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Exhibit 4.1    
    






DAYTON
SUPERIOR CORPORATION, 


the
GUARANTORS named herein 


and



THE
BANK OF NEW YORK, as Trustee 




INDENTURE 


Dated
as of June 9, 2003 




103/4%
Senior Second Secured Notes due 2008 













 
 

CROSS-REFERENCE TABLE*    
    



	Trust Indenture

Act Section
 
	 	Indenture Section

	310(a)(1)	 	7.10
	 	(a)(2)	 	7.10
	 	(a)(3)	 	N.A.
	 	(a)(4)	 	N.A.
	 	(a)(5)	 	7.10
	 	(b)	 	7.03; 7.10
	 	(c)	 	N.A.
	311(a)	 	7.11
	 	(b)	 	7.11
	 	(c)	 	N.A.
	312(a)	 	2.05
	 	(b)	 	12.03
	 	(c)	 	12.03
	313(a)	 	7.06
	 	(b)(2)	 	7.06; 7.07
	 	(c)	 	7.06; 12.02
	 	(d)	 	7.06
	314(a)	 	4.03; 12.05
	 	(c)(1)	 	12.04
	 	(c)(2)	 	12.04
	 	(c)(3)	 	N.A.
	 	(e)	 	12.05
	 	(f)	 	N.A.
	315(a)	 	7.02
	 	(b)	 	7.05; 12.02
	 	(c)	 	7.02
	 	(d)	 	7.02
	 	(e)	 	6.11
	316(a)(last sentence)	 	2.09
	 	(a)(1)(A)	 	6.05
	 	(a)(1)(B)	 	6.04
	 	(a)(2)	 	N.A.
	 	(b)	 	6.07
	 	(c)	 	2.12
	317(a)(1)	 	6.08
	 	(a)(2)	 	6.09
	 	(b)	 	2.04
	318(a)	 	12.01
	 	(b)	 	N.A.
	 	(c)	 	12.01







N.A.
means not applicable. 


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






  



 
 

TABLE OF CONTENTS    
    



	Article 1

  

DEFINITIONS AND INCORPORATION BY REFERENCE
	

SECTION 1.01.	
 	

Definitions	
 	

1
	SECTION 1.02.	 	Other Definitions	 	26
	SECTION 1.03.	 	Trust Indenture Act Definitions	 	26
	SECTION 1.04.	 	Rules of Construction	 	27
	

Article 2

  

THE NOTES
	

SECTION 2.01.	
 	

Form and Dating	
 	

28
	SECTION 2.02.	 	Execution and Authentication	 	29
	SECTION 2.03.	 	Registrar and Paying Agent	 	29
	SECTION 2.04.	 	Paying Agent to Hold Money in Trust	 	30
	SECTION 2.05.	 	Holder Lists	 	30
	SECTION 2.06.	 	Transfer and Exchange	 	30
	SECTION 2.07.	 	Replacement Notes	 	41
	SECTION 2.08.	 	Outstanding Notes	 	41
	SECTION 2.09.	 	Treasury Notes	 	41
	SECTION 2.10.	 	Temporary Notes	 	41
	SECTION 2.11.	 	Cancellation	 	42
	SECTION 2.12.	 	Defaulted Interest	 	42
	SECTION 2.13.	 	CUSIP Numbers	 	42
	

Article 3

 

REDEMPTION AND PREPAYMENT
	

SECTION 3.01.	
 	

Notices to Trustee	
 	

42
	SECTION 3.02.	 	Selection of Notes to Be Redeemed	 	42
	SECTION 3.03.	 	Notice of Redemption	 	43
	SECTION 3.04.	 	Effect of Notice of Redemption	 	43
	SECTION 3.05.	 	Deposit of Redemption Price	 	43
	SECTION 3.06.	 	Notes Redeemed in Part	 	44
	SECTION 3.07.	 	Optional Redemption	 	44
	SECTION 3.08.	 	Mandatory Redemption	 	45
	SECTION 3.09.	 	Offer to Purchase by Application of Net Proceeds Offer Amount	 	45
	

Article 4

  

COVENANTS
	

SECTION 4.01.	
 	

Payment of Notes	
 	

46
	SECTION 4.02.	 	Maintenance of Office or Agency	 	47
	SECTION 4.03.	 	Reports to Holders	 	47
	SECTION 4.04.	 	Compliance Certificate	 	48
	SECTION 4.05.	 	Payment of Taxes and Other Claims	 	48
	SECTION 4.06.	 	Stay, Extension and Usury Laws	 	48
	SECTION 4.07.	 	Limitation on Restricted Payments	 	49
	 	 	 	 	 





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	SECTION 4.08.	 	Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.	 	52
	SECTION 4.09.	 	Limitation on Incurrence of Additional Indebtedness	 	53
	SECTION 4.10.	 	Limitation on Asset Sales	 	53
	SECTION 4.11.	 	Limitation on Transactions with Affiliates	 	55
	SECTION 4.12.	 	Limitation on Liens	 	56
	SECTION 4.13.	 	Conduct of Business	 	56
	SECTION 4.14.	 	Corporate Existence	 	57
	SECTION 4.15.	 	Offer to Repurchase upon Change of Control	 	57
	SECTION 4.16.	 	Future Guarantees by Domestic Restricted Subsidiaries	 	59
	

Article 5

 

SUCCESSORS
	

SECTION 5.01.	
 	

Merger, Consolidation and Sale of Assets	
 	

59
	SECTION 5.02.	 	Successor Corporation Substituted	 	60
	

Article 6

  

DEFAULTS AND REMEDIES
	

SECTION 6.01.	
 	

Events of Default	
 	

61
	SECTION 6.02.	 	Acceleration	 	62
	SECTION 6.03.	 	Other Remedies	 	63
	SECTION 6.04.	 	Waiver of Past Defaults	 	63
	SECTION 6.05.	 	Control by Majority	 	63
	SECTION 6.06.	 	Limitation on Suits	 	63
	SECTION 6.07.	 	Rights of Holders of Notes to Receive Payment	 	64
	SECTION 6.08.	 	Collection Suit by Trustee	 	64
	SECTION 6.09.	 	Trustee May File Proofs of Claim	 	64
	SECTION 6.10.	 	Priorities	 	64
	SECTION 6.11.	 	Undertaking for Costs	 	65
	SECTION 6.12.	 	Restoration of Rights and Remedies	 	65
	

Article 7

  

TRUSTEE
	

SECTION 7.01.	
 	

General	
 	

65
	SECTION 7.02.	 	Certain Rights of Trustee	 	65
	SECTION 7.03.	 	Individual Rights of Trustee	 	66
	SECTION 7.04.	 	Trustee's Disclaimer	 	66
	SECTION 7.05.	 	Notice of Defaults	 	66
	SECTION 7.06.	 	Reports by Trustee to Holders of the Notes	 	67
	SECTION 7.07.	 	Compensation and Indemnity	 	67
	SECTION 7.08.	 	Replacement of Trustee	 	68
	SECTION 7.09.	 	Successor Trustee by Merger, etc.	 	69
	SECTION 7.10.	 	Eligibility; Disqualification	 	69
	SECTION 7.11.	 	Preferential Collection of Claims Against Company	 	69
	 	 	 	 	 



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Article 8

 

LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	

SECTION 8.01.	
 	

Option to Effect Legal Defeasance or Covenant Defeasance	
 	

69
	SECTION 8.02.	 	Legal Defeasance and Discharge	 	69
	SECTION 8.03.	 	Covenant Defeasance	 	70
	SECTION 8.04.	 	Conditions to Legal or Covenant Defeasance	 	70
	SECTION 8.05.	 	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions	 	71
	SECTION 8.06.	 	Satisfaction and Discharge	 	72
	SECTION 8.07.	 	Repayment to Company	 	72
	SECTION 8.08.	 	Reinstatement	 	73
	SECTION 8.09.	 	Survival	 	73
	

Article 9

 

AMENDMENT, SUPPLEMENT AND WAIVER
	

SECTION 9.01.	
 	

Without Consent of Holders of Notes	
 	

73
	SECTION 9.02.	 	With Consent of Holders of Notes	 	74
	SECTION 9.03.	 	Compliance with Trust Indenture Act	 	75
	SECTION 9.04.	 	Revocation and Effect of Consents	 	75
	SECTION 9.05.	 	Notation on or Exchange of Notes	 	75
	SECTION 9.06.	 	Trustee to Sign Amendments, etc.	 	75
	

Article 10

  

COLLATERAL AND SECURITY DOCUMENTS
	

SECTION 10.01.	
 	

Collateral and Security Documents	
 	

76
	SECTION 10.02.	 	Application of Proceeds of Collateral	 	76
	SECTION 10.03.	 	Possession, Use and Release of Collateral	 	76
	SECTION 10.04.	 	Opinion of Counsel	 	78
	SECTION 10.05.	 	Further Assurances	 	78
	SECTION 10.06.	 	Trust Indenture Act Requirements	 	78
	SECTION 10.07.	 	Suits to Protect the Collateral	 	79
	SECTION 10.08.	 	Purchaser Protected	 	79
	SECTION 10.09.	 	Powers Exercisable by Receiver or Trustee	 	79
	SECTION 10.10.	 	Release upon Termination of Company's Obligation	 	79
	

Article 11

  

GUARANTEES
	

SECTION 11.01.	
 	

Guarantee	
 	

79
	SECTION 11.02.	 	Ranking of Guarantee	 	80
	SECTION 11.03.	 	Limitation on Guarantor Liability	 	80
	SECTION 11.04.	 	Execution and Delivery of Guarantee	 	81
	SECTION 11.05.	 	Guarantors May Consolidate, etc., on Certain Terms	 	81
	SECTION 11.06.	 	Releases Following Certain Events	 	82
	 	 	 	 	 





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Article 12

 

MISCELLANEOUS
	

SECTION 12.01.	
 	

Trust Indenture Act Controls	
 	

82
	SECTION 12.02.	 	Notices	 	82
	SECTION 12.03.	 	Communication by Holders of Notes with Other Holders of Notes	 	83
	SECTION 12.04.	 	Certificate and Opinion as to Conditions Precedent	 	83
	SECTION 12.05.	 	Statements Required in Certificate or Opinion	 	84
	SECTION 12.06.	 	Rules by Trustee and Agents	 	84
	SECTION 12.07.	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	84
	SECTION 12.08.	 	Governing Law	 	84
	SECTION 12.09.	 	No Adverse Interpretation of Other Agreements	 	84
	SECTION 12.10.	 	Successors	 	84
	SECTION 12.11.	 	Severability	 	84
	SECTION 12.12.	 	Counterpart Originals	 	85
	SECTION 12.13.	 	Table of Contents, Headings, etc.	 	85
	SECTION 12.14.	 	Description of the Notes and Waiver under the Indenture Governing the 13% Senior Subordinated Notes Due 2009	 	85





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 OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit E	 	FORM OF GUARANTEE
	Exhibit F	 	FORM OF SUPPLEMENTAL INDENTURE




iv







   
        INDENTURE dated as of June 9, 2003 among Dayton Superior Corporation, an Ohio corporation (the "Company"), the Guarantors (as
defined herein) and The Bank of New York, a New York banking corporation, as trustee (the "Trustee"). 



        The
Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes: 


ARTICLE 1  


 DEFINITIONS AND INCORPORATION BY REFERENCE  


SECTION
1.01.    Definitions.    


        "13% Senior Subordinated Notes due 2009" means the Company's 13% Senior Subordinated Notes due 2009 issued under that certain indenture
dated as of June 16, 2000, as amended, among the Company, the Guarantors named therein and United States Trust Company of New York, as trustee. 


        "Acquired Indebtedness" means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with or into the Company or any of its Restricted Subsidiaries or that is assumed in connection with the acquisition of assets from
such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of the Company or such acquisition,
merger or consolidation. 


        "Additional Interest" means all additional interest then owing pursuant to Section 2 of the Registration Rights Agreement. 


        "Additional Notes" means Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.02 and 4.09. 



        "Affiliate" means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified Person. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative of the
foregoing. Notwithstanding the foregoing, no Person (other than the Company or any Subsidiary of the Company) in whom a Securitization Entity makes an Investment in connection with a Qualified
Securitization Transaction shall be deemed to be an Affiliate of the Company or any of its Subsidiaries solely by reason of such Investment. 


        "Agent" means any Registrar, Paying Agent or co-registrar. 


        "all or substantially all" shall have the meaning given such phrase in the Revised Model Business Corporation Act. 


        "Applicable Premium" means, with respect to a Note, the greater of 



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


        (2)   (a)
the present value of all remaining required interest and principal payments due on such Note (other than interest accrued through the date of redemption) and all
premium payments relating to the Note assuming a redemption date of June 15, 2006, computed using a discount rate equal to the Treasury Rate plus 50 basis points minus 



        (a)   the
then outstanding principal amount of such Note minus 


        (b)   accrued
interest paid on the date of redemption. 




1





 







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


        "Asset Acquisition" means (a) an Investment by the Company or any Restricted Subsidiary of the Company in any other Person pursuant
to which such Person shall become a Restricted Subsidiary of the Company, or shall be merged with or into or consolidated with the Company or any Restricted Subsidiary of the Company, or
(b) the acquisition by the Company or any Restricted Subsidiary of the Company of the assets of any Person (other than a Restricted Subsidiary of the Company) which constitute all or
substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person, other than in the ordinary course of
business. 


        "Asset Sale" means any direct or indirect sale, issuance, conveyance, transfer, lease (other than leases entered into in the ordinary
course of business), assignment or other transfer for value by the Company or any of its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any Person other than the Company or
a Restricted Subsidiary of the Company of: 



        (1)   any
Capital Stock of any Restricted Subsidiary of the Company, or 


        (2)   any
other property or assets of the Company or any Restricted Subsidiary of the Company other than in the ordinary course of business; 




        provided, however, that Asset Sales shall not include: 



        (a)   a
transaction or series of related transactions for which the Company or its Restricted Subsidiaries receive aggregate consideration of less than $1.0 million; 



        (b)   the
sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of the Company as permitted under Section 5.01 or any
disposition that constitutes a Change of Control; 


        (c)   the
sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or
collection thereof; 


        (d)   disposals
or replacements of obsolete equipment in the ordinary course of business; 



        (e)   the
sale, lease, conveyance, disposition or other transfer by the Company or any Restricted Subsidiary of the Company of assets or property to one or more Restricted
Subsidiaries of the Company in connection with Investments permitted under Section 4.07 or pursuant to any Permitted Investment; 


        (f)    dispositions
in the ordinary course of business; 


        (g)   foreclosures
on assets; 


        (h)   any
exchange of like property pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended, for use in a Permitted Business; 



        (i)    a
Permitted Investment or a Restricted Payment that is permitted by Section 4.07; 


        (j)    the
sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale
are reasonably promptly applied to the purchase price of similar replacement equipment; 


        (k)   sales
of accounts receivable, equipment and related assets (including contract rights) of the type specified in the definition of Qualified Securitization Transaction to
a Securitization Entity for the fair market value thereof, including cash in an amount at least equal to 75% of the fair 



2





 




market
value thereof as determined in accordance with GAAP. For the purposes of this clause (k), Purchase Money Notes shall be deemed to be cash; and 


        (l)    in
the ordinary course of business, the license of patents, trademarks, copyrights and know-how to third Persons. 




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


        "Board of Directors" means, as to any Person, the board of directors of such Person or any duly authorized committee thereof. 


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



        "Borrowing Base" means the sum of 75% of accounts receivable, net, and 60% of the sum of inventories and rental equipment, net (each as
shown on the Company's most recently available consolidated balance sheet); provided that any accounts receivable, inventories or rental equipment that
have been sold, conveyed or otherwise transferred to a Securitization Entity in connection with a Qualified Securitization Transaction shall not be included when calculating the Borrowing Base. 


        "Business Day" means any day that is not a Legal Holiday. 


        "Capital Stock" means: 



        (1)   with
respect to any Person that is a corporation, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person or options to purchase the same; and 


        (2)   with
respect to any Person that is not a corporation, any and all partnership or other equity interests of such Person. 




        "Capitalized Lease Obligation" means, as to any Person, the obligations of such Person under a lease that are required to be classified
and accounted for as capital lease obligations under GAAP. For purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date,
determined in accordance with GAAP. 


        "Cash Equivalents" means: 



        (1)   marketable
direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one year from the date of acquisition thereof; 


        (2)   marketable
direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody's; 



        (3)   commercial
paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 from S&P
or at least P-2 from Moody's; 


        (4)   certificates
of deposit or bankers' acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than
$250.0 million; 



3





 




        (5)   repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank
meeting the qualifications specified in clause (4) above; 


        (6)   investments
in money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (5) above; and 



        (7)   in
the case of any Subsidiary organized or having its principal place of business outside the United States, investments denominated in the currency of the jurisdiction
in which that Subsidiary is organized or has its principal place of business which are similar to the items specified in clauses (1), (2), (4), (5) and (6) above. 




        "Change of Control" means the occurrence of one or more of the following events: 



        (1)   any
sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company to any
Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a "Group"), other than to the Permitted Holders or their
Related Parties or any Permitted Group; 


        (2)   the
approval by the holders of Capital Stock of the Company of any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Indenture); 


        (3)   any
Person or Group (other than the Permitted Holders or their Related Parties or any Permitted Group) shall become the owner, directly or indirectly, beneficially or of
record, of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company; or 


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




        "Clearstream" means Clearstream Banking, S.A. 


        "Collateral" means, to the extent such assets secure the Senior Credit Facility and are subject to or required to be subject to the Second
Priority Liens created by the Security Documents, (1) substantially all of the Company's and each Guarantor's property and assets, other than Excluded Collateral, and including, without
limitation, receivables, contracts, inventory, cash and cash accounts, equipment, intellectual property, insurance policies, permits, commercial tort claims, chattel paper, letter of credit rights,
supporting obligations, general intangibles and proceeds and products from any and all of the foregoing; and (2) all of the capital stock or other securities of Domestic Subsidiaries owned by
the Company or any Guarantor and 65% of the voting and 100% of the non-voting, capital stock or other securities of Foreign Subsidiaries owned by the Company or any Guarantor, but, in each
case, only to the extent that the inclusion of such capital stock or other securities shall mean that the aggregate principal amount, par value, book value as carried by the Company or the market
value, whichever is the greatest (the "Applicable Value"), of any such capital stock or other securities of any such Subsidiary of the Company is not equal to or greater than 20% of the aggregate
principal amount of Notes outstanding in each case whether now owned or hereafter arising or acquired. 


        "Collateral Agent" means Deutsche Bank Trust Company Americas, as collateral agent under the Security Documents, and/or any other
collateral agent or trustee appointed in accordance with the terms of the Security Agreement; provided, however, in the event that the Company exercises its rights under Section 10.03(c) to
cause the Trustee and Holders of the Notes to be secured under separate documentation than that securing the First Priority Lien Obligations, "Collateral Agent" shall refer only to the collateral
agent, collateral trustee or other Person holding any Security Interests for the benefit of the Trustee and Holders of the Notes and, if applicable, any other Second Priority Lien Obligations. 


4





 



        "Common Stock" of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and
whether voting or non-voting) of such Person's common stock, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes
of such common stock. 


        "Company" means Dayton Superior Corporation and any and all successors thereto. 


        "Consolidated EBITDA" means, with respect to any Person, for any period, the sum (without duplication) of such Person's: 



        (1)   Consolidated
Net Income, and 


        (2)   to
the extent Consolidated Net Income has been reduced thereby: 



        (a)   all
income taxes and foreign withholding taxes of such Person and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period; 


        (b)   Consolidated
Interest Expense; 


        (c)   Consolidated
Non-cash Charges less any non-cash items increasing Consolidated Net Income for such period (other than normal accruals in the
ordinary course of business); 


        (d)   any
cash charges resulting from the issuance of the Initial Notes or the use of the proceeds therefrom that, in each case, are incurred prior to the
six-month anniversary of the Issue Date; and 


        (e)   any
non-capitalized transactions costs incurred in connection with actual, proposed or abandoned financings, acquisitions or divestitures, including, but not
limited to, financing and refinancing fees and costs incurred in connection with the Transactions, 





all
as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP. 



