accordance
with Section 4.10) or, if less than the amount of the Excess
Proceeds has been tendered, all Notes and, if applicable, other Indebtedness
tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased will be made in the same manner as interest payments are made. The
offer price in any Asset Sale Offer will be equal to 100% of the principal
amount plus accrued and unpaid interest to the date of purchase, prepayment or
redemption and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and other pari
passu secured Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee will select the Notes and
the Company will select such other pari
passu secured Indebtedness to be purchased on a pro rata basis, or in the case of the
Notes, by lot or by such other method as the Trustee shall deem fair and
appropriate so as the Notes are maintained by a minimum denomination of $2,000
or a multiple of $1,000 in excess thereof. Upon completion of each Asset Sale Offer,
the amount of Excess Proceeds will be reset at zero.


 


If the Purchase Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest and Additional Interest, if any, will 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 will be payable to Holders who tender Notes pursuant
to the Asset Sale Offer.


 


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


 


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


 


(2)               the Excess Proceeds amount,
the purchase price and the Purchase Date;


 


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


 


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


 


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


 


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


 


44

















 


(7)               that Holders will be
entitled to withdraw their election if the Paying Agent receives, not later
than the expiration of the Offer Period, a 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
its election to have such Note purchased;


 


(8)               that, if the aggregate
principal amount of Notes and, if applicable, other pari passu Indebtedness surrendered by holders thereof
exceeds the Excess Proceeds amount, the Company will select the other pari passu Indebtedness to be purchased
and the Trustee will select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Trustee so that only Notes
in a minimum amount of $2,000 and integral multiples of $1,000 in excess
thereof, will be purchased); and


 


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


 


The Paying Agent will promptly (but in any case not
later than five Business Days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company will
promptly issue a new Note, and the Trustee, upon written request from the
Company, will authenticate and mail or deliver (or cause to be transferred by
book entry) such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Asset Sale Offer on the Purchase
Date.


 


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


 


ARTICLE 4

COVENANTS


 


Section 4.01           Payment
of Notes.


 


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


 


The Company will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, at the rate equal to 2% per annum in excess of
the then applicable interest rate on the Notes to the extent lawful; it will
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest, if
any (without regard to any applicable grace period) at the same rate to the
extent lawful. The Company shall deliver to the Trustee, at least five Business
Days before an interest payment date, an Officer’s Certificate certifying as to
the amount of Additional Interest due on such interest


 


45

















 


payment date. If the Trustee does not receive notice from the Company
of an event in respect of which Additional Interest is required to be paid or
does not receive an Officer’s Certificate from the Company five Business Days
before any interest payment date, the Trustee shall be entitled to assume that
no Additional Interest is due on such interest payment date.


 


Section 4.02           Maintenance
of Office or Agency.


 


The Company will maintain an office or agency (which
may be an office of the Trustee or an Affiliate or agent 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 Company
in respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company fails to
maintain any such required office or agency or fails to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.


 


The Company may also from time to time designate one
or more other offices or agencies where the Notes may be surrendered for any or
all such purposes and may from time to time rescind such designation. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.


 


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


 


Section 4.03            Reports.


 


(a)           Whether or not required by
the SEC, so long as any notes are outstanding, the Company will furnish to the
Trustee and Holders of notes, or file electronically with the SEC through the
SEC’s EDGAR System (or any successor system) (i) prior to the consummation
of the Exchange Offer contemplated by the Registration Rights Agreement, all
information and reports set forth in this Section 4.03(a), and (ii) after
the consummation of the Exchange Offer contemplated by the Registration Rights
Agreement, within the time periods specified in the SEC’s rules and
regulations:


 


(1)               within 90 days after the end
of each fiscal year, substantially all annual financial information that would
be required to be contained in a filing with the SEC on Form 10-K if the
Company were required to file this Form (but only to the extent similar
information is included in the Offering Memorandum and the financial statements
included herein), including a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and a report on the annual
financial statements by the Company certified independent accountants;


 


(2)               within 45 days after the end
of each of the three fiscal quarters of each fiscal year, substantially all
interim quarterly financial information that would be required to be contained
in a filing with the SEC on Form 10-Q if the Company were required to file
this Form (but only to the extent similar information is included in the
Offering Memorandum and the financial statements included therein), including a
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations”; and


 


(3)               within five Business Days
after the occurrence of each event that would have been required to be reported
in a Current Report on Form 8-K if the Company were required to file this
Form, current reports containing substantially all of the information that
would be 


 


46

















 


required to be filed in a
Current Report on Form 8-K pursuant to Sections 1, 2 and 4 and Items 5.01
and 5.02 (other than compensation information) of Form 8-K if the Company
had been a reporting company under the Exchange Act; provided, however, that no such current report will be
required to be furnished if the Company determines in its good faith judgment
that such event is not material to Holders of the Notes or the business,
assets, operations or financial positions of the Company and its Restricted
Subsidiaries, taken as a whole.


 


In addition, following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, the Company will file a copy
of (x) all quarterly and annual reports that would be required to be filed
with the SEC on Forms 10-Q and 10-K if the Company were required to file such
reports and (y) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such
reports, in the case of each of (x) and (y) of this paragraph, with
the SEC for public availability within the time periods specified in the rules and
regulations applicable to such reports (unless the SEC will not accept such
filing).


 


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


 


(c)             Notwithstanding the
foregoing, prior to the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, in no event: (A) will the Company be
required to comply with Section 302 or Section 404 of the
Sarbanes-Oxley Act of 2002, related Items 307 and 308 of Regulation S-K
promulgated by the SEC, or Items 301 or 302 of Regulation S-K or Item 10(e) of
Regulation S-K (with respect to any non-GAAP financial measures contained
therein), in each case, as in effect on the date of this Indenture, or (B) will
any reports be required to contain the separate financial information for
Guarantors, Subsidiaries whose securities are pledged to secure the Notes or
acquired businesses as contemplated by Rule 3-05, Rule 3-09, Rule 3-10,
or Rule 3-16 of Regulation S-X promulgated by the SEC; provided, however, the Company shall be
required to comply with Rule 3-05 of Regulation S-X for a “Specified
Acquisition.”


 


(d)             In addition, the Company
will (a) post the reports on its website within the time periods specified
in the rules and regulations applicable to such reports and (b) arrange
and participate in quarterly conference calls to discuss its results of
operations with Holders, prospective purchasers of the Notes and securities
analysts no later than 10 Business Days following the date on which each of the
quarterly and annual reports are made available as provided above. The Company
will provide to the Trustee and Holders dial-in conference call information
substantially concurrently with the posting of such reports on its website.
Access to any such reports on the Company’s website and to such quarterly
conference calls may be password protected, provided
that the Company makes reasonable efforts to notify the Trustee and Holders of,
and, upon request, provides to securities analysts and prospective investors,
the password and other information required to access such reports on its
website and such quarterly conference calls.


 


(e)             If, at any time after
consummation of the Exchange Offer contemplated by the Registration Rights
Agreement, the Company is no longer subject to the periodic reporting
requirements of the Exchange Act for any reason, the Company will nevertheless
continue filing the reports specified in clauses (1), (2)and (3) of Section 4.03(a) above
with the SEC within the time periods specified above unless the SEC will not
accept such a filing. The Company will not take any action for the purpose of
causing the SEC not to accept any such filings. If, notwithstanding the
foregoing, the SEC will not accept


 


47

















 


the Company’s filings for any reason, the Company will post the reports
referred to in clauses (1), (2) and (3) of Section 4.03(a) above
on its website within the time periods that would apply if the Company were
required to file those reports with the SEC.


 


(f)            The Company and the
Guarantors also will agree that, for so long as any Notes remain outstanding,
they will furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.


 


Section 4.04             Compliance
Certificate.


 


(a)               The Company and each
Guarantor shall deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company (which fiscal year, on the date of this Indenture,
ends on December 31), an Officer’s Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and the Collateral Agreements, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge, the Company has during the preceding fiscal year kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and the Collateral Agreements and is not in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture or the Collateral Agreements (or, if a Default or Event of
Default has occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.


 


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


 


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


 


Section 4.05            Taxes.


 


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


 


48

















 


Section 4.06           Stay,
Extension and Usury Laws.


 


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


 


Section 4.07           Restricted
Payments.


 


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


 


(1)               declare or pay any dividend
or make any other payment or distribution on account of the Company’s Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Company) or to the direct or indirect
holders of the Company’s Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company).


 


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


 


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


 


(4)               make any Restricted
Investment 


 


(all such payments and other actions set forth in
these clauses (1) through (4) above being collectively referred to as
“Restricted Payments”),


 


unless, at the time of and after giving effect to
such Restricted Payment:


 


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


 


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


 


(iii)          such Restricted Payment,
together with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries since the date of this Indenture


 


49

















 


(excluding Restricted Payments permitted by clauses
(2) through (8) of Section 4.07(b)), is less than the
sum, without duplication, of:


 


(1)               50% of the Consolidated Net
Income of the Company for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the date of this
Indenture to the end of the Company’s most recently ended fiscal quarter for
which internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit); plus


 


(2)               100% of the aggregate net
cash proceeds received by the Company since the date of this Indenture as a
contribution to its common equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or from the issue or
sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted into or
exchanged for such Equity Interests of the Company (other than Equity Interests
or Disqualified Stock or debt securities sold to a Subsidiary of the Company); plus


 


(3)               to the extent that any Restricted
Investment that was made after the date of this Indenture is (a) sold for
cash or otherwise liquidated or repaid for cash, or (b) made in an entity
that subsequently becomes a Restricted Subsidiary of the Company the lesser of
(i) the cash return of capital with respect to such Restricted Investment
(less the cost of disposition, if any) and (ii) the initial amount of such
Restricted Investment; plus


 


(4)               to the extent that any
Unrestricted Subsidiary of the Company designated as such after the date of
this Indenture is redesignated as a Restricted Subsidiary after the date of the
Indenture, the lesser of (i) the Fair Market Value of the Company’s
Investment in such Subsidiary as of the date of such redesignation or (ii) such
Fair Market Value as of the date on which such Subsidiary was originally
designated as an Unrestricted Subsidiary after the date of the Indenture; plus


 


(5)               50% of any dividends
received by the Company or a Restricted Subsidiary of the Company after the
date of this Indenture from an Unrestricted Subsidiary of the Company, to the
extent that such dividends were not otherwise included in the Consolidated Net
Income of the Company for such period.


 


(b)           The provisions of Section 4.07(a) hereof
will not prohibit:


 


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


 


(2)               the making of any Restricted
Payment in exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of, Equity
Interests of the Company (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net
cash proceeds that are utilized for any such Restricted Payment will be
excluded from clause (iii)(2) of Section 4.07(a) hereof;


 


50














 


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


 


(4)               so long as no Default has
occurred and is continuing or would be caused thereby, the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company, any Restricted Subsidiary of the Company or any direct or
indirect parent of the Company held by any current or former officer, director
or employee of the Company or any of its Restricted Subsidiaries pursuant to
any equity subscription agreement, stock option agreement, shareholders’
agreement or similar agreement; provided that
the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $1.0 million in any twelve-month
period;


 


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


 


(6)               so long as no Default has
occurred and is continuing or would be caused thereby, the declaration and
payment of regularly scheduled or accrued dividends to holders of any class or
series of Disqualified Stock of the Company or any Restricted Subsidiary of the
Company issued after the date of this Indenture in accordance with the Leverage
Ratio test set forth in Section 4.09(a) hereof;


 


(7)               payments of cash, dividends,
distributions, advances or other Restricted Payments by the Company or any of
its Restricted Subsidiaries to allow the payment of cash in lieu of the
issuance of fractional shares upon (i) the exercise of options or warrants
or (ii) the conversion or exchange of Capital Stock of any such Person;


 


(8)               Permitted Payments to Parent; and


 


(9)               so long as no Default has
occurred and is continuing or would be caused thereby, other Restricted
Payments in an aggregate amount since the date of the Indenture not to exceed
the greater of (i) $7.5 million and (ii) 2.0% of the Company’s Total
Assets.


 


(c)           The amount of all Restricted Payments (other than cash)
will be the Fair Market Value on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The Fair Market Value of any assets or securities that are required to
be valued by this covenant will be determined by the Board of Directors of the
Company whose resolution with respect thereto will be delivered to the Trustee.
The Board of Directors’ determination must be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if the Fair Market Value exceeds $5.0 million.


 


Section 4.08           Dividend and Other Payment Restrictions Affecting
Subsidiaries.


 


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


 


51

















 


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


 


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


 


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


 


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


 


(1)               agreements governing Existing
Indebtedness and Credit Facilities as in effect on the date of the Indenture
(including without limitation the agreements governing or related to the New
Revolving Credit Facility) and any amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings of those
agreements; provided that the
amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those
contained in those agreements on the date of the Indenture;


 


(2)               agreements governing other
Indebtedness permitted to be incurred under Section 4.09 hereof and
any amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings of those agreements; provided that the restrictions therein are not materially
more restrictive, taken as a whole, than those contained in this Indenture, the
Notes and the Note Guarantees;


 


(3)               this Indenture, the Notes, the
Note Guarantees and the Collateral Agreements;


 


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


 


(5)               any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness or Capital Stock was incurred in connection with
or in contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be incurred;


 


(6)               customary non-assignment
provisions in contracts and licenses entered into in the ordinary course of
business;


 


(7)               purchase money obligations for
property acquired in the ordinary course of business and Capital Lease
Obligations that impose restrictions on the property purchased or leased of the
nature described in Section 4.08(a)(3) hereof;


 


(8)               any agreement for the sale or
other disposition of a Restricted Subsidiary that restricts distributions by
that Restricted Subsidiary pending the sale or other disposition;


 


52

















 


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


 


(10)             Liens permitted to be incurred
under the provisions of Section 4.12 hereof that limit the right of
the debtor to dispose of the assets subject to such Liens;


 


(11)             provisions limiting the disposition
or distribution of assets or property in joint venture agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and other similar
agreements (including agreements entered into in connection with a Restricted
Investment) entered into with the approval of the Company’s Board of Directors,
which limitation is applicable only to the assets that are the subject of such
agreements; and


 


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


 


Section 4.09           Incurrence of Indebtedness and Issuance of Preferred
Stock.


 


(a)           The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable, contingently
or otherwise, with respect to (collectively, “incur”)
any Indebtedness (including Acquired Debt), and the Company will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided, however, that the Company may
incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and
the Guarantors may incur Indebtedness (including Acquired Debt) or issue
preferred stock, if the Company’s Leverage Ratio immediately preceding the date
on which such additional Indebtedness is incurred or such Disqualified Stock or
such preferred stock is issued, as the case may be, would have been no greater
than:


 


(1)               5.5 to 1, if the additional
Indebtedness is incurred or the Disqualified Stock or the preferred stock is
issued prior to May 15, 2012;


 


(2)               5.25 to 1, if the additional
Indebtedness is incurred or the Disqualified Stock or the preferred stock is
issued on or after May 15, 2012 but prior to May 15, 2013;


 


(3)               5.0 to 1, if the additional
Indebtedness is incurred or the Disqualified Stock or the preferred stock is
issued on or after May 15, 2013 but prior to May 15, 2014;


 


(4)               4.75 to 1, if the additional
Indebtedness is incurred or the Disqualified Stock or the preferred stock is issued
on or after May 15, 2014 but prior to May 15, 2015; and


 


(5)               4.5 to 1, if the additional
Indebtedness is incurred or the Disqualified Stock or the preferred stock is
issued on or after May 15, 2015;


 


in each case determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred or the Disqualified Stock or the preferred stock had been
issued, as the case may be, at the beginning of the applicable four-quarter
period.


