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Exhibit 4.10    
    


EXECUTION COPY  






 

Thermadyne Holdings Corporation

Issuer  


91/4% Senior Subordinated Notes Due 2014  


The Subsidiary Guarantors named herein  




INDENTURE

  

Dated as of February 5, 2004  




U.S Bank National Association

Trustee  







 





CROSS-REFERENCE TABLE*\  



	TIA 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)	 	7.08; 7.10
	 	(c)	 	N.A.
	311	(a)	 	7.11
	 	(b)	 	7.11
	 	(c)	 	N.A.
	312	(a)	 	2.05
	 	(b)	 	13.03
	 	(c)	 	13.03
	313	(a)	 	7.06
	 	(b)(1)	 	N.A.
	 	(b)(2)	 	7.06
	 	(c)	 	13.02
	 	(d)	 	7.06
	314	(a)	 	4.02; 4.12; 13.02
	 	(b)	 	N.A.
	 	(c)(1)	 	13.04
	 	(c)(2)	 	13.04
	 	(c)(3)	 	N.A.
	 	(d)	 	N.A.
	 	(e)	 	13.05
	 	(f)	 	N.A.
	315	(a)	 	7.01
	 	(b)	 	7.05; 13.02
	 	(c)	 	7.01
	 	(d)	 	7.01
	 	(e)	 	6.11
	316	(a)(last sentence)	 	13.06
	 	(a)(1)(A)	 	6.05
	 	(a)(1)(B)	 	6.04
	 	(a)(2)	 	N.A.
	 	(b)	 	6.07
	 	(c)	 	9.04
	317	(a)(1)	 	6.08
	 	(a)(2)	 	6.09
	 	(b)	 	2.04
	318	(a)	 	13.01
	 	(b)	 	N.A.
	 	(c)	 	N.A.
	N.A. means Not Applicable.







Note:
This Cross-Reference Table shall not, for any purpose, be deemed to be part of the Indenture. 






  



 
 

TABLE OF CONTENTS    
    



	 
	 	 
	 	Page

	

Article 1

Definitions and Incorporation by Reference
	

SECTION 1.01	
 	

Definitions	
 	

1
	SECTION 1.02	 	Other Definitions	 	33
	SECTION 1.03	 	Incorporation by Reference of Trust Indenture Act	 	34
	SECTION 1.04	 	Rules of Construction	 	34
	

Article 2

The Securities
	

SECTION 2.01	
 	

Form and Dating	
 	

35
	SECTION 2.02	 	Execution and Authentication	 	36
	SECTION 2.03	 	Registrar and Paying Agent	 	36
	SECTION 2.04	 	Paying Agent To Hold Money in Trust	 	37
	SECTION 2.05	 	Securityholder Lists	 	37
	SECTION 2.06	 	Transfer and Exchange	 	38
	SECTION 2.07	 	Replacement Securities	 	38
	SECTION 2.08	 	Outstanding Securities	 	38
	SECTION 2.09	 	Temporary Securities	 	39
	SECTION 2.10	 	Cancellation	 	39
	SECTION 2.11	 	Defaulted Interest	 	40
	SECTION 2.12	 	CUSIP Numbers	 	40
	SECTION 2.13	 	Issuance of Additional Securities	 	40
	

Article 3

Redemption
	

SECTION 3.01	
 	

Notices to Trustee	
 	

41
	SECTION 3.02	 	Selection of Securities to Be Redeemed	 	41
	SECTION 3.03	 	Notice of Redemption	 	42
	SECTION 3.04	 	Effect of Notice of Redemption	 	42
	SECTION 3.05	 	Deposit of Redemption Price	 	43
	SECTION 3.06	 	Securities Redeemed in Part	 	43
	