        "Consolidated Fixed Charge Coverage Ratio" means, with respect to any Person, the ratio of (x) Consolidated EBITDA of such Person
during the four full fiscal quarters (the "Four-Quarter Period") ending prior to the date of the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio for which financial statements are available (the "Transaction Date") to (y) Consolidated
Fixed Charges of such Person for the Four-Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, "Consolidated EBITDA" and "Consolidated
Fixed Charges" shall be calculated after giving effect on a pro forma basis for the period of such calculation to: 



        (1)   the
incurrence or repayment of any Indebtedness or the issuance of any Designated Preferred Stock of such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness or the issuance or redemption of other Preferred Stock (and
the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to revolving credit
facilities, occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment or issuance or redemption, as the case may be (and the application of the proceeds thereof), had occurred on the first day of the Four-Quarter Period; and 


        (2)   Asset
Sales or other dispositions or Asset Acquisitions (including, without limitation, (A) any Asset Acquisition giving rise to the need to make such calculation
as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being
liable for 



5





 




Acquired
Indebtedness, and (B) any Consolidated EBITDA (including any pro forma expense and cost reductions and other operating improvements that
have occurred or are reasonably expected to occur, in the reasonable judgment of the chief financial officer of the Company (regardless of whether those cost savings or operating improvements could
then be reflected in pro forma financial statements in accordance with GAAP, Regulation S-X promulgated under the Securities Act or
any other regulation or policy of the SEC related thereto) attributable to the assets which are the subject of the Asset Acquisition or Asset Sale or other disposition and without regard to
clause (4) of the definition of Consolidated Net Income) occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period
and on or prior to the Transaction Date, as if such Asset Sale or other disposition or Asset Acquisition (including the incurrence or assumption of any such Acquired Indebtedness) occurred on the
first day of the Four-Quarter Period. If such Person or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall
give effect to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred or otherwise assumed such other Indebtedness that was
so guaranteed. 




        Furthermore,
in calculating "Consolidated Fixed Charges" for purposes of determining the denominator (but not the numerator) of this "Consolidated Fixed Charge Coverage Ratio": 



        (1)   interest
on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed
to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date; and 


        (2)   notwithstanding
clause (1) of this paragraph, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements
relating to Interest Swap Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such
agreements. 




        "Consolidated Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of: 



        (1)   Consolidated
Interest Expense; plus


        (2)   the
product of (x) the amount of all cash dividend payments on any series of Preferred Stock of such Person times
(y) a fraction, the numerator of which is one and the denominator of which is one minus the then current effective consolidated federal, state and local income tax rate of such Person,
expressed as a decimal; provided that with respect to any series of Preferred Stock that was not paid cash dividends during such period but that is
eligible to be paid cash dividends during any period prior to the maturity date of the Notes, cash dividends shall be deemed to have been paid with respect to such series of Preferred Stock during
such period for purposes of this clause (2). 




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



        (1)   the
aggregate of all cash and non-cash interest expense with respect to all outstanding Indebtedness of such Person and its Restricted Subsidiaries,
including the net costs associated with Interest Swap Obligations, for such period determined on a consolidated basis in conformity with GAAP, but excluding amortization or write-off of
debt issuance costs; 


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



6





 




        (3)   the
interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP. 




        "Consolidated Net Income" means, with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP and without any deduction in respect of Preferred Stock dividends;  provided that there shall be
excluded therefrom: 



        (1)   gains
and losses from Asset Sales (without regard to the $1.0 million limitation set forth in the definition thereof) and the related tax effects according to
GAAP; 


        (2)   gains
and losses due solely to fluctuations in currency values and the related tax effects according to GAAP; 


        (3)   all
extraordinary, unusual or nonrecurring charges, gains and losses (including, without limitation, all restructuring costs and any expense or charge related to the
repurchase of Capital Stock or warrants or options to purchase Capital Stock) and the related tax effects according to GAAP; 



        (4)   the
net income (or loss) of any Person acquired in a pooling of interests transaction accrued prior to the date it becomes a Restricted Subsidiary of the referent Person
or is merged or consolidated with or into such Person or any Restricted Subsidiary of such Person; 


        (5)   the
net income (or loss) of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is prohibited by contract, operation of law or otherwise; 


        (6)   the
net loss of any Person, other than a Restricted Subsidiary of the referent Person; 



        (7)   the
net income of any Person, other than a Restricted Subsidiary of the referent Person, except to the extent of cash dividends or distributions paid to the referent
Person or a Restricted Subsidiary of the referent Person by such Person; 


        (8)   in
the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person's assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets; and 


        (9)   any
non-cash compensation charges, including any arising from existing stock options resulting from any merger or recapitalization transaction. 




        "Consolidated Non-cash Charges" means, with respect to any Person, for any period, the aggregate depreciation, amortization
and other non-cash charges and expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such charges that require an accrual of or a reserve for cash payments for any future period other than accruals or reserves
in the ordinary course of business or associated with mandatory repurchases of equity securities). Notwithstanding the foregoing, accruals in respect to payables in the ordinary course of business
shall be deemed not to constitute "Consolidated Non-cash Charges." 


        "Consolidated Senior Secured Debt" means, at any time, as determined at such time for the Company and its Restricted Subsidiaries on a
consolidated basis in accordance with GAAP, the sum of, without duplication, (1) the aggregate principal amount of unsubordinated Indebtedness of the Company or any Restricted Subsidiary of the
Company secured by a Lien on any assets of the Company or any Restricted Subsidiary and (2) the aggregate principal amount of all outstanding Indebtedness under the Notes. 


7





 



        "Consolidated Senior Secured Leverage Ratio" means as of any date the ratio of Consolidated Senior Secured Debt on such date to
Consolidated EBITDA of the Company for the most recent four full fiscal quarters for which financial statements are available (the "Four Quarter Period") ending on or prior to the date of the
transaction giving rise to the need to calculate the Consolidated Senior Secured Leverage Ratio (the "Transaction Date"). In addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated Senior Secured Debt" shall be calculated after giving pro forma effect to any incurrence of Indebtedness on such date and to
the use of the proceeds therefrom, and "Consolidated EBITDA" shall be calculated after giving effect on a pro forma basis (consistent with the
provisions below) for the period of such calculation to: 



        (1)   the
incurrence or repayment of any Indebtedness or the issuance of any Designated Preferred Stock of the Company or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness or the issuance or redemption of other Preferred Stock (and
the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to revolving credit
facilities, occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment or issuance or redemption, as the case may be (and the application of the proceeds thereof), had occurred on the first day of the Four Quarter Period; and 


        (2)   Asset
Sales or other dispositions or Asset Acquisitions (including, without limitation, (A) any Asset Acquisition giving rise to the need to make such calculation
as a result of the Company or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being
liable for Acquired Indebtedness, and (B) any Consolidated EBITDA (including any pro forma expense and cost reductions and other operating
improvements that have occurred or are reasonably expected to occur in the reasonable judgment of the chief financial officer of the Company (regardless of whether those cost savings or operating
improvements could then be reflected in pro forma financial statements in accordance with GAAP, Regulation S-X promulgated under the
Securities Act or any other regulation or policy of the SEC related thereto) attributable to assets which are the subject of the Asset Acquisition or Asset Sale or other disposition and without regard
to clause (4) of the definition of Consolidated Net Income) occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period
and on or prior to the Transaction Date, as if such Asset Sale or other disposition or Asset Acquisition (including the incurrence or assumption for any such Acquired Indebtedness) occurred on the
first day of the Four-Quarter Period. If the Company or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall
give effect to the incurrence of such guaranteed Indebtedness as if the Company or any such Restricted Subsidiary of the Company had directly incurred or otherwise assumed such other Indebtedness that
was so guaranteed. 




        "Continuing Director" means, as of any date of determination, any member of the Board of Directors of the Company who: 



        (1)   was
a member of the Board of Directors of the Company on the Issue Date; or 


        (2)   was
nominated for election or elected to the Board of Directors of the Company by any of the Permitted Holders or with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or election or the applicable Guarantor, as the case may be. 




        "Corporate Trust Office of the Trustee" shall be at the address of the Trustee specified in Section 12.02 or such other address as
to which the Trustee may give notice to the Company. 


8





 

        "Credit Facilities" means one or more debt facilities (including, without limitation, the Senior Credit Facility) or commercial paper
facilities 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) and/or letters of credit, bank guarantees or banker's acceptances. 


        "Currency Agreements" means any foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed
to protect the Company or any Restricted Subsidiary of the Company against fluctuations in currency values. 



        "Default" means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an
Event of Default. 


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


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


        "Designated Noncash Consideration" means any non-cash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is designated as Designated Noncash Consideration pursuant to an Officers' Certificate that is delivered to the Trustee and executed by the principal
executive officer and the principal financial officer of the Company or such Restricted Subsidiary at the time of such Asset Sale. Any particular item of Designated Noncash Consideration will cease to
be considered to be outstanding once it has been sold for cash or Cash Equivalents. At the time of receipt of any Designated Noncash Consideration, the Company shall deliver an Officers' Certificate
to the Trustee which shall state the fair market value of such Designated Noncash Consideration and shall state the basis of such valuation, which shall be a report of a nationally recognized
investment banking, appraisal or accounting firm with respect to the receipt in
one transaction or a series of related transactions, of Designated Noncash Consideration with a fair market value in excess of $10.0 million. 


        "Designated Preferred Stock" means Preferred Stock that is so designated as Designated Preferred Stock, pursuant to an Officers'
Certificate executed by the principal executive officer and the principal financial officer of the Company on the issue date thereof, the cash proceeds of which are excluded from the calculation set
forth in clause (iii)(x) of the first paragraph of Section 4.07. 


        "Disqualified Capital Stock" means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures
(excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole
option of the holder thereof (except, in each case, upon the occurrence of a Change of Control) on or prior to the final maturity date of the Notes. 


        "Distribution Compliance Period" means as defined in Regulation S. 


        "Domestic Restricted Subsidiary" means any Restricted Subsidiary of the Company that is incorporated under the laws of the United States
or any state thereof or the District of Columbia. 



        "Domestic Subsidiary" means any Subsidiary of the Company incorporated under the laws of the United States, any State or the District of
Columbia. 


9





 



        "Equity Offering" means in connection with any optional redemption pursuant to Section 3.07 any offering of Qualified Capital Stock
of the Company or any direct or indirect parent of the Company generating gross proceeds to the Company of at least $25.0 million; provided that
in the case of a Qualified Capital Stock Offering by any direct or indirect parent of the Company, such parent makes a contribution to the Company, or is issued Qualified Capital Stock of the Company
by the Company in an amount equal to the redemption price of the Notes to be redeemed in such redemption plus accrued and unpaid interest thereon. 


        "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto. 


        "Exchange Notes" means the 103/4% Senior Second Secured Notes due 2008 to be issued in exchange for (1) the Initial
Notes pursuant to the Registration Rights Agreement and (2) the Additional Notes, if any, issued under Section 2.02 pursuant to a registration rights agreement substantially similar to
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. 


        "Excluded Collateral" means (i) any property or assets owned by any Foreign Subsidiaries, (ii) any real property and real
property leases (domestic or foreign), (iii) any capital stock or other securities of Subsidiaries referred to in clause (2) of the definition of "Collateral" the Applicable Value of
which is equal to or greater than 20% of the aggregate principal amount of the Notes outstanding and (iv) any proceeds and products from any and all of the foregoing excluded collateral
described in clauses (i) through (iii), unless such proceeds or products would otherwise constitute Collateral; provided however, in the event
that Rule 3-16 or Rule 3-10 or Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to require (or is
replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial
statements of any Subsidiary of the Company due to the fact that such Subsidiary's capital stock or other securities of such Subsidiary secure the Notes, then the capital stock or other securities of
such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement, and shall automatically be deemed part of the
Excluded Collateral. 


        "fair market value" means, with respect to any asset or property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair market value shall be determined
by the Board of Directors of the Company acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Company delivered to the Trustee. 


        "First Priority Lien Obligations" means the Indebtedness and other Obligations secured by Liens permitted under clauses (1), (2), (3),
(4), (15) and (16) of the definition of Permitted Liens (including without limitation, Indebtedness and other Obligations under the Senior Credit Facility, Interest Swap Obligations,
Currency Agreements, Hedging Agreements and other hedging arrangements). 


        "First Priority Liens" means all Liens that secure the First Priority Lien Obligations. 



        "Foreign Restricted Subsidiary" means any Restricted Subsidiary of the Company incorporated in any jurisdiction outside of the United
States. 


        "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in 


10





 



such
other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect from time to time. 


11







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


        "Global Notes" means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A, issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or 2.06(f). 


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


        "Guarantee" means: 



        (1)   the
senior guarantee of the Notes by the Domestic Restricted Subsidiaries of the Company; and 


        (2)   the
senior guarantee of the Notes by any Restricted Subsidiary required under the terms of Section 4.16. 




        "Guarantor" means any Restricted Subsidiary of the Company that incurs a Guarantee;  provided that upon the release and discharge of such Restricted Subsidiary from its
Guarantee in accordance with Section 11.06, such Restricted
Subsidiary shall cease to be a Guarantor. 


        "Hedging Agreement" means any agreement with respect to the hedging of price risk associated with the purchase of commodities used in the
business of the Company and its Restricted Subsidiaries. 


        "Holder" means a Person in whose name a Note is registered. 


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


        "Indebtedness" means with respect to any Person, without duplication: 



        (1)   all
Obligations of such Person for borrowed money; 


        (2)   all
Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; 


        (3)   all
Capitalized Lease Obligations of such Person; 


        (4)   all
Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title
retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business); 


        (5)   all
Obligations for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction; 



        (6)   guarantees
and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below; 


        (7)   all
Obligations of any other Person of the type referred to in clauses (1) through (6) which are secured by any Lien on any property or asset of such
Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset or the amount of the Obligation so secured; 


        (8)   all
Obligations under Currency Agreements and Interest Swap Obligations of such Person; and 



12





 




        (9)   all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any. 




        For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased 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 Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors of the
issuer of such Disqualified Capital Stock. For the purposes of calculating the amount of Indebtedness of a Securitization Entity outstanding as of any date, the face or notional amount of any interest
in receivables or equipment that is outstanding as of such date shall be deemed to be Indebtedness but any such interests held by Affiliates of such Securitization Entity shall be excluded for
purposes of such calculation. 


        The
amount of any Indebtedness outstanding as of any date shall be: 



        (1)   the
accreted value thereof, in the case of any Indebtedness that does not require current payments of interest; and 


        (2)   the
principal amount thereof, in the case of any other Indebtedness provided that the principal amount of any
Indebtedness that is denominated in any currency other than United States dollars shall be the amount thereof, as determined pursuant to the foregoing provision, converted into United States dollars
at the Spot Rate in effect on the date that Indebtedness was incurred or, if that indebtedness was incurred prior to the date of this Indenture, the Spot Rate in effect on the date of this Indenture.
If such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded
if calculated at the relevant Spot Rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of
such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred
in a different currency from the Indebtedness being refinanced, shall be calculated based on the Spot Rate applicable to the currencies in which such respective Indebtedness is denominated that is in
effect on the date of such refinancing. 




        Indebtedness
shall not include obligations of any Person (A) resulting from the endorsement of negotiable instruments for collection in the ordinary course of business and
consistent with past business practices and (B) under stand-by letters of credit to the extent collateralized by cash or Cash Equivalents. 


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



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


        "Initial Notes" means $165.0 million in aggregate principal amount of 103/4% Senior Second Secured Notes due 2008 of
the Company issued on the Issue Date for so long as such securities constitute Restricted Securities. 


        "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, that is not also a QIB. 


13





 



        "Interest Swap Obligations" means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for
periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate swaps, caps,
floors, collars and similar agreements. 


        "Investment" means, with respect to any Person, any direct or indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (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), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any other Person. "Investment" shall exclude extensions of trade
credit by the Company and its Restricted Subsidiaries in accordance with normal trade practices of the Company or such Restricted Subsidiary, as the case may be. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any Common Stock of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition,
such Restricted Subsidiary 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 Common Stock of such Restricted Subsidiary not sold or disposed of. 


        "Issue Date" means June 9, 2003, the date on which the Initial Notes were originally issued. 



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


        "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 any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest). 


        "Marketable Securities" means publicly traded debt or equity securities that are listed for trading on a national securities exchange and
that were issued by a corporation whose debt securities are rated in one of the three highest rating categories by either S&P or Moody's. 


        "Moody's" means Moody's Investors Service, Inc. 


        "Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations when received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest) received by the Company or any
of its Restricted Subsidiaries from such Asset Sale net of: 



        (1)   reasonable
out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking
fees and sales commissions); 


        (2)   taxes
paid or payable after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;
and 


        (3)   appropriate
amounts to be provided by the Company or any Restricted Subsidiary of the Company, as the case may be, as a reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and retained by the Company or any Restricted Subsidiary of the 



14





 




Company,
as the case may be, after 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. 




        "Non-U.S. Person" means a Person who is not a U.S. Person. 


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


        "Notes" means, collectively, the Initial Notes, the Additional Notes, if any, and the Exchange Notes, treated as a single class of
securities, as amended or supplemented from time to time in accordance with the terms hereof, that are issued pursuant to this Indenture. 



        "Obligations" means all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness. 


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


        "Officers' Certificate" means a certificate signed on behalf of the Company or any Restricted Subsidiary, as the case may be, by two
Officers of the Company or such Restricted Subsidiaries, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the
Company or such Restricted Subsidiary, that meets the requirements of Sections 12.04 and 12.05. 


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


        "Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee that meets the requirements of
Sections 12.04 and 12.05. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee. 


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


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


        "Permitted Business" means any business (including stock or assets) that derives a majority of its revenues from the business engaged in
by the Company and its Restricted Subsidiaries on the Issue Date and/or activities that are reasonably similar, ancillary or related to, or a reasonable extension, development or expansion of, the
businesses in which the Company and its Restricted Subsidiaries are engaged on the Issue Date. 



        "Permitted Group" means any group of investors that is deemed to be a "person" (as such term is used in Section 13(d)(3) of the
Exchange Act) by virtue of the Stockholders Agreements, as the same may be amended, modified or supplemented from time to time, provided that no single
Person (together with its Affiliates), other than the Permitted Holders and their Related Parties, is the "beneficial owner" (as such term is used in Section 13(d) of the Exchange Act),
directly or indirectly, of more than 50% of the voting power of the issued and outstanding Capital Stock of the Company that is "beneficially owned" (as defined above) by such group of investors. 


15





 



        "Permitted Holders" means Odyssey Investment Partners Fund, L.P, its Affiliates and any general or limited partners on the date of this
Indenture of Odyssey Investment Partners Fund, L.P. 