 


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


 


53

















 


(1)               the incurrence by the Company and
its Restricted Subsidiaries of Indebtedness and letters of credit under Credit
Facilities in an amount (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company and
its Restricted Subsidiaries thereunder) not to exceed at any one time
outstanding the greater of (a) $40.0 million, less the aggregate amount of all Net Proceeds of Asset Sales
applied by the Company or any of its Restricted Subsidiaries since the date of
the Indenture to repay any term Indebtedness under a Credit Facility or to
repay any revolving credit Indebtedness under a Credit Facility and effect a
corresponding commitment reduction thereunder pursuant to Section 3.09
and (b) an amount equal to 100% of the Company’s Consolidated Cash Flow
for the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
Indebtedness is to be incurred, determined on a pro forma basis to give effect
to the application of the net proceeds of such Indebtedness as if such
transactions had occurred at the beginning of such four-quarter period and in a
manner consistent with the second paragraph of the definition of “Leverage
Ratio”;


 


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


 


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


 


(4)               the incurrence by the Company or
any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction, installation or improvement of property, plant or
equipment used in the business of the Company or any of its Restricted Subsidiaries,
in an aggregate amount, including all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or discharge any
Indebtedness incurred pursuant to this clause (4), not to exceed at any time
outstanding the greater of (i)$ 10.0 million and (ii) 3.5% of the
Company’s Total Assets;


 


(5)               the incurrence by the Company or
any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to renew, refund, refinance,
replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof
or clauses (2), (3), (4), (5), (13) or (14) of this Section 4.09(b);


 


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


 


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


 


(B)           any (i) subsequent issuance or
transfer of Equity Interests that results in any such Indebtedness being held
by a Person other than the Company or a Restricted Subsidiary of the Company,
or (ii) sale or other transfer of any such Indebtedness to a


 


54

















 


Person that is not either the Company or a
Restricted Subsidiary of the Company, will be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause (6);


 


(7)               the issuance by any of the
Company’s Restricted Subsidiaries to the Company or to any of its Restricted
Subsidiaries of shares of preferred stock; provided,
however, that any (a) subsequent issuance or transfer of Equity
Interests that results in any such preferred stock being held by a Person other
than the Company or a Restricted Subsidiary of the Company, or (b) sale or
other transfer of any such preferred stock to a Person that is not either the
Company or a Restricted Subsidiary of the Company, will be deemed, in each
case, to constitute an issuance of such preferred stock by such Restricted
Subsidiary that was not permitted by this clause (7);


 


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


 


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


 


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


 


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


 


(12)             Indebtedness of the Company or any
Restricted Subsidiary consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments, earn-outs or similar obligations in
connection with the acquisition or disposition of assets or a Subsidiary;


 


(13)             Indebtedness or Disqualified
Capital Stock of Persons (other than Indebtedness or Disqualified Capital Stock
incurred in anticipation of such acquisition or merger) 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 the Indenture; provided that after
giving effect to such acquisition either (A) the Company would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio provisions of this covenant or (B) the Leverage Ratio would
be no greater than such Leverage Ratio immediately prior to such acquisition;
and


 


(14)             the incurrence by the Company or
any of its Restricted Subsidiaries of additional Indebtedness in an aggregate
amount at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (14), not to exceed
the sum of (A) $7.5 million and (B) 100.0% of the net cash proceeds
received by the Company since the date


 


55

















 


of the Indenture 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) to the extent that such
net cash proceeds or cash have not been and are not applied to make a
Restricted Payment or a Permitted Investment, or otherwise to increase the
amount available to be applied to make a Restricted Payment or a Permitted
Investment, pursuant to Section 4.07 hereof.


 


The Company will not incur, and will not permit any
Guarantor to incur, any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the
Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee
on substantially identical terms; provided,
however, that no Indebtedness will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company
solely by virtue of being unsecured or by virtue of being secured on a junior
Lien basis.


 


(c)             For purposes of determining compliance with this Section 4.09,
in the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (1) through
(14) of Section 4.09(b) hereof, or is entitled to be incurred
pursuant to Section 4.09(a) hereof, the Company will be
permitted to classify such item of Indebtedness on the date of its incurrence,
or later reclassify all or a portion of such item of Indebtedness, in any
manner that complies with this Section 4.09. Indebtedness under
Credit Facilities outstanding on the date on which Notes are first issued and
authenticated under this Indenture will initially be deemed to have been
incurred on such date in reliance on the exception provided by Section 4.09(b)(1) hereof.
The accrual of interest or preferred stock dividends, the accretion or
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, the
reclassification of preferred stock as Indebtedness due to a change in
accounting principles, and the payment of dividends on preferred stock or
Disqualified Stock in the form of additional shares of the same class of
preferred stock or Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of preferred stock or Disqualified 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 utilized, calculated based on the relevant currency
exchange rate in effect on the date such Indebtedness was incurred.
Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency
values.


 


(d)             The amount of any Indebtedness outstanding as of any
date will be:


 


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


 


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


 


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


 


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


 


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


 


56

















 


Section 4.10             Asset
Sales.


 


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


 


(1)               the Company or the Restricted
Subsidiary, as the case may be, receives consideration at the time of the Asset
Sale at least equal to the Fair Market Value (measured as of the date of the
definitive agreement with respect to such Asset Sale) of the assets or Equity
Interests issued or sold or otherwise disposed of; and


 


(2)               at least 75% of the consideration
received in the Asset Sale by the Company or such Restricted Subsidiary is in
the form of cash or Cash Equivalents. For purposes of this provision, each of
the following will be deemed to be cash:


 


(A)          any liabilities, as shown on the
Company’s most recent consolidated balance sheet of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any Note Guarantee) that are
assumed by the transferee of any such assets pursuant to a customary novation
or indemnity agreement that releases or indemnifies the Company or such Restricted
Subsidiary from or against further liability;


 


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


 


(C)           any stock or assets of the kind
referred to in clauses (2) or (4) of Section 4.10(b) hereof.


 


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


 


(1)               to repay Indebtedness and other
Obligations under a Credit Facility and, if the Indebtedness repaid is revolving
credit Indebtedness, to correspondingly reduce commitments with respect
thereto;


 


(2)               to acquire all or substantially
all of the assets of, or any Capital Stock of, another Permitted Business, if,
after giving effect to any such acquisition of Capital Stock, the Permitted
Business is or becomes a Restricted Subsidiary of the Company;


 


(3)               to make a capital expenditure; or


 


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


 


In the case of clauses (2), (3) and (4) of
the preceding paragraph, the Company (or the applicable Restricted Subsidiary,
as the case may be) will be deemed to have complied with its obligations under
the preceding paragraphs if it enters into a binding commitment to acquire such
assets or Capital Stock or make such capital expenditure prior to 365 days
after the receipt of the applicable Net Proceeds; provided that such binding
commitment will be subject only to customary conditions and such acquisition or
expenditure is completed within 180 days following the expiration of the
aforementioned 365-day period.


 


57

















 


If the acquisition or expenditure contemplated by such binding
commitment is not consummated on or before such 180th day, and the Company (or
the applicable Restricted Subsidiary, as the case may be) has not applied the
applicable Net Proceeds for another purpose permitted by the preceding
paragraph on or before such 180th day, such commitment shall be deemed not to
have been a permitted application of Net Proceeds.


 


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


 


(d)           Any Net Proceeds from Asset Sales that are not applied or
invested as provided in Section 4.10(b) within 365 days of
receipt of such Net Proceeds shall be applied pursuant to Section 3.09 hereof.


 


(e)           The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with Section 3.09
hereof or this Section 4.10, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.09 hereof or this Section 4.10
by virtue of such compliance.


 


Section 4.11           Transactions with Affiliates.


 


(a)           The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of the Company (each, an “Affiliate Transaction”) involving aggregate payments or
consideration in excess of $500,000, unless:


 


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


 


(2)               the Company delivers to the
Trustee:


 


(A)          with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving aggregate consideration
in excess of $5.0 million, (i) a resolution of the Board of Directors of
the Company set forth in an Officer’s Certificate certifying that such
Affiliate Transaction complies with this Section 4.11 and that such
Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors of the Company or (ii) an opinion as to
the fairness to the Company or such Subsidiary of such Affiliate Transaction
from a financial point of view issued by an accounting, appraisal or investment
banking firm of national standing ; and


 


(B)           with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, an opinion as to the fairness to the
Company or such Subsidiary of such Affiliate Transaction from a financial point
of view issued by an accounting, appraisal or investment banking firm of
national standing.


 


58














 


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


 


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


 


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


 


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


 


(4)               payment of reasonable and
customary fees and reimbursements of expenses (pursuant to indemnity
arrangements or otherwise) of officers, directors, employees or consultants of
the Company or any of its Restricted Subsidiaries;


 


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


 


(6)               Permitted Investments and
Restricted Payments that do not violate the provisions of Section 4.07;


 


(7)               payment of the amounts specified
in, or determined pursuant to, the Management Agreement as in effect on the
date of this Indenture;


 


(8)               loans or advances to employees in
the ordinary course of business not to exceed $1.0 million in the aggregate at
any one time outstanding; and


 


(9)               Permitted Payments to Parent.


 


Section 4.12           Liens.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or suffer to exist any Lien securing Indebtedness of any
kind on any asset now owned or hereafter acquired, except Permitted Liens.


 


Section 4.13           Business Activities.


 


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


 


Section 4.14           Corporate Existence.


 


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


 


(1)           its corporate existence, and the
corporate, partnership or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational documents


 


59

















 


(as the same may be amended from time to time) of
the Company or any such Restricted Subsidiary; and


 


(2)           the rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Restricted
Subsidiaries, if the Company determines that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.


 


Section 4.15           Offer to Repurchase Upon Change of Control.


 


(a)           Upon the occurrence of a Change of Control, the Company
will make an offer (a “Change of Control
Offer”) to each Holder to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s
Notes at a purchase price in cash equal to 101% of the aggregate principal
amount of Notes repurchased plus accrued and unpaid interest and Additional
Interest, if any, on the Notes repurchased to the date of purchase, subject to
the rights of Holders on the relevant record date to receive interest due on
the relevant interest payment date that is on or prior to the applicable date
of repurchase (the “Change of Control
Payment”). Within 30 days following any Change of Control, the
Company will mail a notice to each Holder and the Trustee describing the
transaction or transactions that constitute the Change of Control and stating:


 


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


 


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


 


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


 


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


 


(5)           that Holders electing to have any
Notes purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled “Option of Holder to Elect
Purchase” attached to the Notes completed, or transfer by book-entry transfer,
to the Paying Agent at the address specified in the notice prior to the close
of business on the third Business Day preceding the Change of Control Payment
Date;


 


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


 


(7)           that Holders whose Notes are being
purchased only in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered, which


 


60

















 


unpurchased portion must be equal to $2,000 in
principal amount or an integral multiple of $1,000 in excess thereof.


 


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


 


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


 


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


 


(2)           deposit by 10:00 a.m. Eastern
Time with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and


 


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


 


(c)           The Paying Agent will promptly deliver to each Holder of
Notes properly tendered the Change of Control Payment for such Notes, and the
Trustee will promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any. The Company will publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.


 


(d)           The provisions described above that require the Company to
make a Change of Control Offer following a Change of Control will be applicable
whether or not any other provisions of this Indenture are applicable. Except as
described in this Section 4.15 with respect to a Change of Control,
this Indenture does not contain provisions that permit the Holders of the Notes
to require that the Company repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar transaction.


 


(e)           The Company will not be required to make a Change of
Control Offer upon a Change of Control if (1) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes properly tendered and
not withdrawn under the Change of Control Offer, or (2) notice of
redemption for all of the Notes has been given pursuant to Section 3.07
hereof unless and until there is a default in payment of the applicable
redemption price. Notwithstanding anything to the contrary contained herein, a
Change of Control Offer may be made in advance of a Change of Control,
conditioned upon the consummation of such Change of Control, if a definitive
agreement is in place for the Change of Control at the time the Change of
Control Offer is made.


 


Section 4.16           Payments for Consent.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid and is paid to all Holders of the Notes that


 


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consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.


 


Section 4.17           Additional Note Guarantees.


 


If the Company or any of its Restricted Subsidiaries
acquires or creates another Domestic Subsidiary after the date of this
Indenture, then the Company will (1) cause that newly acquired or created
Domestic Subsidiary to execute a supplemental indenture and pursuant to which
it becomes a Guarantor and (2) deliver an Opinion of Counsel to the
Trustee, in each case within 10 Business Days of the date on which the Domestic
Subsidiary was acquired or created; provided
that any Domestic Subsidiary that constitutes an Immaterial
Subsidiary need not become a Guarantor until such time as it ceases to be an
Immaterial Subsidiary. The form of such Note Guarantee is attached as Exhibit E
hereto.


 


Section 4.18           Designation of Restricted and Unrestricted
Subsidiaries.


 


(a)             The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if that designation
would not cause a Default. If a Restricted Subsidiary is designated as an
Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the
Subsidiary designated as Unrestricted will be deemed to be an Investment made
as of the time of the designation and will reduce the amount available for
Restricted Payments under Section 4.07 or under one or more clauses
of the definition of Permitted Investments, as determined by the Company. That
designation will only be permitted if the Investment would be permitted at that
time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. The Board of Directors of the Company may redesignate
any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.


 


(b)             Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary will be evidenced to the Trustee by filing with the
Trustee a certified copy of a resolution of the Board of Directors giving
effect to such designation and an Officer’s Certificate certifying that such
designation complied with the preceding conditions and was permitted by Section 4.07
hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it will thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09 hereof,
the Company will be in default of such covenant. The Board of Directors of the
Company may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary of the Company; provided
that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09
hereof calculated on a pro forma basis as if such designation had occurred at
the beginning of the four-quarter reference period; and (2) no Default or
Event of Default would be in existence following such designation.


 


Section 4.19           Impairment of Security Interest


 


Subject to the Intercreditor Agreement, neither the
Company nor any Restricted Subsidiary will take or omit to take any action
which would adversely affect or impair in any material respect the Liens in
favor of the Collateral Agent with respect to the Collateral, except as
otherwise permitted or required by the Collateral Agreements or this Indenture.
Neither the Company nor any Restricted Subsidiary will enter into any agreement
that requires the proceeds received from any sale of Collateral to be applied
to repay, redeem, defease or otherwise acquire or retire any Indebtedness of
any Person, other than as permitted by this Indenture and the Collateral
Agreements (including the Intercreditor Agreement). The


 


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Company shall, and shall cause each Guarantor to, at each of the
Company’s and such Guarantor’s sole cost and expense, execute and deliver all
such agreements and instruments and take all further action as the Collateral
Agent or the Trustee shall reasonably request to more fully or accurately
describe the property intended to be Collateral or the obligations intended to
be secured by the Collateral Agreements. The Company shall, and shall cause
each Guarantor to, at each of the Company’s and such Guarantor’s sole cost and
expense, file any such notice filings or other agreements or instruments as may
be reasonably necessary or desirable under applicable law to perfect the Liens
created by the Collateral Agreements.


