EX-4.1






Exhibit 4.1




 





EXECUTION COPY




Moog Inc.




7.250% SENIOR SUBORDINATED NOTES DUE 2018




 






Indenture




Dated as of June 2, 2008




 






Wells Fargo Bank, National Association




Trustee




 






 





 









 








CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	    Act Section	 	Indenture Section
	310(a)(1)
	 	7.07
	(b)
	 	7.04, 7.08
	 
	 	 
	311
	 	7.04
	 
	 	 
	312(a)
	 	2.06
	(b)
	 	2.06, 13.03
	(c)
	 	2.06, 13.03
	 
	 	 
	313(c)
	 	13.02
	 
	 	 
	314(a)(4)
	 	13.05
	(e)
	 	13.05
	 
	 	 
	315(a)
	 	7.02
	(b)
	 	7.02
	(c)
	 	7.02
	(d)
	 	7.02
	 
	 	 
	316(a)(1)(B)
	 	6.04
	(c)
	 	13.14
	 
	 	 
	318(c)
	 	13.01








 




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




 









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE ONE
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	25	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	25	 
	Section 1.04. Rules of Construction
	 	 	25	 
	 
	 	 	 	 
	ARTICLE TWO
	 	 	 	 
	THE NOTES
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	26	 
	Section 2.02. Execution and Authentication
	 	 	27	 
	Section 2.03. Methods of Receiving Payments on the Notes
	 	 	28	 
	Section 2.04. Registrar and Paying Agent
	 	 	28	 
	Section 2.05. Paying Agent to Hold Money in Trust
	 	 	28	 
	Section 2.06. Holder Lists
	 	 	29	 
	Section 2.07. Transfer and Exchange
	 	 	29	 
	Section 2.08. Replacement Notes
	 	 	43	 
	Section 2.09. Outstanding Notes
	 	 	43	 
	Section 2.10. Treasury Notes
	 	 	44	 
	Section 2.11. Temporary Notes
	 	 	44	 
	Section 2.12. Cancellation
	 	 	44	 
	Section 2.13. Defaulted Interest
	 	 	44	 
	Section 2.14. CUSIP Numbers
	 	 	45	 
	 
	 	 	 	 
	ARTICLE THREE
	 	 	 	 
	REDEMPTION AND OFFERS TO PURCHASE
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Notices to Trustee
	 	 	45	 






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	 	 	Page
	Section 3.02. Selection of Notes to Be Redeemed
	 	 	45	 
	Section 3.03. Notice of Redemption
	 	 	46	 
	Section 3.04. Effect of Notice of Redemption
	 	 	46	 
	Section 3.05. Deposit of Redemption Price
	 	 	47	 
	Section 3.06. Notes Redeemed in Part
	 	 	47	 
	Section 3.07. Optional Redemption
	 	 	47	 
	Section 3.08. Repurchase Offers
	 	 	48	 
	 
	 	 	 	 
	ARTICLE FOUR
	 	 	 	 
	COVENANTS
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Payment of Notes
	 	 	50	 
	Section 4.02. Maintenance of Office or Agency
	 	 	50	 
	Section 4.03. Reports
	 	 	51	 
	Section 4.04. Compliance Certificate
	 	 	52	 
	Section 4.05. Taxes
	 	 	52	 
	Section 4.06. Stay, Extension and Usury Laws
	 	 	52	 
	Section 4.07. Restricted Payments
	 	 	52	 
	Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	56	 
	Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock
	 	 	57	 
	Section 4.10. Asset Sales
	 	 	59	 
	Section 4.11. Transactions with Affiliates
	 	 	61	 
	Section 4.12. Liens
	 	 	62	 
	Section 4.13. Business Activities
	 	 	62	 
	Section 4.14. Offer to Repurchase upon a Change of Control
	 	 	62	 
	Section 4.15. Limitation on Senior Subordinated Debt
	 	 	63	 
	Section 4.16. Designation of Restricted and Unrestricted Subsidiaries
	 	 	64	 






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	 	 	Page
	Section 4.17. Payments for Consent
	 	 	65	 
	Section 4.18. Guarantees
	 	 	66	 
	Section 4.19. Suspension of Covenants
	 	 	66	 
	 
	 	 	 	 
	ARTICLE FIVE
	 	 	 	 
	SUCCESSORS
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Merger, Consolidation or Sale of Assets
	 	 	66	 
	Section 5.02. Successor Corporation Substituted
	 	 	67	 
	 
	 	 	 	 
	ARTICLE SIX
	 	 	 	 
	DEFAULTS AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	68	 
	Section 6.02. Acceleration
	 	 	69	 
	Section 6.03. Other Remedies
	 	 	70	 
	Section 6.04. Waiver of Past Defaults
	 	 	70	 
	Section 6.05. Control by Majority
	 	 	71	 
	Section 6.06. Limitation on Suits
	 	 	71	 
	Section 6.07. Rights of Holders of Notes to Receive Payment
	 	 	71	 
	Section 6.08. Collection Suit by Trustee
	 	 	72	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	72	 
	Section 6.10. Priorities
	 	 	72	 
	Section 6.11. Undertaking for Costs
	 	 	73	 
	 
	 	 	 	 
	ARTICLE SEVEN
	 	 	 	 
	TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Duties of Trustee
	 	 	73	 
	Section 7.02. Certain Rights of Trustee
	 	 	74	 
	Section 7.03. Trustee’s Disclaimer
	 	 	76	 
	Section 7.04. May Hold Securities
	 	 	76	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 7.05. Money Held in Trust
	 	 	76	 
	Section 7.06. Compensation and Reimbursement
	 	 	76	 
	Section 7.07. Eligibility; Disqualification
	 	 	77	 
	Section 7.08. Replacement of Trustee
	 	 	77	 
	Section 7.09. Acceptance of Appointment by Successor
	 	 	78	 
	Section 7.10. Merger, Conversion, Consolidation or Succession to Business
	 	 	79	 
	Section 7.11. Preferential Collection of Claims Against the Company
	 	 	79	 
	Section 7.12. Trustee’s Application for Instructions from the Company
	 	 	79	 
	Section 7.13. Notice of Defaults
	 	 	79	 
	 
	 	 	 	 
	ARTICLE EIGHT
	 	 	 	 
	DEFEASANCE AND COVENANT DEFEASANCE
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	80	 
	Section 8.02. Legal Defeasance and Discharge
	 	 	80	 
	Section 8.03. Covenant Defeasance
	 	 	81	 
	Section 8.04. Conditions to Legal or Covenant Defeasance
	 	 	81	 
	Section 8.05. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions
	 	 	82	 
	Section 8.06. Reinstatement
	 	 	83	 
	 
	 	 	 	 
	ARTICLE NINE
	 	 	 	 
	AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Without Consent of Holders of Notes
	 	 	83	 
	Section 9.02. With Consent of Holders of Notes
	 	 	84	 
	Section 9.03. Compliance with Trust Indenture Act
	 	 	86	 
	Section 9.04. Revocation and Effect of Consents
	 	 	86	 
	Section 9.05. Notation on or Exchange of Notes
	 	 	87	 
	Section 9.06. Trustee to Sign Amendments, Etc.
	 	 	87	 






iv









 






	 	 	 	 	 
	 	 	Page
	ARTICLE TEN
	 	 	 	 
	GUARANTEES
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Guarantors May Consolidate, Etc., on Certain Terms
	 	 	87	 
	Section 10.02. Release of Guarantor
	 	 	88	 
	 
	 	 	 	 
	ARTICLE ELEVEN
	 	 	 	 
	SATISFACTION AND DISCHARGE
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Satisfaction and Discharge
	 	 	89	 
	Section 11.02. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions
	 	 	90	 
	Section 11.03. Repayment to the Company
	 	 	90	 
	 
	 	 	 	 
	ARTICLE TWELVE
	 	 	 	 
	SUBORDINATION
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Agreement to Subordinate
	 	 	90	 
	Section 12.02. Liquidation; Dissolution; Bankruptcy
	 	 	91	 
	Section 12.03. Default on Designated Senior Debt
	 	 	91	 
	Section 12.04. Acceleration of Securities
	 	 	92	 
	Section 12.05. When Distribution Must Be Paid Over
	 	 	92	 
	Section 12.06. Notice by the Company
	 	 	93	 
	Section 12.07. Subrogation
	 	 	93	 
	Section 12.08. Relative Rights
	 	 	93	 
	Section 12.09. Subordination May Not Be Impaired by the Company
	 	 	93	 
	Section 12.10. Distribution or Notice to Representative
	 	 	94	 
	Section 12.11. Rights of Trustee and Paying Agent
	 	 	94	 
	Section 12.12. Authorization to Effect Subordination
	 	 	94	 
	Section 12.13. Trustee Not Fiduciary for Holders of Senior Indebtedness
	 	 	94	 






v









 






	 	 	 	 	 
	 	 	Page
	ARTICLE THIRTEEN
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	Section 13.01. Trust Indenture Act Controls
	 	 	95	 
	Section 13.02. Notices
	 	 	95	 
	Section 13.03. Communication by Holders of Notes with Other Holders of Notes
	 	 	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. Consent to Jurisdiction
	 	 	98	 
	Section 13.10. Form of Documents Delivered to Trustee
	 	 	98	 
	Section 13.11. Successors
	 	 	98	 
	Section 13.12. Severability
	 	 	98	 
	Section 13.13. Counterpart Originals
	 	 	99	 
	Section 13.14. Acts of Holders
	 	 	99	 
	Section 13.15. Benefit of Indenture
	 	 	100	 
	Section 13.16. Table of Contents, Headings, Etc.
	 	 	100	 






EXHIBITS




	 	 	 
	Exhibit A

	 	FORM OF NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit E

	 	FORM OF SUPPLEMENTAL INDENTURE






vi









 





          INDENTURE dated as of June 2, 2008 between Moog Inc., a New York corporation (the “Company”)
and Wells Fargo Bank, National Association, as trustee.




          The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its 7.250% Senior Subordinated Notes due 2018 to be issued as
provided in this Indenture.




          The Company and the Trustee (as defined below) agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders (as defined below) of the Company’s 7.250%
Senior Subordinated Notes due 2018 issued pursuant to this Indenture:




ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01. Definitions.



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




          “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 becomes 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 Subsidiary of, such specified Person; and
	 
	 	(2)	 	Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.





          “Additional Interest” means all additional interest owing on the Notes pursuant to the
Registration Rights Agreement. All references herein to interest accrued or payable as of any date
shall include Additional Interest accrued or payable as of such date as provided in the
Registration Rights Agreement.




          “Additional Notes” means an unlimited maximum aggregate principal amount of Notes (other than
the Notes issued on the date hereof) issued under this Indenture in accordance with Sections 2.02
and 4.09.




          “Affiliate” of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person
or (2) any executive officer or director of such specified Person. For purposes of this
definition, “control,” as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies




1









 




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 shall be deemed
to be control. For purposes of this definition, the terms “controlling,” “controlled by” and
“under common control with” shall have correlative meanings.




          “Agent” means any Registrar or Paying Agent.




          “Applicable Premium” means, with respect to a Note at any date of redemption, the greater of
(i) 1.0% of the principal amount of such Note and (ii) any excess of (A) the present value
(discounted semi-annually) at such date of redemption of (1) the redemption price of such Note at
June 15, 2013 (such redemption price being described in Section 3.07) plus (2) all remaining
required interest payments due on such Note through June 15, 2013 (excluding accrued but unpaid
interest to the date of redemption), computed using a discount rate equal to the Treasury Rate plus
50 basis points, over (B) the principal amount of such Note.




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




          “Asset Sale” means:





	 	(1)	 	the sale, lease, conveyance or other disposition of any property or assets;
provided that the sale, 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 the provisions of Section 4.14 and/or 5.01 and not by the provisions of
Section 4.10; and
	 
	 	(2)	 	the issuance of Equity Interests by any of the Company’s Restricted
Subsidiaries or the sale by the Company or any Restricted Subsidiary of Equity
Interests in any of its Subsidiaries (other than directors’ qualifying shares and
shares issued to foreign nationals to the extent required by applicable law).




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





	 	(1)	 	any single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $5.0 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 another Restricted Subsidiary of the Company;
	 
	 	(4)	 	the sale or lease of equipment, inventory, accounts receivable or other assets
in the ordinary course of business;
	 
	 	(5)	 	the sale or other disposition of Cash Equivalents;




2









 






	 	(6)	 	dispositions of receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar
proceedings and exclusive of factoring or similar arrangements;
	 
	 	(7)	 	a Restricted Payment that is permitted by Section 4.07; and
	 
	 	(8)	 	any sale or disposition of any property or equipment that has become damaged,
worn out, obsolete or otherwise unsuitable for use in connection with the business of
the Company or its Restricted Subsidiaries.





          “Bankruptcy Law” means Title 11 of the United States 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” shall be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is concurrently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” shall have a corresponding meaning.




          “Board of Directors” means:





	 	(1)	 	with respect to a corporation, the board of directors of the corporation;
	 
	 	(2)	 	with respect to a partnership, the Board of Directors of the general partner of
the partnership; and
	 
	 	(3)	 	with respect to any other Person, the board or committee of such Person serving
a similar function.





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




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




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




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




          “Capital Stock” means:





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




3









 






	 	(2)	 	in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;
	 
	 	(3)	 	in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
	 
	 	(4)	 	any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
	 
	 	 	 	“Cash Equivalents” means:
	 
	 	(1)	 	United States dollars or the currency of Taiwan or any country recognized by
the United States;
	 
	 	(2)	 	securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof) maturing, unless
such securities are deposited to defease any Indebtedness, not more than one year from
the date of acquisition;
	 
	 	(3)	 	certificates of deposit and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding one year and overnight bank deposits, demand deposits or savings deposits, in
each case, with any commercial bank organized under the laws of the United States, any
state thereof, Taiwan or any country recognized by the United States and having capital
and surplus in excess of $100.0 million (or the foreign currency equivalent thereof)
and whose outstanding debt is rated “A” (or such similar rating) by at least one
nationally recognized statistical rating organization (as defined in Rule 436 under the
Securities Act);
	 
	 	(4)	 	repurchase obligations with a term of not more than 30 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 the highest rating obtainable from Moody’s or S&P and
issued by a corporation (other than an Affiliate of the Company) organized and in
existence under the laws of the United States, any state thereof, Taiwan or any country
recognized by the United States;
	 
	 	(6)	 	securities issued and fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing authority
thereof, rated at least “A” by Moody’s or S&P and having maturities of not more than
one year from the date of acquisition; and
	 
	 	(7)	 	money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (6) of this definition.




4









 






	 	 	 	“Change of Control” means the occurrence of any of the following:
	 
	 	(1)	 	the direct or indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the properties or assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any “person” (as that term is used in Section
13(d)(3) of the Exchange Act);
	 
	 	(2)	 	the adoption of a plan relating to the liquidation or dissolution of the
Company;
	 
	 	(3)	 	any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), becomes the ultimate Beneficial Owner, directly or indirectly, of
50% or more of the voting power of the Voting Stock of the Company;
	 
	 	(4)	 	the first day on which a majority of the members of the Board of Directors of
the Company are not Continuing Directors; or
	 
	 	(5)	 	the Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into the Company, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of the Company
or such other Person is converted into or exchanged for cash, securities or other
property, other than any such transaction where (A) the Voting Stock of the Company
outstanding immediately prior to such transaction is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such issuance) and
(B) immediately after such transaction, no “person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act) becomes, directly or indirectly, the
ultimate Beneficial Owner of 30% or more of the voting power of the Voting Stock of the
surviving or transferee Person.





          “Clearstream” means Clearstream Banking S.A. and any successor thereto.




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




          “Company” means Moog Inc. until a successor replaces it pursuant to Section 5.02 hereof and
thereafter means the successor.