        "Permitted Indebtedness" means, without duplication, each of the following: 



        (1)   Indebtedness
under the Notes, the Exchange Notes and this Indenture issued on the Issue Date and any Exchange Notes issued in exchange therefor pursuant to this
Indenture and any Guarantees thereof in an aggregate principal amount not to exceed $165.0 million; 


        (2)   Indebtedness
of the Company or any of its Restricted Subsidiaries incurred pursuant to one or more Credit Facilities in an aggregate principal amount at any time
outstanding pursuant to this clause (2) not to exceed the greater of $65.0 million or the Borrowing Base, provided that the amount of
Indebtedness permitted to be incurred pursuant to the Credit Facilities in accordance with this clause (2) shall be in addition to any Indebtedness permitted to be incurred pursuant to the
Credit Facilities in reliance on, and in accordance with, clauses (7), (12) and (14) below; and provided further that any Indebtedness
outstanding under the Senior Credit Facility on the Issue Date shall initially be deemed to be incurred under this clause (2); 


        (3)   other
Indebtedness of the Company and its Restricted Subsidiaries outstanding on the Issue Date reduced by the amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions thereof; 


        (4)   Interest
Swap Obligations of the Company or any of its Restricted Subsidiaries covering Indebtedness of the Company or any of its Restricted Subsidiaries;  provided that any Indebtedness to which any such
Interest Swap Obligations correspond is otherwise permitted to be incurred under this Indenture; and
provided, further, that such Interest Swap Obligations are entered into, in the judgment of the Company, to protect the Company or any of its Restricted
Subsidiaries from fluctuations in interest rates on its outstanding Indebtedness and not for purposes of speculation; 


        (5)   Indebtedness
of the Company or any Restricted Subsidiary of the Company under Hedging Agreements and Currency Agreements so long as such agreement has been entered into
in the ordinary course of business and not for purposes of speculation; 



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



        (a)   any
subsequent issuance or transfer of Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary
thereof, and 


        (b)   any
sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company thereof (other than by way of
granting a Lien permitted under this Indenture or in connection with the exercise of remedies by a secured creditor) 




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


        (7)   Indebtedness
(including Capitalized Lease Obligations) incurred by the Company or any of its Restricted Subsidiaries to finance the purchase, lease or improvement of
property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) in an aggregate principal amount outstanding after giving
effect to that incurrence not to exceed $5.0 million in aggregate principal amount at any one time outstanding; 


        (8)   Refinancing
Indebtedness; 



16





 




        (9)   guarantees
by the Company and the Guarantors of the Indebtedness of the Company or any of its Restricted Subsidiaries;  provided that such Indebtedness is permitted to be incurred under this Indenture; 


        (10) Indebtedness
arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price, earn out or
other similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Restricted Subsidiary of the Company, 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;  provided that the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the
Company and its Restricted Subsidiaries in connection with such disposition; 


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


        (12) additional
Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount that does not exceed $5.0 million at any one time
outstanding (which amount may, but need not, be incurred in whole or in part under a Credit Facility); 


        (13) Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business
Days of incurrence; 


        (14) Indebtedness
of the Company or any of its Restricted Subsidiaries represented by letters of credit for the account of the Company or such Restricted Subsidiary, as the
case may be, issued in the
ordinary course of business of the Company or such Restricted Subsidiary, including, without limitation, in order to provide security for workers' compensation claims or payment obligations in
connection with self-insurance or similar requirements in the ordinary course of business and other Indebtedness with respect to workers' compensation claims, self-insurance
obligations, performance, surety and similar bonds and completion guarantees provided by the Company or any Restricted Subsidiary of the Company in the ordinary course of business; 


        (15) the
incurrence by a Securitization Entity of Indebtedness in a Qualified Securitization Transaction that is non-recourse to the Company or any Restricted
Subsidiary of the Company (except for Standard Securitization Undertakings); and 


        (16) unsecured
Indebtedness issued in connection with the acquisition of a Permitted Business in an amount reflected on the consolidated balance sheet of the Company not to
exceed $7.5 million on the date of issuance; provided that the final maturity of such Indebtedness is after the final maturity of the Notes. 




        For
purposes of determining compliance with Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (1) through (16) above or is permitted to be incurred pursuant to the Consolidated Fixed Charge Coverage Ratio provisions of Section 4.09, the Company shall,
in its sole discretion, classify (or later reclassify) such item of Indebtedness in any manner that complies with Section 4.09. Accrual of interest, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional
shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.09. 


17





 

        "Permitted Investments" means: 



        (1)   Investments
by the Company or any Restricted Subsidiary of the Company in any Restricted Subsidiary of the Company (whether existing on the Issue Date or created
thereafter) or any Person (including by means of any transfer of cash or other property) if as a result of such Investment such Person shall become a Restricted Subsidiary of the Company or that will
merge with or consolidate into the Company or a Restricted Subsidiary of the Company and Investments in the Company by any Restricted Subsidiary of the Company; 


        (2)   Investments
in cash and Cash Equivalents; 


        (3)   loans
and advances to employees and officers of the Company and its Restricted Subsidiaries for bona fide business purposes in an aggregate principal amount not to
exceed $5.0 million at any one time outstanding; 


        (4)   Currency
Agreements, Hedging Agreements and Interest Swap Obligations entered into in the ordinary course of business and otherwise in compliance with this Indenture and
not for purposes of speculation; 


        (5)   Investments
in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of
such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors or customers; 


        (6)   Investments
made by the Company or its Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with
Section 4.10; 


        (7)   Investments
existing on the Issue Date or made pursuant to commitments existing on the Issue Date; 


        (8)   accounts
receivable and extended payment terms provided to customers that are made, created or acquired in the ordinary course of business; 


        (9)   guarantees
by the Company or a Restricted Subsidiary of the Company permitted to be incurred under this Indenture; 


        (10) any
Investment in a Person engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (10) that are at that time outstanding, not to exceed 5% of Total Assets at the time of that Investment (with the fair market
value of each Investment being measured at the time made and without giving effect to subsequent changes in value); 


        (11) the
incurrence by a Securitization Entity of Indebtedness in a Qualified Securitization Transaction that is non-recourse to the Company or any Restricted
Subsidiary of the Company (except for Standard Securitization Undertakings); and 


        (12) other
Investments to the extent paid for with Qualified Capital Stock of the Company. 




        "Permitted Liens" means the following types of Liens: 



        (1)   Liens
on assets of the Company or any Restricted Subsidiary of the Company to secure Indebtedness incurred under clause (2) of the definition of "Permitted
Indebtedness" 


        (2)   Liens
securing the aggregate amount of Indebtedness (including Acquired Indebtedness) incurred in connection with (or at any time following the consummation of) an Asset
Acquisition equal to, at the time of incurrence, the net increase in inventory, accounts receivable and net property, plant and equipment attributable to such Asset Acquisition from the amounts
reflected in the Company's historical consolidated balance sheet as of the end of the full fiscal quarter ending on or prior to the date of such Asset Acquisition, calculated after giving effect on a  pro forma



18





 




basis
to such Asset Acquisition (which amount may, but need not, be incurred in whole or in part under a Credit Facility); 



        (3)   Liens
securing the maximum principal amount of Indebtedness that can be incurred such that on the date of the incurrence of such Indebtedness, after giving  pro forma effect to the incurrence thereof and the
application of the proceeds thereof, the Consolidated Senior Secured Leverage Ratio does not exceed
3.0:1.0 (which amount may, but need not, be incurred in whole or in part under a Credit Facility)(it being understood that, if the agent under a Credit Facility receives an officer's certificate to
the effect that the incurrence of a Lien to secure such Indebtedness (or in the case of revolving credit Indebtedness, that the incurrence of the entire committed amount thereof at the date on which
the initial borrowing thereunder occurs) is permitted under this clause (3), then the Lien securing such Indebtedness under a Credit Facility shall retain its seniority even if the Lien was
actually not permitted); 


        (4)   Liens
on assets of the Company or any of its Restricted Subsidiaries securing up to $5.0 million in aggregate principal amount of Indebtedness at any one time
outstanding; 


        (5)   Liens
for taxes, assessments or governmental charges or claims either 



        (a)   not
delinquent; or 


        (b)   contested
in good faith by appropriate proceedings and as to which the Company or the applicable Restricted Subsidiary has set aside on its books such reserves as may be
required pursuant to GAAP; 




        (6)   statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen and repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP has been made in respect thereof; 



        (7)   Liens
incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money); 


        (8)   judgment
Liens not giving rise to an Event of Default; 


        (9)   easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries; 


        (10) any
interest or title of a lessor under any Capitalized Lease Obligation; 


        (11) purchase
money Liens to finance property or assets or improvements thereof of the Company or any Restricted Subsidiary of the Company; provided,
however, that 



        (a)   the
related purchase money Indebtedness shall not exceed the cost of such property, assets or improvements and shall not be secured by any property or assets of the
Company or any Restricted Subsidiary of the Company other than the property and assets so acquired, and 


        (b)   the
Lien securing such Indebtedness shall be created within 90 days of such acquisition; 




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



19







  



        (13) Liens
securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and
products and proceeds thereof; 


        (14) Liens
encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of the Company or any of its Restricted
Subsidiaries, including rights of offset and set-off; 


        (15) Liens
securing Interest Swap Obligations entered into in the ordinary course of business and not for the purposes of speculation which Interest Swap Obligations relate
to Indebtedness that is otherwise permitted under this Indenture; 


        (16) Liens
securing Indebtedness under Currency Agreements and Hedging Agreements entered into in the ordinary course of business and not for the purposes of speculation; 


        (17) leases
or subleases granted to others that do not materially interfere with the ordinary course of business of the Company and its Restricted Subsidiaries; 


        (18) Liens
arising from filing Uniform Commercial Code financing statements regarding leases; 


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


        (20) Liens
securing Acquired Indebtedness incurred in compliance with Section 4.09; provided that; 



        (a)   such
Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the
Company and were not granted in connection with, or in anticipation, of the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company; and 


        (b)   such
Liens do not extend to or cover any property or assets of the Company or of any of its Restricted Subsidiaries other than the property or assets that secured the
Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a Restricted Subsidiary of the Company and are no more favorable to the lienholders than those
securing the Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company; 




        (21) Liens
on assets transferred to a Securitization Entity or on assets of a Securitization Entity, in either case incurred in connection with a Qualified Securitization
Transaction; and 


        (22) Liens
existing on the Issue Date, together with any Liens securing Indebtedness incurred in reliance on clause (8) of the definition of Permitted Indebtedness in
order to refinance the Indebtedness secured by Liens existing on the Issue Date; provided that the Liens securing the refinancing Indebtedness shall not
extend to any categories of property other than that pledged under the Liens securing the Indebtedness being refinanced. 




        "Person" means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or
a governmental agency or political subdivision thereof. 


        "Pledge Agreement" means that certain Pledge Agreement, dated as of June 16, 2000 and amended and restated as of the Issue Date,
among the Collateral Agent, the Trustee for the Notes, the Company and the Subsidiaries of the Company party thereto, granting, among other things, a second-priority Lien on the Collateral described
therein in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes, as amended, modified, restated, supplemented or replaced from time to time. 


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


20





 



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


        "Productive Assets" means assets (including Capital Stock) that are used or usable by the Company and its Restricted Subsidiaries in
Permitted Businesses. 


        "Purchase Money Note" means a promissory note of a Securitization Entity evidencing amounts owed to the Company or any Restricted
Subsidiary of the Company in connection with a Qualified Securitization Transaction to a Securitization Entity, which note shall be repaid from cash available to the Securitization Entity other than
amounts required to be established as reserves pursuant to agreements, amounts paid to investors in respect of interest and principal and amounts paid in connection with the purchase of newly
generated receivables or newly acquired equipment. 


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


        "Qualified Capital Stock" means any Capital Stock that is not Disqualified Capital Stock. 


        "Qualified Securitization Transaction" means any transaction or series of transactions that may be entered into by the Company or any of
its Restricted Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to: 



        (1)   a
Securitization Entity (in the case of a transfer by the Company or any of its Restricted Subsidiaries); and 


        (2)   any
other Person (in the case of a transfer by a Securitization Entity), 




or
may grant a security interest in any accounts receivable or equipment (whether now existing or arising or acquired in the future) of the Company or any of its Restricted Subsidiaries, and any
assets related thereto, including, without limitation, all collateral securing such accounts receivable and equipment, all contracts and contract rights and all guarantees or other obligations in
respect of such accounts receivable and equipment, proceeds of such accounts receivable and equipment and other assets (including contract rights) which are customarily transferred or in respect of
which security interests are customarily granted in connection with assets securitization transactions involving accounts receivable and equipment. 


        "Recapitalization" means the recapitalization of the Company consummated on June 16, 2000. 


        "Refinance" means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or
retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. "Refinanced" and "Refinancing" shall have correlative meanings. 


        "Refinancing Indebtedness" means any Refinancing, modification, replacement, restatement, refunding, deferral, extension, substitution,
supplement, reissuance or resale of existing or future Indebtedness (other than intercompany Indebtedness), including any additional Indebtedness incurred to pay interest or premiums required by the
instruments governing such existing or future Indebtedness as in effect at the time of issuance thereof ("Required Premiums") and fees in connection
therewith; provided that any such event shall not: 



        (1)   directly
or indirectly result in an increase in the aggregate principal amount of Permitted Indebtedness, except to the extent such increase is a result of a
simultaneous incurrence of additional Indebtedness: 



        (a)   to
pay Required Premiums and related fees; or 


        (b)   otherwise
permitted to be incurred under this Indenture; and 




        (2)   create
Indebtedness with a Weighted Average Life to Maturity at the time such Indebtedness is incurred that is less than the Weighted Average Life to Maturity at such
time of 



21





 

the
Indebtedness being refinanced, modified, replaced, renewed, restated, refunded, deferred, extended, substituted, supplemented, reissued or resold. 




        "Registration Rights Agreement" means the Registration Rights Agreement dated as of the Issue Date by and among the Company, the
Guarantors and Morgan Stanley & Co. Incorporated, Deutsche Bank Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated. 


        "Regulation S" means Regulation S promulgated under the Securities Act. 



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


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



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


        "Related Party" with respect to any Permitted Holder means: 



        (a)   (1)
any spouse, sibling, parent or child of such Permitted Holder; or 



        (2)   the
estate of any Permitted Holder during any period in which such estate holds Capital Stock of the Company for the benefit of any Person referred to in
clause (a)(1); or 




        (b)   any
trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, owners or Persons beneficially owning an
interest of more than 50% of which consist of, or the sole managing partner or managing member of which is, one or more Permitted Holders and/or such other Persons referred to in the immediately
preceding clause (a). 




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


        "Restricted Definitive Note" means a Definitive Note bearing the Private Placement Legend. 



        "Restricted Global Note" means a Global Note bearing the Private Placement Legend. 


        "Restricted Subsidiary" of any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted
Subsidiary. 


        "Rule 144" means Rule 144 promulgated under the Securities Act. 


        "Rule 144A" means Rule 144A promulgated under the Securities Act. 


        "Rule 903" means Rule 903 promulgated under the Securities Act. 


        "Rule 904" means Rule 904 promulgated under the Securities Act. 


        "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. 



        "Sale and Leaseback Transaction" means any direct or indirect arrangement with any Person or to which any such Person is a party providing
for the leasing to the Company or a Restricted Subsidiary of the Company of any property, whether owned by the Company or any Restricted Subsidiary of the Company at the Issue Date or later acquired,
which has been or is to be sold or transferred by the 


22





 



Company
or such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be advanced by such Person on the security of such Property. 



        "SEC" means the Securities and Exchange Commission. 


        "Second Priority Lien Obligations" means the Obligations under this Indenture, the Notes, the Guarantees and any other Indebtedness that
is permitted to be incurred under Section 4.09 and secured under Section 4.12 and is secured by the Second Priority Liens pursuant to the Security Documents. 


        "Second Priority Liens" means the second priority Liens granted by the Company, the Guarantors and any future Domestic Subsidiary that is
required to become a Guarantor on the Collateral and granted in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes and the other holders of Second Priority Lien
Obligations set forth in the Security Documents, if any. 


        "Securities Act" means the Securities Act of 1933, as amended. 


        "Securitization Entity" means any person in which the Company or any Restricted Subsidiary of the Company makes an Investment and to which
the Company or any Restricted Subsidiary of the Company transfers accounts receivable or equipment (and related assets, including contract rights) which engages in no activities other than in
connection with the financing of accounts receivable or equipment or related assets (including contract rights) and which is designated by the Board of Directors of the Company (as provided below) as
a Securitization Entity: 



        (1)   no
portion of the Indebtedness or any other Obligations (contingent or otherwise) of which: 



        (a)   is
guaranteed by the Company or any Restricted Subsidiary of the Company (excluding guarantees of Obligations (other than the principal of, and interest on,
Indebtedness) pursuant to Standard Securitization Undertakings); 


        (b)   is
recourse to or obligates the Company or any Restricted Subsidiary of the Company in any way other than pursuant to Standard Securitization Undertakings; or 


        (c)   subjects
any property or asset of the Company or any Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings; 




        (2)   with
which neither the Company nor any Restricted Subsidiary of the Company has any material contract, agreement, arrangement or understanding other than on terms no
less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company, other than fees payable in the ordinary
course of business in connection with servicing receivables of such entity; and 


        (3)   to
which neither the Company nor any Restricted Subsidiary of the Company has any obligation to maintain or preserve such entity's financial condition or cause such
entity to achieve certain levels of operating results. 




        Any
such designation by the Board of Directors of the Company shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution of the Company giving
effect to such designation and an Officers' Certificate certifying that such designation complied with foregoing conditions. 


        "Security Agreement" means that certain Security Agreement, dated as of June 16, 2000 and amended and restated as of the Issue
Date, among the Collateral Agent, the Trustee for the Notes, the Company and the Subsidiaries of the Company party thereto, granting, among other things, a second-priority Lien on the Collateral
described therein in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes, as amended, modified, restated, supplemented or replaced from time to time. 


23





 



        "Security Documents" means, collectively, the Security Agreement, the Pledge Agreement and all other security agreements, pledges,
collateral assignments or other instruments evidencing or creating any Security Interests in favor of the Collateral Agent, for the benefit of the Trustee and the Holders of the Notes, in all or any
portion of the Collateral, in each case, as amended, amended and restated, supplemented, replaced or otherwise modified from time to time, in accordance with the terms thereof and any intercreditor
agreement or similar agreement entered into in accordance with Section 10.03(c). 


        "Security Interests" means the Liens on the Collateral created by the Security Documents in favor of the Collateral Agent for the benefit
of the Trustee and the Holders of the Notes. 


        "Senior Credit Facility" means the Credit Agreement dated as of June 16, 2000 as amended through the Issue Date, among the Company,
the lenders party thereto in their capacities as lenders, and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as administrative agent, together with the related
documents thereto (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement),
supplemented or otherwise modified from time to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available
borrowings thereunder or adding Restricted Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or group of lenders. 



        "Shelf Registration Statement" means the Shelf Registration Statement as defined in the Registration Rights Agreement. 


        "Significant Subsidiary" with respect to any Person, means any Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1-02(w) of Regulation S-X under the Securities Act. 


        "Spot Rate" means, for any currency, the spot rate at which that currency is offered for sale against United States dollars, as determined
by reference to the New York foreign exchange selling rates, as published in The Wall Street Journal on that date of determination for the immediately preceding business day or, if that rate is not
available, as determined in any publicly available source of similar market data. 


        "Standard Securitization Undertakings" means representations, warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in an accounts receivable or equipment transaction. 


        "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. 


        "Stockholders Agreements" means those certain stockholders agreements entered into in connection with the Recapitalization. 


        "Subsidiary" with respect to any Person, means: 



        (1)   any
corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person; or 


        (2)   any
other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person. 



24





 





        "TIA" means the Trust Indenture Act of 1939, as amended, (15 U.S.C. §§ 77aaa-77bbbb) as in effect on
the date on which this Indenture is qualified under the TIA (except as provided for in Section 9.03). 


        "Total Assets" means the total consolidated assets of the Company and its Restricted Subsidiaries, as set forth on the Company's most
recent consolidated balance sheet. 


        "Treasury Rate" means the rate per annum equal to the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity most nearly equal to the period from such date of redemption to June 15, 2006; provided,
however, that if the period from such date of redemption to June 15, 2006 is not equal to the constant maturity of the 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 period from such date of redemption to June 15, 2006 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. 



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


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


        "Unrestricted Subsidiary" of any Person means: 



        (1)   any
Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below; and 


        (2)   any
Subsidiary of an Unrestricted Subsidiary. 




        The
Board of Directors may designate any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital
Stock of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated;  provided that: 



        (1)   the
Company certifies to the Trustee that such designation complies with Section 4.07; and 


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




        The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if (x) immediately after giving effect to such designation, the Company is able
to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.09 and (y) immediately before and immediately after giving effect to
such designation, no Default or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing provisions. 