 


Section 4.20           Information Regarding Collateral


 


The Company will furnish to the Collateral Agent,
with respect to the Company or any Guarantor, prompt written notice of any
change in such Person’s (i) corporate name, (ii) jurisdiction of
organization or formation, (iii) identity or corporate structure or (iv) Federal
Taxpayer Identification Number. The Company will agree not to effect or permit
any change referred to in the preceding sentence unless all filings have been
made under the Uniform Commercial Code or otherwise that are required in order
for the Collateral Agent to continue at all times following such change to have
a valid, legal and perfected security interest in all of the Collateral. The
Company also agrees to promptly notify the Collateral Agent in writing if any
material portion of the Collateral is damaged or destroyed.


 


Each year, at the time of the delivery of the annual
financial statements with respect to the preceding fiscal year, the Company
shall deliver to the Trustee a certificate of the financial officer setting
forth the information required pursuant to the perfection certificate required
by the Indenture or confirming that there has been no change in such
information since the date of the previously delivered perfection certificate.


 


Section 4.21           Landlord Waivers


 


The Company and any Domestic Subsidiary that is a
lessee of, or becomes a lessee of, real property, is, and will be, required to
use commercially reasonable efforts to deliver to the Collateral Agent a
landlord waiver executed by the lessor of such real property; provided that if such lease is in
existence on the date of the Indenture, the Company and each such Domestic
Subsidiary that is the lessee thereunder shall have 90 days from the date of
the Indenture to satisfy such requirement. The Trustee shall have no obligation
to determine whether the Company has used commercially reasonable efforts to
deliver such landlord waivers within the 90 day period and in the absence of
notice from Holders to the contrary may conclude that if particular landlord
waivers are not delivered within such period that the Company has nevertheless
fulfilled its obligations under this covenant.


 


Section 4.22           Further Assurances


 


The Company and the Guarantors shall execute any and
all further documents, financing statements, agreements and instruments, and
take all further action that may be required under applicable law, or that the
Collateral Agent may reasonably request, in order to grant, preserve, protect
and perfect the validity and priority of the security interests created or
intended to be created by the Collateral Agreements in the Collateral. In
addition, from time to time, the Company will reasonably promptly secure the
obligations under the Indenture and the Collateral Agreements by pledging or
creating, or causing to be pledged or created, perfected security interests with
respect to the Collateral. The Company shall deliver or cause to be delivered
to the Collateral Agent all such instruments and documents (including legal
opinions, title insurance policies and lien searches) as the Collateral Agent
shall reasonably request to evidence compliance with this covenant.


 


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Section 4.23           Post-Closing Matters


 


The Company and the Guarantors acknowledges and
agrees that the documents and deliverables set forth in Exhibit G will be
provided by the party responsible therefor in the manner set forth in such
Exhibit on or prior to the due date specified in such Exhibit.


 


ARTICLE 5

SUCCESSORS


 


Section 5.01                Merger,
Consolidation, or Sale of Assets.


 


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


 


(1)           either:


 


(A)          the Company is the surviving
corporation; or


 


(B)           the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is a
corporation organized or existing under the laws of the United States, any
state of the United States or the District of Columbia;


 


(2)           the Person formed by or surviving any
such consolidation or merger (if other than the Company) or the Person to which
such sale, assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, this Indenture and
the Collateral Agreements;


 


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


 


(4)           the Company or the Person formed by
or surviving any such consolidation or merger (if other than the Company), or
to which such sale, assignment, transfer, conveyance or other disposition has
been made, on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same had occurred at
the beginning of the applicable four-quarter period (i) would be permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Leverage
Ratio test set forth in Section 4.09(a) or (ii) would
have had a Leverage Ratio not to exceed the Company’s Leverage Ratio
immediately prior to such transaction; and


 


(5)           the Company has delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel each stating that
such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition and any agreement delivered pursuant to clause (2) above
comply with this Section 5.01 and that all conditions precedent in
this Section 5.01 relating to such transaction have been complied
with.


 


In addition, the Company will not, directly or
indirectly, lease all or substantially all of the properties and assets of it
and Restricted (1) a merger of the company with an Affiliate solely for
purpose of reincorporating the Company in another jurisdiction or (2) Subsidiaries
taken as a whole, in one or more related transactions, to any other Person.


 


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This Section 5.01
will not apply to any sale, assignment, transfer, conveyance, lease or other
disposition of assets between or among the Company and its Restricted
Subsidiaries.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01            Events
of Default.


 


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


 


(1)           default for 30 days in the payment
when due of interest (including Additional Interest, if any) on the Notes;


 


(2)           default in the payment when due (at
maturity, upon redemption or otherwise) of the principal or premium on the
Notes;


 


(3)           failure by the Company or any of its
Restricted Subsidiaries to comply with the provisions of Sections  3.09,
4.07, 4.09, 4.10, 4.15, 4.22, 4.23 and 5.01
hereof;


 


(4)           failure by the Company or any of its
Restricted Subsidiaries for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class to comply with any of the other agreements
in this Indenture;


 


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


 


(A)          is caused by a
failure to pay principal of, or interest or premium on, such Indebtedness prior
to the expiration of the grace period provided in such Indebtedness on the date
of such default (a “Payment Default”);
or


 


(B)           results in the
acceleration of such Indebtedness prior to its express maturity, 


 


and, in each case, the
principal amount of any such Indebtedness, together with the principal amount
of any other such Indebtedness under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $5.0 million or more;


 


(6)           failure by the Company or any of its
Restricted Subsidiaries to pay final judgments entered by a court or courts of
competent jurisdiction aggregating in excess of $10.0 million, which judgments
remain unpaid or are not discharged or stayed for a period of 60 days;


 


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


 


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(8)           any Collateral Agreement at any time
for any reason shall cease to be in full force and effect in all material
respects, or ceases to give the Collateral Agent the Liens, rights, powers and
privileges purported to be created thereby, superior to and prior to the rights
of all third Persons other than the holders of Permitted Liens and subject to
no other Liens except as expressly permitted by the applicable Collateral
Agreement or this Indenture; or the Company or any of the Guarantors, directly
or indirectly, contest in any manner the effectiveness, validity, binding
nature or enforceability of any Collateral Agreement; or


 


(9)           the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:


 


(A)            commences a voluntary case,


 


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


 


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


 


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


 


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


 


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


 


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


 


(B)            appoints a custodian of the Company
or any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary or for all or substantially all of the
property of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary; or


 


(C)            orders the liquidation of the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary;


 


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


 


In the case of any Event of
Default occurring by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of avoiding payment of
the premium that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to the optional redemption provisions of
this Indenture, an equivalent premium will also become and be immediately due
and payable to the extent permitted by law upon the acceleration of the Notes.
If an Event of Default occurs prior to May 15, 2014 by reason of any
willful action (or inaction) taken (or not


 


66

















 


taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the notes prior to that
date, then an additional premium specified in Section 4.01 hereof
will also become and be immediately due and payable to the extent permitted by
law upon the acceleration of the Notes.


 


The Company is required to
deliver to the Trustee annually a written statement regarding compliance with
this Indenture. Upon becoming aware of any Default or Event of Default, the
Company is required to deliver to the Trustee a written statement specifying
such Default or Event of Default.


 


The rights of the Trustee and
any Holder to exercise any remedies with respect to an Event of Default may be
limited by the terms of the Intercreditor Agreement.


 


Section 6.02           Acceleration.


 


(a)          In the case of an Event of Default
specified in clause (9) or (10) of Section 6.01, with
respect to the Company, any Restricted Subsidiary of the Company that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary, all
outstanding Notes will become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes may declare all the Notes to be due and payable
immediately. Upon any such declaration, the Notes shall become due and payable
immediately.


 


(b)         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 or Event of Default if it determines
that withholding notice is in their interest, except a Default or Event of
Default relating to the payment of principal, premium or interest (including
Additional Interest, if any).


 


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 of, or premium and Additional Interest, if
any, and interest on, the Notes or to enforce the performance of any provision
of the Notes or this Indenture.


 


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


 


Section 6.04         Waiver of Past Defaults.


 


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


 


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Section 6.05            Control
by Majority.


 


Holders of a majority in
aggregate principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee and Collateral Agent, as applicable, or exercising any
trust or power conferred on it. However, the Trustee or Collateral Agent, as
applicable, may refuse to follow any direction that conflicts with law or this
Indenture or the Collateral Agreements, that the Trustee or Collateral Agent,
as applicable, determines may be unduly prejudicial to the rights of other
Holders of Notes or that may involve the Trustee or Collateral Agent, as
applicable, in personal liability. The Trustee and the Collateral Agent may
take any other action deemed proper by the Trustee and Collateral Agent, as
applicable, which is not inconsistent with such direction.


 


Section 6.06           Limitation
on Suits.


 


Except to enforce the right to receive payment of
principal, premium, if any, or interest (including Additional Interest, if any)
when due in accordance with 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 aggregate
principal amount of the then outstanding Notes have requested the Trustee to
pursue the remedy;


 


(3)          such Holders 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 of the request and the offer of
security or indemnity; and


 


(5)          Holders of a majority in aggregate
principal amount of the then 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 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 offer to purchase), 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; provided
that a Holder shall not have the right to institute any such suit for the
enforcement of payment if and to the extent that the institution or prosecution
thereof or the entry of judgment therein would, under applicable law, result in
the surrender, impairment, waiver or loss of the Lien of this Indenture upon
any property subject to such Lien.


 


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Section 6.08                                Collection
Suit by Trustee.


 


If an Event of Default
specified in Section 6.01(1) or (2) hereof occurs
and is continuing, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Notes, the whole amount then due and payable
on such Notes for the principal of, premium and Additional Interest, if any,
and interest remaining unpaid on, the Notes and interest on overdue principal
and premium and, to the extent lawful, interest and Additional Interest, if any,
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.


 


If the Company fails to pay
such amount forthwith upon such demand, the Trustee may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceedings to the judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out the
property of the Company or any other obligor upon the Notes, wherever situated.


 


Section 6.09                                Trustee
May File Proofs of Claim.


 


The Trustee is authorized to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
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), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for compensation, expenses,
disbursements and advances of the Trustee and Collateral Agent and its
respective agents and counsel (or their respective agents and counsel if the
Trustee and Collateral Agent are different Persons), and any other amounts due
the Trustee under Section 7.07 hereof and the Collateral Agent
under Section 10.11 hereof. To the extent that the payment of any
such compensation, expenses, disbursements and advances of the Trustee and
Collateral Agent, its agents and counsel (or their respective agents and
counsel if the Trustee and Collateral Agent are different Persons), and any
other amounts due the Trustee under Section 7.07 hereof or the
Collateral Agent under Section 10.11 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 6.10                                Priorities.


 


Subject to the terms of the
Intercreditor Agreement, if the Trustee collects any money or other property
pursuant to this Article 6, including pursuant to the Collateral
Agreements, it shall pay out the money or other property in the following
order:


 


First:                   to the Trustee, the Collateral Agent, and
their respective agents and attorneys for amounts due under Section 7.07
and Section 10.11 hereof, including payment of all


 


69

















 


compensation, reasonable
expenses and liabilities incurred, and all advances made, by the Trustee and
the Collateral Agent and the costs and expenses of collection;


 


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


 


Third:               any surplus remaining after the payment in
full in cash of all the Obligations under the Notes shall be paid to the
Company or to such party as a court of competent jurisdiction shall direct. 


 


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


 


Section 6.11                                Undertaking
for Costs.


 


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


 


Section 6.12                                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 case the Company, the Trustee and the Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder.


 


ARTICLE 7

TRUSTEE


 


Section 7.01                                Duties of
Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.02                                Rights of
Trustee.


 


(a)                                  The Trustee may
conclusively rely and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document, but the Trustee, in its reasonable discretion, may make such
further inquiry or investigation into such facts or matters as it reasonably
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 Company, personally or by agent or attorney, and shall have reasonable
access to the premises of the Company during normal business hours in
connection with such examination in a manner not to disrupt the normal business
operations of the Company.


 


(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 will 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 and the advice of
such counsel or any Opinion of Counsel will be full and complete authorization


 


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and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.


 


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


 


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


 


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


 


(f)                                    In no event
shall the Trustee be liable to any Person for special, punitive, indirect,
consequential or incidental loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage.


 


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


 


(h)                                 The permissive
right of the Trustee to take any action under this Indenture shall not be
construed as a duty to so act.


 


Section 7.03                                Individual
Rights of Trustee.


 


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


 


Section 7.04                                Trustee’s
Disclaimer.


 


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


 


Section 7.05                                Notice of
Defaults.


 


(a)                                  If a Default or
Event of Default occurs and is continuing and if it is known to a Responsible
Officer of the Trustee, the Trustee will mail to Holders of Notes a notice of
the Default or Event of Default within 90 days after it occurs (or promptly
after discovery if the Trustee does not learn of such Event of Default more
than 90 days after it occurred), unless such Default or Event of Default shall
have been cured or waived. Except in the case of a Default or Event of Default
in payment of principal of, premium or Additional Interest, if any, or interest
on, any Note, the Trustee shall be


 


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protected in withholding the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.


 


(b)                                 The Trustee
shall not be deemed to have notice or be charged with knowledge of any Default
or Event of Default (other than a Default or Event of Default in the payment of
interest (including Additional Interest, if any) or premium, if any, on, or the
principal of, the Notes) unless a Responsible Officer of the Trustee has actual
knowledge thereof or shall have received written notice thereof at its address
set forth in Section 13.02 hereof from the Company or any Guarantor
or Holders of 25% in aggregate principal amount of the then outstanding Notes
specifying the occurrence and nature thereof and stating that such notice is a
notice of default.


 


Section 7.06                                Reports by
Trustee to Holders of the Notes.


 


(a)                                  Within 60 days
after each May 15 beginning with May 15, 2011, and for so long as
Notes remain outstanding, the Trustee will mail to the Holders of the Notes a
report dated as of such reporting date, in accordance with, and to the extent
required by, § 313 of the TIA.


 


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


 


Section 7.07                                Compensation
and Indemnity.


 


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


 


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


 


(c)                                  The obligations
of the Company and the Guarantors under this Section 7.07 will
survive the satisfaction and discharge of this Indenture. The obligations of
the Company and the Guarantors to the Trustee under this Section 7.07
shall survive the resignation, removal or replacement of the Trustee to


 


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the extent that the Trustee incurred fees,
reimbursable expense or indemnifiable losses, liabilities or expenses while
acting as trustee hereunder before such resignation, removal or replacement.


 


(d)                                 To secure the
Company’s and the Guarantors’ payment obligations in this Section 7.07
and Section 10.11 hereof, the Trustee and the Collateral Agent will
have a Lien prior to the Notes on all money or property held or collected by
the Trustee or the Collateral Agent, except that held in trust to pay principal
and interest on particular Notes. Such Lien will survive the satisfaction and
discharge of this Indenture and the resignation, removal or replacement of the
Trustee or Collateral Agent.


 


(e)                                  When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(9) or (10) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.


 


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


 


Section 7.08                                Replacement
of Trustee.


 


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


 


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


 


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


 


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


 


(3)               a receiver of the Trustee or
of its property shall have been appointed, or a custodian or public officer
takes charge of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation; or


 


(4)               the Trustee becomes
incapable of acting.