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





	 	(1)	 	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
	 
	 	(2)	 	Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to the extent that any such Fixed Charges were deducted in computing such Consolidated
Net Income; plus




5









 






	 	(3)	 	depreciation, amortization (including amortization of goodwill and other
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;
	 
	 	(4)	 	any fees and expenses, or any amortization or writeoff thereof, incurred in
connection with any acquisition, investment, asset disposition, issuance or repayment
of debt, issuance of equity securities, refinancing transaction (including the
termination of existing Hedging Obligations in connection therewith) or amendment or
other modification of any debt instrument; and any charges incurred a result of any
such transaction; minus
	 
	 	(5)	 	non-cash items increasing such Consolidated Net Income for such period, other
than the accrual of revenue consistent with past practice;




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




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




          “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its 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 shall be included only to
the extent of the amount of dividends or distributions paid in cash to the specified
Person or a Restricted Subsidiary thereof;
	 
	 	(2)	 	the Net Income of any Restricted Subsidiary shall be excluded to the extent
that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement, instrument,




6









 






	 	 	 	judgment, decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its equity holders;
	 
	 	(3)	 	the Net Income of any Person acquired during the specified period for any
period prior to the date of such acquisition shall be excluded;
	 
	 	(4)	 	the cumulative effect of a change in accounting principles shall be excluded;
and
	 
	 	(6)	 	notwithstanding clause (1) above, the Net Income (but not loss) of any
Unrestricted Subsidiary shall be excluded, whether or not distributed to the specified
Person or one of its Subsidiaries.





          “Consolidated Net Tangible Assets” of any Person means, as of any date, the amount which, in
accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on
a consolidated balance sheet of such Person and its Restricted Subsidiaries, as of the end of the
most recently ended fiscal quarter for which internal financial statements are available, less (1)
all intangible assets, including, without limitation, goodwill, organization costs, patents,
trademarks, copyrights, franchises, and research and development costs, and (2) current
liabilities.




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





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





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




          “Credit Agreement” means that certain Second Amended and Restated Loan Agreement, dated as of
October 25, 2006, as amended, by and among the Company, HSBC Bank USA, National Association, as
administrative agent, and certain lenders named therein including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection therewith, and in each case
as amended, modified, renewed, refunded, replaced or refinanced from time to time, regardless of
whether such amendment, modification, renewal, refunding, replacement or refinancing is with any of
the same financial institutions or otherwise and regardless of whether any one or more of the
Company and its Subsidiaries are or become borrowers thereunder.




          “Credit Facilities” means one or more debt facilities (including, without limitation, the
Credit Agreement) 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,


7









 







restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to
time.




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




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




          “Definitive Note” means a Note registered in the name of the Holder thereof and issued in
accordance with Section 2.07, substantially in the form of Exhibit A, except that such Note
shall not bear the Global Note Legend.




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




          “Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration
received by the Company or any of its Restricted Subsidiaries in connection with an Asset Sale that
is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate setting
forth the basis of such valuation, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale or collection of such Designated Non-cash Consideration.




          “Designated Senior Debt” means:





     (1) any Indebtedness outstanding under the Credit Agreement; and




     (2) after payment in full of all Obligations under the Credit Agreement, any other Senior
Debt permitted under this Indenture

     the principal amount of which is $50.0 million or more
and that has been designated by the Company as “Designated Senior Debt.”



          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is one year after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07. The term “Disqualified Stock” shall also include any
options, warrants or other rights that are convertible into Disqualified Stock or that are
redeemable at the option of the holder, or required to be redeemed, prior to the date that is one
year after the date on which the Notes mature.




8









 








          “Domestic Subsidiary” means any Restricted Subsidiary of the Company other than a Restricted
Subsidiary that is (1) a “controlled foreign corporation” under Section 957 of the Internal Revenue
Code (a) whose primary operating assets are located outside the United States and (b) that is not
subject to tax under Section 882(a) of the Internal Revenue Code because of a trade or business
within the United States or (2) a Subsidiary of an entity described in the preceding clause (1).




          “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 (i) an offer and sale of Capital Stock (other than Disqualified Stock)
of the Company pursuant to a registration statement that has been declared effective by the
Commission pursuant to the Securities Act (other than a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any employee benefit plan) or (ii) any
private placement of Capital Stock (other than Disqualified Stock) of the Company to any Person
other than a Restricted Subsidiary of the Company.




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




          “Exchange Act” means the Securities Exchange Act of 1934, as amended.




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




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




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




          “Existing Indebtedness” means the aggregate principal amount of Indebtedness of the Company
and its Restricted Subsidiaries in existence on the Issue Date after giving effect to the
application of the proceeds of the Notes, until such amounts are repaid.




          “Fair Market Value” means the price that would be paid in an arm’s-length transaction between
an informed and willing seller under no compulsion to sell and an informed and willing buyer under
no compulsion to buy, as determined (except as otherwise specified in this Indenture) in good faith
by (i) senior management of the Company if the aggregate amount of the transaction with respect to
which Fair Market Value of the transaction is being determined does not exceed $20.0 million and
(ii) the Board of Directors, whose determination shall be conclusive if evidenced by a Board
Resolution, if the aggregate amount of the transaction with respect to which Fair Market Value is
being determined exceeds $20.0 million.




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




9









 









	 	(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; plus
	 
	 	(2)	 	the consolidated interest of such Person and its Restricted Subsidiaries that
was capitalized during such period; plus
	 
	 	(3)	 	any interest expense on Indebtedness of another Person that is Guaranteed by
such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or
Lien is called upon; plus
	 
	 	(4)	 	the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock or Preferred Stock of such Person or any of
its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in
Equity Interests (other than Disqualified Stock) of the Company or to the Company or a
Restricted Subsidiary of the Company, times (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, on a consolidated basis and in accordance with GAAP.




          “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Subsidiaries incurs,
assumes, Guarantees, repays, repurchases or redeems any Indebtedness or issues, repurchases or
redeems Preferred Stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of Preferred Stock, and the use of the proceeds therefrom as if the same had occurred at
the beginning of the applicable four-quarter reference period.




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





	 	(1)	 	acquisitions and dispositions of business entities or property and assets
constituting a division or line of business of any Person that have been made by the
specified Person or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions,




10









 






	 	 	 	subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the Calculation Date shall be given pro
forma effect as if they had occurred on the first day of such period and
Consolidated Cash Flow for such period shall be calculated on a pro forma basis in
accordance with Regulation S-X under the Securities Act, but without giving effect
to clause (3) of the proviso set forth in the definition of Consolidated Net Income;
	 
	 	(2)	 	the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP shall be excluded;
	 
	 	(3)	 	the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the specified Person or
any of its Subsidiaries following the Calculation Date; and
	 
	 	(4)	 	consolidated interest expense attributable to interest on any Indebtedness
(whether existing or being incurred) computed on a pro forma basis and bearing a
floating interest rate shall be computed as if the rate in effect on the Calculation
Date (taking into account any interest rate option, swap, cap or similar agreement
applicable to such Indebtedness if such agreement has a remaining term in excess of 12
months or, if shorter, at least equal to the remaining term of such Indebtedness) had
been the applicable rate for the entire period.





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




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants, the opinions and pronouncements of the Public Company Accounting Oversight Board and
in the statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment of the accounting
profession, which were in effect on January 10, 2005.




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




          “Global Notes” means, individually and collectively, each of the Notes issued in global form,
substantially in the form of Exhibit A, issued in accordance with Section 2.01 or Section
2.07.




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




11









 








          “Guarantor” means any Subsidiary that executes a Note Guarantee in accordance with the
provisions of this Indenture and its successors and assigns until released from its obligations
under its Note Guarantee and this Indenture in accordance with the terms of this Indenture.




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





	 	(1)	 	interest rate swap agreements, interest rate cap agreements, interest rate
collar agreements and other agreements or arrangements designed for the purpose of
fixing, hedging or swapping interest rate risk;
	 
	 	(2)	 	commodity swap agreements, commodity option agreements, forward contracts and
other agreements or arrangements designed for the purpose of fixing, hedging or
swapping commodity price risk; and
	 
	 	(3)	 	foreign exchange contracts, currency swap agreements and other agreements or
arrangements designed for the purpose of fixing, hedging or swapping foreign currency
exchange rate risk.





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




          “incur” means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or
otherwise become directly or indirectly liable for or with respect to, or become responsible for,
the payment of, contingently or otherwise, such Indebtedness; provided that (1) any Indebtedness
of a Person existing at the time such Person becomes a Restricted Subsidiary of the Company will be
deemed to be incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary
of the Company and (2) neither the accrual of interest nor the accretion of original issue discount
nor the payment of interest in the form of additional Indebtedness with the same terms and the
payment of dividends on Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock (to the extent provided for when the Indebtedness or Disqualified Stock on which
such interest or dividend is paid was originally issued) shall be considered an incurrence of
Indebtedness; provided that in each case the amount thereof is for all other purposes included in
the Fixed Charges and Indebtedness of the Company or its Restricted Subsidiary as accrued.




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





	 	(1)	 	in respect of borrowed money;
	 
	 	(2)	 	evidenced by bonds, notes, debentures or similar instruments;
	 
	 	(3)	 	evidenced by letters of credit (or reimbursement agreements in respect
thereof), but excluding obligations with respect to letters of credit (including trade
letters of credit) securing obligations (other than obligations described in clause (1)
or (2) above or clause (5), (6) or (8) below) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn upon or,




12









 






	 	 	 	if drawn upon, to the extent such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a demand for reimbursement;
	 
	 	(4)	 	in respect of banker’s acceptances;
	 
	 	(5)	 	in respect of Capital Lease Obligations;
	 
	 	(6)	 	in respect of the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade payable;
	 
	 	(7)	 	representing Hedging Obligations, other than Hedging Obligations that are
incurred for the purpose of fixing, hedging or swapping interest rate, commodity price
or foreign currency exchange rate risk (or to reverse or amend any such agreements
previously made for such purposes), and not for speculative purposes, and that do not
increase the Indebtedness of the obligor outstanding at any time other than as a result
of fluctuations in interest rates, commodity prices or foreign currency exchange rates
or by reason of fees, indemnities and compensation payable thereunder;
	 
	 	(8)	 	representing Disqualified Stock valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends; or
	 
	 	(9)	 	with respect to the Company, all obligations pursuant to the Supplemental Plan.




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




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





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




13









 










provided that Indebtedness shall not include:





	 	(i)	 	any liability for federal, state, local or other taxes,
	 
	 	(ii)	 	obligations in respect of performance, surety or appeal bonds or performance or
completion guarantees provided in the ordinary course of business,
	 
	 	(iii)	 	any liability arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient funds in
the ordinary course of business, provided, however, that such liability is extinguished
within five Business Days of its incurrence, or
	 
	 	(iv)	 	Guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Restricted Subsidiaries pursuant to agreements
providing for adjustment of purchase price or similar obligations, in any case,
incurred in connection with the disposition of any business, assets or Restricted
Subsidiary (other than Guarantees of Indebtedness incurred by any Person acquiring all
or any portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), so long as the principal amount does not exceed the gross
proceeds actually received by the Company or any Restricted Subsidiary in connection
with such disposition.





          “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 Purchasers” means (1) with respect to the Notes issued on the Issue Date, Banc of
America Securities LLC, J.P. Morgan Securities Inc., HSBC Securities (USA) Inc. and Greenwich
Capital Markets, Inc. and (2) with respect to any Additional Notes, the initial purchasers of such
Additional Notes.




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




          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.




          “Investment Grade” means (1) BBB- or above, in the case of S&P (or its equivalent under any
successor Rating Categories of S&P) and Baa3 or above, in the case of Moody’s (or its equivalent
under any successor Rating Categories of Moody’s), or (2) the equivalent in respect of the Rating
Categories of any Rating Agencies.




          “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 or other extensions of credit
(including Guarantees, but excluding advances to customers or suppliers in




14









 







the ordinary course of business that are, in conformity with GAAP, recorded as accounts
receivable, prepaid expenses or deposits on the balance sheet of the Company or its Restricted
Subsidiaries and endorsements for collection or deposit arising in the ordinary course of
business), advances (excluding commission, payroll, travel and similar advances to officers and
employees made consistent with past practices), capital contributions (by means of any transfer of
cash or other property to others or any payment for property or services for the account or use of
others), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or
other securities, together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP.




          If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any Restricted Subsidiary of the Company such that, after giving effect to any
such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the
Company shall be deemed to have made an Investment on the date of any such sale or disposition
equal to the Fair Market Value of the Investment in such Subsidiary not sold or disposed of in an
amount determined as provided in Section 4.07. The acquisition by the Company or any Restricted
Subsidiary of the Company of a Person that holds an Investment in a third Person shall be deemed to
be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount
equal to the Fair Market Value of the Investment held by the acquired Person in such third Person
in an amount determined as provided in Section 4.07(c).




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




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




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




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




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




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




15









 








          “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 sale of assets outside the
ordinary course of business of such Person; 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, including payments in respect of deferred
payment obligations (to the extent corresponding to the principal, but not the interest component,
thereof) received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (1) the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting, investment banking and brokerage
fees, and sales commissions, and any relocation expenses incurred as a result thereof, (2) taxes
paid or payable as a result thereof, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, (3) amounts required to be applied to the
repayment of Indebtedness or other liabilities, secured by a Lien on the asset or assets that were
the subject of such Asset Sale, or is required to be paid as a result of such sale, (4) any reserve
for adjustment in respect of the sale price of such asset or assets established in accordance with
GAAP and (5) appropriate amounts to be provided by the Company or its Restricted Subsidiaries as a
reserve against liabilities associated with such Asset Sale, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset Sale, all as
determined in accordance with GAAP.




          “Note Guarantee” means a Guarantee of the Notes pursuant to Section 4.18 of this Indenture.




          “Notes” means the 7.250% Senior Subordinated Notes due 2018 of the Company issued on the date
hereof and any Additional Notes. The Notes and any Additional Notes, if any, shall be treated as a
single class for all purposes under this Indenture.




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




          “Offering Memorandum” means the offering memorandum, dated May 28, 2008 relating to 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,




16









 







the Treasurer, any Assistant Treasurer, the Controller, the Secretary, Vice-President, Finance
or any other Vice-President of such Person.




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




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




          “Participant” means, with respect to the Depositary, a Person who has an account with the
Depositary.




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




          “Permitted 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:






	 	(a)	 	such Person becomes a Restricted Subsidiary of the Company; or
	 
	 	(b)	 	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
an Asset Sale that was made pursuant to and in compliance with Section 4.10;
	 
	 	(5)	 	Investments to the extent acquired in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company;
	 
	 	(6)	 	Hedging Obligations that are incurred for the purpose of fixing, hedging or
swapping interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes), and not for
speculative purposes, and that do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in interest rates,
commodity prices or foreign currency exchange rates or by reason of fees, indemnities
and compensation payable thereunder;




17









 






	 	(7)	 	loans or advances to the Company’s officers or employees or those of any
Restricted Subsidiary of the Company that do not in the aggregate exceed $7 million at
any time outstanding;
	 
	 	(8)	 	stock, obligations or securities received in satisfaction of judgments or as a
result of the compromise or resolution of a dispute or in a workout of a claim;
	 
	 	(9)	 	Investments in the Supplemental Plan; and
	 
	 	(10)	 	other Investments in any Person (other than a Person that controls the Company)
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 (10) since the Issue Date, not
to exceed the greater of $125 million and 50% of the Consolidated Cash Flow of the
Company for the Company’s most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date such
Investment is made.
	 
	 	 	 	“Permitted Junior Securities” means:
	 
	 	(1)	 	Equity Interests in the Company or any other business entity provided for by a
plan of reorganization; and
	 
	 	(2)	 	debt securities of the Company or any other business entity provided for by a
plan of reorganization that are subordinated to all Senior Debt and any debt securities
issued in exchange for Senior Debt to the same extent as, or to a greater extent than,
the Notes are subordinated to Senior Debt under this Indenture.
	 