        "U.S. Person" means a U.S. person as defined in Rule 902(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. 


25





 



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



        (1)   the
then outstanding aggregate principal amount of such Indebtedness into 


        (2)   the
sum of the total of the products obtained by multiplying 



        (a)   the
amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect
thereof by 


        (b)   the
number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment. 





        "Wholly Owned Domestic Restricted Subsidiary" of any Person means any Domestic Restricted Subsidiary of such Person of which 95% or more
of the outstanding voting securities are owned by such Person or any Wholly Owned Domestic Restricted Subsidiary of such Person. 



        "Wholly Owned Restricted Subsidiary" of any Person means any Wholly Owned Subsidiary of such Person which at the time of determination is
a Restricted Subsidiary. 


        "Wholly Owned Subsidiary" of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in
the case of a Foreign Restricted Subsidiary, directors' qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by such Person
or any Wholly Owned Subsidiary of such Person. 


SECTION
1.02.    Other Definitions.    



	Term
 
	 	Defined in

Section

	"Affiliate Transaction"	 	4.11
	"Change of Control Offer"	 	4.15
	"Change of Control Payment Date"	 	4.15
	"Covenant Defeasance"	 	8.03
	"DTC"	 	2.03
	"Event of Default"	 	6.01
	"incur"	 	4.09
	"Legal Defeasance"	 	8.02
	"Net Proceeds Offer"	 	4.10
	"Net Proceeds Offer Amount"	 	4.10
	"Net Proceeds Offer Payment Date"	 	4.10
	"Net Proceeds Offer Trigger Date"	 	4.10
	"Offer Period"	 	3.09
	"Paying Agent"	 	2.03
	"Purchase Date"	 	3.09
	"Reference Date"	 	4.07
	"Refunding Capital Stock"	 	4.07
	"Registrar"	 	2.03
	"Restricted Payments"	 	4.07
	"Retired Capital Stock"	 	4.07
	"Surviving Entity"	 	5.01





SECTION
1.03.    Trust Indenture Act Definitions.    


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


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


        "indenture securities" means the Notes; 


26





 



        "indenture security Holder" means a Holder of a Note; 


        "indenture to be qualified" means this Indenture; 


        "indenture trustee" or "institutional trustee" means the Trustee; and 



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


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


SECTION
1.04.    Rules of Construction.    



        Unless
the context otherwise requires: 



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


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


        (3)   "or"
is not exclusive; 


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


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


        (6)   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 SEC from
time to time. 



27






   ARTICLE 2  


 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 in
denominations of $1,000 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, the Guarantors and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions
of this Indenture, the provisions of this Indenture shall govern and be controlling. 


        (b)    Global Notes.    Notes issued in global form shall be substantially in the form of Exhibit A (including
the Global Note Legend thereon and the "Schedule of Exchanges of Interests in the Global Note" or "Schedule of Exchanges of Interests in the Regulation S Temporary Global Note," as applicable,
attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A (but without the Global Note Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Note" or "Schedule of Exchanges of Interests in the Regulation S Temporary Global Note," as applicable, attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it shall represent 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 the Note Custodian, at the direction
of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06. 



        (c)    Temporary Global Notes.    Notes offered and sold in reliance on Regulation S shall be issued initially
in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, at its New York office, as
custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly
executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of (i) a written
certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the
Distribution Compliance Period pursuant to another exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a 144A Global Note or an IAI
Global Note bearing a Private Placement Legend, all as contemplated by Section 2.06(g)(i)), and (ii) an Officers' Certificate from the Company. Following the termination of the
Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in Regulation S Permanent Global Notes pursuant
to the Applicable Procedures. Simultaneously with the authentication of Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary Global Note. The
aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes may from time to time be increased or decreased by adjustments 


28





 

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" and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by Participants through Euroclear or Clearstream. 


SECTION
2.02.    Execution and Authentication.    


        One
Officer shall sign the Notes for the Company by manual or facsimile signature. 


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


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


        The
Trustee shall authenticate Notes for original issue in aggregate principal amount not to exceed $165,000,000 (other than as provided in Section 2.07) in one or more series
upon a written order of the Company in the form of an Officers' Certificate. Subject to Article 4 of this Indenture, the Company may issue additional Notes in an unlimited amount under this
Indenture. The Trustee shall authenticate Additional Notes thereafter (so long as permitted by the terms of this Indenture) for original issue upon a written order of the Company in the form of an
Officers' Certificate in aggregate principal amount as specified in such order (other than as provided in Section 2.07). Each such written order shall specify the amount of Notes to be
authenticated, whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes and whether the Notes are to be issued as Definitive Notes or Global Notes or such other information as the
Trustee shall reasonably request. 


        The
Notes shall be issued only in fully registered form, without coupons and only in denominations of $1,000 and any integral multiple thereof. All Notes issued under this Indenture
shall vote and consent together on all matters as one class and no series of Notes will have the right to vote or consent as a separate class on any matter. 


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


SECTION
2.03.    Registrar and Paying Agent.    


        The
Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Notes may be presented for payment ("Paying Agent") and an office or agency where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served, which shall be in the Borough of Manhattan, The City of New York. The Registrar shall keep a register of the Notes and of their transfer and
exchange. Such register shall be in written form or any other form capable of being converted into written form within a reasonable time. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company 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. 


29





 



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



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


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


SECTION
2.05.    Holder Lists.    



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


SECTION
2.06.    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, the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if (i) the Company delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee;  provided that in no event
shall the Regulation S Temporary Global Note be exchanged by the Company for Definitive Notes prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act. Upon the
occurrence of either of the preceding events in (i) or (ii) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant
to this Section 2.06 or Section 2.07 or 2.10, 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 2.06(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f). 


        (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 


30





 



Global
Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also
shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable: 



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


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



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



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



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




31





 





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




        (iv)    Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in the Unrestricted Global
Note.    A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of
Section 2.06(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 or via the Depositary's book-entry system that it
is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company; 


        (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 Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or 


        (D)  the
Registrar receives the following: 



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





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



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


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



        (i)    Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes.    If any holder of a
beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes 



32





 

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, a certificate to the effect set forth in  Exhibit B, including the certifications in item (1) thereof;



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


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


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


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



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




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


        (ii)   Notwithstanding
Sections 2.06(c)(i)(A) and (C), a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or
transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (x) the expiration of the Distribution Compliance Period and (y) the receipt by the Registrar
of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904. 


        (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 



33





 




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 it is not (1) a broker-dealer, (2) a Person participating in
the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company; 



        (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 Participating 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 2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the applicable Global Note
to be reduced accordingly pursuant to Section 2.06(h), 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 2.06(c)(iv) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from 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 pursuant to
this Section 2.06(c)(iv) shall not bear the Private Placement Legend. 




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



        (i)    Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes.    If any Holder of a
Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes 



34





 

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; 


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


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



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


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




the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in all other cases, the IAI 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 that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company; 


        (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 Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or 




35





 





        (D)  the
Registrar receives the following: 



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


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





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



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



        If
any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to 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 a written authentication order in accordance with Section 2.02, 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 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar
duly executed by such Holder or by his attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable,
required pursuant to the following provisions of this Section 2.06(e). 



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



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


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




36











  




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




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



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


        (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 Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement; or 


        (D)  the
Registrar receives the following: 



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


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




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




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




        (f)    Exchange Offer.    Upon the occurrence of the Exchange Offer in accordance with the Registration Rights
Agreement, the 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 broker-dealers, (y) they are not participating in a distribution of the Exchange Notes and (z) they are not affiliates (as defined in
Rule 144) of the Company, and accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an aggregate principal 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 


37





 

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 Definitive
Notes so accepted Definitive Notes in the appropriate principal amounts. 


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



        (i)    Private Placement Legend.    



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



THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT)
(AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 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 AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN 





38





 



INSTITUTIONAL
ACCREDITED INVESTOR OR NON U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS. 




        (B)  Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend. 




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




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





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




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





        (iv)    Original Issue Discount Legend.    Each Note shall bear a legend in substantially the following form: 




"THIS
NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT UNDER SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. YOU MAY CONTACT ALAN F. MCILROY, THE CHIEF FINANCIAL OFFICER OF
THE COMPANY, AT 7777 WASHINGTON VILLAGE DRIVE, SUITE 139, DAYTON, OHIO 45459, TELEPHONE NO. (937) 428-6360, WHO WILL PROVIDE YOU WITH ANY REQUIRED INFORMATION REGARDING THE ORIGINAL
ISSUE DISCOUNT." 





39





 





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


        (i)    General Provisions Relating to Transfers and Exchanges.    



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



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



	(iii)
	The
Registrar shall not be required (A) 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 the mailing of notice of redemption under Section 3.03 and ending at the close of business on such day, or (B) to register the transfer of or exchange any Note selected
for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.



	(iv)
	All
Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the
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 the mailing of notice of redemption under Section 3.03 and ending at the close of business on such day, or (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.



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



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



40





 



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




SECTION 2.07.    Replacement Notes.    


        If
any mutilated Note is surrendered to the Trustee or the Company 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 for its reasonable out-of-pocket expenses in replacing a Note. 


        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 2.08.    Outstanding Notes.    



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


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


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


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


SECTION 2.09.    Treasury Notes.    



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


SECTION 2.10.    Temporary Notes.    



        Until
certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of a written authentication order pursuant to Section 2.02,
shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated 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. 


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


41





 

SECTION 2.11.    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 return canceled
Notes to the Company. Certification of the destruction of all canceled Notes shall be delivered to the Company. Subject to Section 2.07, 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 2.12.    Defaulted Interest.    


        If
the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01. The Company shall notify the Trustee in writing
at least 20 days prior to the payment date of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. 


SECTION 2.13.    CUSIP Numbers.    



        The
Company in issuing the Notes may use "CUSIP" 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
the omission of such numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers. 


ARTICLE 3  


 REDEMPTION AND PREPAYMENT  


SECTION 3.01.    Notices to Trustee.    


        If
the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07, it shall furnish to the Trustee, at least 45 days but not more than
60 days before a redemption date (unless a shorter period shall be agreed to in writing by the Trustee) an Officers' Certificate setting forth (i) the clause of Section 3.07
pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the redemption price, (iv) the CUSIP numbers of (if any) the Notes to be redeemed and (v) that
such redemption will comply with the conditions contained in this Article 3. 


SECTION 3.02.    Selection of Notes to Be Redeemed.    


        If
less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Notes to be redeemed or purchased among the Holders of the
Notes in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro
rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. Notwithstanding the foregoing, if less than all of the Notes are to be
redeemed pursuant to Section 3.07(b) or purchased pursuant to Section 3.09, the Trustee shall select the Notes to be redeemed among the Holders of the Notes pro
rata basis or on as nearly a pro rata basis as is practicable. In the event of partial redemption by lot, the particular 


42





 



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. 


        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 to be
redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000. The 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.    



        Subject
to the provisions of Section 3.09, 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, including CUSIP numbers (if any), and shall state: 



	(a)
	the
redemption date;



	(b)
	the
redemption price and the amount of accrued and unpaid interest, if any, to be paid;



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



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



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



	(f)
	that,
unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date and the only remaining
right of the Holders is to receive payment of the redemption price upon surrender of the applicable Note to the Paying Agent;



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



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




        At
the Company's written request, the Trustee shall give the notice of redemption in the Company's name and at its expense; provided,
however, that the Company shall have delivered to the Trustee, at least 45 days 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. 


SECTION 3.04.    Effect of Notice of Redemption.    


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


SECTION 3.05.    Deposit of Redemption Price.    


        On
or before 10:00 a.m. 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 


43





 



interest
on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed. 


        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 of a Note that is redeemed in part, the Company shall issue and, upon the Company's written request, 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. 


SECTION 3.07.    Optional Redemption.    


        (a)   Except
as provided in paragraph (b) below, the Notes shall not be redeemable at the Company's option prior to June 15, 2006. Thereafter, the Notes shall be
subject to redemption at any time at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount thereof) set forth below plus accrued and unpaid interest and Additional Interest thereon, if any, to the applicable redemption date, if redeemed during the twelve-month period
commencing on June 15 of the years set forth below: 



	Year
 
	 	Percentage

of Principal

Amount
	 
	2006	 	105.625	%
	2007	 	102.813	%
	2008	 	100.000	%






        (b)   Notwithstanding
the foregoing, prior to March 15, 2006, the Company may on any one or more occasions redeem up to 35% of the principal amount of Initial Notes and
Additional Notes issued under this Indenture at a redemption price of 110.750% 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 at least 65% of
the aggregate principal amount of Initial Notes and Additional Notes issued under this Indenture remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the
Company and its Subsidiaries); and provided further that such redemption shall occur within 90 days after the consummation of any such Equity
Offering. 


        (c)   At
any time prior to June 15, 2006, the Company may redeem the Notes, in whole but not in part, at a redemption price equal to the principal amount of the Notes
plus the Applicable Premium plus accrued and unpaid interest, if any, to the date of redemption, upon the occurrence of a Change of Control. Notice of redemption of the Notes upon a Change of Control
will be mailed to Holders of the Notes not more than 30 days following the occurrence of a Change of Control. 


44







  



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




SECTION 3.08.    Mandatory Redemption.    


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


SECTION 3.09.    Offer to Purchase by Application of Net Proceeds Offer Amount.    


        In
the event that the Company shall be required to commence a Net Proceeds Offer pursuant to Section 4.10, it shall follow the procedures specified below. 


        The
Net Proceeds Offer shall remain open for a period of 20 Business Days following its commencement or such longer period as may be required by applicable law (the
"Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the Net Proceeds Offer Amount except as provided in Section 3.02 or, if Notes in an aggregate principal amount less than the Net
Proceeds Offer Amount have been tendered, all Notes validly tendered in response to the Net Proceeds 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 Net Proceeds Offer. 


        Upon
the commencement of a Net Proceeds Offer, the Company shall send, by first-class mail, a notice of such Net Proceeds Offer to the Trustee and 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 Net Proceeds Offer. The Net Proceeds Offer shall be made to all
Holders. The notice, which shall govern the terms of the Net Proceeds Offer, shall state: 



        (a)   that
the Net Proceeds Offer is being made pursuant to this Section 3.09 and Section 4.10 and the length of time the Net Proceeds Offer shall remain open; 


        (b)   the
Net Proceeds Offer Amount, the purchase price and the Purchase Date; 


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


        (d)   that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the
Purchase Date and the only remaining right of the Holder is to receive payment of the purchase price upon surrender of the applicable Note to the Paying Agent; 


        (e)   that
Holders electing to have a portion of a Note purchased pursuant to a Net Proceeds Offer may only elect to have such Note purchased in integral multiples of $1,000; 


        (f)    that
Holders electing to have a Note purchased pursuant to any Net Proceeds 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 depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date; 


        (g)   that
Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal 



45





 




amount
of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; 


        (h)   that,
if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a  pro rata basis (based on amounts tendered and with
such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and 



        (i)    that
Holders whose Notes were purchased only in part shall be issued a new Note or Notes in principal amount equal to the unpurchased portion of the Notes surrendered
(or transferred by book-entry transfer) in the name of the Holder thereof upon cancellation of the original Note. 




        On
or before the Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary
and, except as provided in Section 3.02, the Net Proceeds Offer Amount of Notes or portions thereof validly tendered pursuant to the Net Proceeds Offer, or if less than the Net Proceeds Offer
Amount has been validly tendered, all Notes or portions thereof validly 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 3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than
five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the
Net Proceeds Offer on the Purchase Date. 


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


        To
the extent that the provisions of any securities laws or regulations conflict with this Section 3.09 or Section 4.10, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations under this Section 3.09 or Section 4.10. 


ARTICLE 4  


 COVENANTS  


SECTION 4.01.    Payment of Notes.    


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


        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; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and 


46





 



Additional
Interest (without regard to any applicable grace period) at the same rate to the extent lawful. 


SECTION 4.02.    Maintenance of Office or Agency.    


        The
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 an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or exchange or for presentation for payment 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. 


        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. 


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


SECTION 4.03.    Reports to Holders.    



        (a)   Whether
or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company shall furnish to the Holders of Notes: 



        (1)   all
quarterly and annual financial information that would be required to be contained in a filing with the SEC 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" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries (showing in reasonable detail, 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," 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) and, with respect to the annual information only, a report thereon by the Company's certified independent accountants; and 


        (2)   all
current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports, in each case,
within the time periods specified in the SEC's rules and regulations. 




        In
addition, following the consummation of the Exchange Offer contemplated by the Registration Rights Agreement, whether or not required by the rules and regulations of the SEC, the
Company shall file a copy of all such information and reports with the SEC for public availability within the time periods specified in the SEC's rules and regulations (unless the SEC will not
accept such a filing) and make such information available to securities analysts and prospective investors upon request. The Company shall at all times comply with TIA § 314(a). In
addition, for so long as any Notes remain outstanding, the Company shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act. 


47





 

SECTION 4.04.    Compliance Certificate.    


        (a)   The
Company and each Guarantor (to the extent that such Guarantor is so required under the TIA) shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers' Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto. For purposes of this paragraph, such compliance shall be determined without regard to any period of grace or requirement of notice provided
under this Indenture. 


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


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


SECTION 4.05.    Payment of Taxes and Other Claims.    



        The
Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, (i) all material taxes, assessments and governmental levies levied or imposed upon
(a) the Company or any such Subsidiary, (b) the income or profits of any such Subsidiary which is a corporation or (c) the property of the Company or any such Subsidiary and
(ii) all material lawful claims for labor, materials and supplies that, if unpaid, could reasonably be expected by law to become a lien upon the property of the Company or any such Subsidiary
not otherwise permitted by this Indenture, except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes. 


SECTION 4.06.    Stay, Extension and Usury Laws.    


        The
Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives 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 


48





 



execution
of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted. 


SECTION 4.07.    Limitation on Restricted Payments.    


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



        (1)   declare
or pay any dividend or make any distribution (other than dividends or distributions payable in Qualified Capital Stock of the Company) on or in respect of shares
of the Company's Capital Stock to holders of such Capital Stock; 


        (2)   purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the Company or any direct or indirect parent of the Company or any warrants, rights or
options to purchase or acquire shares of any class of such Capital Stock; 


        (3)   make
any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes; or 


        (4)   make
any Investment (other than Permitted Investments) 




(each
of the foregoing actions set forth in clauses (1), (2), (3) and (4) being referred to as a "Restricted Payment"), if at the time of
such Restricted Payment or immediately after giving effect thereto: 




        (i)    a
Default or an Event of Default shall have occurred and be continuing; 


        (ii)   the
Company is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.09; or 


        (iii)  the
aggregate amount of Restricted Payments (including such proposed Restricted Payment) made subsequent to the Issue Date (other than Restricted Payments made
pursuant to clauses (2)(i), (3) through (11) of the following paragraph) (the amount expended for such purposes, if other than in cash, being the fair market value of such property),
shall exceed the sum, without duplication, of: 



        (v)   50%
of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned subsequent to the
beginning of the first fiscal quarter commencing after the Issue Date and on or prior to the date the Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting period); plus



        (w)  100%
of the aggregate net proceeds (including the fair market value of property other than cash that would constitute Marketable Securities or a Permitted Business)
received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to the Issue Date and on or prior to the Reference Date of Qualified Capital
Stock of the Company or other securities of the Company that have been converted into such Qualified Stock; plus


        (x)   without
duplication of any amounts included in clause (iii)(w) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company
from a holder of the Company's Capital Stock subsequent to the Issue Date; plus


        (y)   100%
of the aggregate net proceeds (including the fair market value of property other than cash that would constitute Marketable Securities or a Permitted Business) of
any (A) sale or other disposition of any Investment (other than a Permitted Investment) made by the Company and its Restricted Subsidiaries subsequent to the Issue Date or 





49





 






(B) dividend
from, or the sale of the stock of, an Unrestricted Subsidiary of the Company made subsequent to the Issue Date; plus 


        (z)   $8.6 million.