 


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


 


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


 


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


 


(f)                                    A successor
Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the
retiring Trustee will become effective, and the successor Trustee, without any
further act, deed, or conveyance, will have all the rights, powers, trusts and
duties of the Trustee under this Indenture; but, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its Lien
provided for in Section 7.07 hereof. The Company will give notice
of each resignation and each removal of the Trustee and each appointment of a
successor Trustee to Holders of the Notes. Each notice shall include the name
of the successor Trustee and the address of its Corporate Trust Office. The
retiring Trustee will promptly transfer all property held by it as Trustee to
the successor Trustee; provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 hereof will continue for the benefit
of the retiring Trustee.


 


Section 7.09                                Successor
Trustee by Merger, etc.


 


Any
entity into which the Trustee may be merged or converted or with which it may
be consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such entity shall be
otherwise qualified and eligible under this Article, to the extent operative,
without the execution or filing of any paper or further act on the part of any
of the parties hereto. In the case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as
if such successor Trustee had itself authenticated such Notes.


 


Section 7.10                                Eligibility;
Disqualification.


 


(a)                                  There will at
all times be a Trustee hereunder that is an entity 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 trust power, that is subject
to supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $25.0 million as set forth in its most
recent published annual report of condition. If at any time the Trustee ceases
to be eligible in accordance with the provisions of this Section 7.10,
it shall resign immediately in the manner and with the effect specified in this
Article.


 


(b)                                 This Indenture
will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee shall comply with the terms of TIA § 310(b).


 


Section 7.11                                Preferential
Collection of Claims Against Company.


 


The
Trustee is subject to TIA § 311, excluding any creditor relationship listed in
TIA § 311(b).


 


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ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01                                Option to
Effect Legal Defeasance or Covenant Defeasance.


 


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


 


Section 8.02                                Legal
Defeasance and Discharge.


 


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


 


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


 


(2)                                  the obligations
with respect to the notes concerning issuing temporary Notes, registration of
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;


 


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


 


(4)                                  this Article 8.


 


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


 


Section 8.03                                Covenant
Defeasance.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each of the Guarantors
will, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from each of their obligations under the covenants
contained in Sections 3.09, 4.03, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.15, 4.16, 4.17 and 4.18
and clause (4) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes will thereafter be deemed not
“outstanding” for the purposes of any direction, waiver, consent or declaration
or act of


 


76

















 


Holders (and the
consequences of any thereof) in connection with such covenants, but will
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes and Note Guarantees, the Company and the Guarantors may
omit to comply with and will have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply will not constitute a
Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes and
Note Guarantees will be unaffected thereby. In addition, upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(8) hereof
will not constitute Events of Default.


 


Section 8.04                                Conditions
to Legal or Covenant Defeasance.


 


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


 


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


 


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


 


(A)                              the Company has received
from, or there has been published by, the Internal Revenue Service a ruling; or


 


(B)                                since the date of this Indenture,
there has been a change in the applicable federal income tax law,


 


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


 


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


 


(4)                                  no Default or
Event of Default has occurred and is continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to


 


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be applied to such deposit and the deposit will not
result in a breach or violation of, or constitute a default under, any
instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;


 


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


 


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


 


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


 


If the Company exercises Legal Defeasance or
Covenant Defeasance, any Liens securing the Notes that were created pursuant to
this Indenture and the Collateral Agreements will be released.


 


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


 


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


 


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


 


Notwithstanding anything in this Article 8 to
the contrary, the Trustee will deliver or pay to the Company from time to time
upon the request of the Company any money or non-callable Government Securities
held by it as provided in Section 8.04 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(1)), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.06           Repayment to Company.


 


Subject to applicable abandoned property laws, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium or Additional
Interest, if any, or interest on, any Note and remaining unclaimed for two
years after such principal, premium or Additional Interest, if any, or interest
has become due and payable shall be paid to


 


78

















 


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


 


Section 8.07           Reinstatement.


 


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


 


ARTICLE 9


AMENDMENT, SUPPLEMENT AND
WAIVER


 


Section 9.01           Without Consent of Holders of
Notes.


 


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


 


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


 


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


 


(3)           to provide for the
assumption of the Company’s or a Guarantor’s obligations to Holders of Notes
and Note Guarantees in the case of a merger or consolidation or sale of all or
substantially all of the Company’s or such Guarantor’s assets, as applicable;


 


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


 


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


 


(6)           to conform the text of this
Indenture, the Notes or the Note Guarantees to any provision of the
“Description of Notes” section of the Offering Memorandum to the extent that


 


79

















 


such provision was intended by the Company to be a
verbatim recitation of a provision of this Indenture, the Notes or the Note
Guarantees, as certified by the Company in an Officer’s Certificate;


 


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


 


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


 


(9)           in connection with any
addition or release of Collateral permitted under the terms of this Indenture
or the Collateral Agreements.


 


Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amendment or supplement, and upon receipt by the Trustee and the Collateral
Agent, as applicable, of the documents described in Sections 7.02 and 9.06
hereof, the Trustee and the Collateral Agent, as applicable, will join with the
Company and the Guarantors in the execution of any amendment or supplement
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 and the Collateral Agent, as applicable, will not be obligated to enter
into such amendment or supplement that affects its own rights, duties or
immunities under this Indenture or otherwise.


 


Section 9.02           With Consent of Holders of Notes.


 


Except as provided below in this Section 9.02,
the Company, the Trustee and the Collateral Agent, as applicable, may amend or
supplement this Indenture (including, without limitation, Section 3.09,
4.10 and 4.15 hereof), the Notes, the Note Guarantees and the
Collateral Agreements (including, with respect to the Intercreditor Agreement
and the New Revolving Credit Facility with the consent of the First Lien
Collateral Agent), with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) (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, any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, premium or Additional Interest, if any, or
interest on, the Notes, except a payment default resulting solely from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture, the Notes, the Note Guarantees or the Collateral Agreements may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes (including, without limitation, Additional
Notes, if any) (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes).


 


Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amendment or supplement, and upon the filing with the Trustee and the Collateral
Agent, as applicable, of evidence of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee and the Collateral Agent, as
applicable, of the documents described in Sections 7.02 and 9.06
hereof, the Trustee and the Collateral Agent, as applicable, will join with the
Company in the execution of such amendment or supplement unless such amendment
or supplement affects the Trustee’s or the Collateral Agent’s, as the case may
be, own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee and the Collateral Agent, as applicable, may in its
discretion, but will not be obligated to, enter into such amendment or
supplement.


 


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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, supplement or waiver, but it is sufficient if
such consent approves the substance thereof.


 


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


 


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


 


(2)           reduce the principal of or
change the fixed maturity of any Note or alter the provisions with respect to
the redemption of the Notes (except as provided above with respect to Sections
3.09,  4.10 and 4.15 hereof);


 


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


 


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


 


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


 


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


 


(7)           waive a redemption payment
with respect to any Note (other than a payment required by Sections 3.09,
4.10 or 4.15 hereof);


 


(8)           release any Guarantor from
any of its obligations under its Note Guarantee or this Indenture, except in
accordance with the terms of this Indenture; or


 


(9)           make any change in the
preceding amendment and waiver provisions.


 


Notwithstanding the foregoing, any amendment to, or
waiver of, the provisions of this Indenture or any Collateral Agreement that
has the effect of releasing all or substantially all of the Collateral from the
Liens securing the Notes will require the consent of the Holders of at least 662/3% in aggregate principal amount of the Notes then
outstanding.


 


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Section 9.03           Compliance with Trust Indenture
Act.


 


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


 


Section 9.04           Revocation and Effect of Consents.


 


(a)           Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note
is a continuing consent by the Holder of a Note and every subsequent Holder of
a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note. Subject
to Section 9.04(b) hereof, 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 amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.


 


(b)           The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the
Holders entitled to give their consent or take any other action required or
permitted to be taken pursuant to this Indenture, other than the delivery of
instructions by Holders to the Trustee or Collateral Agent. If a record date is
fixed, then notwithstanding the first paragraph of this Section 9.04, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders after such record date. No such consent
shall become valid or effective more than 120 days after such record date.


 


Section 9.05           Notation on or Exchange of Notes.


 


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


 


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


 


Section 9.06           Trustee to Sign Amendments, etc.


 


The Trustee and the Collateral Agent, if applicable,
will sign any amendment or supplement authorized pursuant to this Article 9
if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee and the Collateral Agent, as
applicable. The Company may not sign an amendment or supplement until the Board
of Directors of the Company approves it. In executing any amendment or
supplement, the Trustee and the Collateral Agent, as applicable, will be
entitled to receive and (subject to Section 7.01 hereof) will be
fully protected in relying upon, in addition to the documents required by Section 13.04
hereof, an Officer’s Certificate and an Opinion of Counsel stating that the
execution of such amendment or supplement is authorized or permitted by this
Indenture and the Collateral Agreements (if applicable).


 


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ARTICLE 10


 


COLLATERAL AND SECURITY


 


Section 10.01         Grant of Security Interest.


 


(a)           To secure the due and
punctual payment of the principal of, premium and Additional Interest, if any,
and interest on the Notes and amounts due hereunder and under the Note
Guarantees when and as the same shall be due and payable, whether on an
interest payment date, by acceleration, purchase, repurchase, redemption or
otherwise, and interest on the overdue principal of, premium and Additional
Interest, if any, and interest (to the extent permitted by law), if any, on the
Notes and the performance of all other Obligations of the Company and the
Guarantors to the Holders, the Collateral Agent and the Trustee under this
Indenture, the Collateral Agreements, the Note Guarantees and the Notes, the
Company and the Guarantors hereby covenant to cause the Collateral Agreements
to be executed and delivered concurrently with this Indenture. The Collateral
Agreements shall provide for the grant by the Company and Guarantors party
thereto to the Collateral Agent of security interests in the Collateral.


 


(b)           Each Holder, by its
acceptance of a Note, (i) appoints the Collateral Agent to act as its agent
under this Indenture and the Collateral Agreements (and by its signature below,
the Collateral Agent accepts such appointment), (ii) authorizes the
Collateral Agent to enter into the Collateral Agreements to which it is a
party, to take such action on its behalf and in the Collateral Agent’s
designated capacity under the provisions of this Indenture and the Collateral
Agreements, and to perform its obligations and exercise its rights expressly
designated to it hereunder and thereunder in accordance therewith, and (iii) consents
and agrees to the terms of each Collateral Agreement, as the same may be in
effect or may be amended, restated, supplemented or otherwise modified from
time to time in accordance with their respective terms. Each Holder agrees that
any action taken by the Collateral Agent in accordance with the provisions of
this Indenture and the Collateral Agreements, and the exercise by the
Collateral Agent of any rights or remedies set forth herein and therein,
together with all other powers reasonably incidental thereto, shall be
authorized and binding upon all Holders. The duties of the Collateral Agent
shall be ministerial and administrative in nature, and the Collateral Agent
shall not have a trust relationship with any Holder, obligor or any other
Person by reason of this Indenture, or any of the Collateral Agreements.


 


(c)           The Collateral Agent shall
not have any duties or responsibilities except those expressly set forth in
this Indenture and the Collateral Agreements to which the Collateral Agent is a
party, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Indenture, or the Collateral
Agreements or otherwise exist on the part of the Collateral Agent. The
conferral upon the Collateral Agent of any right shall not imply a duty on the
Collateral Agent’s part to exercise such right.


 


(d)           The Collateral Agent may
perform its duties under this Indenture and the Collateral Agreements to which
the Collateral Agent is a party by or through receivers, agents,
attorneys-in-fact and employees. The Collateral Agent may consult with and
employ legal counsel, and shall be entitled to act upon, and shall be fully
protected in taking action in reliance upon any advice or opinion given by
legal counsel.


 


(e)           The Collateral Agent shall
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, consent, certificate, affidavit, letter, certification,
statement, notice or other communication, document or conversation (including
those by telephone or e-mail) believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person, and upon the advice and


 


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statements of legal counsel (including, without limitation, counsel to
the Company or any obligor). The Collateral Agent shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document. The
Collateral Agent shall have no liability for failing or refusing to take any
action under this Indenture or the Collateral Agreements unless it shall first
receive such advice, direction, instruction or concurrence as is required
hereunder; and the Collateral Agent has the right to seek instructions before
acting or electing not to act under this Indenture or the Collateral
Agreements. The Collateral Agent shall in all cases have no liability in acting,
or refraining from acting, under this Indenture and the Collateral Agreements
in accordance with a direction or instruction from the Company or Trustee or
the Holders of a majority in aggregate principal amount of the then outstanding
Notes, as applicable, and such direction or instruction and any action taken or
failure to act pursuant thereto shall be binding upon all the Holders.


 


(f)            The Collateral Agent shall
not be deemed to have knowledge of any Default or Event of Default unless a
Responsible Officer of the Collateral Agent has received written notice from
the Company, the Trustee or the Holders of 25% in aggregate principal amount of
the then outstanding Notes specifying the occurrence and nature thereof and
stating that such notice is a notice of default.


 


(g)           The Collateral Agent shall
not be liable for any action taken or omitted to be taken by it in connection
with this Indenture or any Collateral Agreement or instrument referred to or
provided for herein or therein, except to the extent that any of the foregoing
are found by a final, nonappealable decision of a court of competent
jurisdiction to have resulted from its own gross negligence or willful
misconduct. The Collateral Agent does not assume any responsibility for any
failure or delay in performance or any breach by the Company or any obligor of
any obligations under this Indenture and the Collateral Agreements. The
Collateral Agent shall not be responsible to the Holders or any other Person
for any recitals, statements, information, representations or warranties
contained in any Collateral Agreements or in any certificate, report,
statement, or other document referred to or provided for in, or received by the
Collateral Agent under or in connection with, this Indenture or any Collateral
Agreement; the execution, validity, genuineness, effectiveness or
enforceability of any Collateral Agreement; the genuineness, enforceability,
collectability, value, sufficiency, location or existence of any Collateral, or
the validity, effectiveness, enforceability, sufficiency, extent, perfection or
priority of any Lien therein; the validity, enforceability or collectability of
any Obligations; the assets, liabilities, financial condition, results of
operations, business, creditworthiness or legal status of any obligor; or for
any failure of any obligor to perform its Obligations under this Indenture and
the Collateral Agreements. The Collateral Agent shall have no obligation to any
Holder or any other Person to ascertain or inquire into the existence of any Default
or Event of Default, the observance or performance by any obligor of any terms
of this Indenture and the Collateral Agreements, or the satisfaction of any
conditions precedent contained in this Indenture and any Collateral Agreements.
The Collateral Agent shall not be required to initiate or conduct any
litigation or collection or other proceeding under this Indenture and the
Collateral Agreements unless expressly set forth hereunder or thereunder. The
Collateral Agent shall have the right at any time to seek instructions from the
Holders with respect to the administration of the Collateral Agreements. In no
event shall the Collateral Agent be liable to any Person, under this Indenture
or the Collateral Agreements, for special, punitive, indirect, consequential or
incidental loss or damage of any kind whatsoever (including but not limited to
lost profits), even if the Collateral Agent has been advised of the likelihood
of such loss or damage.