	 	 	 	“Permitted Liens” means:
	 
	 	(1)	 	Liens on the assets of the Company or any Guarantor securing Senior Debt that
was permitted by the terms of this Indenture to be incurred and Liens on the assets of
any other Restricted Subsidiary securing Indebtedness incurred by such Restricted
Subsidiary;
	 
	 	(2)	 	Liens in favor of the Company or any Restricted Subsidiary;
	 
	 	(3)	 	Liens on property of a Person existing at the time such Person is merged with
or into or consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person merged
into or consolidated with the Company or the Restricted Subsidiary;
	 
	 	(4)	 	Liens on property existing at the time of acquisition thereof by the Company or
any Restricted Subsidiary of the Company, provided that such Liens were in existence
prior to the contemplation of such acquisition and do not extend to any




18









 






	 	 	 	property other than the property so acquired by the Company or the Restricted
Subsidiary;
	 
	 	(5)	 	Liens existing on the Issue Date;
	 
	 	(6)	 	Liens incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that do not exceed
$25.0 million at any one time outstanding; and
	 
	 	(7)	 	Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.09(b)(iv) provided that any such Lien (i) covers only the assets acquired,
constructed or improved with such Indebtedness and (ii) is created within 180 days of
such acquisition, construction or improvement; and
	 
	 	(8)	 	Liens securing Permitted Refinancing Indebtedness, provided that any such Lien
covers only the assets that secure the Indebtedness being refinanced.





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





	 	(1)	 	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 so extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued and unpaid interest thereon and the amount of any reasonably
determined premium necessary to accomplish such refinancing and such reasonable
expenses incurred in connection therewith);
	 
	 	(2)	 	such Permitted Refinancing Indebtedness has a final maturity date later than
the final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
	 
	 	(3)	 	if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes or any Note Guarantees, 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 or such Note
Guarantees on terms at least as favorable to the Holders of Notes as those contained in
the documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
	 
	 	(4)	 	if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is pari passu in right of payment with the Notes or any Note Guarantees, such
Permitted Refinancing Indebtedness is pari passu with, or subordinated in right of
payment to, the Notes or such Note Guarantees; and




19









 






	 	(5)	 	such Permitted Refinancing Indebtedness is incurred either by the Company or by
the Restricted Subsidiary that is an obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.





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




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




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




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




          “Rating Agencies” means (1) S&P and Moody’s or (2) if S&P or Moody’s or both of them are not
making ratings publicly available, a nationally recognized U.S. rating agency or agencies, as the
case may be, selected by the Company, which will be substituted for S&P or Moody’s or both, as the
case may be.




          “Rating Category” means (1) with respect to S&P, any of the following categories (any of which
may include a “+” or “-”): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor
categories), (2) with respect to Moody’s, any of the following categories (any of which may include
a “1,” “2” or “3”): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories),
and (3) the equivalent of any such categories of S&P or Moody’s used by another Rating Agency, if
applicable.




          “Registration Rights Agreement” means (1) with respect to the Notes issued on the Issue Date,
the registration rights agreement, dated as of the Issue Date, between the Company and Banc of
America Securities LLC, J.P. Morgan Securities Inc., HSBC Securities (USA) Inc. and Greenwich
Capital Markets, Inc. and (2) with respect to any Additional Notes, any registration rights
agreement between the Company and the other parties thereto relating to the registration by the
Company of such Additional Notes under the Securities Act.




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




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




          “Replacement Assets” means (1) non-current tangible assets that shall be used or useful in a
Permitted Business or (2) substantially all the assets of a Permitted Business or a majority of the
Voting Stock of any Person engaged in a Permitted Business that shall become on the date of
acquisition thereof a Restricted Subsidiary.




          “Representative” means the trustee, agent or representative for any Senior Debt.





20











 





          “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Office of the Trustee (or any successor group of the Trustee) having direct
responsibility for the administration of the Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.




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




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




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




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




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




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




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




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




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




          “S&P” means Standard & Poor’s Rating Services and its successors.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Senior Debt” means:





	 	(1)	 	all Indebtedness of the Company or any Guarantor outstanding under the Credit
Agreement and all Hedging Obligations with respect thereto, whether outstanding on the
Issue Date or incurred thereafter;
	 
	 	(2)	 	any other Indebtedness of the Company or any Guarantor permitted to be incurred
under the terms of this Indenture, unless the instrument under which such Indebtedness
is incurred expressly provides that it is on a parity with or subordinated in right of
payment to the Notes or the relevant Note Guarantee, respectively;
	 
	 	(3)	 	all Obligations with respect to the items listed in the preceding clauses (1)
and (2) (including any interest accruing subsequent to the filing of a petition of




21









 






	 	 	 	bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law); and






	 	(4)	 	Indebtedness of the Company pursuant to the Supplemental Plan.





          Notwithstanding anything to the contrary in the preceding paragraph, Senior Debt shall not
include:





	 	(1)	 	any liability for federal, state, local or other taxes owed or owing by the
Company or any Guarantor;
	 
	 	(2)	 	any Indebtedness of the Company or any Guarantor to any of its Subsidiaries or
other Affiliates;
	 
	 	(3)	 	any trade payables;
	 
	 	(4)	 	the portion of any Indebtedness that is incurred in violation of this
Indenture;
	 
	 	(5)	 	any Indebtedness of the Company or any Guarantor that, when incurred, was
without recourse to the Company or such Guarantor;
	 
	 	(6)	 	any repurchase, redemption or other obligation in respect of Disqualified
Stock;
	 
	 	(7)	 	any Indebtedness owed to any employee of the Company or any of its Subsidiaries
(other than pursuant to the Supplemental Plan, except to the extent exceeding $35.0
million); or
	 
	 	(8)	 	any Indebtedness of the Company or any Guarantor under the 61/4% senior
subordinated notes of the Company issued under the indenture dated January 10, 2005, as
amended.





          For the avoidance of doubt, the Notes shall rank pari passu with the Company’s 61/4% senior
subordinated notes issued under the indenture dated January 10, 2005, as amended.




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




          “Significant Subsidiary” means any Subsidiary that would constitute a “significant subsidiary”
within the meaning of Article 1 of Regulation S-X of the Securities Act.




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




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




22









 









	 	(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) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof); and
	 
	 	(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 such Person or one or more Subsidiaries of such Person (or any combination
thereof).





          “Supplemental Plan” means, collectively, the Moog Inc. Supplemental Retirement Plan and the
Moog Inc. Supplemental Retirement Plan Trust, in each case, as in effect on the Issue Date or as
may be amended from time to time with the approval of a majority of the disinterested members of
the Board of Directors.




          “TIA” means the Trust Indenture Act of 1939, as in effect on the date of this Indenture,
provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date,
“TIA” means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so
amended.




          “Treasury Rate” means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) which has become publicly available at least two Business
Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly equal to the then
remaining term of the Notes to June 15, 2013; provided, however, that if the then remaining term of
the Notes to June 15, 2013 is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given, except that if the then
remaining term of the Notes to June 15, 2013 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year shall
be used.




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




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




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




23









 








          “Unrestricted Global Note” means a permanent Global Note substantially in the form of
Exhibit A that bears the Global Note Legend, that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes, and that does not 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 Board Resolution in
compliance with Section 4.16 and any Subsidiary of such Subsidiary.




          “U.S. Government Obligations” means securities which are direct obligations of or non-callable
obligations guaranteed by the United States of America for the payment of which obligations or
guarantee the full faith and credit of the United States of America is pledged.




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




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




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness 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 thereof, 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.




24









 











Section 1.02. Other Definitions.




	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section	 
	“Act”
	 	 	13.14	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	4.10	 
	“Authentication Order”
	 	 	2.02	 
	“Automatic Exchange Notice Date”
	 	 	2.07	 
	“Change of Control Offer”
	 	 	4.14	 
	“Change of Control Payment”
	 	 	4.14	 
	“Change of Control Payment Date”
	 	 	4.14	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.01	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“Legal Defeasance”
	 	 	8.02	 
	“non-payment default”
	 	 	12.03	 
	“Offer Amount”
	 	 	3.08	 
	“Offer Period”
	 	 	3.08	 
	“Paying Agent”
	 	 	2.04	 
	“Payment Blockage Notice”
	 	 	12.03	 
	“Payment Default”
	 	 	6.01	 
	“Permitted Debt”
	 	 	4.09	 
	“Purchase Date”
	 	 	3.08	 
	“Registrar”
	 	 	2.04	 
	“Related Proceedings”
	 	 	13.09	 
	“Repurchase Offer”
	 	 	3.08	 
	“Restricted Payments”
	 	 	4.07	 
	“Specified Courts”
	 	 	13.09	 






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:




          “obligor” on the Notes means the Company and any successor obligor upon the Notes.




Section 1.04. Rules of Construction. Unless the context otherwise requires:





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





25









 





	 	(c)	 	“or” is not exclusive;
	 
	 	(d)	 	words in the singular include the plural, and in the plural
include the singular;
	 
	 	(e)	 	“herein”, “hereof” and other word of similar import refer to
this Indenture as a whole and not to any particular Section, Article or other
subdivision;
	 
	 	(f)	 	all references to Sections or Articles or Exhibits refer to
Sections or Articles or Exhibits of or to this Indenture unless otherwise
indicated; and
	 
	 	(g)	 	references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the Commission from time to time.





ARTICLE TWO

THE NOTES




Section 2.01. Form and Dating.




          (a) General. The Notes and the Trustee’s certificate of authentication shall be substantially
in the form of Exhibit A. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be issued in registered form without interest coupons, in denominations of $1,000
in principal amount and integral multiples thereof.




          The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture, and the Company, any 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 shall be substantially in the form of
Exhibit A (and shall include the Global Note Legend thereon). Notes issued in definitive
form shall be substantially in the form of Exhibit A (but without the Global Note Legend
thereon). Each Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it represents the aggregate principal amount of outstanding
Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes represented thereby
shall be made by the Trustee or, if the Custodian and the Trustee are not the same Person, by
the Custodian at the direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.07 hereof.




          (c) Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, as




26









 




custodian for The
Depository Trust Company (“DTC”) 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. Following
the termination of the Restricted Period, beneficial interests in the Legended Regulation S Global
Note may be exchanged for beneficial interests in Unlegended Regulation S Global Notes pursuant to
Section 2.07 and the Applicable Procedures. Simultaneously with the authentication of Unlegended
Regulation S Global Notes, the Trustee shall cancel the Legended Regulation S Global Note. The
aggregate principal amount of the Regulation S Global Notes 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 shall
be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held
by Participants through Euroclear or Clearstream.




Section 2.02. Execution and Authentication.




          The Notes shall be executed on behalf of the Company by any one of the following: its
Chairman, Chief Executive Officer, President or Chief Financial Officer. The signature of any of
these officers on the Notes may be manual or facsimile.




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




          A Note shall not be valid until authenticated by the manual signature of a duly authorized
signatory of the Trustee. Such signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.




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




          The Company may, subject to Article Four of this Indenture and applicable law, issue
Additional Notes under this Indenture, including Exchange Notes. The Notes issued on the Issue
Date and any Additional Notes subsequently issued shall be treated as a single class for all
purposes under this Indenture.




          At any time and from time to time after the execution of this Indenture, the Trustee shall,
upon receipt of a written order of the Company signed by two Officers of the Company (an
“Authentication Order”), authenticate Notes for original issue in an aggregate principal amount
specified in such Authentication Order. The Authentication Order shall specify the amount of Notes
to be authenticated and the date on which the Notes are to be authenticated.




          If such form or terms have been so established, the Trustee shall not be required to
authenticate such Notes if the issue of such Notes pursuant to this Indenture will affect the




27









 




Trustee’s own rights, duties or immunities under the Notes and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.




          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. Methods of Receiving Payments on the Notes.




          If a Holder has given wire transfer instructions to the Company, the Company shall pay all
principal, premium, interest and Additional Interest, if any, on that Holder’s Notes in accordance
with those instructions. All other payments on Notes shall be made at the office or agency of the
Paying Agent and Registrar within the City and State of New York unless the Company elects to make
interest payments by check mailed to the Holders at their addresses set forth in the register of
Holders.




Section 2.04. Registrar and Paying Agent.




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




          (b) The Company initially appoints DTC in New York, New York to act as Depositary with respect
to the Global Notes.




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




Section 2.05. Paying Agent to Hold Money in Trust.




          The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or interest or Additional Interest, if any,
on the Notes, and shall promptly notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or one of its Subsidiaries) shall have




28









 




no further liability for the money. If the
Company or one of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee may serve as Paying
Agent for the Notes.




Section 2.06. Holder Lists.




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




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




Section 2.07. Transfer and Exchange.




          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes shall be
exchanged by the Company for Definitive Notes if (i) DTC (A) notifies the
Company that it is unwilling or unable to continue as Depositary for the Global Notes and the
Company fails to appoint a successor Depositary within 90 days after receiving such notice or (B)
has ceased to be a clearing agency registered under the Exchange Act, and in each case the Company
fails to appoint a successor Depositary within 90 days after becoming aware of such condition; (ii)
the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of
Definitive Notes in exchange for Global Notes (in whole but not in part); provided that in no event
shall the Legended Regulation S Global Note be exchanged by the Company for Definitive Notes other
than in accordance with Section 2.07(c)(ii); or (iii) there shall have occurred and be continuing a
Default or Event of Default with respect to the Notes. Upon the occurrence of any of the preceding
events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or
in part, as provided in Sections 2.08 and 2.11 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.07 or
Section 2.08 or 2.11 hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as provided in this
Section 2.07(a); however, beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.07(b), (c) or (f) hereof.




29









 








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





          (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Legended Regulation S 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 Purchasers). 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 2.07(b)(i).




          (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.07(b)(i) above, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2) instructions given
in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial interests in the Legended
Regulation S Global Note other than in accordance with Section 2.07(c)(ii). Upon
consummation of an Exchange Offer by the Company in accordance with Section 2.07(f), the
requirements of this Section 2.07(b)(ii) shall be deemed to have been satisfied upon receipt
by the Registrar of the instructions contained in the Letter of Transmittal delivered by the
holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of
all of the requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount at maturity of the relevant Global Notes
pursuant to Section 2.07(i).



30









 






          (iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.07(b)(ii) above and the Registrar
receives the following:




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




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




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




          (A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder of
the beneficial interest to be transferred, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal (1) it is not an affiliate (as defined in Rule 144) of
the Company, (2) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (3) it is acquiring the Exchange Notes in its ordinary
course of business;




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




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




          (D) the Registrar receives the following:




(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a



31









 







certificate from such
holder in the form of Exhibit C, including the certifications
in item (1)(a) thereof; or




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




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




          (v) Automatic Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. Upon the Company’s satisfaction that
the Private Placement Legend shall no longer be required in order to maintain compliance
with the Securities Act, beneficial interests in a Restricted Global Note will be exchanged
into beneficial interests in an Unrestricted Global Note without any action required by or
on behalf of the Holder (the “Automatic Exchange”) on the date that is the 365th calendar
day after (A) with respect to the Initial Notes, the Issue Date or (B) with respect to
Additional Notes, if any, the issue date of such Additional Notes, or, in each case, if such
day is not a Business Day, on the next succeeding Business Day (the “Exchange Date”). Upon
the Company’s satisfaction that the Private Placement Legend shall no longer be required in
order to maintain compliance with the Securities Act, the
Company shall (i) provide written notice to the Trustee at least 10 calendar days prior
to the Automatic Exchange, instructing the Trustee to direct the Depositary to exchange all
of the outstanding beneficial interests in a particular Restricted Global Note to the
Unrestricted Global Note, which the Company shall have previously otherwise made eligible
for exchange with the DTC, (ii) provide prior written notice to each Holder at such Holder’s
address appearing in the register of Holders at least 10 calendar days prior to the
Automatic Exchange (the “Automatic Exchange Notice Date”), which notice must include (x) the
Exchange Date, (y) the “CUSIP” number of the Restricted Global Note from which such Holders’
beneficial interests will be transferred and the (z) “CUSIP” number of the Unrestricted
Global Note into which such Holders’ beneficial interests will be transferred, and (iii) on
or prior to the date of the Automatic Exchange, deliver to the Trustee for authentication
one or more Unrestricted Global Notes, duly executed by the Company, in an aggregate
principal amount equal to the aggregate principal amount of Restricted Global Notes to be
exchanged. Notwithstanding anything to the contrary in this Section 2.07, during the 10 day
period between the Automatic Exchange Notice Date and the Exchange Date, no transfers or
exchanges other than pursuant to this Section 2.07(b)(v) shall be permitted without the
prior written consent of the Company. As a condition to any Automatic Exchange, the Company
shall provide,



32









 







and the Trustee shall be entitled to rely upon, an Officers’ Certificate in
form reasonably acceptable to the Trustee to the effect that the Automatic Exchange shall be
effected in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend shall no longer be required in order to
maintain compliance with the Securities Act and that the aggregate principal amount of the
particular Restricted Global Note is to be transferred to the particular Unrestricted Global
Note by adjustment made on the records of the Trustee, as custodian for the Depositary to
reflect the Automatic Exchange. Upon such exchange of beneficial interests pursuant to this
Section 2.07(b)(v), the aggregate principal amount of the Global Notes may be increased or
decreased by adjustments made on the records of the Trustee, as custodian for the
Depositary, to reflect the relevant increase or decrease in the principal amount of such
Global Note resulting from the applicable exchange. The Restricted Global Note from which
beneficial interests are transferred pursuant to an Automatic Exchange shall be cancelled
following the Automatic Exchange.