Article 4

Covenants
	

SECTION 4.01	
 	

Payment of Securities	
 	

43
	SECTION 4.02	 	SEC Reports	 	44
	SECTION 4.03	 	Limitation on Indebtedness	 	45
	SECTION 4.04	 	Limitation on Restricted Payments	 	49
	SECTION 4.05	 	Limitation on Restrictions on Distributions from Restricted Subsidiaries	 	53
	SECTION 4.06	 	Limitation on Sales of Assets and Subsidiary Stock	 	56
	SECTION 4.07	 	Limitation on Affiliate Transactions	 	61
	SECTION 4.08	 	Limitation on Line of Business	 	63
	SECTION 4.09	 	Limitation on the Sale or Issuance of Common Stock of Certain Wholly Owned Subsidiaries	 	63
	SECTION 4.10	 	Change of Control	 	64
	SECTION 4.11	 	Future Guarantors	 	66
	SECTION 4.12	 	Compliance Certificate	 	66
	SECTION 4.13	 	Further Instruments and Acts	 	67





i





 


	

Article 5

Successor Company
	

SECTION 5.01.	
 	

When Company May Merge or Transfer Assets	
 	

67
	

Article 6

Defaults and Remedies
	

SECTION 6.01.	
 	

Events of Default	
 	

69
	SECTION 6.02.	 	Acceleration	 	72
	SECTION 6.03.	 	Other Remedies	 	72
	SECTION 6.04.	 	Waiver of Past Defaults	 	73
	SECTION 6.05.	 	Control by Majority	 	73
	SECTION 6.06.	 	Limitation on Suits	 	73
	SECTION 6.07.	 	Rights of Holders to Receive Payment	 	74
	SECTION 6.08.	 	Collection Suit by Trustee	 	74
	SECTION 6.09.	 	Trustee May File Proofs of Claim	 	74
	SECTION 6.10	 	Priorities	 	75
	SECTION 6.11.	 	Undertaking for Costs	 	75
	SECTION 6.12.	 	Waiver of Stay or Extension Laws	 	76
	

Article 7

Trustee
	

SECTION 7.01.	
 	

Duties of Trustee	
 	

76
	SECTION 7.02	 	Rights of Trustee	 	78
	SECTION 7.03	 	Individual Rights of Trustee	 	79
	SECTION 7.04	 	Trustee's Disclaimer	 	79
	SECTION 7.05	 	Notice of Defaults	 	79
	SECTION 7.06	 	Reports by Trustee to Holders	 	79
	SECTION 7.07	 	Compensation and Indemnity	 	80
	SECTION 7.08	 	Replacement of Trustee	 	81
	SECTION 7.09	 	Successor Trustee by Merger	 	82
	SECTION 7.10	 	Eligibility; Disqualification	 	82
	SECTION 7.11	 	Preferential Collection of Claims Against Company	 	82
	

Article 8

Discharge of Indenture; Defeasance
	

SECTION 8.01	
 	

Discharge of Liability on Securities; Defeasance	
 	

83
	SECTION 8.02	 	Conditions to Defeasance	 	84
	SECTION 8.03	 	Application of Trust Money	 	86
	SECTION 8.04	 	Repayment to Company	 	86
	SECTION 8.05	 	Indemnity for Government Obligations	 	86
	SECTION 8.06	 	Reinstatement	 	86
	

Article 9

Amendments
	

SECTION 9.01	
 	

Without Consent of Holders	
 	

87
	SECTION 9.02	 	With Consent of Holders	 	88
	SECTION 9.03	 	Compliance with Trust Indenture Act	 	89
	SECTION 9.04	 	Revocation and Effect of Consents and Waivers	 	89
	SECTION 9.05	 	Notation on or Exchange of Securities	 	90
	SECTION 9.06	 	Trustee To Sign Amendments	 	90
	SECTION 9.07	 	Payment for Consent	 	91



ii





 

	

Article 10

Subordination
	

SECTION 10.01.	
 	