 


(h)           No provision of this
Indenture or the Collateral Agreements shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or thereunder or in the exercise of
any of its rights or powers unless the Collateral Agent shall have received
indemnity satisfactory to the Collateral Agent against potential costs and
liabilities incurred by the Collateral Agent relating thereto. Notwithstanding
anything to the contrary


 


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contained in this Indenture or any of the Collateral Agreements, in the
event the Collateral Agent is entitled or required to commence an action to
foreclose or otherwise exercise its remedies to acquire control or possession
of the Collateral, the Collateral Agent shall not be required to take any such
other action if the Collateral Agent has determined that the Collateral Agent
may incur personal liability as the result of the presence at, or release on or
from, the Collateral or such property, of any hazardous substances unless the
Collateral Agent has received security or indemnity from the Holders in an
amount and in a form all satisfactory to the Collateral Agent in its sole
discretion, protecting the Collateral Agent from all such liability. The Collateral
Agent shall at any time be entitled to cease taking any action described above
if it no longer reasonably deems any indemnity, security or undertaking from
the Company or the Holders to be sufficient.


 


(i)            The parties hereto and the
Holders hereby agree and acknowledge that the Collateral Agent shall not
assume, be responsible for or otherwise be obligated for any liabilities,
claims, causes of action, suits, losses, allegations, requests, demands,
penalties, fines, settlements, damages (including foreseeable and
unforeseeable), judgments, expenses and costs (including but not limited to,
any remediation, corrective action, response, removal or remedial action, or
investigation, operations and maintenance or monitoring costs, for personal
injury or property damages, real or personal) of any kind whatsoever, pursuant
to any environmental law as a result of this Indenture, the Collateral
Agreements or any actions taken pursuant hereto or thereto. Further, the
parties hereto and the Holders hereby agree and acknowledge that in the
exercise of its rights under this Indenture and the Collateral Agreements, the
Collateral Agent may hold or obtain indicia of ownership primarily to protect
the security interest of the Collateral Agent in the Collateral and that any
such actions taken by the Collateral Agent shall not be construed as or
otherwise constitute any participation in the management of such Collateral, as
those terms are defined in Section 101(20)(E) of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et
seq., as amended.


 


(j)            Notwithstanding the fact
that the following assets may secure First Lien Obligations,


 


(1)           The Equity Interests of the
Restricted Subsidiaries of the Company that are owned by the Company or any
Guarantor will constitute Collateral only to the extent that such Equity
Interests can secure Notes without Rule 3-10 or Rule 3-16 of
Regulation S-X under the Securities Act (“Rule 3-10” and “Rule 3-16,”
respectively) (or any other law, rule or regulation) requiring separate
financial statements of such Restricted Subsidiary to be filed with the SEC (or
any other governmental agency);


 


(2)           In the event
that either Rule 3-10 or Rule 3-16 requires or is amended, modified
or interpreted by the SEC to require (or is replaced with another rule or
regulation, or any other law, rule or regulation is adopted, which would
require) the filing with the SEC (or any other governmental agency) of separate
financial statements of any Restricted Subsidiary due to the fact that such
Restricted Subsidiary’s Equity Interests secure the Notes or any Guarantee,
then the Equity Interests of such Restricted Subsidiary shall automatically be
deemed not to be part of the Collateral, but only to the extent necessary to
not be subject to such requirement (and, in such event, the Collateral
Documents may be amended or modified, without the consent of any Holder of the
Notes, to the extent necessary to release the second-prior security interests
on the shares of Equity Interests that are so deemed to no longer constitute
part of the Collateral); and


 


(3)           In the event
that either Rule 3-10 or Rule 3-16 is amended, modified or interpreted
by the SEC to permit (or is replaced with another rule or regulation, or
any other law, rule or regulation is adopted, that would permit) such
Restricted Subsidiary’s Equity Interests to secure the Notes in excess of the
amount then pledged without the filing with the


 


85

















 


SEC (or any other governmental agency) of separate
financial statements of such Restricted Subsidiary, then the Equity Interests
of such Restricted Subsidiary shall automatically be deemed to be part of the
Collateral but only to the extent necessary to not be subject to any such financial
statement requirement (and, in such event, the Collateral Documents may be
amended or modified, without the consent of any Holder of the Notes, to the
extent necessary to subject to the Liens under the Collateral Document such
additional Equity Interests).


 


Section 10.02         Recording
and Opinions.


 


(a)           The Company shall, and shall
cause each of its Restricted Subsidiaries to, at its sole cost and expense,
take or cause to be taken such actions as may be required by the Collateral
Agreements, to perfect, maintain (with the priority required under the
Collateral Agreements), preserve and protect the valid and enforceable,
perfected (except as expressly provided herein or therein) security interests
in and on all the Collateral granted by the Collateral Agreements in favor of
the Collateral Agent as security for the Obligations contained in this
Indenture, the Notes, the Note Guarantees and the Collateral Agreements,
superior to and prior to the rights of all third Persons (other than as set
forth in the Intercreditor Agreement and other Permitted Liens), and subject to
no other Liens other than Permitted Liens, including without limitation, (i) the
filing of financing statements, continuation statements, collateral assignments
and any instruments of further assurance, in such manner and in such places as
may be required by law to preserve and protect fully the rights of the Holders,
the Collateral Agent, and the Trustee under this Indenture and the Collateral
Agreements to all property comprising the Collateral, and (ii) subject to
the terms of the Intercreditor Agreement, the delivery of the certificates
evidencing the securities pledged under the Collateral Agreements, duly
endorsed in blank or accompanied by undated stock powers or other instruments
of transfer executed in blank, it being understood that concurrently with the
execution of this Indenture the Company and its Restricted Subsidiaries have
delivered financing statements for filing by the Initial Purchaser or their
agents. The Company shall from time to time promptly pay all financing and
continuation statement recording and/or filing fees, charges and recording and
similar taxes relating to this Indenture, the Collateral Agreements and any
amendments hereto or thereto and any other instruments of further assurance
required pursuant hereto or thereto.


 


(b)           The Company shall furnish to
the Trustee and the Collateral Agent (if other than the Trustee), on or within
one month of May 15 of each year, commencing May 15, 2011, an Opinion
of Counsel in compliance with TIA § 314(b).


 


Section 10.03         Release
of Collateral.


 


(a)           Subject to the Intercreditor
Agreement, the Collateral Agent shall not at any time release the Collateral
from the security interests created by the Collateral Agreements unless such release
is expressly in accordance with the provisions of this Indenture and the
applicable Collateral Agreements.


 


(b)           Subject to the terms of the
Intercreditor Agreement, at any time when an Event of Default has occurred and
is continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise), no release of the Collateral pursuant to the
provisions of this Indenture or the Collateral Agreements shall be effective as
against the Holders, the Collateral Agent or the Trustee.


 


(c)           The release of any
Collateral from the terms of the Collateral Agreements shall not be deemed to
impair the security under this Indenture in contravention of the provisions
hereof if and to the extent the Collateral is released pursuant to this Indenture
and the Collateral Agreements. To the extent applicable, the Company shall
cause § 313(b), relating to reports, and § 314(d) of the TIA relating to
the release of property (other than the release of current assets in the
ordinary course of business) from the security interests created by this
Indenture and the Collateral Agreements to be complied with; provided,


 


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that any certificate or opinion required by §314(d) of the TIA may
be made solely by an Officer of the Company.


 


Section 10.04         Specified
Releases of Collateral.


 


Collateral may be released from the Lien and
security interest created by the Collateral Agreements at any time or from time
to time in accordance with the provisions of the Collateral Agreements or as
provided in this Indenture. Upon the written request of the Company, the
Company and the Guarantors will be entitled to releases of assets included in
the Collateral from the Liens securing the Obligations under the Notes and the
Note Guarantees, and the Collateral Agent shall release the same from such
Liens, under any one or more of the following circumstances:


 


(1)           if any Subsidiary that is a
Guarantor is released from its Note Guarantee pursuant to the terms hereof,
such Subsidiary’s assets will also be released from the Liens securing the
Notes and the Note Guarantees;


 


(2)           if any assets are sold,
leased, conveyed, disposed of or otherwise transferred pursuant to the terms of
this Indenture, such assets will be released from the Liens securing the Notes
and the Note Guarantees;


 


(3)           as described under Sections
9.01 and 9.02 hereof; or


 


(4)           as described under Section 10.05
hereof.


 


Upon the request of the Company pursuant to an
Officer’s Certificate and Opinion of Counsel stating that all conditions
precedent hereunder and under the Collateral Agreements have been met, and any
necessary or proper instruments of termination, satisfaction or release
prepared by the Company or the Guarantors, as the case may be, the Collateral
Agent, without the consent of any Holder or the Trustee and at the expense of
the Company or the Guarantors, shall execute, deliver or acknowledge such
instruments or releases to evidence the release of any Collateral permitted to
be released pursuant to this Indenture, the Collateral Agreements.


 


Section 10.05         Release
upon Satisfaction or Defeasance of all Outstanding Obligations.


 


(a)           The Liens on all Collateral
that secure the Notes and the Note Guarantees will be terminated and released:


 


(1)           if the Company exercises
Legal Defeasance or Covenant Defeasance as described in Sections 8.02 or
8.03 hereof;


 


(2)           upon satisfaction and
discharge of this Indenture as described under Article 12 hereof; or


 


(3)           upon payment in full in
immediately available funds of the principal of, premium, if any, and accrued
and unpaid interest (including Additional Interest, if any) on the Notes and
all other Obligations under this Indenture and the Collateral Agreements that
are then due and payable.


 


(b)           Upon the request of the
Company pursuant to an Officer’s Certificate and Opinion of Counsel stating
that all conditions precedent hereunder and under the Collateral Agreements
have been met, any necessary or proper instruments of termination, satisfaction
or release prepared by the Company


 


87

















 


or the Guarantors, as the case may be, the Collateral Agent, without
the consent of any Holder or the Trustee and at the expense of the Company or
the Guarantors, shall execute, deliver or acknowledge such instruments or
releases to evidence the release of any Collateral permitted to be released
pursuant to this Indenture or the Collateral Agreements.


 


Section 10.06         Form and
Sufficiency of Release.


 


In the event that the Company or any Guarantor has
sold, exchanged, or otherwise disposed of or proposes to sell, exchange or
otherwise dispose of any portion of the Collateral that may be sold, exchanged
or otherwise disposed of by the Company or such Guarantor to any Person other
than the Company or a Guarantor, and the Company or such Guarantor requests in
writing that the Trustee or Collateral Agent furnish a written disclaimer,
release or quit-claim of any interest in such property under this Indenture and
the Collateral Agreements, the Trustee and the Collateral Agent, as applicable,
shall execute, acknowledge and deliver to the Company or such Guarantor (in the
form prepared by the Company at the Company’s sole expense) such an instrument
promptly after satisfaction of the conditions set forth herein for delivery of
any such release. Notwithstanding the preceding sentence, all purchasers and
grantees of any property or rights purporting to be released herefrom shall be
entitled to rely upon any release executed by the Collateral Agent hereunder as
sufficient for the purpose of this Indenture and as constituting a good and
valid release of the property therein described from the Lien of this Indenture
or of the Collateral Agreements.


 


Section 10.07         Purchaser
Protected.


 


No purchaser or grantee of any property or rights
purporting to be released herefrom shall be bound to ascertain the authority of
the Collateral Agent to execute the release or to inquire as to the existence
of any conditions herein prescribed for the exercise of such authority; nor
shall any purchaser or grantee of any property or rights permitted by this
Indenture to be sold or otherwise disposed of by the Company be under any
obligation to ascertain or inquire into the authority of the Company to make
such sale or other disposition.


 


Section 10.08         Authorization
of Actions to be Taken by the Collateral Agent Under the Collateral Agreements


 


(a)           Subject to the provisions of
the applicable Collateral Agreements, each Holder, by acceptance of the Notes,
agrees that the Collateral Agent shall execute and deliver the Collateral
Agreements to which it is a party and all agreements, documents and instruments
incidental thereto, and act in accordance with the terms thereof. For the
avoidance of doubt, the Collateral Agent shall have no discretion under this
Indenture or the Collateral Agreements and shall not be required to make or
give any determination, consent, approval, request or direction without the
written direction of the Holders of a majority in aggregate principal amount of
the then outstanding Notes, the Trustee or the Company, as applicable.


 


(b)           Prior to the occurrence of
an Event of Default, the Company may direct the Collateral Agent in connection
with any action required or permitted by this Indenture or the Collateral
Agreements. After the occurrence of an Event of Default, the Trustee may direct
the Collateral Agent in connection with any action required or permitted by
this Indenture or the Collateral Agreements.


 


Section 10.09         Authorization of Receipt of Funds
by the Trustee Under the Collateral Agreements.


 


The Collateral Agent is authorized to receive any
funds for the benefit of itself, the Trustee and the Holders distributed under
the Collateral Agreements and to the extent not prohibited by the


 


88

















 


Intercreditor Agreement, for turnover to the Trustee to make further
distributions of such funds to itself, the Trustee and the Holders in
accordance with the provisions of Section 6.10 hereof and the other
provisions of this Indenture.


 


Section 10.10         Action by the Collateral Agent.


 


In each case that Collateral Agent may or is
required hereunder or under any Collateral Agreement to take any action (an “Action”), including without limitation to
make any determination, to give consents, to exercise rights, powers or
remedies, to release or sell Collateral or otherwise to act hereunder or under
any Collateral Agreement, the Collateral Agent may seek direction from the
Holders of a majority in aggregate principal amount of the then outstanding Notes.
The Collateral Agent shall not be liable with respect to any Action taken or
omitted to be taken by it in accordance with the direction from the Holders of
a majority in aggregate principal amount of the then outstanding Notes. If the
Collateral Agent shall request direction from the Holders of a majority in
aggregate principal amount of the then outstanding Notes with respect to any
Action, the Collateral Agent shall be entitled to refrain from such Action
unless and until the Collateral Agent shall have received direction from the
Holders of a majority in aggregate principal amount of the then outstanding
Notes, and the Collateral Agent shall not incur liability to any Person by
reason of so refraining.


 


Notwithstanding anything to the contrary in this
Indenture or any Collateral Agreement, in no event shall the Collateral Agent
be responsible for, or have any duty or obligation with respect to, the
recording, filing, registering, perfection, protection or maintenance of the
security interests or Liens intended to be created by this Indenture or the
Collateral Agreements (including without limitation the filing or continuation
of any UCC financing or continuation statements or similar documents or
instruments), nor shall the Collateral Agent be responsible for, and the
Collateral Agent makes no representation regarding, the validity, effectiveness
or priority of any of the Collateral Agreements or the security interests or
Liens intended to be created thereby.


 


Section 10.11         Compensation
and Indemnity.


 


(a)           The Company will pay to the
Collateral Agent from time to time reasonable compensation as shall be agreed
to in writing by the Company and the Collateral Agent for its acceptance of
this Indenture, the Collateral Agreements and services hereunder (it being
hereby agreed that the compensation set forth in the fee letter between the
Company and the Trustee is reasonable). The Company will reimburse the
Collateral Agent promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation
for its services. Such expenses will include the reasonable compensation,
disbursements and expenses of the Collateral Agent’s agents and counsel.