        Notwithstanding
the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: 



        (1)   the
payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or notice of such
redemption if the dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declaration or notice; 


        (2)   if
no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof, the acquisition of any shares of Capital Stock of the
Company (the "Retired Capital Stock") either (i) solely in exchange for shares of Qualified Capital Stock of the Company (the
"Refunding Capital Stock") or (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company and, in the case of subclause (i) of this clause (2), if immediately prior to the retirement of the Retired
Capital Stock the declaration and payment of dividends thereon was permitted under clause (4) of this paragraph, the declaration and payment of dividends on the Refunding Capital Stock in an
aggregate amount per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock
immediately prior to such retirement; provided that at the time of the declaration of any such dividends on the Refunding Capital Stock, no Default or
Event of Default shall have occurred and be continuing or shall occur as a consequence thereof; 



        (3)   if
no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof, the acquisition of any Indebtedness of the Company that
is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of the Company) of (A) shares of Qualified Capital Stock of the Company or (B) Refinancing Indebtedness; 


        (4)   if
no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof, the declaration and payment of dividends to holders of
any class or series of Disqualified Capital Stock issued after the Issue Date (including, without limitation, the declaration and payment of dividends on Refunding Capital Stock in excess of the
dividends declarable and payable thereon pursuant to clause (2) of this paragraph); provided that, at the time of such issuance, the Company,
after giving effect to such issuance on a pro forma basis, would have been able to incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.09 hereof; 


        (5)   if
no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof, the redemption or repurchase of the Company's common
equity or options in respect thereof, in each case in connection with the repurchase provisions of employee stock option or stock purchase agreements or other agreements to compensate management
employees; provided that all such redemptions or repurchases pursuant to this clause (5) shall not exceed $2.5 million (with unused
amounts in any fiscal year being carried over to succeeding fiscal years subject to a maximum of $5.0 million in any fiscal year) in any fiscal year (which amount shall be increased by the
amount of any net cash proceeds received from the sale since the Issue Date of Capital Stock (other than Disqualified Capital Stock) to members of the Company's or any of its Subsidiaries' management
team that have not otherwise been applied to the payment of Restricted Payments pursuant to the terms of clause (iii) of the immediately preceding paragraph and by the 



50





 




cash
proceeds of any "key-man" life insurance policies that are used to make such redemptions or repurchases) since the Issue Date; provided,
further, that the cancellation of Indebtedness owing to the Company from members of management of the Company or any of its Restricted Subsidiaries in connection with any
repurchase of Capital Stock of the Company (or warrants or options or rights to acquire such Capital Stock) will not be deemed to constitute a Restricted Payment under this Indenture; 



        (6)   repurchases
of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; 


        (7)   any
purchase or repayment of Subordinated Indebtedness upon a Change of Control or an Asset Sale to the extent required by the agreement governing such Subordinated
Indebtedness but only if: (a) in the case of a Change of Control, the Company shall have complied with all of its obligations described under Section 4.15 and purchased all the Notes
tendered pursuant to the Offer to Purchase required thereby prior to purchasing or repaying such Subordinated Indebtedness or (b) in the case of an Asset Sale, the Company shall have applied
the Net Cash Proceeds from such Asset Sale in accordance with Section 4.10; provided that (i) in either case the purchase price (stated as
a percentage of principal amount or issue price plus accrued original discount, if less) of such Subordinated Indebtedness shall not be greater than the price (stated as a percentage of principal
amount) of the Notes pursuant to any Offer to Purchase, and (ii) in the case of an Asset Sale, the aggregate amount of such Subordinated Indebtedness that the Company may purchase or repay
shall not exceed the amount of unutilized Net Cash Proceeds, if any, remaining after the Company has purchased all Notes tendered pursuant to such Offer to Purchase; 



        (8)   any
other Investment made in a Permitted Business which, together with all other Investments made pursuant to this clause (8) since the date of this Indenture,
does not exceed $5.0 million (in each case, after giving effect to all subsequent reductions in the amount of any Investment made pursuant to this clause (8), either as a result of
(i) the repayment or disposition thereof for cash or (ii) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (valued, proportionate to the Company's equity
interest in that Subsidiary at the time of that redesignation, at the fair market value of the net assets of that Subsidiary at the time of that redesignation), in the case of clauses (i) and
(ii), not to exceed the amount of the Restricted Investment previously made pursuant to this clause (8)); providedthat no
Default or Event of Default shall have occurred and be continuing immediately after making that Investment; 


        (9)   distributions
or payments of receivable fees; 


        (10) if
no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof, other Restricted Payments in an aggregate amount not to
exceed $5.0 million; and 


        (11) the
purchase, prepayment, acquisition or retirement for value of 13% Senior Subordinated Notes due 2009 with up to $15.0 million. 




        In
determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with clause (iii) of the immediately preceding paragraph,
(a) amounts expended pursuant to clauses (1) and (2)(ii) shall be included in such calculation, and (b) amounts expended pursuant to clauses (2)(i) and
(3) through (11) shall be excluded from such calculation. 


51





 

SECTION 4.08.    Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.    


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



        (1)   pay
dividends or make any other distributions on or in respect of its Capital Stock (it being understood that the priority of any preferred stock in receiving dividends
or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock); 


        (2)   make
loans or advances or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or 



        (3)   transfer
any of its property or assets to the Company or any other Restricted Subsidiary of the Company, except for such encumbrances or restrictions existing under or
by reason of: 



        (A)  applicable
law; 


        (B)  the
Notes or this Indenture and/or the documentation for the Second Priority Liens; 


        (C)  non-assignment
provisions of any contract or any lease of any Restricted Subsidiary of the Company entered into in the ordinary course of business; 



        (D)  any
instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired; 


        (E)  the
Senior Credit Facility and/or the documentation for the other First Priority Lien Obligations; 


        (F)  agreements
existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date; 


        (G)  restrictions
on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien; 



        (H)  restrictions
imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale; 


        (I)   any
agreement or instrument governing Capital Stock of any Person that is acquired; 


        (J)   other
Indebtedness or Preferred Stock of the Guarantors outstanding on the Issue Date or permitted to be issued or incurred under this Indenture;  provided that any such restrictions are ordinary and customary
with respect to the type of Indebtedness being incurred or Preferred Stock being issued
(under the relevant circumstances) if the Board of Directors of the Company determines that any such encumbrance or restriction will not materially adversely affect the Company's ability to make
principal or interest payments on the Notes; 


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


        (L)  any
Purchase Money Note or other Indebtedness or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction;  provided that such restrictions apply
only to such Securitization Entity; and 




52











  




        (M) any
encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (A) through (L) above; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company's Board of Directors (evidenced by a Board Resolution) whose
judgment shall be conclusively binding, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions
prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. 





SECTION 4.09.    Limitation on Incurrence of Additional Indebtedness.    


        The
Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee, acquire, become liable, contingently
or otherwise, with respect to, or otherwise become responsible for payment of (collectively, "incur") any Indebtedness (other than Permitted
Indebtedness) and the Company will not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time or as a consequence of the incurrence of any such Indebtedness, the Company or any of the Guarantors may incur Indebtedness
(including, without limitation, Acquired Indebtedness) and the Guarantors may issue Preferred Stock, in each case if on the date of the incurrence of such Indebtedness or issuance of such Preferred
Stock, after giving effect to the incurrence of such Indebtedness or issuance of such Preferred Stock, the Consolidated Fixed Charge Coverage Ratio of the Company would have been greater than 2.25 to
1.0. 


        The
Company and the Guarantors, if any, will not incur or suffer to exist any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Company
or the Guarantors unless such Indebtedness is at least equally subordinated in right of payment to the Notes or any Guarantee. 


SECTION 4.10.    Limitation on Asset Sales.    


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



        (1)   the
Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of
the assets sold or otherwise disposed of; 


        (2)   at
least 75% of the consideration received by the Company or the applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of
Productive Assets, cash and/or Cash Equivalents and shall be received at the time of such disposition; provided that the amount of: 



        (A)  liabilities
(as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets and for which the Company and its Restricted Subsidiaries receive a written release
from all creditors; 


        (B)  any
notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted
Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and 




53





 





        (C)  any
Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, when taken
together with all other Designated Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed 5% of Total Assets at the time of the receipt of
such Designated Noncash Consideration with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in
value; and 




        (3)   upon
the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within
365 days of receipt thereof either: 



        (A)  to
prepay any Indebtedness under the Senior Credit Facility, any Indebtedness secured by a First Priority Lien or a Permitted Lien or Indebtedness of a Restricted
Subsidiary of the Company that is not a Guarantor and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such
revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so), 



        (B)  to
reinvest in Productive Assets, or 


        (C)  a
combination of prepayment and investment permitted by the foregoing clauses (A) and (B). 





        Pending
the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or
otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted
Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(A), (3)(B) or (3)(C) of the next preceding paragraph (each, a
"Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been so applied on or before such Net Proceeds Offer
Trigger Date (each, a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the
"Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than
60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis, the maximum amount of Notes that may be
purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase;  provided,
however, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by the Company
or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with
respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in
accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such
Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to
the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregate at least $10.0 million, at
which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first
date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a Net Proceeds Offer Trigger Date). 


54





 

        Each
Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the
Trustee, and shall comply with the procedures set forth in Section 3.09. To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds
Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net
Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. 


        The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that compliance by the Company with the provisions of any securities laws or
regulations conflicts with the provisions of this Section 4.10, such compliance shall be deemed not to be a breach of the Company's obligations under this Section 4.10.
Section 4.10 and other provisions contained in this Indenture relating to the Company's obligations to make a Net Proceeds Offer may be waived or modified with the written consent of the
Holders of a majority in principal amount of the Notes. 


SECTION 4.11.    Limitation on Transactions with Affiliates.    


        (a)   The
Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to occur any transaction or series of
related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (an
"Affiliate Transaction"), other than Affiliate Transactions on terms that are not materially less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary; provided,
however, that for an Affiliate Transaction with an aggregate value of $2.5 million or more, at the Company's option, either: 



        (1)   a
majority of the disinterested members of the Board of Directors of the Company shall determine in good faith that such Affiliate Transaction is on terms that are not
materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company;
or 


        (2)   the
Board of Directors of the Company or any such Restricted Subsidiary party to such Affiliate Transaction shall obtain an opinion from a nationally recognized
investment banking, appraisal or accounting firm that such Affiliate Transaction is on terms that are not materially less favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company; 




        (b)   The
restrictions set forth in Section 4.11(a) shall not apply to: 



        (1)   reasonable
fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary
of the Company as determined in good faith by the Company's Board of Directors or senior management; 



        (2)   transactions
exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by this Indenture; 


        (3)   any
agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the
Issue Date; 


        (4)   Restricted
Payments or Permitted Investments permitted by this Indenture; 



55





 




        (5)   the
payment of customary annual management, consulting and advisory fees and related expenses to the Permitted Holders and their Affiliates made pursuant to any
financial advisory, financing, underwriting or placement agreement or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures
which are approved by the Board of Directors of the Company or such Restricted Subsidiary in good faith; 


        (6)   payments
or loans to employees or consultants that are approved by the Board of Directors of the Company in good faith; 


        (7)   sales
of Qualified Capital Stock; 


        (8)   the
existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including
any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter;  provided, however,
that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under, any future
amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (8) to the extent that the terms of any such
amendment or new agreement are not disadvantageous to the Holders of the Notes in any material respect; and 



        (9)   transactions
effected as part of a Qualified Securization Transaction. 




SECTION 4.12.    Limitation on Liens.    


        The
Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit or suffer to exist any Liens of any
kind against or upon any property or assets or any proceeds therefrom of the Company or any of its Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, in each
case to secure Indebtedness, unless: 



        (1)   in
the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to the Notes, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens; and 


        (2)   in
all other cases, the Notes are equally and ratably secured, except for 



        (a)   Liens
existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date; 


        (b)   Liens
securing the Notes and the Guarantees; 


        (c)   Liens
securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness that was secured by a Lien permitted under this Indenture and that has been
incurred in accordance with the provisions of this Indenture; provided, however, that such Liens do not extend to or cover any property or assets of the
Company or any of its Restricted Subsidiaries not securing the Indebtedness so Refinanced; and 


        (d)   Permitted
Liens. 





SECTION 4.13.    Conduct of Business.    



        The
Company shall not, and shall not permit any of its Restricted Subsidiaries to, engage in any businesses a majority of whose revenues are not derived from businesses that are the same
as or reasonably similar, ancillary or related to, or a reasonable extension, development or expansion of, the businesses in which the Company and its Restricted Subsidiaries are engaged on the Issue
Date. 


56





 



SECTION 4.14.    Corporate Existence.    



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


SECTION 4.15.    Offer to Repurchase upon Change of Control.    


        (a)   If
a Change of Control occurs, each Holder will have the right to require that the Company purchase all or a portion of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer"), at a purchase price equal to 101% of the principal amount thereof plus accrued interest to the date of
purchase. Within 90 days following the date upon which the Change of Control occurred (or, at the Company's option, prior to the occurrence of such Change of Control), the Company must send, by
first class mail, a notice to each Holder, which notice shall govern the terms of the Change of Control Offer. Such notice shall state, among other things, the purchase date, which must be no earlier
than 30 days nor later than 60 days from the date such notice is mailed, other than as may be required by law (the "Change of Control Payment
Date"), provided that any Change of Control Offer made prior to any date of such Change of Control shall be made only in the
reasonable anticipation of such Change of Control; and provided further, that the Company shall not be required to purchase any Notes tendered pursuant
to such Change of Control Offer if such Change of Control does not occur. 


        (b)   On
the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all Notes or portions thereof properly tendered pursuant to
the Change of Control Offer, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered and (3) deliver or
cause to be delivered to the applicable 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. The Paying Agent shall promptly mail 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 will be in a principal amount of $1,000 or an integral multiple thereof. 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. 


        Prior
to the mailing of the notice referred to in Section 4.15(a) above or 4.15(c) below, but in any event within 30 days following any Change of Control, the Company
covenants to: (i) repay in full and terminate all commitments under Indebtedness under the Senior Credit Facility and all other First Priority Lien Obligations the terms of which require
repayment upon a Change of Control or offer to repay in full and terminate all commitments under the Senior Credit Facility and all other such First Priority Lien Obligations and to repay the
Indebtedness owed to (and terminate all commitments of) each lender under the Senior Credit Facility and each other holder of a First Priority Lien Obligation which has accepted such offer; or
(ii) obtain consents required under the Senior Credit Facility and all other such other First Priority Lien Obligations to permit the repurchase of the Notes as provided below. The Company
shall first comply with the covenant described in the immediately preceding sentence before it shall be required to repurchase Notes under this Section 4.15. The Company's failure 


57





 



to
comply with the covenant described in the second preceding sentence (and its failure to send the notice referred to in Section 4.15(a) or (c) as a result of the prohibition in the
second preceding sentence) shall constitute an Event of Default described in clause (c) and not in clause (b) under Section 6.01. 



        (c)   Within
90 days following the date upon which a Change of Control occurs (the "Change of Control Date"), the
Company shall send, by first class mail, a notice to each Holder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. The notice to the Holders shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Change of Control Offer. Such notice shall state: 



        (A)  that
the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered and not withdrawn will be accepted for payment; 



        (B)  the
purchase price (including the amount of accrued interest) and the Change of Control Payment Date, which shall be a Business Day, that is not earlier than
30 days or later than 60 days from the date such notice is mailed, other than as may be required by law; 


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


        (D)  that,
unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date; 


        (E)  that
Holders electing to have a Note purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close
of business on the third Business Day prior to the Change of Control Payment Date; 


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


        (G)  that
Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered; and 


        (H)  the
circumstances and relevant facts regarding such Change of Control. 




        The
Company shall not be required to make a Change of Control Offer upon a Change of Control if any other Person makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.15 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. This covenant and other provisions contained in this Indenture relating to the Company's obligation to make a Change of Control Offer may be waived or
modified with the written consent of the Holders of a majority in principal amount of Notes. 


        On
or before the Change of Control Payment Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent U.S. Legal Tender in immediately available funds sufficient to pay the purchase price plus accrued interest, if any, of all Notes so tendered and
(iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company. The Paying Agent shall promptly mail
to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any, and upon written order of the 


58





 



Company
accompanied by an Officers' Certificate, the Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes
surrendered. Any Notes not so accepted shall be promptly mailed by the Company to the Holder thereof. For purposes of this Section 4.15, the Trustee shall act as the Paying Agent. 


        Any
amounts remaining with the Paying Agent after the purchase of Notes pursuant to a Change of Control Offer shall be returned by the Trustee to the Company. 


        (d)   The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the Company complies with the provisions of any such securities laws or regulations, the Company shall
not be deemed to have breached its obligations under this Section 4.15. 



        (e)   Notwithstanding
anything to the contrary in this Section 4.15, 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 4.15 and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer. 


SECTION 4.16.    Future Guarantees by Domestic Restricted Subsidiaries.    


        The
Company shall not create or acquire another Domestic Restricted Subsidiary unless such Domestic Restricted Subsidiary executes and delivers a supplemental indenture to this
Indenture, in form and substance reasonably satisfactory to the Trustee, providing for a Guarantee of payment of the Notes by such Domestic Restricted Subsidiary on the terms as set forth herein. 


ARTICLE 5  


 SUCCESSORS  


SECTION
5.01.    Merger, Consolidation and Sale of Assets.    


        The
Company shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise
dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined
on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless: 



        (1)   either:




        (a)   the
Company shall be the surviving or continuing corporation; or 


        (b)   the
Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer,
lease, conveyance or other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving
Entity"): 



        (x)   shall
be a corporation organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and 





59











  





        (y)   shall
expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, this Indenture and the Registration Rights Agreement on the part
of the Company to be performed or observed; 


        (z)   shall
expressly assume, by documentation reasonably requested by, and executed and delivered to, the Trustee (and otherwise reasonably acceptable to the Collateral
Agent), the due and punctual performance of every covenant and obligations under the Security Documents on the part of the Company to be performed or observed; 





        (2)   except
in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company and except in the case of a merger entered into solely for
the purpose of reincorporating the Company in another jurisdiction, immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the
case may be, shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.09; 


        (3)   except
in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company and except in the case of a merger entered into solely for
the purpose of reincorporating the Company in another jurisdiction, immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(y) above (including,
without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted or to be released in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be continuing; and 


        (4)   the
Company or the Surviving Entity shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the
applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. 




        For
purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries of the Company the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. However, transfer of assets between or among the
Company and its Restricted Subsidiaries will not be subject to this Section 5.01. 


SECTION
5.02.    Successor Corporation Substituted.    



        Upon
any consolidation, combination or merger, or any transfer of all or substantially all of the assets of the Company in accordance with Section 5.01, in which the Company is
not the continuing corporation, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Surviving Entity had been named as such and that, in the
event of a conveyance, lease or transfer, the conveyor, lessor or transferor will be released from the provisions of this Indenture; provided that the
Company shall not be released from its obligation to pay the principal of, premium, if any, or interest on the Notes in the case of a lease of all or substantially all of its property and assets. 


60





 


ARTICLE 6  


 DEFAULTS AND REMEDIES  



SECTION
6.01.    Events of Default.    