Agreement To Subordinate	
 	

91
	SECTION 10.02.	 	Liquidation, Dissolution, Bankruptcy	 	91
	SECTION 10.03.	 	Default on Senior Indebtedness of the Company	 	92
	SECTION 10.04.	 	Acceleration of Payment of Securities	 	93
	SECTION 10.05.	 	When Distribution Must Be Paid Over	 	94
	SECTION 10.06.	 	Subrogation	 	94
	SECTION 10.07.	 	Relative Rights	 	94
	SECTION 10.08.	 	Subordination May Not Be Impaired by Company	 	94
	SECTION 10.09.	 	Rights of Trustee and Paying Agent	 	95
	SECTION 10.10.	 	Distribution or Notice to Representative	 	95
	SECTION 10.11.	 	Article 10 Not To Prevent Events of Default or Limit Right To Accelerate	 	95
	SECTION 10.12.	 	Trust Moneys Not Subordinated	 	95
	SECTION 10.13.	 	Trustee Entitled To Rely	 	96
	SECTION 10.14.	 	Trustee To Effectuate Subordination	 	96
	SECTION 10.15.	 	Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company	 	97
	SECTION 10.16.	 	Reliance by Holders of Senior Indebtedness of the Company on Subordination Provisions	 	97
	

Article 11

Subsidiary Guaranties
	

SECTION 11.01.	
 	

Subsidiary Guaranties	
 	

97
	SECTION 11.02.	 	Limitation on Liability	 	100
	SECTION 11.03.	 	Successors and Assigns	 	100
	SECTION 11.04.	 	No Waiver	 	100
	SECTION 11.05.	 	Modification	 	101
	SECTION 11.06.	 	Release of Subsidiary Guarantor	 	101
	SECTION 11.07.	 	Contribution	 	102
	

Article 12

Subordination of Subsidiary Guaranties
	

SECTION 12.01.	
 	

Agreement To Subordinate	
 	

102
	SECTION 12.02.	 	Liquidation, Dissolution, Bankruptcy	 	102
	SECTION 12.03.	 	Default on Senior Indebtedness of Subsidiary Guarantor	 	103
	SECTION 12.04.	 	Demand for Payment	 	105
	SECTION 12.05.	 	When Distribution Must Be Paid Over	 	105
	SECTION 12.06.	 	Subrogation	 	105
	SECTION 12.07.	 	Relative Rights	 	105
	SECTION 12.08.	 	Subordination May Not Be Impaired by Company	 	105
	SECTION 12.09.	 	Rights of Trustee and Paying Agent	 	106
	SECTION 12.10.	 	Distribution or Notice to Representative	 	106
	SECTION 12.11.	 	Article 12 Not To Prevent Events of Default or Limit Right To Demand Payment	 	106
	SECTION 12.12.	 	Trustee Entitled To Rely	 	107
	SECTION 12.13.	 	Trustee To Effectuate Subordination	 	107
	SECTION 12.14.	 	Trustee Not Fiduciary for Holders of Senior Indebtedness of Subsidiary Guarantor	 	108
	SECTION 12.15	 	Reliance by Holders of Senior Indebtedness of Subsidiary Guarantors on Subordination Provisions	 	108
	 	 	 	 	 





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Article 13

Miscellaneous
	

SECTION 13.01.	
 	

Trust Indenture Act Controls	
 	

108
	SECTION 13.02.	 	Notices	 	108
	SECTION 13.03.	 	Communication by Holders with Other Holders	 	109
	SECTION 13.04.	 	Certificate and Opinion as to Conditions Precedent	 	109
	SECTION 13.05.	 	Statements Required in Certificate or Opinion	 	110
	SECTION 13.06.	 	When Securities Disregarded	 	110
	SECTION 13.07.	 	Rules by Trustee, Paying Agent and Registrar	 	111
	SECTION 13.08.	 	Legal Holidays	 	111
	SECTION 13.09.	 	Governing Law	 	111
	SECTION 13.10.	 	No Recourse Against Others	 	111
	SECTION 13.11.	 	Successors	 	111
	SECTION 13.12.	 	Multiple Originals	 	111
	SECTION 13.13.	 	Table of Contents; Headings	 	111