          If any such transfer pursuant to this Section 2.07(b) is effected at a time when a 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 Global Notes in an
aggregate principal amount equal to the aggregate principal amount of beneficial interests
transferred.




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




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





          (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note 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, including the certifications in item (2)(a) thereof;




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




          (C) [INTENTIONALLY OMITTED];




          (D) [INTENTIONALLY OMITTED];



33









 






          (E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than that listed in
subparagraph (B) 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; or




          (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, including the certifications in item (3)(a) thereof,


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





          (ii) Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. A
beneficial interest in the Legended Regulation S Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to the expiration of the Restricted Period,
except in the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.




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




          (A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder of
such beneficial interest, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of Transmittal
that (1) it is not an affiliate (as defined in Rule 144) of the Company, (2)
it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a
distribution of the Exchange Notes to be issued in the Exchange Offer and
(3) it is acquiring the Exchange Notes in its ordinary course of business;



34









 






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




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




          (D) the Registrar receives the following:




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




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




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




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



35









 







issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(iv) shall not bear the Private Placement Legend.



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





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




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




          (D) 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, including the certifications in
item (3)(a) thereof,




the Trustee shall cancel the Restricted Definitive Note, and 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.



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




          (A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal (1) it is not an affiliate
(as defined in Rule 144) of the Company, (2) it is not engaged in,



36









 







and does
not intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Exchange Notes to be issued
in the Exchange Offer and (3) it is acquiring the Exchange Notes in its
ordinary course of business;




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




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




          (D) the Registrar receives the following:




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




     (2) if the Holder of such Restricted Definitive Note
proposes to transfer such Note 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, including the certifications
in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar
or the Company so request or if the Applicable Procedures so require, an
opinion of counsel in form reasonably acceptable to the Registrar and 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 2.07(d)(ii),
the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.




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



37









 





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




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




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




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




          (B) [INTENTIONALLY OMITTED]; and




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



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




          (A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and 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 (1) it is not an
affiliate (as defined in Rule 144) of the Company, (2) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding
with any Person to participate in, a distribution of the



38









 







Exchange Notes to
be issued in the Exchange Offer and (3) it is acquiring the Exchange Notes
in its ordinary course of business;




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




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




          (D) the Registrar receives the following:




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




     (2) if the Holder of such Restricted Definitive Note
proposes to transfer such Note 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, 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.



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



          (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in the applicable
Letters of Transmittal that (x) they are not affiliates (as defined in Rule 144) of the Company,
(y) they are not engaged in, and do not intend to engage in, and have no arrangement or
understanding with any Person to participate in, a distribution of the Exchange Notes to be issued
in the Exchange Offer and (z) they are acquiring the Exchange Notes in their ordinary course of
business and (ii) Unrestricted Definitive Notes in an aggregate principal




39









 




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




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




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




THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS
NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE
HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL NOT OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
(“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40 DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN



40









 







THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR PURSUANT TO CLAUSES (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.


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




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




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



          (h) Regulation S Global Note Legend. The Regulation S Global Note shall bear a legend in
substantially the following form:





THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN).



          (i) 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,




41









 




each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.12 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who shall take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.




          (j) General Provisions Relating to Transfers and Exchanges.




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



               (ii) No service charge shall be made to a Holder of a beneficial interest in a Global Note or
to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charges
payable upon exchange or transfer pursuant to Sections 2.11, 3.06, 3.08, 4.10, 4.14 and 9.05).



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



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



               (v) The Company shall not be required (A) to issue, to register the transfer of or to exchange
any Notes during a period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 and ending at the close of business on the day
of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part, (C) to register
the transfer of or to exchange a Note between a record date and the next succeeding interest
payment date or (D) to register the transfer of or to exchange a Note tendered and not withdrawn in
connection with a Change of Control Offer or an Asset Sale Offer.



               (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any
Agent and the Company may deem and treat the Person in whose name



42









 







any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.



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



               (viii) All certifications, certificates and Opinions of Counsel required to be submitted to
the Registrar pursuant to this Section 2.07 to effect a registration of transfer or exchange may be
submitted by facsimile only.



Section 2.08. Replacement Notes.




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




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




Section 2.09. Outstanding Notes.




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




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




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




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





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Section 2.10. Treasury Notes.




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




Section 2.11. Temporary Notes.




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




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




Section 2.12. Cancellation.




          The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled securities in
effect as of the date of such disposition (subject to the record retention requirement of the
Exchange Act). Certification of the disposition of all canceled Notes shall be delivered to the
Company upon its 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.




Section 2.13. Defaulted Interest.




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




44









 







the expense of
the Company) shall 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 2.14. CUSIP Numbers.




          The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” 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” numbers.




ARTICLE THREE

REDEMPTION AND OFFERS TO

PURCHASE




Section 3.01. Notices to Trustee.




          If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07, it shall furnish to the Trustee, at least 45 days (or such shorter notice as agreed
to by the Trustee) but not more than 60 days before a redemption date, an Officers’ Certificate
setting forth (i) the clause of this Indenture pursuant to which the redemption shall occur, (ii)
the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption
price.




Section 3.02. Selection of Notes to Be Redeemed.




          (a) If less than all of the Notes are to be redeemed at any time, the Trustee shall select the
Notes for redemption as follows:





     (i) if the Notes are listed on any national securities exchange, in compliance with the
requirements of such principal national securities exchange; or




     (ii) if the Notes are not so listed, on a pro rata basis, by lot or by such method as
the Trustee shall deem appropriate.



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




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




45









 







redeemed. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.




Section 3.03. Notice of Redemption.




          (a) At least 30 days but not more than 60 days before a redemption date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address.




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





     (i) the redemption date;




     (ii) the redemption price;




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




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




     (v) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price and become due on the date fixed for redemption;




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




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




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



          (b) At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 35 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice, if mailed in the manner provided herein shall be presumed to have
been given, whether or not the Holder receives such notice.




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.
Interest, if any, on Notes called for redemption ceases to accrue on and after




46









 







the redemption date,
unless the Company defaults in making the applicable redemption payment. A notice of redemption
may not be conditional.




Section 3.05. Deposit of Redemption Price.




          (a) Not later than 12:00 p.m. (noon) New York City Time on the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued and unpaid interest and Additional Interest, if any, on all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to be
redeemed.




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




Section 3.06. Notes Redeemed in Part.




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




Section 3.07. Optional Redemption.




          (a) Except as set forth in clauses (b) and (c) of this Section 3.07, the Company shall not
have the option to redeem the Notes pursuant to this Section 3.07 prior to June 15, 2013. On or
after June 15, 2013, the Company may redeem all or a part of the Notes at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and
Additional Interest, if any, thereon, to the applicable redemption date, if redeemed during the
twelve-month period beginning on June 15 of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage
	2013
	 	 	103.625	%
	2014
	 	 	102.417	%
	2015
	 	 	101.208	%
	2016 and thereafter
	 	 	100.000	%






47









 






          (b) At any time prior to June 15, 2011, the Company may redeem up to 35% of the aggregate
principal amount of the Notes issued hereunder (including any Additional Notes)
at a redemption price of 107.250% of the principal amount thereof, plus accrued and unpaid
interest and Additional Interest, if any, thereon to the redemption date, with the net cash
proceeds of one or more Equity Offerings; provided that:





     (i) at least 65% of the aggregate principal amount of the Notes issued hereunder
(including any Additional Notes) remains outstanding immediately after the occurrence of
such redemption (excluding, for purposes of such calculation, Notes held by the Company or
its Subsidiaries); and




     (ii) the redemption must occur within 120 days of the date of the closing of such
Equity Offering.



          (c) At any time prior to June 15, 2013, the Company may redeem all or part of the Notes at a
redemption price equal to the sum of (A) 100% of the principal amount thereof, plus (B) the
Applicable Premium as of the date of redemption, plus (C) accrued and unpaid interest and
Additional Interest, if any, to the date of redemption.




          (d) Any redemption pursuant to this Section 3.07 shall be made in accordance with the
provisions of Sections 3.01 through 3.06.




Section 3.08. Repurchase Offers.




          In the event that, pursuant to Section 4.10 or Section 4.14, the Company shall be required to
commence an offer to all Holders to purchase all or a portion of their respective Notes (a
“Repurchase Offer”), it shall follow the procedures specified in such Sections and, to the extent
not inconsistent therewith, the procedures specified below.




          The Repurchase Offer shall remain open for a period of no less than 30 days and no more than
60 days following its commencement, 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 shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 or 4.14 hereof (the “Offer Amount”) or, if less
than the Offer Amount has been tendered, all Notes tendered in response to the Repurchase Offer.
Payment for any Notes so purchased shall be made in the same manner as interest payments are made.




          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 shall be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Repurchase Offer.




          Upon the commencement of a Repurchase Offer, the Company shall send, by first class mail, a
notice to each of the Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the
Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall
govern the terms of the Repurchase Offer, shall state:




48









 









     (i) that the Repurchase Offer is being made pursuant to this Section 3.08 and Section
4.10 or Section 4.14 hereof, and the length of time the Repurchase Offer shall remain open;




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




     (iii) that any Note not tendered or accepted for payment shall continue to accrue
interest and Additional Interest, if any;




     (iv) that, unless the Company defaults in making such payment, any Note (or portion
thereof) accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;




     (v) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may
elect to have Notes purchased in integral multiples of $1,000;




     (vi) that Holders electing to have a Note purchased pursuant to any Repurchase Offer
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the
Company, a depository, 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;




     (vii) that Holders shall be entitled to withdraw their election if the Company, a
depository, if appointed by the Company, or the Paying Agent, as the case may be, 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 his election to have such Note
purchased;




     (viii) that, if the aggregate amount of Notes surrendered by Holders exceeds the Offer
Amount, the Trustee shall, subject in the case of a Repurchase Offer made pursuant to
Section 4.10, select the Notes to be purchased on a pro rata basis; and




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



          On the Purchase Date, the Company shall, to the extent lawful, subject in the case of a
Repurchase Offer made pursuant to Section 4.10 to the provisions of Section 4.10, accept for
payment on a pro rata basis to the extent necessary, the Offer Amount of Notes (or portions
thereof) tendered pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating
that such Notes (or portions thereof) were accepted for payment by the Company in accordance with
the terms of this Section 3.08. The Company, a Depositary, if appointed by the Company, or the
Paying Agent, as the case may be, shall promptly (but in any case not later than three days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price
of Notes tendered by such Holder, as the case may be, and accepted by the Company for




49









 







purchase, and the Company shall promptly issue a new Note. The Trustee, upon written request
from the Company shall authenticate and mail or deliver such new Note to such Holder, in a
principal amount at maturity 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 respective Holder
thereof. The Company shall publicly announce the results of the Repurchase Offer on the Purchase
Date.




          The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to a Repurchase Offer. To the
extent that the provisions of any securities laws or regulations conflict with Section 3.08, 4.10
or 4.14, the Company shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under Section 3.08, 4.10 or 4.14 by virtue of such
compliance.




ARTICLE FOUR

COVENANTS




Section 4.01. Payment of Notes.




          (a) The Company shall pay or cause to be paid the principal of, and premium, if any, and
interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium,
if any, interest and Additional Interest, if any, shall be considered paid on the date due if the
Paying Agent, if other than the Company or one of its Subsidiaries, holds as of 12:00 p.m. (noon)
New York City 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, interest and Additional
Interest, if any, then due.




          (b) The Company shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest, and Additional Interest, if any (without regard to any applicable grace
period) at the same rate to the extent lawful.




Section 4.02. Maintenance of Office or Agency.




          (a) The Company shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or Registrar or agent of the Trustee or 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 shall give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee.





50









 








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




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




     Section 4.03. Reports.



          (a) Whether or not required by the Commission, the Company will file a copy of all of the
information and reports referred to in clauses (i) and (ii) below with the Commission for public
availability within the time periods specified in the Commission’s rules and regulations (unless
the Commission will not accept such filing) and furnish such information to the Trustee and, upon
request, furnish such information to the Holders of the Notes:





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




     (ii) all current reports that would be required to be filed with the Commission on
Form 8-K.



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



     Notwithstanding anything herein to the contrary, the Company shall not be deemed to have
failed to comply with any of its obligations under this Section 4.03(a) for purposes of Section
6.01(a)(iv) until 90 days after the date any report hereunder is due.



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




          Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein,




51









 







including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).




Section 4.04. Compliance Certificate.




          (a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year
commencing with the 2008 fiscal year, an Officers’ Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to his or her knowledge, the Company has kept,
observed, performed and fulfilled its obligations under this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what actions the Company is taking or proposes to
take with respect thereto) and that to 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 or Additional
Interest, if any, on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect thereto.




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




Section 4.05. Taxes.




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




Section 4.06. Stay, Extension and Usury Laws.




          The Company and any Guarantor covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
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 any
Guarantor (to the extent that it may lawfully do so) hereby expressly waive all benefit or
advantage of any such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.




Section 4.07. Restricted Payments.




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




52









 









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




     (ii) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any Guarantor held by Persons other than the Company or any of
its Restricted Subsidiaries;




     (iii) make any voluntary payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or
any Note Guarantee; or




     (iv) make any Restricted Investment;


(all such payments and other actions set forth in Section 4.07(a)(i) through (iv) above being
collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect
to such Restricted Payment:





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




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




     (C) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries after January
10, 2005 (excluding Restricted Payments permitted by clauses (ii), (iii), (v), (vi) and
(viii) 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 September 26, 2004 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
January 10, 2005 as a contribution to its common equity capital or from the



53









 






issue or
sale of Equity Interests (other than Disqualified Stock) of the Company or from the
issue or sale of Disqualified Stock or debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other than Equity Interests
(or Disqualified Stock or debt securities) sold to a Subsidiary of the Company);
plus




     (3) the aggregate Fair Market Value of any assets or property received by the
Company since the Issue Date from the issue or sale of its Equity Interests (other
than Disqualified Stock) of the Company or from the issue or sale of Disqualified
Stock or debt securities of the Company that have been converted into or exchanged
for such Equity Interests (other than Equity Interests (or Disqualified Stock or
debt securities) sold to a subsidiary of the Company); plus




     (4) with respect to Restricted Investments made by the Company and its
Restricted Subsidiaries after January 10, 2005, an amount equal to the net reduction
in such Investments in any Person resulting from dividends or other distributions,
repayments of loans or advances, or other transfers of assets, in each case to the
Company or any Restricted Subsidiary of the Company or from the net cash proceeds
from the sale of any such Investment (except, in each case, to the extent any such
payment or proceeds are included in the calculation of Consolidated Net Income),
from the release of any Guarantee (except to the extent any amounts are paid under
such Guarantee) or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries, not to exceed, in each case, the amount of such Investment previously
made by the Company or any Restricted Subsidiary of the Company in such Person or
Unrestricted Subsidiary.