 


(b)           The Company and the
Guarantors will, jointly and severally, indemnify the Collateral Agent against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture and the Collateral Agreements, including (i) any claim relating
to the grant to the Collateral Agent of any Lien in any property or assets of
the Company or the Guarantors and (ii) the costs and expenses of enforcing
this Indenture, the Intercreditor Agreement and the Collateral Agreements
against the Company and the Guarantors (including this Section 10.11)
and defending itself against any claim (whether asserted by the Company, the
Guarantors, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder or thereunder,
except to the extent any such loss, liability or expense may be attributable to
its gross negligence or bad faith. The Collateral Agent will notify the Company
promptly of any claim for which it may seek indemnity. Failure by the
Collateral Agent to so notify the Company will not relieve the Company or any
of the Guarantors of their


 


89

















 


obligations hereunder. The Company or such Guarantor will defend the
claim and the Collateral Agent will cooperate in the defense. The Collateral
Agent may have separate counsel and the Company will pay the reasonable fees
and expenses of such counsel. Neither the Company nor any Guarantor need pay
for any settlement made without its consent, which consent will not be
unreasonably withheld.


 


(c)           The obligations of the
Company and the Guarantors under this Section 10.11 will survive the
satisfaction and discharge of this Indenture and the resignation, removal or
replacement of the Collateral Agent.


 


Section 10.12         Resignation;
Successor Collateral Agent.


 


Subject to the appointment and acceptance of a
successor Collateral Agent as provided below, the Collateral Agent may resign
at any time by giving notice thereof to the Company, the Trustee and the
Holders. Upon receipt of such notice, the Company shall appoint a successor
Collateral Agent. Upon acceptance by a successor Collateral Agent of an
appointment to serve as Collateral Agent hereunder and under the Collateral
Agreements, such successor Collateral Agent shall thereupon succeed to and
become vested with all the rights, powers, duties and obligations of the
retiring Collateral Agent without further act but the retiring Collateral Agent
shall continue to have the benefits of the compensation, reimbursement and
indemnification set forth in this Indenture and the Collateral Agreements.
Notwithstanding any Collateral Agent’s resignation, the provisions of this
Article 10 shall continue in effect for its benefit with respect to any
actions taken or omitted to be taken by it while Collateral Agent. Any
successor to Wilmington Trust FSB by merger or acquisition of stock or
acquisition of the corporate trust business shall continue to be Collateral
Agent hereunder without further act on the part of the parties hereto, unless
such successor resigns as provided above.


 


ARTICLE 11


 


NOTE GUARANTEES


 


Section 11.01         Guarantee.


 


(a)           Subject to this Article 11,
each of the Guarantors hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that:


 


(1)           the principal
of, premium and Additional Interest, if any, and interest on, the Notes will be
promptly paid in full when due, subject to the applicable grace periods,
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 Company to the Holders, the Trustee or the Collateral
Agent hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and


 


(2)           in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to applicable
grace periods, whether at stated maturity, by acceleration or otherwise.


 


Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors will be
jointly and severally obligated to pay the same immediately. Each Guarantor
agrees that this is a guarantee of payment and not a guarantee of collection.


 


90

















 


(b)           The Guarantors hereby agree
that their obligations hereunder are unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that this Note
Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture.


 


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


 


(d)           Each Guarantor agrees that
it will not be entitled to any right of subrogation in relation to the Holders
in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between
the Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (1) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (2) in
the event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) will
forthwith become due and payable by the Guarantors for the purpose of this Note
Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Note Guarantee.


 


Section 11.02         Limitation
on Guarantor Liability.


 


Each Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Note Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Note Guarantee. To effectuate the foregoing
intention, the Trustee, the Collateral Agent, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will be limited
to the maximum amount that will, after giving effect to such maximum amount and
all other contingent and fixed liabilities of such Guarantor that are relevant
under such laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this
Article 11, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.


 


Section 11.03         Execution
and Delivery of Note Guarantee.


 


To evidence its Note Guarantee set forth in Section 11.01
hereof, each Guarantor hereby agrees that a notation of such Note Guarantee
substantially in the form attached as Exhibit E hereto will be
endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture will be executed on behalf of
such Guarantor by one of its Officers.


 


91

















 


Each Guarantor hereby agrees that its Note Guarantee
set forth in Section 11.01 hereof will remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Note Guarantee.


 


If an Officer whose signature is on this Indenture
or on the Note Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Note Guarantee is endorsed, the Note
Guarantee will be valid nevertheless.


 


The delivery of any Note by the Trustee, after the
authentication thereof hereunder, will constitute due delivery of the Note
Guarantee set forth in this Indenture on behalf of the Guarantors.


 


In the event that the Company or any of its
Restricted Subsidiaries creates or acquires any Domestic Subsidiary after the
date of this Indenture, if required by Section 4.17 hereof, the
Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.17
hereof and this Article 11, to the extent applicable.


 


Section 11.04         Guarantors
May Consolidate, etc., on Certain Terms.


 


Except as otherwise provided in Section 11.05
hereof, no Guarantor (other than a Guarantor whose Note Guarantee is to be
released in accordance with Section 11.05 hereof) may sell or
otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person) another Person, other than the Company or another Guarantor, unless:


 


(1)           immediately
after giving effect to that transaction, no Default or Event of Default exists;
and


 


(2)           either:


 


(A)          the Person
acquiring the property in any such sale or disposition or the Person formed by
or surviving any such consolidation or merger assumes all the obligations of
that Guarantor under its Note Guarantee, this Indenture, the Registration
Rights Agreement and the Collateral Agreements pursuant to a supplemental
indenture and appropriate Collateral Agreements; or


 


(B)           the Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Indenture or as otherwise required by the
Intercreditor Agreement.


 


In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee of the Note Guarantee endorsed
upon the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor, such successor
Person will succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued will in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued
in accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.


 


92

















 


Except as set forth in Articles 4 and 5 hereof, and
notwithstanding Section 11.04(2)(a) and 11.04(2)(b) hereof,
nothing contained in this Indenture or in any of the Notes will prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or will prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.


 


Section 11.05         Releases.


 


(a)           The Note Guarantee of a
Guarantor will be released, without the consent of any Holder:


 


(1)           in connection
with any sale or other disposition of all or substantially all of the assets of
that Guarantor (including by way of merger or consolidation) to a Person that
is not (either before or after giving effect to such transaction) the Company
or a Restricted Subsidiary of the Company, if the sale or other disposition
does not violate Section 4.10 hereof;


 


(2)           in connection
with any sale or other disposition of all of the Capital Stock of that
Guarantor to a Person that is not (either before or after giving effect to such
transaction) the Company or a Restricted Subsidiary of the Company, if the sale
or other disposition does not violate Section 4.10 hereof;


 


(3)           if the Company
designates that Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.18
hereof;


 


(4)           upon a Legal
Defeasance or Covenant Defeasance in accordance with Article 8 or satisfaction
and discharge of this Indenture in accordance with Article 12; or


 


(5)           as provided by the
Intercreditor Agreement.


 


(b)           At the Company’s written
direction and expense, in the event that a Note Guarantee of a Guarantor shall
be released in accordance with this Section 11.05, the Trustee will
execute and deliver an instrument acknowledging such release in accordance with
the terms of this Indenture (in a form prepared by the Company).


 


(c)           Any Guarantor not released
from its obligations under its Note Guarantee as provided in this Section 11.05
will remain liable for the full amount of principal of and premium and interest
(including Additional Interest, if any) on the Notes and for the other
Obligations of any Guarantor under this Indenture as provided in this Article 11.


 


ARTICLE 12


SATISFACTION AND DISCHARGE


 


Section 12.01         Satisfaction and Discharge.


 


This Indenture will be discharged and will cease to
be of further effect as to all Notes issued hereunder, when:


 


(1)            either:


 


(A)          all Notes that have been
authenticated, except lost, stolen or destroyed Notes that have been replaced
or paid and Notes for whose payment money has been


 


93

















 


deposited in trust and
thereafter repaid to the Company, have been delivered to the Trustee for
cancellation; or


 


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


 


(2)           no Default or
Event of Default has occurred and is continuing on the date of the deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit) and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is
bound (other than with respect to the borrowing of funds to be applied
concurrently to make the deposit required to effect such satisfaction and
discharge any similar concurrent deposit relating to other indebtedness, and in
each case the granting of Liens to secure such borrowings);


 


(3)           the Company or
any Guarantor has paid or caused to be paid all sums payable by it under this
Indenture; and


 


(4)           the Company has
delivered irrevocable instructions to the Trustee under this Indenture to apply
the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.


 


In addition, the Company must deliver an 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 has been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section 12.01, the
provisions of Sections 12.02 and 8.06 hereof will survive.
In addition, nothing in this Section 12.01 will be deemed to
discharge those provisions of Section 7.07 and 10.11 hereof,
that, by their terms, survive the satisfaction and discharge of this Indenture.


 


Section 12.02         Application of Trust Money.


 


Subject to the provisions of Section 8.06
hereof, all money and non-callable Government Securities deposited with the
Trustee pursuant to Section 12.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and premium and
interest (including Additional Interest, if any) for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.


 


If the Trustee or Paying Agent is unable to apply
any money or Government Securities in accordance with Section 12.01
hereof by reason of any legal proceeding or by reason of any order or


 


94














 


judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
and any Guarantor’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 11.01
hereof; provided that if the
Company has made any payment of principal of, premium or Additional Interest,
if any, or interest on, any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities held
by the Trustee or Paying Agent.


 


ARTICLE 13


MISCELLANEOUS


 


Section 13.01       Trust
Indenture Act Controls.


 


If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by TIA
§318(c), the imposed duties will control. Any provision of the TIA which is
required to be included in a qualified indenture, but not expressly included
herein, shall be deemed to be included by this reference.


 


Section 13.02       Notices.


 


Any notice or communication
by the Company, any Guarantor, the Trustee or the Collateral Agent to the
others is duly given if in writing and delivered in person or by first class
mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next day delivery, to the
others’ address:


 


If to the Company and/or any Guarantor:


 


OnCure Holdings, Inc.


188 Inverness Drive West, Suite 650


Englewood, CO 80112


Attention: Timothy A. Peach, Chief Financial Officer


Facsimile No.: (303) 643-6528


Telephone No.: (303) 643-6541


 


with a copy to:


 


OnCure Medical Corp.


18100 Von Karman


Suite 450


Irvine, California 92612-0162


Attention: Russell D. Phillips, Jr.,


Executive Vice President, General Counsel and
Secretary


 


and an additional copy to:


 


Latham & Watkins LLP


555 Eleventh Street, NW


Suite 1000


Washington DC 20004


Attention: Patrick Shannon, Esq.


 


95

















 


If to the Trustee and Collateral Agent:


 


Wilmington Trust FSB


246 Goose Lane, Suite 105


Guilford, Connecticut 06437


Facsimile No.: (203) 453-1183


Attention: Joseph P. O’Donnell


 


The Company, any Guarantor,
the Trustee or the Collateral Agent, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.


 


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


 


Any notice or communication
to a Holder will be mailed by first class mail to its address shown on the
register kept by the Registrar. Any notice or communication will also be so
mailed to any Person described in TIA § 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any defect in it
will not affect its sufficiency with respect to other Holders.


 


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


 


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


 


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


 


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


 


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


 


Section 13.04       Certificate
and Opinion as to Conditions Precedent.


 


Upon any request or
application by the Company or any Guarantor to the Trustee or Collateral Agent
to take any action under this Indenture or the Collateral Agreements, the
Company or such Guarantor, as the case may be, shall furnish to the Trustee or
Collateral Agent, as applicable:


 


(1)               an Officer’s Certificate in form
and substance reasonably satisfactory to the Trustee or Collateral Agent, as
applicable, (which must include the statements set forth in Section 13.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture or the Collateral
Agreements, as applicable, relating to the proposed action have been satisfied;
and


 


96

















 


(2)               an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee or Collateral Agent, as
applicable, (which must include the statements set forth in Section 13.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants, if any, have been satisfied.


 


Section 13.05       Statements
Required in Certificate or Opinion.


 


Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this
Indenture (other than a certificate provided pursuant to TIA § 314(a)(4) or
the Officer’s Certificate required by Section 4.04 hereof) must
comply with the provisions of TIA § 314(e) and must include:


 


(1)       a statement that each individual signing
such certificate or opinion has read such covenant or condition;


 


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


 


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


 


(4)       a statement as to whether or not, in the
opinion of each such individual, such condition or covenant has been satisfied;


 


provided, that with
respect to matters of fact, an Opinion of Counsel may rely on an Officer’s
Certificate or certificates of public officials.


 


Section 13.06       Rules by
Trustee and Agents.


 


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


 


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


 


No director, officer,
employee, incorporator or stockholder of the Company or any Guarantor, as such,
will have any liability for any Obligations of the Company or the Guarantors
under the Notes, this Indenture, the Note Guarantees or the Collateral
Agreements or for any claim based on, in respect of, or by reason of, such
Obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws.


 


Section 13.08 Governing
Law.


 


THE INTERNAL LAW OF THE
STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE
COLLATERAL AGREEMENTS, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


97

















 


Section 13.09       No
Adverse Interpretation of Other Agreements.


 


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


 


Section 13.10       Successors.


 


All
agreements of the Company in this Indenture and the Notes will bind its
successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture and the Note
Guarantees will bind its successors, except as otherwise provided in Section 11.05.


 


Section 13.11       Severability.


 


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


 


Section 13.12       Counterpart
Originals.


 


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


 


Section 13.13       Table
of Contents, Headings, etc.


 


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


 


[Signature page follows.]


 


98

















 


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


 


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  ONCURE HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L. Duane Choate

  
	
   

  	
   

  	
  Name: L. Duane Choate

  
	
   

  	
   

  	
  Title: President and Chief Executive Officer

  



 


[Indenture]


 

















 


	
   

  	
  THE GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  ONCURE MEDICAL CORP.

  
	
   

  	
  CHARLOTTE COMMUNITY RADIATION ONCOLOGY, INC.

  
	
   

  	
  COASTAL ONCOLOGY, INC.

  
	
   

  	
  ENGLEWOOD ONCOLOGY, INC.

  
	
   

  	
  FOUNTAIN VALLEY & ANAHEIM

  
	
   

  	
  RADIATION ONCOLOGY CENTERS, INC.

  
	
   

  	
  INTERHEALTH FACILITY TRANSPORT, INC.

  
	
   

  	
  JAXPET, LLC

  
	
   

  	
  JAXPET/POSITECH, L.L.C.

  
	
   

  	
  MANATEE RADIATION ONCOLOGY, INC.

  
	
   

  	
  MICA FLO II, INC.

  
	
   

  	
  MISSION VIEJO RADIATION ONCOLOGY

  
	
   

  	
  MEDICAL GROUP, INC.

  
	
   

  	
  POINTE WEST ONCOLOGY, LLC

  
	
   

  	
  RADIATION ONCOLOGY CENTER, LLC

  
	
   

  	
  SANTA CRUZ RADIATION ONCOLOGY

  
	
   

  	
  MANAGEMENT CORP.

  
	
   

  	
  SARASOTA COUNTY ONCOLOGY, INC.

  
	
   

  	
  SARASOTA RADIATION & MEDICAL

  
	
   

  	
  ONCOLOGY CENTER, INC.

  
	
   

  	
  U.S. CANCER CARE, INC.

  
	
   

  	
  USCC ACQUISITION CORP.

  
	
   

  	
  USCC FLORIDA ACQUISITION CORP.

  
	
   

  	
  USCC HEALTHCARE MANAGEMENT CORP.