Rule 144A/Regulation S
Appendix 


Exhibit 1—Form
of Initial Security 


Exhibit A—Form
of Exchange Security or Private Exchange Security 


iv









        INDENTURE
dated as of February 5, 2004, among THERMADYNE HOLDINGS CORPORATION, a Delaware corporation (the "Company"), the SUBSIDIARY GUARANTORS named herein and U.S. BANK
NATIONAL ASSOCIATION, a national banking association (the "Trustee"). 




        Each
party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Company's Initial Securities, Exchange Securities and
Private Exchange Securities (collectively, the "Securities"): 


Article 1

 
  Definitions and Incorporation by Reference


        SECTION
1.01    Definitions. 


        "Additional
Assets" means (1) any property, plant or equipment used in a Related Business; (2) the Capital Stock of a Person that becomes a Restricted Subsidiary as a
result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or (3) Capital Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary; provided, however, that any such Restricted Subsidiary described in clause (2) or (3) above is primarily engaged in
a Related Business. 


        "Additional
Securities" means, subject to the Company's compliance with Section 4.03, 91/4% Senior Subordinated Notes Due 2014 issued from time to time after the
Issue Date under the terms of this Indenture (other than pursuant to Section 2.06, 2.07, 2.09 or 3.06 of this Indenture and other than Exchange Securities or Private Exchange Securities issued
pursuant to an exchange offer for other Securities outstanding under this Indenture). 



        "Adjusted
Treasury Rate" means, with respect to any redemption date, (i) the yield, under the heading which represents the average for the immediately preceding week, appearing in
the most recently published statistical release designated "H.15(519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities", for the maturity corresponding to the Comparable
Treasury Issue (if no maturity is within three months before or after February 1, 2009, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall
be determined and the Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if such release (or any
successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date, in each case calculated on the third Business Day immediately preceding the redemption date, plus
0.50%. 


        "Affiliate"
of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. For purposes of Sections 4.04, 4.06 and 4.07 only,
"Affiliate" shall also mean any beneficial owner of Capital Stock representing 10% or more of the total voting power of the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Capital Stock (whether or not currently exercisable) and any Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence hereof. 



        "Applicable
Premium" means with respect to a Security at any redemption date, the greater of (1) 1.00% of the principal amount of such Security at such time and (2) the
excess of (A) the present value at such time of (i) the redemption price of such Security on February 1, 2009 (such redemption price being described in the fourth paragraph of
section 5 of the Securities, exclusive of any accrued interest) plus (ii) all required remaining scheduled interest payments due on such Security through February 1, 2009 (but
excluding accrued and unpaid interest to the redemption date), computed using a discount rate equal to the Adjusted Treasury Rate, over (B) the principal amount of such Security on such
redemption date. 


        "Asset
Disposition" means any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or dispositions) by the Company or any Restricted Subsidiary,
including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a "disposition"), of 





 



        (1)   any
shares of Capital Stock of a Restricted Subsidiary (other than directors' qualifying shares or shares required by applicable law to be held by a Person other than
the Company or a Restricted Subsidiary); 


        (2)   all
or substantially all the assets of any division or line of business of the Company or any Restricted Subsidiary; or 


        (3)   any
other assets of the Company or any Restricted Subsidiary outside of the ordinary course of business of the Company or such Restricted Subsidiary 




(other
than, in the case of clauses (1), (2) and (3) above, (A) a disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Wholly
Owned Subsidiary, (B) for purposes of
Section 4.06 only, (i) a disposition that constitutes a Restricted Payment (or would constitute a Restricted Payment but for the exclusions from the definition thereof) and that is not
prohibited by Section 4.04 and (ii) a disposition of all or substantially all the assets of the Company in accordance with Section 5.01, (C) a disposition of obsolete or
damaged equipment or property, (D) a disposition of assets with a fair market value of less than $1 million, (E) a disposition of cash or Temporary Cash Investments,
(F) the creation of a Lien (but not the sale of other disposition of the property subject to such Lien), and (G) a disposition of assets with a fair market value not to exceed
$2 million pursuant to a single transaction consummated on or prior to the nine-month anniversary of the Issue Date). 