          (b) So long as no Default has occurred and is continuing or would be caused thereby, Section
4.07(a) shall not prohibit:





     (i) the payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the provisions of this
Indenture;




     (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the
Company or any Guarantor in exchange for, or out of the net cash proceeds of a contribution
to the common equity of the Company or a substantially concurrent sale (other than to a
Subsidiary of the Company) of, Equity Interests (other than Disqualified Stock) of the
Company; provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded
from Section 4.07(a)(C)(2) and (3);




     (iii) the defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence
of Permitted Refinancing Indebtedness;



54









 






     (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the
holders of its common Equity Interests on a pro rata basis;




     (v) the redemption, repurchase or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company held by any
member of the Company’s or any Restricted Subsidiary’s management or by employees, former
employees, directors or former directors 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
such redeemed, repurchased, acquired or retired Equity Interests shall not exceed $1.0
million in any twelve-month period or $7.5 million in the aggregate;




     (vi) the repurchase of Capital Stock deemed to occur upon the exercise of options or
warrants if such Capital Stock represents all or a portion of the exercise price thereof;




     (vii) the payment of dividends on any Disqualified Stock of the Company or any of its
Restricted Subsidiaries or Preferred Stock of any Restricted Subsidiaries issued in
compliance with Section 4.09 to the extent such dividends are included in the definition of
“Fixed Charges”; or




     (viii) Restricted Payments which, when taken together with all other Restricted
Payments made pursuant to this clause (viii), do not exceed $75.0 million at any time.



          (c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued to or by the Company or such Subsidiary, as the case may be, pursuant to the Restricted
Payment. The Fair Market Value of any assets or securities that are required to be valued by this
Section 4.07 shall be determined by the Board of Directors whose resolution with respect thereto
shall 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 $15.0 million. Not later than the
date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers’
Certificate stating that such Restricted Payment is permitted and setting forth the basis upon
which the calculations required by this Section 4.07 were computed, together with a copy of any
fairness opinion or appraisal required by this Indenture.




          (d) If the Company or any of its Restricted Subsidiaries makes a Restricted Payment that, at
the time of the making of such Restricted Payment, would, in the Company’s good faith
determination, be permitted under the requirements of this Section 4.07, such Restricted Payment
shall be deemed to have been made in compliance with this Section 4.07 notwithstanding any
subsequent adjustments made in good faith to the Company’s financial statements for any period
affecting the calculations set forth above with respect to such Restricted Payment.




55









 








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




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





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




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




     (iii) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.



          (b) The restrictions in paragraph (a) above shall not apply to encumbrances or restrictions:





     (i) existing under, by reason of or with respect to the Credit Agreement, Existing
Indebtedness or any other agreements in effect on the Issue Date and any amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacements or
refinancings thereof, provided that the encumbrances and restrictions in any such
amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, than those contained
in the Credit Agreement, Existing Indebtedness or such other agreements as in effect on the
Issue Date;




     (ii) set forth in this Indenture or the Notes;




     (iii) existing under, by reason of or with respect to applicable law, rule, regulation
or order;




     (iv) with respect to any Person or the property or assets of a Person acquired by the
Company or any of its Restricted Subsidiaries existing at the time of such acquisition and
not incurred in connection with or in contemplation of such acquisition, which encumbrance
or restriction is not applicable to any Person or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired and any
amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings thereof, provided that the encumbrances and restrictions in any
such amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, than those in effect
on the date of the acquisition;




     (v) in the case of Section 4.08(a)(iii):



56









 






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




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




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




     (vi) existing under, by reason of or with respect to any agreement for the sale or
other disposition of all or substantially all of the capital stock of, or property and
assets of, a Restricted Subsidiary that restrict distributions by that Restricted Subsidiary
pending such sale or other disposition;




     (vii) existing on cash or other deposits or net worth imposed by customers or required
by insurance, surety or bonding companies, in each case, under contracts entered into in the
ordinary course of business;




     (viii) existing under, by reason of or with respect to customary supermajority voting
provisions and customary provisions with respect to the disposition or distribution of
assets or property, in each case, contained in joint venture agreements; and




     (ix) existing under, by reason of or with respect to Indebtedness incurred by Foreign
Subsidiaries.



Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.




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




          (b) So long as no Default shall have occurred and be continuing or would be caused thereby,
Section 4.09(a) shall not prohibit the incurrence of any of the following items of Indebtedness
(collectively, “Permitted Debt”):





     (i) the incurrence of Indebtedness under Credit Facilities in an aggregate principal
amount at any one time outstanding (with letters of credit being deemed to have



57









 






a principal amount equal to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) not to exceed $750.0 million, less the aggregate amount of all Net
Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary to permanently
repay any such Indebtedness (and, in the case of any revolving credit Indebtedness, to
effect a corresponding commitment reduction thereunder) pursuant to Section 4.10;




     (ii) the incurrence of Existing Indebtedness;




     (iii) the incurrence by the Company of Indebtedness represented by the Notes to be
issued on the date of this Indenture;




     (iv) the incurrence by the Company or any Restricted Subsidiary of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment used in the business of
the Company or such Restricted Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (4), not to exceed the greater of (a) $75.0 million at any
time outstanding and (b) 7.5% of the Consolidated Net Tangible Assets of the Company;




     (v) the incurrence by the Company or any Restricted Subsidiary of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or
replace Indebtedness (other than intercompany Indebtedness) that was permitted by this
Indenture to be incurred under Section 4.09(a) or clauses (ii), (iii), (iv), (v),or (ix) of
this Section 4.09(b);




     (vi) the incurrence by the Company or any of its Restricted Subsidiaries of
intercompany Indebtedness owing to and held by the Company or any of its Restricted
Subsidiaries; provided, however, that:




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




     (b) Indebtedness owed to the Company or any Guarantor may
not be subordinated in right of payment to any other indebtedness of the
obligor of such Indebtedness, unless the obligor of such Indebtedness is
the Company or a Guarantor; and




     (c) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than the Company or a Restricted Subsidiary thereof and (ii) any sale
or other transfer of any such Indebtedness to a Person that is not either
the Company or a Restricted Subsidiary thereof, shall be deemed, in each
case, to constitute



58









 






an incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be, that was not permitted by
this clause (vi);




     (vii) the Guarantee by the Company or any of its Restricted Subsidiaries 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;




     (viii) the incurrence of Indebtedness pursuant to the Supplemental Plan in an aggregate
amount not to exceed $35 million outstanding at any time; or




     (ix) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (ix), not to exceed $225.0 million.



          For purposes of determining compliance with this Section 4.09, in the event that any proposed
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in
clauses (i) through (ix) above, or is entitled to be incurred pursuant to Section 4.09(a), the
Company shall be permitted to classify at the time of its incurrence (and later reclassify) such
item of Indebtedness in any manner that complies with this Section 4.09.




          (c) Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that may be incurred pursuant to this Section 4.09 shall not be deemed to be exceeded
with respect to any outstanding Indebtedness due solely to the result of fluctuations in the
exchange rates of currencies.




Section 4.10. Asset Sales.




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





     (i) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of;




     (ii) such Fair Market Value is determined in good faith by the Company’s Board of
Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’
Certificate delivered to the Trustee; and




     (iii) at least 75% of the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of cash or Replacement Assets or a combination of both.
For purposes of this provision, each of the following shall be deemed to be cash:




     (A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet) of the Company or such Restricted Subsidiary (other than
contingent liabilities, Indebtedness that is by its terms pari passu with or
subordinated to the Notes or any Note Guarantee and liabilities to the extent owed
to the Company or any Affiliate of the Company) that are



59









 






assumed by the transferee
of any such assets pursuant to a customary written novation agreement that releases
the Company or such Restricted Subsidiary from further liability;




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are (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) within 60 days after such
Asset Sale; and




     (C) any Designated Non-cash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value,
taken together with all other Designated Non-cash Consideration received since the
Issue Date pursuant to this clause (C) that is at that time outstanding, not to
exceed $35.0 million (with the Fair Market Value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value).



          (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may
apply such Net Proceeds at its option:





     (i) to repay Senior Debt of the Company or any Guarantor or Indebtedness of any other
Restricted Subsidiary and, if such Indebtedness repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto;




     (ii) to purchase Replacement Assets or make a capital expenditure in, or that is used
or useful in, a Permitted Business; or




     (iii) to make an asset sale offer as provided in the following paragraph.


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




          (c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section
4.10(b) shall constitute “Excess Proceeds.” Within 10 days after the aggregate amount of Excess
Proceeds exceeds $35.0 million, the Company shall make an offer (an “Asset Sale Offer”) to all
Holders of Notes, and to all holders of other Indebtedness that is pari passu with the Notes or any
Note Guarantee containing provisions similar to those set forth in this Indenture with respect to
offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount
of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds.
The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount of the Notes
and such other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if
any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other
pari passu Indebtedness tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds,
the Notes and such




60









 







other pari passu Indebtedness shall be purchased on a pro rata basis based on
the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.




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




Section 4.11. Transactions with Affiliates.




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





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




     (ii) the Company delivers to the Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $15.0 million, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with this Section 4.11 and that such Affiliate Transaction or
series of related Affiliate Transactions has been approved by a majority of the
disinterested members of the Board of Directors; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, an
opinion as to the fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction or series of related Affiliate Transactions from a financial
point of view issued by an independent accounting, appraisal or investment banking
firm of national standing.



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





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



61









 






     (ii) payment of reasonable and customary fees to, and reasonable and customary
indemnification and similar payments on behalf of directors and executive officers of the
Company;




     (iii) Restricted Payments that are permitted by the provisions of Section 4.07;




     (iv) any sale of Equity Interests (other than Disqualified Stock) of the Company; and




     (v) Affiliate Transactions with any Person solely in its capacity as a holder of debt
or capital stock of the Company or of any Restricted Subsidiary of the Company where such
Person is treated no more favorably than any other holder of debt or capital stock of the
Company or such Restricted Subsidiary, provided that such Person holds no more than 10% of
the outstanding debt or capital stock of the Company or such Restricted Subsidiary.



Section 4.12. Liens.




          The Company shall not, and shall not permit any of its Restricted Subsidiaries to, create,
incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind
securing Indebtedness (other than Permitted Liens) upon any of their property or assets, now owned
or hereafter acquired, unless all payments due under this Indenture and the Notes are secured on an
equal and ratable basis with the obligations so secured (or, in the case of subordinated
Indebtedness, prior or senior thereto, with the same relative priority as the Notes shall have with
respect to such subordinated Indebtedness) until such time as such obligations are no longer
secured by a Lien.




Section 4.13. Business Activities.




          The Company shall not, and shall not permit any Restricted Subsidiary of the Company 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. Offer to Repurchase upon a Change of Control.




          (a) If a Change of Control occurs, each Holder of Notes shall have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that
Holder’s Notes pursuant to an offer by the Company (a “Change of Control Offer”) at an offer price
(a “Change of Control Payment”) 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 the
Change of Control Payment Date. Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder describing the transaction or transactions that constitute the Change
of Control and offering to repurchase Notes on a date (the “Change of Control Payment Date”)
specified in such notice, which date shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed, pursuant to the procedures described in Section 3.08
(including the notice required thereby). The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable




62









 







in connection with the repurchase of the Notes as a result
of a Change of Control. To the extent that the provisions of any securities laws or regulations
conflict with the Change of Control provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have breached its obligations
under the Change of Control provisions of this Indenture by virtue of such compliance.




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





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




     (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered; and




     (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officers’ Certificate stating the aggregate principal amount of Notes or portions
thereof being purchased by the Company.



          (c) The Paying Agent shall promptly mail or wire transfer to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail
(or 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; provided that each such new Note shall be
in a principal amount of $1,000 or an integral multiple thereof. Any Note so accepted for payment
shall cease to accrue interest or Additional Interest, if any, on and after the Change of Control
Payment Date.




          (d) Prior to repurchasing any Notes pursuant to the provisions of this Section 4.14, but in
any event within 90 days following a Change of Control, the Company shall either repay all
outstanding Senior Debt or obtain the requisite consents, if any, under all agreements governing
outstanding Senior Debt to permit the repurchase of Notes required by this Section 4.14. The
Company shall publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.




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




Section 4.15. Limitation on Senior Subordinated Debt.




          (a) The Company shall not incur any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt of the Company unless it is pari passu or subordinate in right of
payment to the Notes.





63









 








          (b) No Guarantor shall incur any Indebtedness that is subordinate or junior in right of
payment to the Senior Debt of such Guarantor unless it is pari passu or subordinate in right of
payment to such Guarantor’s Note Guarantee.




          (c) For purposes of the foregoing, no Indebtedness shall be deemed to be subordinated in right
of payment to any other Indebtedness of the Company or any Guarantor, as applicable, solely by
virtue of being unsecured or by virtue of the fact that the holders of any secured Indebtedness
have entered into intercreditor agreements giving one or more of such holders priority over the
other holders in the collateral held by them.




Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.




          (a) Subject to the restrictions set forth in Section 4.19(a), the Board of Directors may
designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary; provided that:





     (i) any Guarantee by the Company or any Restricted Subsidiary thereof of any
Indebtedness of the Subsidiary being so designated shall be deemed to be an incurrence of
Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the
time of such designation, and such incurrence of Indebtedness would be permitted under
Section 4.09;




     (ii) the aggregate Fair Market Value of all outstanding Investments owned by the
Company and its Restricted Subsidiaries in the Subsidiary being so designated (including any
Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of such
Subsidiary) shall be deemed to be a Restricted Investment made as of the time of such
designation and that such Investment would be permitted under Section 4.07;




     (iii) such Subsidiary does not own any Equity Interests of, or hold any Liens on any
property of, the Company or any Restricted Subsidiary thereof;




     (iv) the Subsidiary being so designated:




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




     (B) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (1) to subscribe for
additional Equity Interests or (2) to maintain or preserve such Person’s financial
condition or to cause such Person to achieve any specified levels of operating
results;




     (C) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted



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Subsidiaries,
except to the extent such Guarantee or credit support would be released upon such
designation;




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




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



          (b) Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary
shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of
the Board of Directors giving effect to such designation and an Officers’ Certificate certifying
that such designation complied with the preceding conditions and was permitted by this Indenture.
If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements
described in Section 4.16(a)(iv) above it shall thereafter cease to be an Unrestricted Subsidiary
for purposes of this Indenture and any Indebtedness, Investments or Liens on the property of such
Subsidiary shall be deemed to be incurred or made by a Restricted Subsidiary of the Company as of
such date and, if such Indebtedness, Investments or Liens are not permitted to be incurred or made
as of such date under this Indenture, the Company shall be in default under this Indenture.




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





     (i) such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness is permitted
under Section 4.09;




     (ii) all outstanding Investments owned by such Unrestricted Subsidiary shall be deemed
to be made as of the time of such designation and such Investments shall only be permitted
if such Investments would be permitted under Section 4.07;




     (iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at the
time of such designation would be permitted under Section 4.12; and




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



Section 4.17. Payments for Consent.




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




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and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.




Section 4.18. Guarantees.




          (a) The Company shall not permit any of its Restricted Subsidiaries, directly or indirectly,
to Guarantee or pledge any assets to secure the payment of any Indebtedness of the Company or any
Guarantor (other than Senior Debt permitted to be incurred under this
Indenture) unless such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture substantially in the form of Exhibit E providing for the Guarantee
(a “Note Guarantee”) of the payment of the Notes by such Restricted Subsidiary, which Note
Guarantee shall be senior to or pari passu with such Subsidiary’s Guarantee of such other
Indebtedness with the same relative priority as the Notes or Note Guarantee shall have with respect
to such other Indebtedness.




          (b) Notwithstanding Section 4.18(a), any Note Guarantee may provide by its terms that it shall
be automatically and unconditionally released and discharged under the circumstances described
under Section 10.02 hereof.