  
	
   

  	
  VENICE ONCOLOGY CENTER, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L. Duane Choate

  
	
   

  	
  Name: L. Duane Choate

  
	
   

  	
  Title: President and Chief Executive Officer

  



 


[Indenture]


 

















 


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


 


 


	
   

  	
  TRUSTEE AND COLLATERAL AGENT:

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST FSB, as
  trustee and collateral agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph P O’Donnell

  
	
   

  	
   

  	
  Name:

  	
  Joseph P O’Donnell

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


[Indenture]


 














 


EXHIBIT A


 


FORM OF GLOBAL NOTE


 


113/4% SENIOR SECURED NOTES DUE 2017


 


[Insert the Regulation S Temporary
Global Note Legend, if applicable, pursuant to the provisions of the Indenture]


 


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


 


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


 


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


 


THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH
PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, OR (C) IT IS
AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES
ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR


 


A1-1

















 


TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO
RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) 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 AND IN ACCORDANCE WITH THE LAWS
APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) TO
AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE,
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES,
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR
REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED
SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT.


 


THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT PURSUANT
TO OR IN CONNECTION WITH THE INDENTURE (AS DEFINED HEREIN) AND THE EXERCISE OF
ANY RIGHT OR REMEDY AGAINST THE COLLATERAL (AS DEFINED IN THE INDENTURE) BY THE
COLLATERAL AGENT HEREUNDER AND PURSUANT TO THE INDENTURE ARE SUBJECT TO THE
PROVISIONS OF THE INTERCREDITOR AGREEMENT, DATED AS OF MAY 13, 2010 (AS
AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
“INTERCREDITOR AGREEMENT”), AMONG GENERAL ELECTRIC CAPITAL CORPORATION, AS
FIRST LIEN AGENT (OR ITS SUCCESSORS AND ASSIGNS IN THAT CAPACITY), WILMINGTON
TRUST FSB, AS SECOND LIEN AGENT (OR ITS SUCCESSORS AND ASSIGNS IN THAT
CAPACITY), AND CERTAIN OTHER PERSONS PARTY OR THAT MAY BECOME PARTY
THERETO FROM TIME TO TIME.


 

















 


0


 


ONCURE HOLDINGS, INC.


 


113/4% Senior Secured Notes due 2017


 


	
   

  	
  CUSIP/CINS

  	
   

  
	
   

  	
   

  	
   

  
	
  No.

  	
  $

  	
   

  



 


promises to pay to                             or
registered assigns,


 


the principal sum of                                                                                                               DOLLARS
on May 15, 2017.


 


Interest Payment Dates: May 15 and November 15


 


Record Dates: May 1 and November 1


 


Dated:                           ,
20


 


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


 


[Signature pages follow]


 

















 


IN WITNESS WHEREOF, OnCure Holdings, Inc. has
caused this Note to be signed manually or by facsimile by its duly authorized
officer as of this        day
of                   ,
20    .


 


 


	
   

  	
  ONCURE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the 113/4% Senior Secured Notes due 2017 referred to in the
within-mentioned Indenture.


 


Dated:                     ,
20


 


 


	
   

  	
  WILMINGTON TRUST
  FSB, as trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 














 


(REVERSE OF NOTE)


 


113/4% Senior Secured Notes due 2017


 


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


 


(1)       INTEREST. OnCure
Holdings, Inc., a Delaware corporation (the “Company”), promises to pay or cause to be paid interest on
the principal amount of this Note at 113/4% per annum from                 ,
20     until maturity and shall pay the Additional
Interest, if any, payable pursuant to Section 4 of the Registration Rights
Agreement referred to below. The Company will pay interest and Additional
Interest, if any, semi-annually in arrears on May 15 and November 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 this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided
further that the first Interest Payment Date shall be
November 15, 2010. The Company will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 2% per annum in
excess of the rate then in effect to the extent lawful; it will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest and Additional Interest, if any, (without
regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.


 


(2)       METHOD OF PAYMENT. The Company
will pay interest on the Notes (except defaulted interest) and Additional
Interest, if any, to the Persons who are registered Holders of Notes at the
close of business on the May 1 or November 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium and Additional Interest, if any,
and interest at the office or agency of the Company maintained for such purpose
or, at the option of the Company, payment of interest and Additional Interest,
if any, may be made by check mailed to the Holders at their addresses set forth
in the register of Holders; provided that
payment by wire transfer of immediately available funds will be required with
respect to principal of and interest, premium and Additional Interest, if any,
on, all Global Notes and all other Notes the Holders of which will have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment will be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.


 


(3)       PAYING AGENT AND REGISTRAR. Initially,
Wilmington Trust FSB, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change the Paying Agent or Registrar without
notice to any Holder. The Company or any of its Subsidiaries may act in any
such capacity.


 


(4)       INDENTURE AND COLLATERAL AGREEMENTS. The Company
issued the Notes under an Indenture dated as of May 13, 2010 (the “Indenture”) among the Company, the
Guarantors, the Trustee and the Collateral Agent. The terms of the Notes
include those stated


 

















 


in the Indenture and those
made part of the Indenture by reference to the TIA. The Notes are subject to
all such terms, and Holders are referred to the Indenture and the TIA for a
statement of such terms. To the extent any provision of this Note conflicts
with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes are senior secured obligations of
the Company. The obligations of the Company and the Guarantors under the Notes
and the Note Guarantees are secured by Liens on the Collateral pursuant to the
terms of the Collateral Agreements. The Indenture does not limit the aggregate
principal amount of Notes that may be issued thereunder.


 


(5)           OPTIONAL
REDEMPTION.


 


(i) At any time prior
to May 15, 2013, the Company may on any one or more occasions redeem up to
35% of the aggregate principal amount of Notes issued under the Indenture, upon
not less than 30 nor more than 60 days’ notice, at a redemption price equal to
111.750% of the principal amount of the Notes redeemed, plus accrued and unpaid
interest and Additional Interest, if any, to the redemption date with the net
cash proceeds of an Equity Offering by the Company; provided that:


 


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


 


(ii)           the redemption occurs within 90 days
of the date of the closing of such Equity Offering.


 


(ii) On or after
May 15, 2014, the Company may on any one or more occasions redeem all or a
part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Additional Interest, if any, on the
Notes redeemed, to the applicable date of redemption, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below,
subject to the rights of Holders on the relevant regular record date to receive
interest due on the relevant interest payment date that is on or prior to the
applicable date of redemption:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  105.875

  	
  %

  
	
  2015

  	
   

  	
  102.938

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Except pursuant to paragraph 5(a), the Notes are not
redeemable at the Company’s option prior to May 15, 2014. The Company is
not, however, prohibited under the Indenture from acquiring the Notes by means
other than a redemption, whether pursuant to open-market transactions, tender
offers or otherwise so long as such acquisition does not otherwise violate the
terms of the Indenture. Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions
thereof called for redemption on the applicable redemption date.


 


(6)            MANDATORY
REDEMPTION.


 


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


 

















 


(7)           REPURCHASE
AT THE OPTION OF HOLDER.


 


(i)       If there is a Change of Control, the Company will be required
to 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 in excess thereof) of each Holder’s Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest, if any, thereon to the
date of purchase, subject to the rights of Holders on the relevant record date
to receive interest due on the relevant interest payment date that is on or
prior to the applicable date of repurchase (the “Change of Control Payment”). Within 30 days following any
Change of Control, the Company will mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.


 


(ii)      If the Company or a Restricted Subsidiary of the Company
consummates any Asset Sales, within five Business Days of each date on which
the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will
make an offer (an “Asset Sale Offer”)
to (1) all Holders of Notes, and (2) unless such Asset Sale involves
a sale of Collateral other than Collateral that is subject to a Permitted Lien,
at the option of the Company, all holders of other Indebtedness that is pari passu with the Notes and contains
provisions similar to those set forth in the Indenture with respect to offers
to purchase, prepay or redeem with the proceeds of sales of assets, in each
case to purchase, prepay or redeem the maximum principal amount of Notes and,
if applicable, such other pari passu Indebtedness
that may be purchased, prepaid or redeemed out of the Excess Proceeds. The
offer price with respect to the Notes in any Asset Sale Offer will be equal to
100% of the principal amount, plus accrued and unpaid interest and Additional
Interest, if any, to the date of purchase, prepayment or redemption, subject to
the rights of Holders of Notes on the relevant regular record date to receive
interest due on the relevant interest payment date that is on or prior to the
applicable date of repurchase, prepayment or redemption, and will be payable in
cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer,
the Company may use those Excess Proceeds for any purpose not otherwise
prohibited by the Indenture (including, without limitation, the repayment of
Indebtedness and other Obligations under a Credit Facility, whether or not
secured by a first priority Lien on the assets that are the subject of such
Asset Sale). If the aggregate principal amount of Notes and, if applicable,
other pari passu Indebtedness
tendered in (or required to be prepaid or redeemed in connection with) such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Company will select
the other pari passu Indebtedness
to be repurchased, prepaid or redeemed on a pro
rata basis, and the Trustee will select the Notes to be repurchased,
prepaid or redeemed on a pro rata basis
or by lot or by other method as the Trustee deems fair and appropriate, in each
case based on the amounts tendered or required to be prepaid or redeemed. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes purchased by completing the form entitled
“Option of Holder to Elect Purchase”
attached to the Notes.


 


(8)           NOTICE
OF REDEMPTION. Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each Holder whose Notes
are to be redeemed at its registered address, except that redemption notices
may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with a defeasance of the Notes or a satisfaction or
discharge of the Indenture pursuant to Articles 8 and 12. 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 or purchased.


 

















 


(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 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 Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed
or during the period between a record date and the corresponding Interest
Payment Date.


 


(10)         PERSONS DEEMED OWNERS. The
registered Holder of a Note may be treated as its owner for all purposes. Only
registered Holders have rights under the Indenture.


 


(11)         AMENDMENT, SUPPLEMENT AND WAIVER. Subject to
certain exceptions, the Indenture, the Notes, the Note Guarantees, the
Collateral Agreements and, with the consent of the First Lien Collateral Agent
under the New Revolving Credit Facility, the Intercreditor Agreement may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes, including, without
limitation, Additional Notes, if any (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and any existing Default or Event or Default (other than a
Default or Event of Default in the payment of the principal of, premium or
Additional Interest, if any, or interest on, the Notes, except a payment
defaulting resulting solely from an acceleration that has been rescinded) or
compliance with any provision of the Indenture, the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes, including, without limitation,
Additional Notes, if any (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes). Without the consent of any Holder of a Note, the Indenture, the Notes,
the Note Guarantees or, the Collateral Agreements, may be amended or
supplemented (i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of
certificated Notes; (iii) to provide for the assumption of the Company’s
or a Guarantor’s obligations to Holders of Notes and Note Guarantees in the
case of a merger or consolidation or sale of all or substantially all of the
Company’s or such Guarantor’s assets, as applicable; (iv) to make any
change that would provide any additional rights or benefits to the Holders of
Notes or that does not adversely affect the legal rights under the Indenture of
any such Holder; (v) to comply with requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA;
(vi) to conform the text of the Indenture, the Note Guarantees, the
Collateral Agreements or the Notes to any provision of the “Description of
Notes” section of the Offering Memorandum to the extent that such provision was
intended by the Company to be a verbatim recitation of a provision of the
Indenture, the Note Guarantees, the Collateral Agreements or the Notes, which
intent shall be evidenced by an Officer’s Certificate to that effect;
(vii) to enter into additional or supplemental Collateral Agreements;
(viii) to release Collateral in accordance with the terms of the Indenture
and the Collateral Agreements; (ix) to provide for the issuance of Additional
Notes in accordance with the limitations set forth in the Indenture as of the
date of the Indenture; or (x) to allow any Guarantor to execute a
supplemental indenture and/or a Note Guarantee with respect to the Notes.


 

















 


Notwithstanding the
foregoing, any amendment to, or waiver of, the provisions of the Indenture or
any Collateral Agreement that has the effect of releasing all or substantially
all of the Collateral from the Liens securing the Notes will require the
consent of the Holders of at least 662/3% in aggregate principal amount of the Notes then outstanding.


 


(12)         DEFAULTS AND REMEDIES.
Events of Default include: (i) default for 30 days in the payment when due
of interest (including Additional Interest, if any) on the Notes;
(ii) default in the payment when due (at maturity, upon redemption or
otherwise) of the principal of, or premium on, the Notes; (iii) failure by
the Company or any of its Restricted Subsidiaries to comply with the provisions
of Sections 3.09, 4.07, 4.09, 4.10, 4.15, and 5.01 of the Indenture;
(iv) failure by the Company or any of its Restricted Subsidiaries for 60
days after notice to the Company by the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding voting as a single
class to comply with any of the other agreements in the Indenture;
(v) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created
after the date of the Indenture, if that default (A) is caused by a failure
to pay principal of, or interest or premium, if any, on, such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness on
the date of such default (a “Payment Default”)
or (B) results in the acceleration of such Indebtedness prior to its
express maturity, and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $5.0 million or more; (vi) failure by the
Company or any of its Restricted Subsidiaries to pay final judgments entered by
a court or courts of competent jurisdiction aggregating in excess of $10.0
million, which judgments are remain unpaid or are not discharged or stayed for
a period of 60 days; (vii) except as permitted by the Indenture, any Note
Guarantee is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect, or any Guarantor, or any
Person acting on behalf of any Guarantor, denies or disaffirms its obligations
under its Note Guarantee; (viii) any Collateral Agreement at any time for
any reason shall cease to be in full force and effect in all material respects,
or ceases to give the Collateral Agent the Liens, rights, powers and privileges
purported to be created thereby, superior to and prior to the rights of all
third Persons other than the holders of Permitted Liens and subject to no other
Liens except as expressly permitted by the applicable Collateral Agreement or
the Indenture; or the Company or any of the Guarantors, directly or indirectly,
contest in any manner the effectiveness, validity, binding nature or
enforceability of any Collateral Agreement; and (ix) certain events of
bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary.


 


If any Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable immediately without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest or premium or
Additional Interest, if


 

















 


any) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may, on behalf of the Holders
of all of the Notes, rescind an acceleration or waive any existing Default or
Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of interest or premium or Additional
Interest, if any, on, or the principal of, the Notes. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required, upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.


 


(13)         TRUSTEE DEALINGS WITH THE COMPANY. The Trustee,
in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not the Trustee.


 


(14)         NO RECOURSE AGAINST OTHERS. No past,
present or future director, officer, employee, incorporator or stockholder of
the Company or any of the Guarantors, as such, will have any liability for any
obligations of the Company or the Guarantors under the Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.


 


(15)         AUTHENTICATION. This Note
will not be valid until authenticated by the manual signature of the Trustee or
an authenticating agent.


 


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


 


(17)         [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 originally
issued on the date of the Indenture will have all the rights set forth in the
Registration Rights Agreement dated as of May 13, 2010, among the Company,
the Guarantors and Jefferies & Company, Inc., as Initial
Purchaser, in the case of Additional Notes (if any), Holders of Restricted
Global Notes and Restricted Definitive Notes will have the rights set forth in
one or more registration rights agreements, if any, among the Company, the
Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the “Registration Rights
Agreement”). Pursuant to the terms of the Registration Rights
Agreement, the Company will be obligated to consummate an Exchange Offer. Upon
such Exchange Offer, the Holders of Notes shall have the right, subject to
compliance with securities laws, to exchange such Notes for Exchange Notes in
like principal amount and having terms identical in all material respects to
the Initial Notes and/or Additional Notes, if any; provided, that the form of the Exchange Notes shall include
such variations as are permitted or required by the Registration Rights
Agreement. The Holders of Notes shall be entitled to receive Additional
Interest in the event such Exchange Offer is not consummated pursuant to and in
accordance with the terms and conditions of the Registration Rights Agreement.
]


 

















 


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


 


(19)         GOVERNING LAW. THE INTERNAL
LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE,
THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


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


 


OnCure Holdings, Inc.