        "Attributable
Debt" in respect of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted at the interest rate borne by the Securities,
compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such
lease has been extended); provided, however, that if such Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of Indebtedness
represented thereby will be determined in accordance with the definition of "Capital Lease Obligation". 


        "Average
Life" means, as of the date of determination, with respect to any Indebtedness, the quotient obtained by dividing (1) the sum of the products of the numbers of years from
the date of determination to the dates of each successive scheduled principal payment of or redemption or similar payment with respect to such Indebtedness multiplied by the amount of such payment by
(2) the sum of all such payments. 


        "Bank
Indebtedness" means all Obligations pursuant to the Credit Agreement. 


        "Board
of Directors" means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of such Board. 


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


        "Capital
Expenditure Indebtedness" means Indebtedness Incurred by any Person to finance the purchase, lease, construction or improvement of property or equipment so long as such
Indebtedness is Incurred at the time of, or within 180 days of, such purchase, lease, construction or improvement. 



        "Capital
Lease Obligation" means an obligation that is required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with GAAP, and the
amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. 


        "Capital
Stock" of any Person means any and all shares, interests (including partnership interests), rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity. 


        "Change
of Control" means the occurrence of any of the following events: 



        (1)   any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1) such person shall be deemed to have "beneficial ownership" of
all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of the Company; provided, however, that the Permitted Holders beneficially own (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, in the 



2





 

aggregate
a lesser percentage of the total voting power of the Voting Stock of the Company than such other person and do not have the right or ability by voting power, contract or otherwise to elect
or designate for election a majority of the Board of Directors (for the purposes of this clause (1), such other person shall be deemed to beneficially own such Voting Stock of a specified
person held by a parent entity, if such other person is the beneficial owner (as defined in this clause (1)) directly or indirectly, of more than 35% of the voting power of the Voting Stock of
such parent entity and the Permitted Holders beneficially own (as defined in this proviso), directly or indirectly, in the aggregate a lesser percentage of the voting power of the Voting Stock of such
parent entity and do not have the right or ability by voting power, contract or otherwise to elect or designate for election a majority of the board of directors of such parent entity); 



        (2)   individuals
who on the Issue Date constituted the Board of Directors (together with any new directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a vote of 50% of the directors of the Company then still in office who were either directors on the Issue Date or whose election or
nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office; 


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



        (4)   the
merger or consolidation of the Company with or into another Person or the merger of another Person with or into the Company, or the sale of all or substantially all
the assets of the Company (determined on a consolidated basis) to another Person other than (A) a transaction in which the survivor or transferee is a Person that is controlled by the Permitted
Holders or (B) a transaction following which (i) in the case of a merger or consolidation transaction, holders of securities that represented 100% of the Voting Stock of the Company
immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority
of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction and (ii) in the case of a sale of assets
transaction, each transferee becomes an obligor in respect of the Securities and a Subsidiary of the transferor of such assets. 




        "Code"
means the Internal Revenue Code of 1986, as amended. 


        "Common
Stock" of any Person means any and all shares, interests (including partnership interests), rights to purchase, warrants, options, participations or other equivalents or
interests in (however designated) equity of such Person, excluding any Preferred Stock and any debt securities convertible into such equity. 



        "Company"
means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the Securities. 


        "Comparable
Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Securities from the
redemption date to February 1, 2009, that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of
a maturity most nearly equal to February 1, 2009. 