Section 4.19. Suspension of Covenants




          (a) If the Notes are rated Investment Grade by both Rating Agencies and no Default or Event of
Default shall have occurred and then be continuing (the foregoing conditions being referred to
collectively as the “Suspension Condition”), the Company and its Restricted Subsidiaries shall
cease to be subject to Sections 4.07, 4.08., 4.09, 4.10, 4.11, 4.15 and 5.01(a)(iii) (collectively,
the “Suspended Covenants”). In addition, the Company shall not be permitted to designate any
Subsidiaries as Unrestricted Subsidiaries pursuant to Section 4.16 while the Company meets the
Suspension Condition.




          (b) If the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants
with respect to the Notes for any period of time as a result of the foregoing and, subsequently,
one or both Rating agencies withdraw their Investment Grade rating or downgrade the Investment
Grade rating assigned to the Notes such that the Notes are no longer rated Investment Grade by both
Rating Agencies, then the Company and each of its Restricted Subsidiaries will thereafter again be
subject to the Suspended Covenants. Compliance with the Suspended Covenants with respect to
Restricted Payments made after the time of such withdrawal or downgrade will be calculated in
accordance with the terms of Section 4.07 as if such terms had been in effect during the entire
period of time from the date of the Indenture.




ARTICLE FIVE

SUCCESSORS




Section 5.01. Merger, Consolidation or Sale of Assets.




          (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the properties and assets




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of
the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person or Persons, unless:





     (i) either: (a) the Company is the surviving corporation; or (b) the Person formed by
or surviving any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, conveyance or other disposition shall have been made (1) is a
corporation organized or existing under the laws of the United States, any
state thereof or the District of Columbia and (2) assumes all the obligations of the
Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to a
supplemental indenture reasonably satisfactory to the Trustee;




     (ii) immediately after giving effect to such transaction, no Default or Event of
Default exists; and




     (iii) immediately after giving effect to such transaction on a pro forma basis, the
Company or the Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer, conveyance or other disposition
shall have been made, shall, on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same had occurred at the beginning
of the applicable four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).



          (b) In addition, neither the Company nor any Restricted Subsidiary thereof may, directly or
indirectly, lease all or substantially all of its properties or assets, in one or more related
transactions, to any other Person (except to the Company or a Restricted Subsidiary).




          (c) Section 5.01(a)(iii) shall not apply to (i) any merger, consolidation or sale, assignment,
transfer, conveyance or other disposition of assets between or among the Company and any of its
Restricted Subsidiaries or (ii) any merger with any Affiliate of the Company if (in the case of
this clause (ii)) in the good faith determination of the Board of Directors, whose determination
shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change
the state of incorporation of the Company and such transaction shall not have as one of its
purposes the evasion of the foregoing restrictions.




Section 5.02. Successor Corporation Substituted.




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




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obligation to pay the principal of and
interest and Additional Interest, if any, on the Notes except in the case of a sale, assignment,
transfer, conveyance or other disposition of all of the Company’s assets that meets the
requirements of Section 5.01 hereof.




ARTICLE SIX

DEFAULTS AND REMEDIES




Section 6.01. Events of Default.





     (a) Each of the following is an “Event of Default”:




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




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




     (iii) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Sections 3.08, 4.10, 4.14 or 5.01;




     (iv) failure by the Company or any of its Restricted Subsidiaries for 30 days after
written notice by the Trustee or Holders representing 25% or more of the aggregate principal
amount of Notes outstanding to comply with any of the other agreements in this Indenture;




     (v) default under any mortgage, indenture or other 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 Issue Date, if that default:




     (A) is caused by a failure to make any payment when due at the final maturity
of such Indebtedness (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 $25 million or
more;





     (vi) failure by the Company or any of its Restricted Subsidiaries to pay final
judgments aggregating in excess of $25 million, which judgments are not paid, discharged or
stayed for a period of 60 days after such judgment becomes final and non appealable;



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




     (A) commences a voluntary case;




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




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




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




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




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




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




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



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



Section 6.02. Acceleration.




          (a) In the case of an Event of Default specified in clauses (vii) or (viii) of Section
6.01(a), with respect to the Company or any Significant Subsidiary of the Company (or any
Restricted Subsidiaries of the Company that together would constitute a Significant Subsidiary),
all outstanding Notes shall become due and payable immediately without further action or notice. If
any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be due and payable
immediately by notice in writing to the Company, or if given by Holders of at least 25% in
principal amount of the then outstanding Notes, to the Company and the Trustee, specifying the
Event of Default; provided, however, that so long as any Indebtedness permitted to be incurred
pursuant to the Credit Agreement is outstanding, that acceleration shall not be effective until the
earlier of (i) an acceleration of Indebtedness under the Credit Agreement; or (ii) five
Business Days after receipt by the Company and the agent under the Credit Agreement of written
notice of the acceleration of the Notes.





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          (b) 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 Section 3.07, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law upon the acceleration of the Notes.




Section 6.03. Other Remedies.




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




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




Section 6.04. Waiver of Past Defaults.




          (a) Holders of a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default
or Event of Default and its consequences hereunder except a continuing Default or Event of Default
in the payment of interest or Additional Interest, if any, on, or the principal of, or premium on,
the Notes; provided, however, that the Holders of a majority in principal amount of the then
outstanding Notes may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration.




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




          (c) In the event of a declaration of acceleration of the Notes because an Event of Default
specified in Section 6.01(a)(v) has occurred and is continuing, the declaration of
acceleration of the Notes shall be automatically annulled if the Payment Default or default
resulting in the acceleration of the relevant Indebtedness triggering such Event of Default
pursuant to Section 6.01(a)(v) shall be remedied or cured by the Company or a Restricted Subsidiary
of the Company or waived by the holders of the relevant Indebtedness within 20 days



70









 






after the
declaration of acceleration of the Notes and if (i) all Events of Default (other than nonpayment of
accelerated principal, premium or interest or Additional Interest, if any) have been cured or
waived, (ii) the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its reasonable expenses, disbursements and advances and (iii) the rescission would not
conflict with any judgment or decree.




Section 6.05. Control by Majority.




          The Holders of a majority in principal amount of the then outstanding Notes shall have the
right to direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in
the giving of such direction and may take any other action it deems proper that is not inconsistent
with any such direction received from Holders of Notes. Notwithstanding any provision to the
contrary in this Indenture (but without prejudice to the rights of the Holders to accelerate
payment of the Notes pursuant to Section 6.02(a), the Trustee shall not be obligated to take any
action with respect to the provisions of the last paragraph of Section 6.02 unless directed to do
so pursuant to this Section 6.05.




Section 6.06. Limitation on Suits.




          (a) No Holder of a Note shall have any right to institute any proceeding with respect to this
Indenture or for any remedy under this Indenture, unless:





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




     (ii) the Holders of at least 25% in aggregate principal amount of the outstanding Notes
make a written request and offer indemnity to the Trustee to institute proceeding as a
trustee;




     (iii) the Trustee fails to institute proceedings within 60 days after the request and
the offer of indemnity; and




     (iv) the Holders of a majority in aggregate principal amount of the outstanding Notes
do not give the Trustee a direction inconsistent with their request during the 60-day
period.



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




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




          Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of the principal of, premium or Additional Interest, if any, or interest on such
Note or to bring suit for the enforcement of any such payment, on or after the due date



71









 






expressed in the Notes, which right shall not be impaired or affected without the consent of the Holder.




Section 6.08. Collection Suit by Trustee.




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




Section 6.09. Trustee May File Proofs of Claim.




          The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
or any Guarantor (or any other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other securities or property
payable or deliverable on any such claims and any custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06. To the
extent that the payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under Section 7.06 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.




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





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



72









 






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




     Third: to the Company or to such party as a court of competent jurisdiction
shall direct in writing.



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




Section 6.11. Undertaking for Costs.




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




ARTICLE SEVEN

TRUSTEE




Section 7.01. Duties of Trustee.




          Except to the extent, if any, provided otherwise in the TIA:




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




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





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




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



73









 







requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).



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





     (i) this paragraph shall not be construed to limit the effect of paragraph (b) of this
Section 7.01;




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




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




     (iv) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any financial liability in the performance of any of its duties hereunder,
including without limitation, the provisions of Section 6.05 hereof, or in the exercise of
any of its rights or powers.



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




Section 7.02. Certain Rights of Trustee.




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




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




          (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a written request or order signed (i) by its Chairman, Chief Executive Officer, Chief Financial
Officer, a Vice Chairman, its President or a Vice President and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee; provided, however,
that such written request or order may be signed by any two of the officers or directors listed in
clause (i) above in lieu of being signed by one of such officers or directors listed in such clause
(i) and one of the officers listed in clause (ii) above and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;




74









 








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




          (d) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;




          (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;




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




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




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




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




          (j) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;




          (k) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be


75









 







enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder; and




          (l) the permissive rights of the Trustee enumerated herein shall not be construed as duties.




Section 7.03. Trustee’s Disclaimer.




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




Section 7.04. May Hold Securities.




          The Trustee, any Paying Agent, Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Notes subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Registrar or such other agent.




Section 7.05. Money Held in Trust.




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




Section 7.06. Compensation and Reimbursement.




          The Company agrees:




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




          (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel); and




          (c) to indemnify each of the Trustee and its officers, directors and employees or any
predecessor Trustee and its officers, directors and employees for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including taxes (other than taxes based on
the income of the Trustee) incurred without gross negligence or willful misconduct on their part,
arising out of or in connection with the acceptance or administration of this trust,



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including the
costs and expenses of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.




          As security for the performance of the obligations of the Company under this Section 7.06, the
Trustee shall have a Lien prior to the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of Holders of particular Notes.




          When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 6.01(a)(vii) or 6.01(a)(viii), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services shall be intended to constitute
expenses of administration under any Bankruptcy Law.




          The provisions of this Section 7.06 shall survive the resignation or removal of the Trustee
and termination of this Indenture.




Section 7.07. Eligibility; Disqualification.




          There shall at all times be a Trustee hereunder qualified or to be qualified under TIA
310(a)(1) and which shall have a combined capital and surplus of at least $50,000,000 to the extent
there is such an institution eligible and willing to serve. If the Trustee publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal, State, Territorial
or District of Columbia supervising or examining authority, then for the purposes of this Section
7.07, the combined capital and surplus of the Trustee shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 7.07, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article.




Section 7.08. Replacement of Trustee.




          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 7.09.




          (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may petition at the
expense of the Company any court of competent jurisdiction for the appointment of a successor
Trustee.




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




          (d) If at any time:




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




     (ii) the Trustee shall cease to be eligible under Section 7.07 and shall fail to resign
after written request therefor by the Company or by any Holder who has been a bona fide
Holder of a Note for at least six months; or




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


then, in any case, (A) the Company by a Board Resolution may remove the Trustee, or (B) subject to
Section 6.11, the Holder of any Note who has been a bona fide Holder of a Note for at
least six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by the Act
of Holders of a majority in principal amount of the Notes delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with Section 7.09, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders of the Notes and so accepted appointment, the Holder of any Note who
has been a bona fide Holder for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the appointment of a successor
Trustee.




          (f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Notes as their names and addresses appear in the register of
Notes. Each notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.




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




Section 7.09. Acceptance of Appointment by Successor. 




          Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee, provided, however, that the retiring Trustee shall
continue to be entitled to the benefit of Section 7.06(c); but, on request of the



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Company or the
successor Trustee, such retiring Trustee shall, upon payment of amounts due to it pursuant to
Section 7.06, 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 as well as
any list of names and addresses of Holders held by such retiring Trustee pursuant to Section
2.06(a). Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.




Section 7.10. Merger, Conversion, Consolidation or Succession to Business.




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




Section 7.11. Preferential Collection of Claims Against the Company.




          If and when the Trustee shall be or become a creditor of the Company (or any other obligor
under the Notes), the Trustee shall be subject to the provisions of the TIA regarding the
collection of claims against the Company (or any such other obligor).




Section 7.12. Trustee’s Application for Instructions from the Company.




          Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any Officer of
the Company actually received such application) unless, with respect to any such action (or the
effective date in the case of an omission), the Trustee shall have received written instructions in
response to such application specifying the action to be taken or omitted).




Section 7.13. Notice of Defaults.




          Within 90 days after the occurrence of any Default, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the register of Notes, notice of such Default
hereunder actually known to a Responsible Officer of the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default in the payment of
the principal or premium, if any, of or interest or Additional Interest on any Note, the Trustee
shall be protected in withholding such notice if and so long as a trust committee of



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directors
and/or Responsible Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.




ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE




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




          The Company may, at its option and at any time, elect to have either Section 8.02 or 8.03 be
applied to all outstanding Notes and any Note Guarantees upon compliance with the conditions set
forth below in this Article Eight.




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




          (a) the rights of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04, and as more fully set forth in such Section, payments in respect of the principal
of, premium, if any, interest and Additional Interest, if any, on such Notes when such payments are
due;




          (b) the Company’s obligations with respect to such Notes under Article Two concerning issuing
temporary Notes, registration of Notes and mutilated, destroyed, lost or stolen Notes and the
Company’s obligations under Section 4.02;




          (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s and any Guarantors’ obligations in connection therewith, and




          (d) this Section 8.02.




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



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Section 8.03. Covenant Defeasance.




          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company and any Guarantors shall, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be released from their obligations under the covenants
contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18,
5.01 and 10.01 with respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and neither the Notes nor any
Note Guarantees shall thereafter be deemed “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company
and any Guarantors may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 6.01, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04, Sections 6.01(a)(iii), 6.01(a)(iv) (with
respect to the covenants contained in Sections 4.07, 4.08, 4.09, 4.11, 4.12, 4.13, 4.15, 4.16,
4.17, 4.18 and 10.01), 6.01(a)(v) and 6.01(a)(vi) shall not constitute Events of Default.




Section 8.04. Conditions to Legal or Covenant Defeasance.




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





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




     (ii) in the case of Legal Defeasance, the Company shall have delivered 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 shall not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and shall be subject to federal



81









 







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;




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




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




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




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




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




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




     (ix) the Company must deliver to the Trustee an Officers’ Certificate stating that all
conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.



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




          (a) Subject to Section 8.06, all money and non-callable U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in



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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 and premium and Additional Interest, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.




          (b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable U.S. Government Obligations 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.




          (c) Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any money or non-callable
U.S. Government Obligations 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(a)), 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. Reinstatement.




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




ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01. Without Consent of Holders of Notes.




          Notwithstanding Section 9.02 below, the Company, any Guarantors and the Trustee may amend or
supplement this Indenture, the Notes or any Note Guarantees without the consent of any Holder of a
Note:





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



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




     (iii) to provide for the assumption of the Company’s or any Guarantor’s obligations
under this Indenture, the Notes or any Note Guarantee by the surviving entity following a
merger or consolidation or sale of all or substantially all of the Company’s or such
Guarantor’s assets permitted by the Indenture;




     (iv) to make any change that would provide any additional rights or benefits to the
Holders of Notes (including additional Note Guarantees or Liens securing the Notes) or that
does not materially adversely affect the rights under this Indenture of any such Holder;




     (v) to comply with the provisions of Section 4.18;




     (vi) to evidence and provide for the acceptance of appointment by a successor Trustee;




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




     (viii) to comply with any requirements of the Commission under the TIA; or




     (ix) to conform the terms of the Indenture or the Notes to the description thereof
contained in the Offering Memorandum to the extent such description was intended to be a
verbatim recitation of the provision in the Indenture or the Notes.



          Upon the request of the Company authorizing the execution of any such amended or supplemental
Indenture, the Trustee shall join with the Company in the execution of any amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.




     Section 9.02. With Consent of Holders of Notes.



          (a) Except as otherwise provided in this Section 9.02, the Company, any Guarantors and the
Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees with the consent
of the Holders of at least a majority in principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or Event of
Default or compliance with any provision of this Indenture or the Notes or the Notes Guarantees may
be waived with the consent of the Holders of a majority in principal amount of the then outstanding
Notes (including Additional Notes, if any) (including,
without limitation, consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes).