188 Inverness Drive West,
Suite 650


Englewood, CO 80112


Attention: Timothy A. Peach,
Chief Financial Officer


 














 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


	
  I or we assign and transfer this Note to:

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

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

  
	
   

  
	
  and irrevocably appoint

  	
   

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

  
			



 


	
  Date:

  	
   

  	
   

  



 


	
   

  	
  Your Signature:

  	
   

  
	
   

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

  



 


	
  Signature
  Guarantee*:

  	
   

  	
   

  



 


In
connection with any transfer of this Note occurring prior to the date which is
the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the U.S. Securities Act of
1933, as amended (the “Securities Act”), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the expiration of the applicable holding period with
respect to restricted securities set forth in Rule 144 under the Securities
Act, the undersigned confirms that it has not utilized any general solicitation
or general advertising in connection with the transfer and that this Note is
being transferred:


 


[Check
One]


 


	
  (1)

  	
  o

  	
  to the Company
  or a subsidiary thereof; or

  
	
   

  	
   

  	
   

  
	
  (2)

  	
  o

  	
  pursuant to and
  in compliance with Rule 144A under the Securities Act; or

  
	
   

  	
   

  	
   

  
	
  (3)

  	
  o

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

  
	
   

  	
   

  	
   

  
	
  (4)

  	
  o

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

  
	
   

  	
   

  	
   

  
	
  (5)

  	
  o

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

  



 

















 


Unless one of the
boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided that if box (3), (4) or
(5) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Notes, in its sole discretion, such legal
opinions, certifications (including an investment letter in the case of box
(3) or (4)) and other information as the Trustee or the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.


 


If
none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.06 of the Indenture shall have been
satisfied.


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign exactly as your name appears on the

  other side of this Note)

  



 


	
  Signature
  Guarantee*:

  	
   

  	
   

  



 






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


 


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


 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NOTICE: To be
  executed by an executive officer

  



 

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Indenture, check the appropriate box below:


 




	
  o  Section 4.10

  	
   

  	
  o  Section 4.15

  






 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:


 


$                     


 


	
  Date:

  	
   

  	
   

  



 


	
  Your Signature:        

  	
   

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

  
	
   

  
	
  Tax Identification No.: 

  	
   

  
			



 


	
  Signature
  Guarantee*:

  	
   

  	
   

  



 






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


 

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
*


 


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


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount

  of this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized officer

  of Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






* This schedule should be included only if the Note is
issued in global form.


 

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


OnCure
Holdings, Inc.


188 Inverness
Drive West, Suite 650


Englewood, CO
80112


Attention: Timothy
A. Peach, Chief Financial Officer


 


Wilmington Trust
FSB


246 Goose Lane,
Suite 105


Guilford,
Connecticut 06437


Facsimile No.:
(203) 453-1183


Attention: Joseph
P. O’Donnell


 


Re:
113/4% Senior Secured Notes due 2017


 


Reference
is hereby made to the Indenture, dated as of May 13, 2010 (the “Indenture”), among OnCure
Holdings, Inc., a Delaware corporation, as issuer (the “Company”), the Guarantors party thereto
and Wilmington Trust FSB, as trustee and collateral agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.


 


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


 


[CHECK ALL THAT APPLY]


 


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


 


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


 


B-1

















 


transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States,
(ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act and
(iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Permanent Global Note, the Regulation S
Temporary Global Note and/or the Restricted Definitive Note and in the
Indenture and under the Securities Act.


 


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


 


(a)           o  such Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act;


 


or


 


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


 


or


 


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


 


or


 


(d)           o  such Transfer
is being effected to an Accredited Investor and pursuant to an exemption from
the registration requirements of the Securities Act other than Rule 144A,
Rule 144, Rule 903 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within
the meaning of Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of
Notes at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the AI Global Note and/or
the Restricted Definitive Notes and in the Indenture and under the Securities
Act.


 


B-2

















 


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


 


(a)   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 Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


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


 


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


 


	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of
  Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


B-3

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


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


 


[CHECK ONE OF (a) OR (b)]


 


(a)   o    a
beneficial interest in the:


 


(i)        o  144A Global
Note (CUSIP               ),
or


 


(ii)       o  Regulation S
Global Note (CUSIP                ),
or


 


(iii)      o  AI 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  AI Global Note (CUSIP
             ),
or


 


(iv)     o  Unrestricted
Global Note (CUSIP              );
or


 


(b)   o    a
Restricted Definitive Note; or


 


(c)   o    an
Unrestricted Definitive Note,


 


in
accordance with the terms of the Indenture.


 


B-4














 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


OnCure
Holdings, Inc.


188 Inverness
Drive West, Suite 650


Englewood, CO
80112


Attention: Timothy
A. Peach, Chief Financial Officer


 


Wilmington Trust
FSB


246 Goose Lane,
Suite 105


Guilford,
Connecticut 06437


Facsimile No.:
(203) 453-1183


Attention: Joseph
P. O’Donnell


 


Re: 113/4% Senior Secured Notes due 2017


 


Reference
is hereby made to the Indenture, dated as of May 13, 2010 (the “Indenture”), among OnCure
Holdings, Inc., a Delaware corporation, as issuer (the “Company”), the Guarantors party thereto
and Wilmington Trust FSB, as trustee and collateral agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.


 


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


 


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


 


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


 


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


 


(c)   o  Check if Exchange is from Restricted Definitive Note
to beneficial interest in an Unrestricted Global Note. In connection
with the Owner’s Exchange of a Restricted Definitive Note for


 


C-1

















 


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


 


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


 


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


 


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


 


(b)   o  Check if Exchange is from Restricted Definitive Note
to beneficial interest in a Restricted Global Note. In connection
with the Exchange of the Owner’s Restricted Definitive Note for a beneficial
interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global Note, o
AI Global Note with an equal principal amount, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account
without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of
  Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


C-2

















 


	
  Dated:

  	
   

  	
   

  



 


C-3

















 


Exhibit d


 


FORM OF CERTIFICATE FROM

ACQUIRING ACCREDITED INVESTOR


 


OnCure
Holdings, Inc.


188 Inverness
Drive West, Suite 650


Englewood, CO
80112


Attention: Russell
D. Phillips, Jr., Executive Vice President, General Counsel and Secretary


 


Wilmington Trust
FSB


246 Goose Lane,
Suite 105


Guilford,
Connecticut 06437


Facsimile No.:
(203) 453-1183


Attention: Joseph
P. O’Donnell


 


Re:
113/4% Senior Secured Notes due 2017


 


Reference
is hereby made to the Indenture, dated as of May 13, 2010 (the “Indenture”), among OnCure
Holdings, Inc., a Delaware corporation, as issuer (the “Company”), the guarantors party thereto
and Wilmington Trust FSB, as trustee and collateral agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.


 


In connection with our proposed purchase of
$                  
aggregate principal amount of:


 


(a)   o  a beneficial interest
in a Global Note, or


 


(b)   o  a Definitive
Note,


 


we
confirm that:


 


1.             We understand that any subsequent
transfer of the Notes or any interest therein is subject to certain
restrictions and conditions set forth in the Indenture and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise transfer the Notes or
any interest therein except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the “Securities Act”) or any other applicable
securities law.


 


2.             We understand that the offer and
sale of the Notes have not been registered under the Securities Act or any
applicable securities law, and that the Notes and any interest therein may not
be offered or sold except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a “qualified
institutional buyer” (as defined therein), (C) to an “accredited investor”
(as defined below) that, prior to such transfer, furnishes (or has furnished on
its behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $250,000, an
Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside
the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144 under the
Securities Act or (F) pursuant to an effective registration statement
under the Securities Act, and we


 


D-1

















 


further agree to
provide to any Person purchasing the Definitive Note or beneficial interest in
a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser
that resales thereof are restricted as stated herein.


 


3.             We understand that, on any proposed
resale of the Notes or beneficial interest therein, we will be required to
furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand
that the Notes purchased by us will bear a legend to the foregoing effect.


 


4.             We are an “accredited investor” (as
defined in Rule 501(a) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.


 


5.             We are acquiring the Notes or
beneficial interest therein purchased by us for our own account or for one or
more accounts (each of which is an “accredited investor”) as to each of which
we exercise sole investment discretion, in each case for investment only, and
not with a view to, or for the offer or sale in connection with, any
distribution thereof in violation of the Securities Act.


 


You
and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Insert Name of
  Accredited Investor]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


D-2

















 


EXHIBIT E


 


[FORM OF NOTATION OF GUARANTEE]


 


For
value received, each Guarantor (which term includes any successor Person under
the Indenture) has, jointly and severally, unconditionally guaranteed, to the
extent set forth in the Indenture and subject to the provisions in the
Indenture dated as of May 13, 2010 (the “Indenture”)
among OnCure Holdings, Inc., a Delaware corporation, (the “Company”), the Guarantors party thereto
and Wilmington Trust FSB, as trustee (in such capacity, the “Trustee”) and collateral agent (in such
capacity, the “Collateral Agent”),
(a) the due and punctual payment of the principal of, premium, if any, and
interest on, the Notes, subject to applicable grace periods, whether at
maturity, by acceleration, redemption or otherwise, the due and punctual
payment of interest on overdue principal of and interest on the Notes, if any,
if lawful, and the due and punctual performance of all other obligations of the
Company to the Holders, the Trustee or the Collateral Agent all in accordance
with the terms of the Indenture and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, subject to applicable grace periods, whether
at stated maturity, by acceleration or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee and Collateral Agent
pursuant to this Notation of Guarantee (this “Note
Guarantee”) and the Indenture are expressly set forth in
Article 11 of the Indenture and reference is hereby made to the Indenture
for the precise terms of this Note Guarantee.


 


THIS
IS A CONTINUING GUARANTEE AND SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL
BE BINDING UPON EACH GUARANTOR AND ITS SUCCESSORS AND ASSIGNS UNTIL FULL AND
FINAL PAYMENT OF ALL OF THE COMPANY’S OBLIGATIONS UNDER THE NOTES AND THE
INDENTURE OR UNTIL RELEASED, DISCHARGED OR LEGALLY DEFEASED IN ACCORDANCE WITH
THE INDENTURE AND SHALL INURE TO THE BENEFIT OF THE SUCCESSORS AND ASSIGNS OF
THE TRUSTEE, THE COLLATERAL AGENT AND THE HOLDERS, AND, IN THE EVENT OF
ANY TRANSFER OR ASSIGNMENT OF RIGHTS BY ANY HOLDER, THE TRUSTEE OR THE
COLLATERAL AGENT, THE RIGHTS AND PRIVILEGES HEREIN CONFERRED UPON THAT PARTY
SHALL AUTOMATICALLY EXTEND TO AND BE VESTED IN SUCH TRANSFEREE OR ASSIGNEE, ALL
SUBJECT TO THE TERMS AND CONDITIONS HEREOF. THIS IS A GUARANTEE OF PAYMENT AND
PERFORMANCE AND NOT OF COLLECTION.


 


THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
GUARANTEE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


Capitalized
terms used but not defined herein have the meanings given to them in the
Indenture.


 


	
   

  	
  [NAME OF
  GUARANTOR(S)]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 














 


EXHIBIT F


 


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]


 


SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                        ,
20    , among               
(the “Guaranteeing Subsidiary”),
a subsidiary of OnCure Holdings, Inc., (or its permitted successor), a
Delaware corporation (the “Company”),
the Company, the other Guarantors (as defined in the Indenture referred to
herein) and Wilmington Trust FSB, as trustee under the Indenture referred to
below (the “Trustee”) and as
collateral agent.


 


W I T N E S S E T H


 


WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the “Indenture”), dated as of
May 13, 2010, providing for the issuance of 113/4% Senior Secured 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 Company’s Obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the “Note
Guarantee”); and


 


WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.


 


NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders 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 to provide an unconditional Guarantee on
the terms and subject to the conditions set forth in the Note Guarantee and in
the Indenture including but not limited to Article 11 thereof.


 


4.             NO RECOURSE AGAINST OTHERS. No
past, present or future director, officer, employee, incorporator, stockholder
or agent of the Guaranteeing Subsidiary, as such, shall have any liability for
any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.


 


5.             NEW YORK LAW TO GOVERN. THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.


 


F-1

















 


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


 


7.             EFFECT OF HEADINGS. The
Section headings herein are for convenience only and shall not affect the
construction hereof.


 


8.             THE TRUSTEE. The Trustee shall not
be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.


 


[Signature page follows.]


 


F-2

















 


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


 


	
  Dated:
                       ,
  20    

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  COMPANY: 

  
	
   

  	
   

  
	
   

  	
  ONCURE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: L. Duane
  Choate

  
	
   

  	
   

  	
  Title: President
  and Chief Executive Officer

  
				



 

















 


	
   

  	
  THE
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  ONCURE MEDICAL
  CORP.

  
	
   

  	
  CHARLOTTE
  COMMUNITY RADIATION ONCOLOGY, INC.

  
	
   

  	
  COASTAL
  ONCOLOGY, INC.

  
	
   

  	
  ENGLEWOOD
  ONCOLOGY, INC.

  
	
   

  	
  FOUNTAIN
  VALLEY & ANAHEIM RADIATION ONCOLOGY CENTERS, INC.

  
	
   

  	
  INTERHEALTH
  FACILITY TRANSPORT, INC. 

  
	
   

  	
  JAX PET, LLC

  
	
   

  	
  JAXPET/POSITECH,
  L.L.C.

  
	
   

  	
  MANATEE
  RADIATION ONCOLOGY, INC. 

  
	
   

  	
  MICA FLO
  II, INC.

  
	
   

  	
  MISSION VIEJO
  RADIATION ONCOLOGY MEDICAL GROUP, INC.

  
	
   

  	
  POINTE WEST
  ONCOLOGY, LLC

  
	
   

  	
  RADIATION ONCOLOGY
  CENTER, LLC 

  
	
   

  	
  SANTA CRUZ
  RADIATION ONCOLOGY MANAGEMENT CORP.

  
	
   

  	
  SARASOTA COUNTY
  ONCOLOGY, INC. 

  
	
   

  	
  SARASOTA
  RADIATION & MEDICAL ONCOLOGY CENTER, INC.

  
	
   

  	
  U.S. CANCER
  CARE, INC.

  
	
   

  	
  USCC ACQUISITION
  CORP.

  
	
   

  	
  USCC FLORIDA
  ACQUISITION CORP

  
	
   

  	
  USCC HEALTHCARE
  MANAGEMENT CORP. 

  
	
   

  	
  VENICE ONCOLOGY
  CENTER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: L. Duane
  Choate

  
	
   

  	
  Title: President
  and Chief Executive Officer

  



 

















 


	
   

  	
  TRUSTEE
  AND COLLATERAL AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST
  FSB

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized
  Signatory