        "Events of Default" are: 



        (a)   the
failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days; 


        (b)   the
failure to pay the principal on any Notes when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a
payment to purchase Notes
tendered pursuant to a Change of Control Offer or a Net Proceeds Offer on the date specified for such payment in the applicable offer to purchase); 


        (c)   a
default in the observance or performance of any other covenant or agreement contained herein if the default continues for a period of 30 days after the Company
receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except in
the case of a default with respect to Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of time requirement); 



        (d)   the
failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness of the
Company or any Restricted Subsidiary of the Company (other than a Securitization Entity) which failure continues for at least 20 days, or the acceleration of the final stated maturity of any
such Indebtedness, which acceleration remains uncured and unrescinded for at least 20 days, if the aggregate principal amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final maturity or which has been accelerated (in each case with respect to which the 20-day period described above has
passed), aggregates $7.5 million or more at any time; 


        (e)   one
or more judgments in an aggregate amount in excess of $7.5 million shall have been rendered against the Company or any of its Significant Subsidiaries and
such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable; 


        (f)    the
Company or any of its Significant Subsidiaries pursuant to or within the meaning of Bankruptcy Law: 



        (i)    commences
a voluntary case; 


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


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


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




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



        (i)    is
for relief against the Company or any of its Significant Subsidiaries; 


        (ii)   appoints
a custodian of the Company or any of its Significant Subsidiaries or for all or substantially all of the property of the Company or any of its Significant
Subsidiaries; 




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        (h)   any
Guarantee of a Significant Subsidiary ceases to be in full force and effect or any Guarantee of a Significant Subsidiary is declared to be null and void and
unenforceable or any Guarantee of a Significant Subsidiary is found to be invalid or any Guarantor that is a Significant Subsidiary denies its liability under its Guarantee (other than by reason of
release of a Guarantor in accordance with the terms of this Indenture); or 


        (i)    unless
all of the Collateral has been released from the Second Priority Liens in accordance with the provisions of the Security Documents, default by the Company or any
Significant Subsidiary in the performance of any material provision of the Security Documents which adversely affects the enforceability, validity, perfection or priority of the Second Priority Lien
on a material portion of the Collateral granted to the Collateral Agent for the benefit of the Trustee and the Holders of the Notes, the repudiation or disaffirmation by the Company or any Significant
Subsidiary of its material obligations under the Security Documents or other determination in a judicial proceeding that the Security Documents are unenforceable or invalid against the Company or any
Significant Subsidiary party thereto for any reason with respect to a material portion of the Collateral (which default, repudiation, disaffirmation or determination is not rescinded, stayed or waived
by the Persons having such authority pursuant to the Security Documents) or otherwise cured within 60 days after the Company receives written notice thereof specifying such occurrence from the
Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes and demanding that such default be remedied. 




SECTION
6.02.    Acceleration.    


        If
an Event of Default (other than an Event of Default specified in clause (f) or (g) of Section 6.01 with respect to the Company) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare the principal of and accrued interest on all the Notes to be due and payable immediately by notice
in writing to the Company and the Trustee specifying the applicable Event of Default and that it is a "notice of acceleration", and the same shall become immediately due and payable. If an Event of
Default specified in clause (f) or (g) of Section 6.01 with respect to the Company occurs and is continuing, then all unpaid principal of, and premium, if
any, and accrued and unpaid interest on all the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. 


        At
any time after such declaration of acceleration, but before a judgment or decree for the payment of the money due has been obtained by the Trustee, the Holders of at least a majority
in principal amount of the outstanding Notes by written notice to the Company and to the Trustee, may waive all past Defaults and rescind and annul a declaration of acceleration and its consequences
if (a) the Company has paid or deposited with the Trustee a sum sufficient to pay (i) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (ii) all overdue interest on all Notes, (iii) the principal of and premium, if any, on any Notes that have become due
otherwise than by such declaration or occurrence of acceleration and interest thereon at the rate prescribed therefor by such Notes, and (iv) to the extent that payment of such interest is
lawful, interest upon overdue interest, if any, at the rate prescribed therefor by such Notes, (b) all existing Events of Default, other than the non-payment of the principal of,
premium, if any, and accrued interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived, (c) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (d) in the event of the cure or waiver of an Event of Default of the type specified in clause (f) or (g) of
Section 6.01, the Trustee shall have received an Officers' Certificate that such Event of Default has been cured or waived. 


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SECTION
6.03.    Other Remedies.    



        If
an Event of Default occurs and is continuing, the Trustee may and at the direction of the Holders of at least a majority in principal amount of the outstanding Notes shall, pursue any
available remedy to collect the payment of principal, premium, if any, and interest and Additional Interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this
Indenture. 


        The
Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of
a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law. Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be
deemed expedient by the Trustee or by the Holders, as the case may be. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy. 


SECTION
6.04.    Waiver of Past Defaults.    


        Subject
to Sections 6.02, 6.07 and 9.02, Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium
and Additional Interest, if any, or interest on, the Notes (including in connection with an offer to purchase) or in respect of a covenant or provision of this Indenture which cannot be modified or
amended without the consent of the Holder of each outstanding Note affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. 


SECTION
6.05.    Control by Majority.    



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


        In
the event the Trustee takes any action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to indemnification from the Company satisfactory to it in its
sole discretion against any fees, loss, liability, cost or expense caused by taking such action or following such direction. 


SECTION
6.06.    Limitation on Suits.    


        A
Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if: 



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


        (b)   the
Holders of at least 25% in principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy; 



        (c)   such
Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense; 


        (d)   the
Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of indemnity; and 



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




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


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



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


SECTION
6.08.    Collection Suit by Trustee.    


        If
an Event of Default specified in Section 6.01(a) or (b) 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 amount of, premium and Additional Interest, if any, and interest remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any amounts due the Trustee under Section 7.07. 


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
other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 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.    


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



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



64





 

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


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




        The
Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10; provided,  however, that the failure
to give any such notice shall not affect the
establishment of such record date or payment date or any payments to Holders 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 does not apply to a suit by
the Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes. 


SECTION
6.12.    Restoration of Rights and Remedies.    


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


ARTICLE 7  


 TRUSTEE  


SECTION
7.01.    General.    



        The
duties and responsibilities of the Trustee shall be as provided by the TIA and as set forth herein. Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not herein 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 Article 7. 


SECTION
7.02.    Certain Rights of Trustee.    


        Subject
to TIA Sections 315(a) through (d): 



        (i)    the
Trustee may rely, and shall be 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 believed by it to be genuine and to have been signed or presented by the proper
person; 



65





 

        (ii)   before
the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion; 



        (iii)  the
Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by
it hereunder; 


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


        (v)   the
Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers,  provided that the Trustee's conduct does not
constitute negligence or bad faith; 


        (vi)  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; and 


        (vii) 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. 




SECTION
7.03.    Individual Rights of Trustee.    


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


SECTION
7.04.    Trustee's Disclaimer.    


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


SECTION
7.05.    Notice of Defaults.    



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



        (b)   If
a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default or Event
of Default within 30 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the
notice if and 



66





 




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




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


        Within
60 days after each May 15 beginning with May 15, 2004, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA § 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA § 313(c). 



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


SECTION
7.07.    Compensation and Indemnity.    


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


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


        The
obligations of the Company and the Guarantors under this Section 7.07 shall survive the resignation and removal of the Trustee and the satisfaction and discharge of this
Indenture. 


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



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


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


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SECTION
7.08.    Replacement of Trustee.    


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


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



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


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


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


        (d)   the
Trustee becomes incapable of acting. 




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


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


        A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided in Section 7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee, (ii) the resignation or removal of the
retiring Trustee shall become effective and (iii) the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice
of its succession to each Holder. 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. 


        If
the Trustee is no longer eligible under Section 7.10 or shall fail to comply with TIA Section 310(b), any Holder who satisfies the requirements of TIA
Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 7.08, the Trustee shall resign immediately in the manner and with the effect provided in this Section. 



        The
Company shall give notice of any resignation and any removal of the Trustee and each appointment of a successor Trustee to all Holders. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office. 


        Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's obligation under Section 7.07 shall continue for the benefit of the retiring
Trustee. 


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SECTION 7.09.    Successor Trustee by Merger, etc.    


        If
the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the
successor corporation or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein,
provided such corporation shall be otherwise qualified and eligible under this Article. 


        If
at the time any such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates shall have the same force and effect as provided anywhere in the Notes or in this Indenture that the certificate of the Trustee shall have. 


SECTION
7.10.    Eligibility; Disqualification.    


        There
shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least
$50.0 million as set forth in its most recent published annual report of condition. 



        This
Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee is subject to TIA §310(b). If at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.10, the Trustee shall resign immediately in the manner and with the effect specified in this
Article 7. 


SECTION
7.11.    Preferential Collection of Claims Against Company.    


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


ARTICLE 8  


 LEGAL DEFEASANCE AND COVENANT DEFEASANCE  


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


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


SECTION
8.02.    Legal Defeasance and Discharge.    


        Upon
the Company's exercise under Section 8.01 of the option applicable to this Section 8.02, the Company and each Guarantor shall, subject to the satisfaction of the
conditions set forth in Section 8.04, be deemed to have been discharged from their respective obligations with respect to all outstanding Notes and the corresponding Guarantee on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.05 and the other
Sections of this Indenture referred to in clauses (a) through (d) below, and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments acknowledging the 


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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(a), and as more fully set forth in such Section,
payments in respect of the principal amount of, premium, if any, and interest on such Notes when such payments are due, 


        (b)   the
Company's obligations with respect to such Notes under Article 2 and Section 4.02, 



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


        (d)   this
Article 8. 




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


SECTION
8.03.    Covenant Defeasance.    



        Upon
the Company's exercise under Section 8.01 of the option applicable to this Section 8.03, the Company and each Guarantor shall, subject to the satisfaction of the
conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15 and 4.16 with respect to
the outstanding Notes and the corresponding Guarantee on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, 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 and subject to the satisfaction of the conditions set forth in Section 8.04, the failure to comply with the terms of Sections 6.01(d), 6.01(e), 6.01(h) and
6.01(i) shall not constitute Events of Default. 


SECTION
8.04.    Conditions to Legal or Covenant Defeasance.    


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



        (a)   the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in United States dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment, in the opinion of a nationally recognized firm of independent public accountants,
to pay the principal amount of, premium and Additional Interest, if any, and interest on the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case
may be, in each case in accordance with the terms of this Indenture and the Notes; 


        (b)   in
the case of an election under Section 8.02, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee 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 



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



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


        (d)   no
Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the incurrence
of Indebtedness all or a portion of the proceeds of which will be used to defease the Notes pursuant to this Article 8 concurrently with such incurrence and the grant of a Lien to secure such
Indebtedness); 


        (e)   such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture (other than a Default or an Event
of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing), the Senior Credit Facility or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; 



        (f)    the
Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders
over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; 


        (g)   the
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating
to the Legal Defeasance or the Covenant Defeasance have been complied with; and 


        (h)   the
Company shall have paid or duly provided for payment of all amounts then due to the Trustee pursuant to Section 7.07. 




        Notwithstanding
the foregoing, the Opinion of Counsel required by clause (b) above with respect to a Legal Defeasance need not be delivered if all Notes not therefor delivered to
the Trustee for cancellation (A) have become due and payable, or (B) will become due and payable on the maturity date or redemption date within one year under arrangements satisfactory
to the Trustee for giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. 



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


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


        The
Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.04 


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or
the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. 


        Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or
non-callable Government Securities held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(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.    Satisfaction and Discharge.    


        This
Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in
this Indenture) as to all outstanding Notes and all Security Interests in the Collateral created by the Security Documents in favor of the Trustee and the Holders of Notes will be released when 



        (1)   either:




        (a)   all
the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for
cancellation; or 


        (b)   all
Notes not theretofore delivered to the Trustee for cancellation have become due and payable, pursuant to an optional redemption notice or otherwise, and the Company
has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable instructions from the Company directing the Trustee to apply such funds
to the payment thereof at maturity or redemption, as the case may be; and 




        (2)   the
Company has paid all other sums payable under this Indenture by the Company. 




        The
Trustee will acknowledge the satisfaction and discharge of this Indenture and the release of the Security Interests in favor of the Holders of the Notes if the Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been
complied with. 


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


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SECTION
8.08.    Reinstatement.    


        If
the Trustee or Paying Agent is unable to apply any United States dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03, 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 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 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. 


SECTION
8.09.    Survival.    


        The
Trustee's rights under this Article 8 shall survive termination of this Indenture. 


ARTICLE 9  


 AMENDMENT, SUPPLEMENT AND WAIVER  


SECTION
9.01.    Without Consent of Holders of Notes.    



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



        (a)   to
cure any ambiguity, defect or inconsistency, so long as such change does not, as evidenced by a Company Board Resolution, adversely affect the rights of any of the
Holders in any material respect; 


        (b)   to
provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of Article 2 (including the related definitions)
in a manner that does not materially adversely affect any Holder; 



        (c)   to
provide for the assumption of the Company's or a Guarantor's obligations to the Holders of the Notes by a successor to the Company or a Guarantor under this Indenture
and the Security Documents pursuant to Article 5; 


        (d)   to
make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any
Holder of the Note; 


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



        (f)    to
provide for the issuance of Notes issued after the Issue Date in accordance with the limitations set forth in this Indenture; 


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


        (h)   to
evidence and provide for the acceptance of appointment under this Indenture of a successor Trustee; 


        (i)    to
add any additional assets as Collateral; 


        (j)    to
release Collateral from the Lien of this Indenture and the Security Documents when permitted or required by the Security Documents or this Indenture; and 


        (k)   to
amend, amend and restate, modify, supplement, terminate or assign the Security Documents in accordance with the provisions of Article 10 of this Indenture. 



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        Upon
the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02, the Trustee shall join with the Company and the Guarantors in the execution of any amended or supplemental Indenture authorized or permitted
by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that affects its own rights, duties or immunities under this Indenture or otherwise. 


SECTION
9.02.    With Consent of Holders of Notes.    


        Except
as provided in this Section 9.02, this Indenture (including Sections 3.09, 4.10 and 4.15), the Guarantees and the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Notes then outstanding voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any,
or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Guarantees or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then outstanding Notes voting as a single class (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of,
the Notes). Section 2.08 shall determine which Notes are considered to be "outstanding" for purposes of this Section 9.02. 


        Upon
the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental Indenture, and upon the filing with
the Trustee of evidence 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 Sections 7.02 and 9.06, the
Trustee shall join with the Company in the execution of such amended or supplemental Indenture unless such amended or supplemental Indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental Indenture. 


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


        After
an amendment, supplement or waiver under this Section becomes effective, the Company shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental Indenture
or waiver. Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate principal amount of the Notes then outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture 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): 



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


        (b)   reduce
the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, on any Note; 


        (c)   reduce
the principal of or change or have the effect of changing the fixed maturity of any Note or alter or waive any of the provisions with respect to the redemption of
the Notes, other than provisions relating to Section 3.09, 4.10 or 4.15; 



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



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


        (f)    make
any change in the provisions of this Indenture relating to the right of each Holder of Notes to receive payments of principal of and interest on such Note on or
after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes to waive Defaults or Events of Default; 


        (g)   after
the Company's obligation to purchase Notes arises thereunder, amend, change or modify in any material respect the obligation of the Company to make and consummate
a Change of Control Offer in the event of a Change of Control or modify any of the provisions or definitions with respect thereto after a Change of Control has occurred; 


        (h)   release
any Guarantor that is a Significant Subsidiary from any of its obligations under its Guarantee or this Indenture otherwise than in accordance with the terms of
this Indenture; or 


        (i)    make
any change in the foregoing amendment and waiver provisions (except to increase any percentage set forth therein). 




SECTION
9.03.    Compliance with Trust Indenture Act.    



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


SECTION
9.04.    Revocation and Effect of Consents.    


        Until
an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder's Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder unless it is of the type
described in the last paragraph of Section 9.02. In case of an amendment or waiver of the type described in the second paragraph of Section 9.02, the amendment or waiver shall bind each
Holder who has consented to it and every subsequent Holder of a Note that evidences the same indebtedness as the Note of the consenting Holder. 


SECTION
9.05.    Notation on or Exchange of Notes.    



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


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


SECTION
9.06.    Trustee to Sign Amendments, etc.    



        The
Trustee shall sign any amended or supplemental Indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental Indenture until the Board of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon, in 


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addition
to the documents required by Section 12.04, an Officers' Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture. 


ARTICLE 10  


 COLLATERAL AND SECURITY DOCUMENTS  


SECTION
10.01.    Collateral and Security Documents.    



        (a)   In
order to secure the due and punctual payment of the Notes, the Company has entered into the Security Agreement and the other Security Documents to create the Second
Priority Liens on the Collateral in accordance with the terms thereof. Pursuant to the provisions of the Security Agreement, the other Security Documents and this Indenture, the rights and remedies of
the Trustee and the Holders of the Notes in the Collateral shall be subordinate and subject to the rights and remedies of the holders of the First Priority Liens in accordance with the terms of the
Security Agreement and the other Security Documents (including any intercreditor agreement) entered into in accordance with Section 10.03(c). In the event of a conflict between the terms of
this Indenture and the Security Documents, the Security Documents shall control. 



        (b)   Each
Holder of a Note, by accepting such Note, agrees to all of the terms and provisions of the Security Agreement and the other Security Documents. Without limiting the
provisions of the immediately preceding sentence, each Holder of a Note, by accepting such Note, acknowledges and agrees that (i) with respect to any Collateral, the Second Priority Liens
constitute junior claims separate and apart from (and of a different class than) those of the senior claims represented by the First Priority Liens and will be subject to the First Priority Liens and
(ii) no payment or other distributions from (or with respect to) any realization upon the Collateral may be made on account of the Second Priority Lien Obligations until all First Priority Lien
Obligations (including, without limitation, all interest that accrues after the commencement of any case, proceeding or action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of the Company or any Guarantor at the rate provided for in the respective documentation for the First Priority Lien Obligations, whether or not a claim for post-petition
interest is allowed in any such case, proceeding or other action) have been paid in full in cash in accordance with the terms thereof. 


        (c)   The
Company shall not, and shall not cause or permit any of the Guarantors to, intentionally grant a Lien on any of its Collateral (other than any Excluded Collateral)
to the Collateral Agent for the benefit of the lenders under the Senior Credit Facility or any other holder of First Priority Liens unless a Second Priority Lien is created in favor of the Collateral
Agent for the benefit of the Trustee (on behalf of the Trustee and the Holders of the Notes) with respect to such property or assets. 




SECTION
10.02.    Application of Proceeds of Collateral.    


        Upon
any realization upon the Collateral, the proceeds thereof shall be applied in accordance with the terms of the Security Documents and the terms hereof. 



SECTION
10.03.    Possession, Use and Release of Collateral.    



        (a)   Subject
to the terms of the Security Documents (including any intercreditor agreement), the Company and the Guarantors will have the right to remain in possession and
retain exclusive control of the Collateral securing the Notes and any Guarantees (other than any cash, securities, obligations and Cash Equivalents constituting part of the Collateral and under the
control of the Collateral Agent in accordance with the provisions of the Security Documents and other than as set forth in the Security Documents), to freely operate the Collateral and to collect,
invest and dispose of any income thereon. 



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        (b)   Each
Holder of a Note, by accepting such Note, acknowledges that (i) the Security Documents (including any intercreditor agreement) shall provide that so long as
any First Priority Lien Obligations (or any commitments or letters of credit in respect thereof) are outstanding, the holders thereof shall have the exclusive right and authority to control at all
times all remedies and other actions related to the Collateral (including dispositions and releases thereof) and to change, waive, modify or vary the Security Documents, provided that any such change,
waiver, modification or variance that materially and adversely affects the rights of the Holders of the Notes (and not the holders of the First Priority Liens in a like or similar manner) will require
the consent of the Trustee (acting at the direction of Holders of a majority of the aggregate principal amount of Notes outstanding) and (ii) the holders of the First Priority Lien Obligations
may (x) direct the Collateral Agent to take actions with respect to the Collateral (including the release of the Collateral and the manner of realization) without the consent of the Holders or
the Trustee and (y) agree to modify the Security Documents, without the consent of the Holders or the Trustee, to secure additional Indebtedness and additional secured creditors so long as such
modifications do not expressly violate the provisions of the Senior Credit Facility or this Indenture. 