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          (b) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or its duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have become effective by
virtue of the requisite percentage having been obtained prior to the date which is 90 days after
such record date, any such consent previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.




          (c) Upon the request of the Company authorizing the execution of any such amendment or
supplement to this Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the
documents described in Section 7.02(b), the Trustee shall join with the Company in the execution of
such amendment or supplement unless such amendment or supplement directly affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amendment or supplement.




          (d) 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 shall be
sufficient if such consent approves the substance thereof.




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





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




     (ii) reduce the rate of or change the time for payment of interest on the Notes;




     (iii) reduce the principal of or premium on the Notes or change the stated maturity of
the Notes;




     (iv) change the amount or time of any payment required or reduce the premium payable
upon any redemption, or change the time before which no redemption may be made;




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



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     (vi) make the Note payable in money other than that stated in the Note;




     (vii) waive a redemption payment or change any of the provisions with respect to
redemption;




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




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




     (x) impair the right to institute suit for the enforcement of any payment on or with
respect to the Notes or any Note Guarantees;




     (xi) amend, change or modify the obligation of the Company to make and consummate an
Asset Sale Offer with respect to any Asset Sale in accordance with Section 4.10(c) after the
obligation to make such Asset Sale Offer has arisen, or the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 4.14 after such Change of Control has occurred, including, in each
case, amending, changing or modifying any definition relating thereto;




     (xii) except as otherwise permitted under Sections 4.18 and 5.01 consent to the
assignment or transfer by Moog or any Guarantor of any of their rights or obligations under
this Indenture;




     (xiii) amend or modify any of the provisions of this Indenture or the related
definitions affecting the subordination of the Notes or any Note Guarantee in any manner
adverse to the holders of the Notes or any Note Guarantee; or




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



Section 9.03. Compliance with Trust Indenture Act.




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




Section 9.04. Revocation and Effect of Consents.




          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written



86









 






notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.




Section 9.05. Notation on or Exchange of Notes.




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




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




Section 9.06. Trustee to Sign Amendments, Etc.




          The Trustee shall sign any amendment or supplement to this Indenture or any Note authorized
pursuant to this Article Nine if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or
supplemental Indenture or Note unless the officer or officers signing on behalf of the Company are
duly authorized to do so. In executing any amendment or supplement or Note, the Trustee shall be
provided with in addition to the documents required by Section 13.04 and (subject to Section 7.01)
shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating
that the execution of such amendment or supplement is authorized or permitted by this Indenture.




ARTICLE TEN

GUARANTEES




Section 10.01. Guarantors May Consolidate, Etc., on Certain Terms.




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





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




     (ii) either:




     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia and assumes all the
obligations of that Guarantor under this Indenture or its Note Guarantee and the
Registration Rights Agreement pursuant to a supplemental indenture satisfactory to
the Trustee; or



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     (B) such sale or other disposition or consolidation or merger complies with
Section 4.10.



          (b) 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 and
satisfactory in form 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 a
Guarantor, such successor Person shall succeed to and be substituted for a 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 shall 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.




          (c) Except as set forth in Article Five, and notwithstanding clauses (i) and (ii) of Section
10.01(a), nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall
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 10.02. Release of Guarantor.




          Any Guarantor shall be released and relieved of any obligations under its Note Guarantee:




          (a) in connection with any sale or other disposition of all of the Capital Stock of a
Guarantor to a Person that is not (either before or after giving effect to such transaction) an
Affiliate of the Company, if the sale of all such Capital Stock of that Guarantor complies with
Section 4.10;




          (b) if the Company properly designates such Guarantor as an Unrestricted Subsidiary under this
Indenture; or




          (c) upon the release or discharge of the Guarantee which resulted in the creation of such Note
Guarantee pursuant to Section 4.18, except a discharge or release by or as a result of payment
under such Guarantee.




          Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of
Counsel to the effect that one of the foregoing requirements has been satisfied and the conditions
to the release of a Guarantor under this Section 10.02 have been met, the Trustee shall execute any
documents reasonably required in order to evidence the release of such Guarantor from its
obligations under its Note Guarantee.




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ARTICLE ELEVEN

SATISFACTION AND DISCHARGE




Section 11.01. Satisfaction and Discharge.




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





     (i) either:




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




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




     (ii) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit shall not result
in a breach or violation of, or constitute a default under, any other instrument to which
the Company or any Guarantor are a party or by which the Company or any Guarantor is bound;




     (iii) the Company or any Guarantor has paid or caused to be paid all sums payable by
them under this Indenture; and




     (iv) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or the
redemption date, as the case may be.



          (b) The Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge have been satisfied.




          (c) Notwithstanding the above, the Trustee shall pay to the Company or any Guarantor from time
to time upon their request any cash or U.S. Government Obligations held by it as provided in this
section which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification delivered to the Trustee, are



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in excess of the amount thereof
that would then be required to be deposited to effect a satisfaction and discharge under this
Article Eleven.




          (d) After the conditions to discharge contained in this Article Eleven have been satisfied,
the Trustee upon written request shall acknowledge in writing the discharge of the obligations of
the Company and any Guarantors under this Indenture (except for those surviving obligations
specified Section 11.01).




Section 11.02. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions.




          Subject to Section 11.03 hereof, all money and non-callable U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section 11.01 hereof in
respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect of principal,
premium and Additional Interest, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.




Section 11.03. Repayment to the Company.




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




ARTICLE TWELVE

SUBORDINATION




Section 12.01. Agreement to Subordinate.




          The Company agrees, and each Holder by accepting a Note agrees, that the Indebtedness
evidenced by the Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article Twelve, to the prior payment in full in Cash Equivalents of all Senior
Debt of the Company, including Senior Debt of the Company incurred after the date hereof.




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Section 12.02. Liquidation; Dissolution; Bankruptcy.




          The holders of Senior Debt of the Company shall be entitled to receive payment in full of all
Obligations due in respect of Senior Debt of the Company (including interest after the
commencement of any bankruptcy proceeding at the rate specified for the applicable Senior Debt of
the Company) before the Holders of the Notes shall be entitled to receive any payment with respect
to the Notes (except that Holders of the Notes may receive and retain Permitted Junior Securities
and payments made from the trust pursuant to Article Eight), in the event of any distribution to
creditors of the Company in connection with:




          (a) any liquidation, dissolution or winding up of the Company;




          (b) any bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to
the Company or its properties;




          (c) any assignment by the Company for the benefit of creditors; or




          (d) any marshaling of the Company’s assets and liabilities.




Section 12.03. Default on Designated Senior Debt.




          (a) The Company may not make any payment in respect of the Notes (except in Permitted Junior
Securities or from the trust pursuant to Article Eight) if:





     (i) a payment default on Designated Senior Debt of the Company occurs and is continuing
beyond any applicable grace period; or




     (ii) any other default (a “non-payment default”) occurs and is continuing on any series
of Designated Senior Debt of the Company that permits holders of that series of Designated
Senior Debt to accelerate its maturity and the Trustee receives a notice of such default (a
“Payment Blockage Notice”) from a representative of the holders of such Designated Senior
Debt.



          (b) Payments on the Notes may and shall be resumed:





     (i) in the case of a payment default on Designated Senior Debt of the Company, upon the
date on which such default is cured or waived; and




     (ii) in the case of a non-payment default on Designated Senior Debt of the Company, the
earlier of (A) the date on which such default is cured or waived, (B) 179 days after the
date on which the applicable Payment Blockage Notice is received and (C) the date the
Trustee receives notice from the representative for such Designated Senior Debt rescinding
the Payment Blockage Notice, unless the maturity of such Designated Senior Debt of the
Company has been accelerated.



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          (c) No new Payment Blockage Notice may be delivered unless and until:





     (i) 360 days have elapsed since the delivery of the immediately prior Payment Blockage
Notice; and




     (ii) all scheduled payments of principal, interest and premium and Additional Interest,
if any, on the Notes that have come due have been paid in full in cash.



          (d) No non-payment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice unless such default has been cured or waived for a period of not less than 90 days.




          (e) If the Trustee or any Holder of the Notes receives a payment in respect of the Notes
(except in Permitted Junior Securities or from the trust pursuant to Article Eight) when:





     (i) the payment is prohibited by this Article Twelve; and




     (ii) the Trustee or the Holder has actual knowledge that the payment is prohibited
(provided that such actual knowledge shall not be required in the case of any payment
default on Designated Senior Debt of the Company),


the Trustee or the Holder, as the case may be, shall hold the payment in trust for the benefit of
the holders of Senior Debt of the Company. Upon the proper written request of the holders of
Senior Debt of the Company, the Trustee or the Holder, as the case may be, shall deliver the
amounts in trust to the holders of Senior Debt or their proper representative.




Section 12.04. Acceleration of Securities.




          If payment of the Notes is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Debt of the acceleration.




Section 12.05. When Distribution Must Be Paid Over.




          In the event that the Trustee or any Holder receives any payment of any Obligations with
respect to the Notes (except in Permitted Junior Securities or from the trust pursuant to Article
Eight hereof) at a time when the Trustee or such Holder, as applicable, has actual knowledge that
such payment is prohibited by Article Twelve, such payment shall be held by the Trustee or such
Holder, as applicable, in trust for the benefit of, and shall be paid forthwith over and delivered,
upon written request, to the holders of Senior Debt or their Representative, as their respective
interests may appear, for application to the payment of all Obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt.




          With respect to the holders of Senior Debt, the Trustee undertakes to perform only such
obligations on the part of the Trustee as are specifically set forth in this Article Twelve, and



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no
implied covenants or obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee.




Section 12.06. Notice by the Company.




          The Company shall promptly notify the Trustee and the Paying Agent in writing of any facts
known to the Company that would cause a payment of any Obligations with respect to the Notes to
violate this Article Twelve, but failure to give such notice shall not affect the subordination of
the Notes to the Senior Debt as provided in this Article Twelve.




Section 12.07. Subrogation.




          After all Senior Debt is paid in full and until the Notes are paid in full, Holders of Notes
shall be subrogated (equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Debt to receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to the Holders of Notes have been applied to the
payment of Senior Debt. A distribution made under this Article Twelve to holders of Senior Debt
that otherwise would have been made to Holders of Notes is not, as between the Company and Holders,
a payment by the Company on the Notes.




Section 12.08. Relative Rights.




          This Article Twelve defines the relative rights of Holders of Notes and holders of Senior
Debt. Nothing in this Indenture shall:





     (a) impair, as between the Company and Holders of Notes, the obligation of the Company,
which is absolute and unconditional, to pay principal of and interest and Additional
Interest, if any, on the Notes in accordance with their terms;




     (b) affect the relative rights of Holders of Notes and creditors of the Company other
than their rights in relation to holders of Senior Debt; or




     (c) prevent the Trustee or any Holder of Notes from exercising its available remedies
upon a Default or Event of Default, subject to the prior notice requirement set forth in
Section 6.02(a) and the rights of holders and owners of Senior Debt to receive distributions
and payments otherwise payable to Holders of Notes.



          If the Company fails because of this Article Twelve to pay principal of or interest or
Additional Interest, if any, on a Note on the due date, the failure is still a Default or Event of
Default.




     Section 12.09. Subordination May Not Be Impaired by the Company.



          No right of any holder of Senior Debt to enforce the subordination of the Indebtedness
evidenced by the Notes shall be impaired by any act or failure to act by the Company or any Holder
or by the failure of the Company or any Holder to comply with this Indenture.





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Section 12.10. Distribution or Notice to Representative.




          Whenever a distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.




          Upon any payment or distribution of assets of the Company referred to in this Article Twelve,
the Trustee and the Holders of Notes shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to the
Holders of Notes for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve.




Section 12.11. Rights of Trustee and Paying Agent.




          Notwithstanding this Article Twelve or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts that would prohibit the making of
any payment or distribution by the Trustee, and the Trustee and the Paying Agent may continue to
make payments on the Notes, unless the Trustee shall have received at its Corporate Trust Office at
least five Business Days prior to the date of such payment written notice of facts that would cause
the payment of any Obligations with respect to the Notes to violate this Article Twelve. Only the
Company or a Representative may give the notice. Nothing in this Article Twelve shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.06 hereof.




          The Trustee in its individual or any other capacity may hold Senior Debt with the same rights
it would have if it were not Trustee. Any Agent may do the same with like rights.




Section 12.12. Authorization to Effect Subordination.




          Each Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the Trustee
on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article Twelve, and appoints the Trustee to act as such Holder’s
attorney-in-fact for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in Section 6.09 hereof at
least 30 days before the expiration of the time to file such claim, the lenders under the Credit
Agreement are hereby authorized to file an appropriate claim for and on behalf of the Holders of
the Notes.




Section 12.13. Trustee Not Fiduciary for Holders of Senior Indebtedness.




          The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and
shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Notes or to the Company or to any other person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of this Article or
otherwise, except if such payment is made as a result of the willful misconduct or gross negligence
of the Trustee. With respect to the holders of Senior Debt, the Trustee



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undertakes to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations with respect to
holders of Senior Debt shall be read into this Indenture against the Trustee.




ARTICLE THIRTEEN

MISCELLANEOUS




Section 13.01. Trust Indenture Act Controls.




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




Section 13.02. Notices.




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



If to the Company and/or any Guarantor:



Moog Inc.

6860 Seneca Street

P.O. Box 18

East Aurora, New York 14052-0018

Facsimile: 716-687-4457

Attention: Chief Financial Officer



If to the Trustee:



Wells Fargo Bank, National Association

Corporate Trust Services

45 Broadway, 14th Floor

New York, NY 10006

Facsimile: (212) 515-1589

Attention: Julie Salovitch-Miller




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




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




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




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




          (f) In case by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.




          (g) 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.




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




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




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




Section 13.04. Certificate and Opinion as to Conditions Precedent.




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





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




     (ii) an Opinion of Counsel (which shall include the statements set forth in Section
13.05 hereof) stating that, in the opinion of such counsel (who may rely upon an Officers’
Certificate as to matters of fact), all such conditions precedent and covenants have been
satisfied;



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except that, in the case of such request or application as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating to such particular
request or application, no additional certificate or opinion need be furnished.




Section 13.05. Statements Required in Certificate or Opinion.




          (a) 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
Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:





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




     (ii) 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;




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




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



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, member, manager, partner or stockholder of the
Company or of any future Guarantor, as such, shall have any liability for any obligations of the
Company or any future Guarantors under the Notes, this Indenture, the Note Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes.




Section 13.08. Governing Law.




          THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.




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Section 13.09. Consent to Jurisdiction.




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




Section 13.10. Form of Documents Delivered to Trustee.




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




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




Section 13.11. Successors.




          All agreements of the Company in this Indenture and the Notes shall bind any of its
successors. All agreements of the Trustee in this Indenture shall bind its successors.




Section 13.12. Severability.




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




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Section 13.13. Counterpart Originals.




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




Section 13.14. Acts of Holders.




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




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




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




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



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




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




          (f) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Note may do so itself with regard to all or any part of the principal
amount of such Note.




Section 13.15. Benefit of Indenture.




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




Section 13.16. Table of Contents, Headings, Etc.




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




[SIGNATURE PAGES FOLLOW]




100









 





          IN WITNESS WHEREOF, the parties have executed this Indenture as of June 2, 2008.




	 	 	 	 	 	 	 
	 	 	MOOG INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ John Scannell
 

John R. Scannell
	 	 
	 

	 	Title:
	 	Vice President and Chief Financial Officer	 	 




Indenture-Signature Page



 









 






	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL
ASSOCIATION., as Trustee

 	 
	 	By:  	/s/ Julie Salovitch-Miller
 	 
	 	 	Name:  	Julie Salovitch-Miller 	 
	 	 	Title:  	Vice President 	 
	 



Indenture-Signature Page


 









 








EXHIBIT A




[Face of Note]



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



THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF
AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D) PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSES (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.



[Additional language for Regulation S Note to be inserted after paragraph 1]

THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING
ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).




A-1









 








			
	     
	 	CUSIP:               
	 
	No.
	 	**$                    **






MOOG INC.




7.250% SENIOR SUBORDINATED NOTES DUE 2018




          Issue Date:




          Moog Inc., a New York Corporation (the “Company,” which term includes any successor under the
Indenture hereinafter referred to), for value received, promises to pay to CEDE & CO., or its
registered assigns, the principal sum of                      Dollars ($                    ) on June 15, 2018.




          Interest Payment Dates: June 15 and December 15, commencing December 15, 2008.




          Record Dates: June 1 and December 1.




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




[SIGNATURE PAGE FOLLOWS]




A-2









 





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




	 	 	 	 	 
	 	MOOG INC., a New York corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-3









 





(Trustee’s Certificate of Authentication)



This is one of the 7.250% Senior Subordinated Notes due 2018 described in the within-mentioned
Indenture.




Dated:




WELLS FARGO BANK, NATIONAL ASSOCIATION

as Trustee




	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	 
	 

	 	Authorized Signatory	 	 
	 	 

	 	 






A-4









 






[Reverse Side of Note]




MOOG INC.

7.250% Senior Subordinated Notes due 2018




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




          1. Interest. The Company promises to pay interest on the principal amount of this Note at
7.250% per annum from the date hereof until maturity and shall pay the Additional Interest, if any,
payable pursuant to Section 5 of the Registration Rights Agreement referred to below. The Company
shall pay interest and Additional Interest, if any, semi-annually in arrears on June 15 and
December 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 shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the date of original
issuance; provided that if there is no existing Default in the payment of interest, and if 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 December 15, 2008. The Company
shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal from time to time on demand at a rate equal to 1% per annum in excess of the then
applicable interest rate on this Note to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest (without regard to any applicable grace periods) from time to time
on demand at the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.




          2. Method of Payment. The Company shall 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 record date immediately preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date, except as provided in
Section 2.13 of the Indenture with respect to defaulted interest. If a Holder has given wire
transfer instructions to the Company, the Company shall pay all principal, premium or interest or
Additional Interest, if any, on that Holder’s Notes in accordance with those instructions. All
other payments on Notes shall be made at the office or agency of the Paying Agent and Registrar
within the City and State of New York unless the Company elects to make interest payments by check
mailed to the Holders at their addresses set forth in the register of Holders. Such payment shall
be in such coin or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.




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




          4. Indenture. The Company issued the Notes under an Indenture dated as of June 2, 2008 (the
“Indenture”) between the Company and the Trustee. The terms of the Notes include those stated in
the Indenture and those specifically made part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended. The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the Indenture shall
govern and be



A-5









 






controlling. The Indenture pursuant to which this Note is issued provides that an unlimited
aggregate principal amount of Additional Notes may be issued thereunder.




          5. Optional Redemption. (a) Except as set forth in paragraphs 5(b) and (c) below, the
Company shall not have the option to redeem the Notes prior to June 15, 2013. On or after June 15,
2013 the Company may redeem all or part of the Notes, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid interest and Additional
Interest, if any, thereon to the applicable redemption date, if redeemed during the twelve-month
period beginning on June 15 of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage
	2013
	 	 	103.625	%
	2014
	 	 	102.417	%
	2015
	 	 	101.208	%
	2016 and thereafter
	 	 	100.000	%






          (b) At any time prior to June 15, 2011, the Company may, on any one or more occasions, redeem
up to 35% of the aggregate principal amount of Notes issued under the Indenture (including any
Additional Notes) at a redemption price of 107.250% of the principal amount thereof, plus accrued
and unpaid interest and Additional Interest, if any, thereon to the applicable redemption date,
with the net cash proceeds of one or more Equity Offerings; provided that (1) at least 65% of the
aggregate principal amount of Notes issued under the Indenture (including any Additional Notes)
remains outstanding immediately after the occurrence of such redemption, excluding Notes held by
the Company and its Subsidiaries; and (2) the redemption must occur within 120 days of the date of
the closing of such Equity Offering.




          (c) At any time prior to June 15, 2013, the Company may redeem all or part of the Notes upon
not less than 30 nor more than 60 days’ prior notice at a redemption price equal to the sum of (i)
100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus (iii) accrued and unpaid interest and Additional Interest, if any, to the date of
redemption.




          6. Repurchase at Option of Holder. Upon the occurrence of (a) a Change of Control, the
Holders of the Notes shall have the right to require the Company to purchase such Holder’s
outstanding Notes on the terms set forth in the Indenture and (b) an Asset Sale, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Proceeds of such Asset Sale on
the terms set forth in the Indenture.




          7. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in
minimum denominations of $1,000 and integral multiples 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 is not required to transfer or exchange any Note selected
for redemption.




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




          9. Amendment, Supplement and Waiver. The Indenture and the Notes may be amended or
supplemented and any existing default or compliance with any provision of the Indenture or the
Notes may be waived only in accordance with the Indenture.




A-6









 








          10. Defaults and Remedies. In the case of an Event of Default arising from events of
bankruptcy or insolvency specified in the Indenture, all outstanding Notes may become due and
payable in the manner and with the effect provided in the Indenture.




          11. Trustee Dealings with the Company. The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may become a creditor of, or otherwise deal with the
Company or any of its Affiliates, with the same rights it would have if it were not Trustee.




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




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




          14. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.
In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration
Rights Agreement.




          15. 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.




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



Moog Inc.

6860 Seneca Street

P.O. Box 18

East Aurora, New York 14052-0018

Attention: Chief Financial Officer




A-7









 








Assignment Form




          To assign this Note, fill in the form below:




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

	 	  

(Insert
assignee’s legal name)
	 	 






 





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




 





 





 





 





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



and irrevocably appoint                                                                 
                                                                                                                       



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




Date:                     




	 	 	 	 	 
	Your Signature:

	 	  

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






Signature Guarantee*:                                         






 




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




A-8









 










OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.10(c) or
4.14 of the Indenture, respectively, check the appropriate box below:




	 	 	 
	o  Section 4.10(c)
	 	o  Section 4.14






          If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10(c) or Section 4.14 of the Indenture, respectively, state the amount you elect to have
purchased:




$                                        




Date:                                          




	 	 	 	 	 	 	 
	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 

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






	 	 	 	 	 	 	 
	 

	 	Tax Identification No.:	 	 	 	 
	 

	 	 	 	 

	 	 






Signature Guarantee*:                                          






 




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






A-9









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Moog Inc.

6860 Seneca Street

P. O. Box 18

East Aurora, New York 14052-0018

Facsimile: (716) 687-4457

Attention: Chief Financial Officer




Wells Fargo Bank, National Association

Corporate Trust Services

45 Broadway, 14th Floor

New York, NY 10006

Facsimile: (212) 515-1589




          Re: 7.250% Senior Subordinated Notes due 2018




          Reference is hereby made to the Indenture, dated as of June 2, 2008 (the “Indenture”), among
Moog Inc., a New York corporation (the “Company”) and Wells Fargo Bank, National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.




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




[CHECK ALL THAT APPLY]




     o 1. Check if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to
and in accordance with Rule 144A under the 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 believed and
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 Definitive Note and in the
Indenture and the Securities Act.



B-1









 





     o 2. Check if Transferee will take delivery of a beneficial interest in a Legended
Regulation S Global Note, or a Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been made in contravention of
the requirements of 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) the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than the Initial Purchasers). 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 Legended Regulation S Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.



     o 3. Check and complete if Transferee will take delivery of a Restricted Definitive Note
pursuant to any provision of the Securities Act other than Rule 144, 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):



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




          o (b) such Transfer is being effected to an Institutional Accredited Investor and pursuant to
an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule
144 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 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) 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 Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Definitive Notes and in the Indenture and the Securities
Act.




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



          o (a) Check if Transfer is Pursuant to Rule 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky



B-2









 






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.




          o (b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and, in the case of a transfer from a Restricted Global Note
or a Restricted Definitive Note, the Transferor hereby further certifies that (a) the Transfer is
not being made to a person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (b) 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, (c) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (d) the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person, 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.




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




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




	 	 	 	 	 
	 

	 	Dated:                                          	 	 
	 
	 	 	 	 
	 

	 	 

[Insert Name of Transferor]
	 	 






B-3









 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



DTC Participant No.                     




B-4









 








ANNEX A TO CERTIFICATE OF TRANSFER





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





[CHECK ONE OF (a) OR (b)]




	 	 	 	 	 	 	 
	 

	 	o
	 	(a)
	 	a beneficial interest in the:
	 
	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	144A Global Note (CUSIP                     ); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Regulation S Global Note (CUSIP                     ); or
	 
	 	 	 	 	 	 
	 

	 	o
	 	(b)
	 	a Restricted Definitive Note.







	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]




	 	 	 	 	 	 	 
	 

	 	o
	 	(a)
	 	a beneficial interest in the:
	 
	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	144A Global Note (CUSIP                     ); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Regulation S Global Note (CUSIP                     ); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(iii)
	 	Unrestricted Global Note (CUSIP                     ); or
	 
	 	 	 	 	 	 
	 

	 	o
	 	(b)
	 	a Restricted Definitive Note; or
	 
	 	 	 	 	 	 
	 

	 	o
	 	(c)
	 	an Unrestricted Definitive Note,





in accordance with the terms of the Indenture.





B-5









 








EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Moog Inc.

6860 Seneca Street

P. O. Box 18

East Aurora, New York 14052-0018

Facsimile: (716) 687-4457

Attention: Chief Financial Officer




Wells Fargo Bank, National Association

Corporate Trust Services

45 Broadway, 14th Floor

New York, NY 10006

Facsimile: (212) 515-1589




          Re: 7.250% Senior Subordinated Notes due 2018




          Reference is hereby made to the Indenture, dated as of June 2, 2008 (the “Indenture”), among
Moog Inc., a New York corporation (the “Company”) and Wells Fargo Bank, National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.




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




          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




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




          o (b) 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


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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.




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




          o (d) 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




          o (a) 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 at maturity,
the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s
own account without transfer. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.




          o (b) 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:




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          o Regulation S Global Note:




with an equal principal amount at maturity, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer
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.




	 	 	 	 	 
	 

	 	Dated:                                          	 	 
	 
	 	 	 	 
	 

	 	 

[Insert Name of Transferor]
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



DTC Participant No.                     





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EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Moog Inc.

6860 Seneca Street

P. O. Box 18

East Aurora, New York 14052-0098

Facsimile: (716) 687-4457

Attention: Chief Financial Officer




Wells Fargo Bank, National Association

Corporate Trust Services

45 Broadway, 14th Floor

New York, NY 10006

Facsimile: (212) 515-1589




          Re: 7.250% Senior Subordinated Notes due 2018




          Reference is hereby made to the Indenture, dated as of June 2, 2008 (the “Indenture”), among
Moog Inc., a New York corporation (the “Company”), the Guarantors, and Wells Fargo Bank, National
Association, as trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.




          In connection with our proposed purchase of $                     aggregate principal amount of:





                    (a) o beneficial interest in a Global Note, or



                    (b) o a Definitive Note,



we confirm that:




          (A) 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”).




          (B) We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we shall 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 institutional “accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the


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Company a signed letter substantially in the form of this letter and 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(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a
notice advising such purchaser that resales thereof are restricted as stated herein.




          (C) 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.




          (D) We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.




          (E) We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.




          The Trustee 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.




	 	 	 	 
	Dated:                                         

	 

[Insert Name of Accredited Investor]
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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EXHIBIT E




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




          Supplemental Indenture (this “Supplemental Indenture”), dated as of                     , among
                                         (the “Guaranteeing Subsidiary”), a subsidiary of Moog Inc. (or its permitted
successor), a New York corporation (the “Company”), and Wells Fargo Bank, National Association (or
its permitted successor), as trustee under the Indenture referred to below (the “Trustee”).




W I T N E S S E T H




          WHEREAS, the Company and the other Guarantors party thereto have heretofore executed and
delivered to the Trustee an indenture (the “Indenture”), dated as of June 2, 2008, providing for
the issuance of 7.250% Senior Subordinated Notes due 2018 (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.





     (a) The Guaranteeing Subsidiary, along with all other Guarantors, if any, jointly and
severally, and fully and unconditionally, guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Notes or the obligations of the Company hereunder
or thereunder, that:



                    (i) the principal of, premium, if any, and interest and Additional Interest, if any, on the
Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of, premium, if any, and interest and Additional
Interest, if any, on the Notes, if lawful (subject in all cases to any applicable grace period
provided herein), and all other obligations of the Company to the



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Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof;



                    (ii) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, the same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The
Guaranteeing Subsidiary agrees that this is a guarantee of payment and not a guarantee of
collection.



          (b) The Guaranteeing Subsidiary hereby agrees that, to the maximum extent permitted under
applicable law, its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce the same or any
other circumstance that might otherwise constitute a legal or equitable discharge or defense of a
Guarantor.




          (c) The Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture, hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and the Indenture.




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




          (e) The Guaranteeing Subsidiary agrees that the Guaranteeing Subsidiary shall not be entitled
to any right of subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.




          (f) The Guaranteeing Subsidiary agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six of the Indenture for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article Six of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee.




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          (g) The Guaranteeing Subsidiary shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of Holders under the
Note Guarantee.




          (h) The Guaranteeing Subsidiary confirms that it is the intention of such Guaranteeing
Subsidiary that its Note Guarantee 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 its Note Guarantee and, to effectuate
the foregoing intention, hereby irrevocably agrees that the obligations of such Guaranteeing
Subsidiary will be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guaranteeing Subsidiary 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 such other Guarantor’s Note Guarantee, result in the obligations of such Guaranteeing
Subsidiary under its Note Guarantee not constituting a fraudulent transfer or conveyance.




          3. Execution and Delivery. The Guaranteeing Subsidiary agrees that the Note
Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Note Guarantee.




          4. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms.




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





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




(ii) either:




     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is a corporation or limited liability company organized or existing under
the laws of the United States, any state thereof or the District of Columbia and
assumes all the obligations of that Guarantor under the Indenture or its Note
Guarantee and the Registration Rights Agreement pursuant to a supplemental indenture
reasonably satisfactory to the Trustee; or




     (B) such sale or other disposition or consolidation or merger complies with
Section 4.10 of the Indenture.



          (b) In case of any such consolidation, merger, sale or conveyance governed by Section 4(a)
hereof and upon the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and reasonably satisfactory in form 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 the Indenture to be performed by a Guarantor, such



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successor Person shall succeed to and be substituted for a 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 shall in all respects have the same legal rank and benefit under the Indenture
as the Note Guarantees theretofore and thereafter issued in accordance with the terms of the
Indenture as though all of such Note Guarantees had been issued at the date of the execution the
Indenture.




          5. Release.




          (a) Any Guarantor will be released and relieved of any obligations under its Note Guarantee,
(i) 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) an Affiliate of
the Company, if the sale of all such Capital Stock of that Guarantor complies with Section 4.10 of
the Indenture; (ii) if the Company properly designates that Guarantor as an Unrestricted Subsidiary
under the Indenture or (iii) upon the release or discharge of the Guarantee which resulted in the
creation of such Note Guarantee, except a discharge or release by or as a result or payment under
such Guarantee. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an
Opinion of Counsel to the effect that one of the foregoing requirements has been satisfied and the
conditions to the release of a Guarantor under this Section 5 have been satisfied, the Trustee
shall execute any documents reasonably required in order to evidence the release of such Guarantor
from its obligations under its Note Guarantee.




          (b) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest and Additional Interest, if any, on the
Notes and for the other obligations of any Guarantor under the Indenture.




          6. No Recourse Against Others. Pursuant to Section 13.07 of the Indenture, no
director, officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary shall have
any liability for any obligations of such Guaranteeing Subsidiary under the Notes, the Indenture,
the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or
their creation.




          7. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.




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




          9. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.




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          10. 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.




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          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:                     ,           




	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOOG INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Wells Fargo Bank, National Association,
as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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