        (c)   At
such time as (i) the First Priority Lien Obligations have been paid in full in cash in accordance with the terms thereof, and all commitments and letters of
credit thereunder have been terminated, or (ii) the holders of First Priority Lien Obligations have released their First Priority Liens on all or any portion of the Collateral, the Second
Priority Liens on the Collateral shall also be automatically released to the same extent; provided, however, that (x) in the case of
clause (i) of this sentence, if an Event of Default under this Indenture exists as of the date on which the First Priority Lien Obligations are repaid in full or terminated as described in
clause (i), the Second Priority Liens on the Collateral shall not be released except to the extent the Collateral or any portion thereof was disposed of in order to repay First Priority Lien
Obligations secured by the Collateral, and thereafter, the Trustee (acting at the direction of the Holders of a majority of outstanding principal amount of Notes) shall have the right to direct the
Collateral Agent to foreclose upon the Collateral (but in such event, the Second Priority Liens shall be released when such Event of Default and all other Events of Default under this Indenture cease
to exist), or (y) in the case of clause (ii) of this sentence, if the First Priority Lien Obligations (or any portion thereof) are thereafter secured by assets that would constitute
Collateral, the Notes and any Guarantees shall then be secured by a Second Priority Lien on such Collateral, to the same extent provided pursuant to the Security Documents as then in effect
immediately prior to the release of the Liens on the Collateral. If the Company subsequently incurs obligations under a new Senior Credit Facility or other First Priority Lien Obligations that are
secured by assets of the Company and/or the Guarantors of the type constituting Collateral, then the Notes shall be secured at such time by a Second Priority Lien on the collateral securing such First
Priority Lien Obligations (to the extent such assets are of the type which constitute Collateral) to the same extent and on the terms and conditions of the security documents relating to the new
Senior Credit Facility or such other First Priority Lien Obligations, with the Second Priority Liens held either by the collateral agent under such new Senior Credit Facility or by a collateral agent
designated by the Company to hold the Second Priority Liens for the benefit of the holders of the Second Priority Lien Obligations and subject to an intercreditor agreement that provides the
collateral agent under such Senior Credit Facility and the holders of the First Priority Lien Obligations and the Second Priority Lien Obligations substantially the same intercreditor rights, benefits
and powers as afforded under the Security Documents as originally in effect or as thereafter amended, modified or supplemented. Subject only to the foregoing requirements, the Company shall have the
right to amend, terminate or assign the existing Security Documents as provided in Section 10.16 of the Security Agreement. It is further understood and agreed that any security agreement or
other security documents securing First Priority Lien Obligations may contain such terms and conditions as the Company, the Guarantors and the holders of First Priority Lien Obligations or their
representatives may determine in their sole discretion and the rights of the holders of the Second 



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Priority
Lien Obligations shall be limited to those expressly set forth in this Section 10.03(c). The Trustee shall (and is hereby authorized by the Holders of the Notes to) execute such
documents as may be reasonably requested by the Company to effectuate or confirm the provisions of this Section 10.03(c). 


        (d)   Notwithstanding
the provisions set forth in this Section 10.03, the Company and its Subsidiaries may, without any release or consent by the Collateral Agent or
the Trustee, perform a number of activities in the ordinary course in respect of the Collateral to the extent permitted pursuant to the Security Documents and this Indenture. 




SECTION
10.04.    Opinion of Counsel.    


        So
long as the Security Interests under the Security Documents have not been terminated in accordance with the terms thereof or hereof, the Company shall deliver to the Trustee, so long
as such delivery is required by Section 314(b) of the TIA at least annually, within 30 days of June 1 of each year (commencing with June 1, 2004), an Opinion of Counsel
satisfying the requirements of Section 314(b) of the TIA. 


SECTION
10.05.    Further Assurances.    


        The
Company and each Domestic Subsidiary shall, at its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such lists,
descriptions and designations of its Collateral, warehouse receipts, receipts in the nature of warehouse receipts, bills of lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments and take such further steps relating to the
Collateral and other property or rights covered by the Security Interests, which the Collateral Agent under the Security Documents deems reasonably appropriate or advisable to perfect, preserve or
protect its Security Interest in the Collateral. 


SECTION
10.06.    Trust Indenture Act Requirements.    


        The
release of any Collateral from the Second Priority Lien of any of the Security Documents or the release of, in whole or in part, the Second Priority Liens created by any of the
Security Documents, will not be deemed to impair the Security Interests in contravention of the provisions hereof if and to the extent the Collateral or Second Priority Liens are released pursuant to
the applicable Security Documents and pursuant to the terms hereof. Each of the Holders of the Notes acknowledges that a release of Collateral or Liens strictly in accordance with the terms of the
Security Documents and the terms hereof will not be deemed for any purpose to be an impairment of the Security Documents or otherwise contrary to the terms of this Indenture. So long as any First
Priority Lien Obligations are outstanding, the Company and the Guarantors shall comply with TIA § 314(d) relating to the release of property or securities from the Second Priority Liens
hereof but only to the extent required by the TIA. 


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SECTION 10.07.    Suits to Protect the Collateral.    


        Subject
to the provisions of the Security Documents and any intercreditor agreement, the Trustee shall have the authority to direct the Collateral Agent to institute and to maintain such
suits and proceedings as the Trustee may deem expedient to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to preserve or protect its interests and the interests of the Holders of the Notes in the Collateral (including suits or
proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the Security Interests or be prejudicial to the interests of the Holders of the Notes). 


SECTION
10.08.    Purchaser Protected.    


        The
Trustee may deem expedient to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Security Documents or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect its interests and the interests of the Holders of the Notes in the Collateral (including suits or proceedings to restrain
the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such
enactment, rule or order would impair the Security Interests or be prejudicial to the interests of the Holders of the Notes). 


SECTION
10.09.    Powers Exercisable by Receiver or Trustee.    


        In
case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 10 upon the Company or any Guarantor, as
applicable, with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed
the equivalent of any similar instrument of the Company or any Guarantor, as applicable, or of any officer or officers thereof required by the provisions of this Article 10. 


SECTION
10.10.    Release upon Termination of Company's Obligation.    


        In
the event that the Company's obligations under this Indenture and the Notes have been satisfied and discharged in accordance with the terms hereof and thereof or otherwise defeased in
accordance with the provision of Article 8, the Trustee shall (i) execute and deliver such releases, termination statements and other instruments (in recordable form, where appropriate)
as the Company or any Guarantor, as applicable, may reasonably request to evidence the termination of the Security Interests created by the Security Documents and (ii) not be deemed to hold the
Security Interests for its benefit and the benefit of the Holders of the Notes. 


ARTICLE 11  


 GUARANTEES  


SECTION
11.01.    Guarantee.    



        Subject
to this Article 11, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(a) the principal of, premium, if any, and interest 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 on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee 


79





 



hereunder
or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. 



        The
Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Guarantee shall not be discharged except by complete performance of the obligations contained in
the Notes and this Indenture or pursuant to Section 11.06. 


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


        Each
Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. 


SECTION
11.02.    Ranking of Guarantee.    


        The
Obligations of each Guarantor under its Guarantee pursuant to this Article 11 shall rank pari passu in right of payment with
all existing and future unsubordinated indebtedness of such Guarantor and will be effectively junior to any Indebtedness of such Guarantor that is either (1) secured by a Lien on the Collateral
that is senior or prior to the Second Priority Liens securing the Guarantees, including the First Priority Liens and potentially any Permitted Liens, or (2) secured by assets that are not part
of the Collateral securing the Notes. 


SECTION
11.03.    Limitation on Guarantor Liability.    


        Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor under its Guarantee and this
Article 11 shall be limited to 


80





 



the
maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws (including, without
limitation, all First Priority Lien Obligations of such Guarantor), and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this Article 11, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or
conveyance. 


        SECTION
11.04.    Execution and Delivery of Guarantee.    


        To
evidence its Guarantee set forth in Section 11.01, each Guarantor hereby agrees that a notation of such Guarantee substantially in the form included in  Exhibit E shall be endorsed by an
Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture shall
be executed on behalf of such Guarantor by its President, any Vice President, Secretary or Treasurer. 


        Each
Guarantor hereby agrees that its Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee. 


        If
an Officer whose signature is on this Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Guarantee is endorsed, the
Guarantee shall be valid nevertheless. 



        The
delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the
Guarantors. 


        In
the event that the Company creates or acquires any new Subsidiaries subsequent to the date of this Indenture, if required by Section 4.16, the Company shall cause such
Subsidiaries to execute supplemental indentures to this Indenture and Guarantees in accordance with Section 4.16 and this Article 11, to the extent applicable. 


SECTION
11.05.    Guarantors May Consolidate, etc., on Certain Terms.    



        Each
Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of its Guarantee and this Indenture in connection with any transaction under
Section 4.10) shall not, and the Company shall not cause or permit any Guarantor to, consolidate with or merge with or into any Person (other than the Company or any other Guarantor) unless: 



        (a)   the
entity formed by or surviving any such consolidation or merger (if other than the Guarantor) is a corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia; 


        (b)   such
entity unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, this Indenture, the Registration Rights Agreement and the Guarantee on the terms set forth herein or therein; 


        (c)   immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; 



        (d)   immediately
after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the
Company could satisfy Section 5.01(2); and 


        (e)   such
entity assumes, by documentation reasonably requested by, and executed and delivered to, the Trustee (and otherwise reasonably acceptable to the Collateral Agent),
all obligations of the Guarantor, if any, under the Security Documents. 




        Any
merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor need only comply with clause (d) of this
Section 11.05. 


81





 

        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 Guarantee endorsed upon the Notes and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had
been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the 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 Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Guarantees had been issued at the date of the execution hereof. 



SECTION
11.06.    Releases Following Certain Events.    


        In
the event of a sale or other disposition of all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the capital
stock of any Guarantor, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the
corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be released and relieved of any obligations under its
Guarantee; provided that the Net Cash Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this
Indenture, including without limitation Section 4.10. Upon delivery by the Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the applicable provisions of this Indenture, including without limitation Section 4.10, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations under its Guarantee. 


        Any
Guarantor not released from its obligations under its Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article 11. 


ARTICLE 12  


 MISCELLANEOUS  


SECTION
12.01.    Trust Indenture Act Controls.    


        Prior
to the effectiveness of the Registration Statement, this Indenture shall incorporate and be governed by the provisions of the TIA that are required to be part of and to govern
indentures qualified under the TIA. After the effectiveness of the Registration Statement, this Indenture shall be
subject to the provisions of the TIA that are required to be a part of this Indenture and shall, to the extent applicable, be governed by such provisions. 


SECTION
12.02.    Notices.    


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


        If
to the Company and/or any Guarantor: 




Dayton
Superior Corporation.

7777 Washington Village Drive

Suite 130, Dayton

Ohio 45459





82





 


Facsimile
No.: (937) 428-9115

Attention: General Counsel 


with
copies to: 


Latham &
Watkins

885 Third Avenue, Suite 1000

New York, New York 10022

Facsimile No.: (212) 751-4864

Attention: Kirk A. Davenport, Esq. 


If
to the Trustee: 


The
Bank of New York

101 Barclay Street - 8W

New York, NY 10286

Attention: Corporate Trust Administration

Facsimile No.: (212) 815-5707 





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



        All
notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; 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. 


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


        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, except for notice to the
Trustee, which is deemed given when actually received. 


        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
12.03.    Communication by Holders of Notes with Other Holders of Notes.    


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


SECTION
12.04.    Certificate and Opinion as to Conditions Precedent.    



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



        (a)   an
Officers' Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) 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 



83





 

        (b)   an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) stating that,
in the opinion of such counsel, all such conditions precedent and covenants have been satisfied. 




SECTION
12.05.    Statements Required in Certificate or Opinion.    


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



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


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


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


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




SECTION
12.06.    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
12.07.    No Personal Liability of Directors, Officers, Employees and Stockholders.    


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


SECTION
12.08.    Governing Law.    



        THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 


SECTION
12.09.    No Adverse Interpretation of Other Agreements.    


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


SECTION
12.10.    Successors.    


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


SECTION
12.11.    Severability.    


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


84





 

SECTION
12.12.    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
12.13.    Table of Contents, Headings, etc.    


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



SECTION
12.14.    Designation of the Notes and Waiver under the Indenture Governing the 13% Senior Subordinated Notes due 2009.    



        (a)   For
purposes of the indenture governing the 13% Senior Subordinated Notes due 2009, the Notes are hereby designated by the Company to be "Designated Senior Debt" (as
such term is defined pursuant to Section 1.01 of the indenture governing the 13% Senior Subordinated Notes due 2009). 


        (b)   The
Trustee and each Holder of a Note, by accepting such Note, agree to waive, for the benefit of the lenders under the Senior Credit Facility as third party
beneficiaries (each of whom may enforce the provisions of this Section 12.14(b)), during any period when there shall be any indebtedness outstanding under the Senior Credit Facility, any and
all rights that the Trustee or such Holder may have in respect of being deemed to be a holder of "Designated Senior Debt" under the indenture governing the 13% Senior Subordinated Notes due 2009
(other than those rights which relate to being a holder of "Senior Debt" under the indenture governing the 13% Senior Subordinated Notes due 2009), including, without limitation, the right of a holder
(or a representative thereof) of "Designated Senior Debt" to provide a "Default Notice" pursuant to Section 10.03(a) of the indenture governing the 13% Senior Subordinated Notes due 2009 and
commence a "Blockage Period" (as such term is defined pursuant to Section 10.03(a) of indenture governing the 13% Senior Subordinated Notes due 2009). This
Section 12.14(b) may not be amended, supplemented or waived without the prior written consent of the lenders under the Senior Credit Facility. 



[Signature
pages(s) follow] 


85







  



	Dated as of June 9, 2003	 	 	 	 
	

 	
 	

DAYTON SUPERIOR CORPORATION
	

 	
 	

By:	
 	

/s/  STEPHEN R. MORREY      
 Name: Stephen R. Morrey

Title: President and Chief Executive Officer
	

 	
 	

DUR-O-WAL, INC.
	

 	
 	

By:	
 	

/s/  ALAN MCILROY      
 Name: Alan McIlroy

Title: Vice President and Chief Financial Officer
	

 	
 	

SYMONS CORPORATION
	

 	
 	

By:	
 	

/s/  ALAN MCILROY      
 Name: Alan McIlroy

Title: Vice President and Chief Financial Officer
	

 	
 	

DAYTON SUPERIOR SPECIALTY CHEMICAL CORPORATION
	

 	
 	

By:	
 	

/s/  ALAN MCILROY      
 Name: Alan McIlroy

Title: Vice President and Chief Financial Officer
	

 	
 	

TREVECCA HOLDINGS, INC.
	

 	
 	

By:	
 	

/s/  ALAN MCILROY      
 Name: Alan McIlroy

Title: Vice President and Chief Financial Officer
	

 	
 	

AZTEC CONCRETE ACCESORIES, INC.
	

 	
 	

By:	
 	

/s/  ALAN MCILROY      
 Name: Alan McIlroy

Title: Vice President and Chief Financial Officer
	 	 	 	 	 



86





 

	

 	
 	

SOUTHERN CONSTRUCTION PRODUCTS, INC.
	

 	
 	

By:	
 	

/s/  ALAN MCILROY      
 Name: Alan McIlroy

Title: Vice President and Chief Financial Officer
	

 	
 	

THE BANK OF NEW YORK
	

 	
 	

By:	
 	

/s/  JOSEPH A. LLORET      
 Name: Joseph A. Lloret

Title: Authorized Signatory




87






  



 
 

EXHIBIT A    
    


[FORM
OF GLOBAL NOTE] 


DAYTON
SUPERIOR CORPORATION

103/4% SENIOR SECOND SECURED NOTES DUE 2008 


No. R-1



CUSIP:           

ISIN:            


        DAYTON
SUPERIOR CORPORATION, an Ohio corporation, promises to pay to CEDE & CO. or their registered assigns, the principal sum of
[                        ] Dollars
on September 15, 2008. 


        Interest
Payment Dates: March 15 and September 15, commencing first payment dated September 15, 2003. 


        Record
Dates: March 1 and September 1. 


        Reference
is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place. 


A-2





 

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



	 	 	DAYTON SUPERIOR CORPORATION
	

 	
 	

BY:	

    
 Name:

Title:
	

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

 	

 
	

THE BANK OF NEW YORK, as Trustee	
 	

 	

 
	

 	
 	

 	

 
	By: ________________ Dated: June 9, 2003

         Name:

         Title: Authorized Signatory	 	 	 




A-3






  



 
 
DAYTON SUPERIOR CORPORATION

103/4% Senior Second Secured Notes due 2008  


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


        1.    INTEREST.    Dayton Superior Corporation, an Ohio corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 103/4% per
annum from June 9, 2003 until maturity and shall pay the Additional Interest payable pursuant to Section 2 of the Registration Rights Agreement referred to below.
The Company shall pay interest and Additional Interest semi-annually on March 15 and September 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance; provided that 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 September 15, 2003. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per
annum in excess of the rate then in effect; 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 will be computed on the
basis of a 360-day year of twelve 30-day months. 


        2.    METHOD OF PAYMENT.    The Company will pay interest on the Notes (except defaulted interest) and Additional
Interest to the Persons who are registered Holders of Notes at the close of business on March 1 or September 1 immediately preceding the applicable Interest Payment Date, even if such
Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be
payable as to principal, premium and Additional Interest, if any, and interest at the office or agency of the Company maintained for such purpose within or without the City and State of New York, or,
at the option of the Company, payments of interest and Additional Interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and  provided that payment
by wire transfer of immediately available funds will be required with respect to principal of and interest, premium and Additional
Interest on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. 


        3.    PAYING AGENT AND REGISTRAR.    Initially, The Bank of New York, the Trustee under the Indenture, will act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without 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 9, 2003 (the
"Indenture") among the Company, the Guarantors named therein and the Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). 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 controlling. The Notes are obligations of the Company. 



        5.    SECURITY.    The Company and the Guarantors' obligations under the Notes are secured by Second Priority Liens on
the Collateral pursuant to the terms of the Security Documents. The actions 


A-4





 



of
the Trustee and the Holders of the Notes secured by such Second Priority Liens and the application of proceeds from the enforcement of any remedies with respect to such Collateral are limited
pursuant to the terms of the Security Documents. 


        6.    OPTIONAL REDEMPTION.    


        (a)   Except
as set forth in subparagraph (b) of this Paragraph 6, the Notes will not be redeemable before June 15, 2006. Thereafter, the Company may
redeem the Notes at its option, in whole or in part, upon not less than 30 nor more than 60 days' notice, at the following redemption prices (expressed as percentages of the principal amount
thereof), if redeemed during the twelve-month period commencing on April 15 of the years indicated below: 



	Year
 
	 	Percentage

of Principal

Amount
	 
	2006	 	105.625	%
	2007	 	102.813	%
	2008	 	100.000	%






        In
addition, the Company must pay all accrued and unpaid interest and Additional Interest on the Notes redeemed. 


        (b)   Notwithstanding
the foregoing, prior to March 15, 2006, the Company may on any one or more occasions redeem up to 35% of the principal amount of Notes issued
under the Indenture at a redemption price of 110.750% 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 at least 65% of the aggregate principal amount
of Notes issued under the Indenture remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Company and its Subsidiaries); and  provided further that the
Company makes such redemption not more than 90 days after the consummation of such Equity Offering. 


        (c)   In
addition, at any time prior to June 15, 2006, the Company may redeem the Notes, in whole but not in part, at a redemption price equal to the principal amount
of the Notes plus the Applicable Premium plus accrued and unpaid interest, if any, to the date of redemption upon the occurrence of a Change of Control. Notice of redemption of the Notes upon a Change
of Control will be mailed to Holders of the Notes not more than 30 days following the occurrence of a Change of Control. 



        7.    MANDATORY REDEMPTION.    The Company shall not be required to make mandatory redemption payments with respect to
the Notes. 


        8.    REPURCHASE AT OPTION OF HOLDER.    


        (a)   If
a Change of Control occurs, each Holder will have the right, subject to the terms of the Indenture, to require that the Company purchase all or a portion of such
Holder's Notes pursuant to the offer described in the Indenture (the "Change of Control Offer"), at a purchase price equal to 101% of the principal
amount thereof plus accrued interest to the date of purchase. Within 90 days following the date upon which the Change of Control occurred (or at the Company's option, prior to the occurrence of
such Change of Control), the Company must send, by first-class mail, a notice to each Holder, which notice shall govern the terms of the Change of Control Offer. Such notice shall state, among other
things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed, other than as may be required by law (the
"Change of Control Payment Date") provided that any Change of Control Offer made prior to any date of
such Change of Control shall be made only in the reasonable anticipation of such Change of Control; and provided further, that the Company shall not be
required to purchase any Notes tendered pursuant to such Change of Control Offer if such Change of Control does not occur. 


A-5





 



        (b)   If
the Company or a Restricted Subsidiary consummates any Asset Sale, under certain circumstances the Company is required to commence an offer to all Holders of Notes
(as "Net Proceeds Offer") pursuant to Section 3.09 of the Indenture. The offer price for the Notes (the "Net Proceeds
Offer Amount") will be at a price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date fixed for the closing of such
offer, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer
Amount, the Company (or such Subsidiary) may use such remaining Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by the Indenture. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of Net Proceeds Offer Amount, the Trustee shall select the Notes to be purchased on a pro
rata basis. Holders of Notes that are the subject of an offer to purchase will receive a Net Proceeds Offer from the Company prior to any related purchase date and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes. 


        9.    NOTICE OF REDEMPTION.    Notice of redemption will be mailed, by first-class mail, at least 30 days but
not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for
redemption, unless the Company fails to make such payment. 


        10.    DENOMINATIONS, TRANSFER, EXCHANGE.    The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. 


        11.    PERSONS DEEMED OWNERS.    The registered Holder of a Note may be treated as its owner for all purposes. 


        12.    AMENDMENT, SUPPLEMENT AND WAIVER.    Subject to certain exceptions set forth in the Indenture, the Indenture,
the Guarantees or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding, if any, voting as a single class,
and any existing default or compliance with any provision of the Indenture, the Guarantees or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then
outstanding Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Guarantees, the Notes or the Security Documents may be amended or supplemented, to
cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Company's or Guarantor's
obligations to Holders of the Notes in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture
Act, to provide for the issuance of Notes issued after the Issue Date in accordance with the limitations set forth in the Indenture, to allow any Guarantor to execute a supplemental indenture to the
Indenture and/or a Guarantee with respect to the Notes, to evidence and provide for the acceptance of appointment under the Indenture of a successor Trustee or to add any additional assets as
Collateral or to release Collateral from the Lien of the Indenture and the Security Documents 


A-6





 



when
permitted or required by the Security Documents or the Indenture. Nothing in this Section 12 shall limit the Company's rights under Section 10.03(c) of the Indenture. 


        13.    DEFAULTS AND REMEDIES.    Events of Default include (in summary form): (i) the failure to pay interest
on any Notes when the same becomes due and payable if the default continues for a period of 30 days; (ii) the failure to pay the principal on any Notes when such principal becomes due
and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer on the date
specified for such payment in the applicable offer to purchase), (iii) a default in the observance or performance of any other covenant or agreement contained in the Indenture if the default
continues for a period of 30 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25%
of the outstanding principal amount of the Notes; (iv) the failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary of the Company (other than a Securitization Entity), which failure continues for at least 20 days, or the acceleration of
the final stated maturity of any such Indebtedness, which acceleration remains uncured and unrescinded for at least 20 days, if the aggregate principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness in default for failure to pay principal at final maturity or which has been accelerated, (in each case with respect to which the
20-day period described above has passed) aggregates $7.5 million or more at any time; (v) one or more judgments in an aggregate amount in excess of $7.5 million shall
have been rendered against the Company or any of its Significant Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments
become final and non-appealable; (vi) certain events of bankruptcy affecting the Company or any of its Significant Subsidiaries; (vii) any Guarantee of a Significant
Subsidiary ceases to be in full force and effect or any Guarantee of a Significant Subsidiary is declared to be null and void and unenforceable or any Guarantee of a Significant Subsidiary is found to
be invalid or any Guarantor that is a Significant Subsidiary denies its liability under its Guarantee (other than by reason of release of a Guarantor in accordance with the terms of the Indenture) and
(viii) unless all of the Collateral has been released from the Second Priority Liens in accordance with the provisions hereof or of the Security Documents, default by the Company or any
Significant Subsidiary in the performance of any material provision of the Security Documents which adversely affects the enforceability, validity, perfection or priority of the Second Priority Lien
on a material portion of the Collateral granted to the Collateral Agent for the benefit of the Trustee and the Holders of the Notes, the repudiation or disaffirmation by the Company or any Significant
Subsidiary of its material obligations under the Security Documents or the determination in a judicial proceeding that the Security Documents are unenforceable or invalid against the Company or any
Significant Subsidiary party thereto for any reason with respect to a material portion of the Collateral (which default, repudiation, disaffirmation or determination is not rescinded, stayed, or
waived by the Persons having such authority pursuant to the Security Documents) or otherwise cured within 60 days after the Company receives written notice thereof specifying such occurrence
from the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes and demanding that such default be remedied. 


        If
any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare the principal of and accrued
interest on all the Notes to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy with respect to the Company, all
outstanding Notes will become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture and under the TIA. Subject to
certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a 


A-7





 



majority
in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default in the payment of principal of, premium or additional interest, if any, or interest on the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default. 


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


        15.    NO RECOURSE AGAINST OTHERS.    No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any of the Guarantors, as such, shall have any liability for any obligations of the Company or such Guarantor under the Notes, the Guarantees or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes. 


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


        17.    ABBREVIATIONS.    Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act). 


        18.    ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.    In addition to the
rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration Rights Agreement
dated as of June 9, 2003, among the Company and the parties named on the signature pages thereof. 


        19.    CUSIP NUMBERS.    Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Company
will furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to: 




Dayton
Superior Corporation

7777 Washington Village Drive

Suite 130, Dayton

Ohio 45459

Facsimile No.: (937) 428-9115

Attention: General Counsel 





        20.    DESIGNATED SENIOR DEBT.    For purposes of the indenture governing the 13% Senior Subordinated Notes due 2009,
the Notes are designated by the Company to be "Designated Senior Debt" (as such term is defined in such indenture), but otherwise subject to Section 12.14 of the Indenture. 


A-8







   ASSIGNMENT FORM



	To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
	

    
 (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)
	

 	

 	
 	

Tax Identification No:	

    

	

 	

 	
 	
SIGNATURE GUARANTEE:
	

 	

 	
 	

 	

 	

 
	 	 	 	
 Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.




A-9






  



 
 

OPTION OF HOLDER TO ELECT PURCHASE


        If
you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the box below: 


o Section 4.10                o Section 4.15



        If
you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have
purchased: $                  



	

Date:	

    
	
 	

 	

 	

 
	 	 	 	Your Signature:	    

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

 	

 	
 	

Tax Identification No:	

    

	

 	

 	
 	
SIGNATURE GUARANTEE:
	

 	

 	
 	

 	

 	

 
	 	 	 	
 Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.




A-10







   
        THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT UNDER SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. YOU MAY CONTACT ALAN F. MCILROY, THE CHIEF
FINANCIAL OFFICER OF THE COMPANY, AT 7777 WASHINGTON VILLAGE DRIVE, SUITE 130, DAYTON, OHIO 45459, TELEPHONE NO. (937) 428-6360, WHO WILL PROVIDE YOU WITH ANY REQUIRED INFORMATION
REGARDING THE ORIGINAL ISSUE DISCOUNT. 


        THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR OR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
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 AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR NON U.S. PERSON, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS. 


A-11





 



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


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


A-12







 
 

EXHIBIT B    
    


 
 

FORM OF CERTIFICATE OF TRANSFER    
    


Dayton
Superior Corporation

7777 Washington Village Drive

Suite 130, Dayton

Ohio 45459

Facsimile No.: (937) 428-9115

Attention: General Counsel 


The
Bank of New York

101 Barclay Street - 8W

New York, NY 10286

Facsimile No.: (212) 815-5707

Attention: Corporate Trust Administration 


        Re:    103/4% Senior Second Secured Notes due 2008


        Reference
is hereby made to the Indenture, dated as of June 9, 2003 (the "Indenture"), between Dayton Superior Corporation, as
issuer (the "Company"), the Guarantors named therein and The Bank of New York, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture. 



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


[CHECK
ALL THAT APPLY] 


        1.    o Check if Transferee is a QIB in accordance with
Rule 144A.    The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred
to a Person that the Transferor reasonably 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 Global Note
and/or the Definitive Note and in the Indenture and the Securities Act. 


        2.    o Check if Transferee will take delivery pursuant to
Regulation S.    The Transfer is being effected pursuant to and in accordance with Regulation S 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) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being 





 



made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Global Note and/or the Definitive Note and
in the Indenture and the Securities Act. 


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



        (a)   o
such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act; 




or




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




or 



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




or




        (d)   o
such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144 or Regulation S, and the Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note
or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to
the Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $500,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on
the Global Note and/or the Definitive Notes and in the Indenture and the Securities Act. 




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



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



B-2





 

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



B-3





 

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



	 	 	
 [Insert Name of Transferor]
	

 	
 	

By:	
 	

 
	 	 	 	 	
 Name:

Title:
	Dated:                         ,
        	 	 	 	 




B-4






  



 
 

ANNEX A TO CERTIFICATE OF TRANSFER    



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


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



        (a)   o a
beneficial interest in the Global Note (CUSIP [ ]), or 


        (b)   o a
Restricted Definitive Note. 




2.    After
the Transfer the Transferee will hold: 


[CHECK
ONE] 



        (a)   o a
beneficial interest in the Global Note (CUSIP [ ]); or 


        (b)   o a
Restricted Definitive Note; or 


        (c)   o an
Unrestricted Definitive Note, 



in
accordance with the terms of the Indenture. 




B-5











 
 

EXHIBIT C    
    


 
  FORM OF CERTIFICATE OF EXCHANGE    
    


Dayton
Superior Corporation

7777 Washington Village Drive

Suite 130, Dayton

Ohio 45459

Facsimile No.: (937) 428-9115

Attention: General Counsel 


The
Bank of New York

101 Barclay Street - 8W

New York, NY 10286

Facsimile No.: (212) 815-5707

Attention: Corporate Trust Administration 




Re:    103/4% Senior Second Secured Notes due 2008





(CUSIP
[            ]) 


        Reference
is hereby made to the Indenture, dated as of June 9, 2003(the "Indenture"), between Dayton Superior Corporation, as
issuer (the "Company"), the Guarantors named therein and The Bank of New York, 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 of $                         in such
Note[s] or interests (the "Exchange"). In connection with the Exchange, the Owner hereby certifies that: 


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


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


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


        (c)    o    Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note.    In connection with the Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and 





 



in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. 


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


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


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


        (b)    o    Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note.    In connection with the Exchange of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] [            ] 144A [            ] Global Note,
Regulation S Global Note, [            ] IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation
of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the Securities Act. 


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



	 	 	
 [Insert Name of Transferor]
	

 	
 	

By:	
 	

 
	 	 	 	 	
 Name:

Title:
	Dated:                         ,
        	 	 	 	 




C-2







 
 

EXHIBIT D    
    


 
  FORM OF CERTIFICATE FROM
  ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR    
    


Dayton
Superior Corporation

7777 Washington Village Drive

Suite 130, Dayton

Dayton Ohio 45459

Facsimile No.: (937) 428-9115

Attention: General Counsel 


The
Bank of New York

101 Barclay Street - 8W

New York, NY 10286

Facsimile No.: (212) 815-5707

Attention: Corporate Trust Administration 




Re:    103/4% Senior Second Secured Notes due 2008





        Reference
is hereby made to the Indenture, dated as of June 9, 2003 (the "Indenture"), between Dayton Superior Corporation, as
issuer (the "Company"), the Guarantors named therein and The Bank of New York, 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 a
beneficial interest in a Global Note, or 


        (b)   o a
Definitive Note, 



we
confirm that: 





        1.     We
understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act"). 



        2.     We
understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the 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 Company a signed letter substantially in the form of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of transfer of less than $100,000, an
Opinion of Counsel in form reasonably acceptable to the Company and the Registrar 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. 



        3.     We
understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably require to confirm that the proposed sale 





 



complies
with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect. We further understand that any subsequent transfer by us of
the Notes or beneficial interest therein acquired by us must be effected through one of the Placement Agents. 



        4.     We
are an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment. 


        5.     We
are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion. 



        You
and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. 



	 	 	 	    
 [Insert Name of Accredited Investor]
	

 	

 	
 	

 	

 
	 	 	 	By:	    
 Name:

Title:
	Dated:	                        ,         	 	 	 




D-2







 
 

EXHIBIT E    
    


 
  FORM OF NOTATION OF GUARANTEE    
    


        For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the
extent set forth in the Indenture and subject to the provisions in the Indenture dated as of June 9, 2003 (the "Indenture") among Dayton Superior
Corporation, the Guarantors named therein and The Bank of New York, as trustee (the "Trustee"), (a) the due and punctual payment of the principal
of, premium, if any, and interest on the Notes (as defined in the Indenture), whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue
principal and premium, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders of Notes or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes
and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the
Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to take
such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such Holder
for such purpose. 


[Signature
page follows] 





 


	 	 	DUR-O-WAL, INC.
	

 	
 	

 	

 
	 	 	By:	    
 Name:

Title:
	

 	
 	

 	

 
	 	 	SYMONS CORPORATION
	

 	
 	

 	

 
	 	 	By:	    
 Name:

Title:
	

 	
 	

 	

 
	 	 	DAYTON SUPERIOR SPECIALTY CHEMICAL CORPORATION
	

 	
 	

 	

 
	 	 	By:	    
 Name:

Title:
	

 	
 	

 	

 
	 	 	TREVECCA HOLDINGS, INC.
	

 	
 	

 	

 
	 	 	By:	    
 Name:

Title:



E-2





 

	 	 	AZTEC CONCRETE ACCESORIES, INC.
	

 	
 	

 	

 
	 	 	By:	    
 Name:

Title:
	

 	
 	

 	

 
	 	 	SOUTHERN CONSTRUCTION PRODUCTS, INC.
	

 	
 	

 	

 
	 	 	By:	    
 Name:

Title:




E-3







EXHIBIT F  


 
 

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 Dayton Superior Corporation (or its permitted
successor), an Ohio corporation (the "Company"), the Company, the other Guarantors (as defined in the Indenture referred to herein) and The Bank of New
York, as trustee under the indenture referred to below (the "Trustee"). 


W I T N E S S E T H: 


        WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of June 9, 2003
providing for the issuance of an aggregate principal amount of up to $165.0 million of 103/4% Senior Second Secured Notes due 2008 (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
"Guarantee"); and 


        WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture. 



        NOW
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee
mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: 



        1.    CAPITALIZED TERMS.    Capitalized terms used herein without definition shall have the meanings assigned to them
in the Indenture. 


        2.    AGREEMENT TO GUARANTEE.    The Guaranteeing Subsidiary hereby agrees as follows: 



        (a)   Along
with all Guarantors named in the Indenture, to jointly and severally Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: 



        (i)    the
principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and 


        (ii)   in
case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by 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. 




        (b)   The
obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce 







 


the
same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. 



        (c)   The
following is hereby waived: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all demands whatsoever. 


        (d)   This
Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture or pursuant to Section 6 hereof. 


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


        (f)    The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. 


        (g)   As
between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. 


        (h)   The
Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee. 


        (i)    Pursuant
to Section 11.03 of the Indenture, after giving effect to any maximum amount and any other contingent and fixed liabilities that are relevant under any
applicable Bankruptcy or fraudulent conveyance laws (including, without limitation, all First Priority Lien Obligations of such Guarantor), and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 11 of the Indenture shall result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance. 




        3.    RANKING.    The Guarantee will be pari passu in right of payment
with all existing and future unsubordinated indebtedness of the Guarantor and will be effectively junior to any debt of any Guarantor that is either (i) secured by a Lien on the Collateral that
is senior or prior to the Second Priority Liens securing the Guarantee, including the First Priority Liens and potentially any Permitted Liens, or (ii) secured by assets that are not part of
the Collateral securing the Notes. 


        4.    EXECUTION AND DELIVERY.    Each Guaranteeing Subsidiary agrees that the Guarantees shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. 



F-2





 




        5.    Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.    



        (a)   The
Guaranteeing Subsidiary may not consolidate with or merge with or into another corporation, Person or entity (other than the Company or any other Guarantor) unless: 



        (i)    the
entity formed by or surviving any such consolidation or merger (if other than the Guarantor) is a corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia; 


        (ii)   such
entity unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture, the Registration Rights Agreement and the Guarantee on the terms set forth herein or therein; 


        (iii)  immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; 


        (iv)  immediately
after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the
Company could satisfy Section 5.01(2) of the Indenture; and 


        (v)   such
entity assumes, by documentation reasonably requested by, and executed and delivered to, the Trustee (and otherwise reasonably acceptable to the Collateral Agent),
all obligations of the Guarantor, if any, under the Security Documents. 




        (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 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 the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had
been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the 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 Guarantees so issued shall in all respects have the same legal rank and benefit under the Indenture as the Guarantees
theretofore and thereafter issued in accordance with the terms of the Indenture as though all of such Guarantees had been issued at the date of the execution hereof. 



        (c)   Any
merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor need only comply with
Section 11.05(d) of the Indenture. 




        6.    RELEASES.    In the event of a sale or other disposition of all of the assets of any Guarantor, by way of
merger, consolidation or otherwise, or a sale or other disposition of all to the capital stock of any Guarantor, then such Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) will be released and relieved of any obligations under its Guarantee; provided that the Net Cash Proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of the Indenture, including without limitation Section 4.10 of the Indenture. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the applicable provisions of the Indenture,
including without limitation Section 4.10 of the Indenture, the Trustee shall execute any documents 



F-3





 

reasonably
required in order to evidence the release of any Guarantor from its obligations under its Guarantee. 




        Any
Guarantor not released from its obligations under its Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any
Guarantor under the Indenture as provided in Article 11 of the Indenture. 



        7.    NO RECOURSE AGAINST OTHERS.    No past, present or future director, officer, employee, incorporator, stockholder
or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of
the SEC that such a waiver is against public policy. 


        8.    NEW YORK LAW TO GOVERN.    THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 


        9.    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. 


        10.    EFFECT OF HEADINGS.    The Section headings herein are for convenience only and shall not affect the
construction hereof. 


        11.    THE TRUSTEE.    The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity
or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company. 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:
	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee
	 	 	 	 	 
	 	 	By:	 	 
	 	 	 	 	

	 	 	 	 	Name:

Title:




F-4







 
 

Schedule I    
    


 
  SCHEDULE OF GUARANTORS    



        The
following schedule lists each Guarantor under the Indenture as of the Issue Date: 



Dur-O-Wal, Inc.,
a Delaware corporation 


Symons
Corporation, a Delaware corporation 


Dayton
Superior Specialty Chemical Corporation, a Kansas corporation 


Trevecca
Holdings Inc., a Delaware corporation 


Aztec
Concrete Accessories, Inc., a California corporation 


Southern
Construction Products, Inc., an Alabama corporation 










QuickLinks



Exhibit 4.1



CROSS-REFERENCE TABLE


TABLE OF CONTENTS



EXHIBIT A



DAYTON SUPERIOR CORPORATION 10 3/4% Senior Second Secured Notes due 2008


OPTION OF HOLDER TO ELECT PURCHASE



EXHIBIT B


FORM OF CERTIFICATE OF TRANSFER



ANNEX A TO CERTIFICATE OF TRANSFER



EXHIBIT C


FORM OF CERTIFICATE OF EXCHANGE




EXHIBIT D


FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




EXHIBIT E


FORM OF NOTATION OF GUARANTEE



FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS



Schedule I


SCHEDULE OF GUARANTORS