        "Comparable
Treasury Price" means, with respect to any redemption date, if clause (ii) of the Adjusted Treasury Rate is applicable, the average of three, or such lesser number as
is obtained by the Trustee, Reference Treasury Dealer Quotations for such redemption date. 


        "Consolidated
Coverage Ratio" as of any date of determination means the ratio of 



        (1)   the
aggregate amount of EBITDA for the period of the most recent four consecutive fiscal quarters ending at least 45 days prior to the date of such determination
to 


        (2)   Consolidated
Interest Expense for such four fiscal quarters; 




provided, however, that 



        (A)  if
the Company or any Restricted Subsidiary has Incurred any Indebtedness since the beginning of such period that remains outstanding or if the transaction giving rise
to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on
a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period, 



3





 

        (B)  if
the Company or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise discharged any Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid, repurchased, defeased or otherwise discharged (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) on the date of the transaction giving rise to the need to calculate the Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense for such
period shall be calculated on a pro forma basis as if such discharge had occurred on the first day of such period and as if the Company or such
Restricted Subsidiary has not earned the interest income actually earned during such period in respect of cash or Temporary Cash Investments used to repay, repurchase, defease or otherwise discharge
such Indebtedness, 


        (C)  if
since the beginning of such period the Company or any Restricted Subsidiary shall have made any Asset Disposition, EBITDA for such period shall be reduced by an
amount equal to EBITDA (if positive) directly attributable to the assets which are the subject of such Asset Disposition for such period, or increased by an amount equal to EBITDA (if negative),
directly attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with respect to the Company and its continuing Restricted Subsidiaries in connection with
such Asset Disposition for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period directly attributable to the Indebtedness of
such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such sale), 


        (D)  if
since the beginning of such period the Company or any Restricted Subsidiary (by merger or otherwise) shall have made an Investment in any Restricted Subsidiary (or
any Person which becomes a Restricted Subsidiary) or an acquisition of assets, including any acquisition of assets occurring in connection with a transaction requiring a calculation to be made
hereunder, which constitutes all or substantially all of an operating unit of a business, EBITDA and Consolidated Interest Expense for such period shall be calculated after giving  pro forma effect
thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period,
and 


        (E)  if
since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset Disposition, any Investment or acquisition of assets that would have required an adjustment pursuant to clause (C) or
(D) above if made by the Company or a Restricted Subsidiary during such period, EBITDA and Consolidated Interest Expense for such period shall be calculated after giving  pro forma effect thereto as
if such Asset Disposition, Investment or acquisition occurred on the first day of such period. 




For
purposes of this definition, whenever pro forma effect is to be given to an acquisition of assets, the amount of income or earnings relating thereto
and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred in connection therewith, the pro forma calculations shall be
determined in good faith by a responsible financial or accounting Officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period
(taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of 12 months). 



If
any Indebtedness is Incurred under a revolving credit facility and is being given pro forma effect, the interest on such Indebtedness shall be
calculated based on the average daily balance of such Indebtedness for the four fiscal quarters subject to the pro forma calculation to the extent that
such Indebtedness was incurred solely for working capital purposes. 


        "Consolidated
Interest Expense" means, for any period, the total interest expense of the Company and its consolidated Restricted Subsidiaries, plus, to the extent not included in such
total interest expense, and to the extent incurred by the Company or its Restricted Subsidiaries, without duplication, 



        (1)   interest
expense attributable to Capital Lease Obligations; 


        (2)   amortization
of debt discount and debt issuance cost; 


        (3)   capitalized
interest; 



4





 




        (4)   non-cash
interest expense; 


        (5)   commissions,
discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing; 


        (6)   net
payments pursuant to Hedging Obligations; 


        (7)   dividends
accrued in respect of all Preferred Stock held by Persons other than the Company or a Wholly Owned Subsidiary (other than dividends payable solely in Capital
Stock (other than Disqualified Stock) of the Company); provided, however, that such dividends will be multiplied by a fraction, the numerator of which
is one and the denominator of which is one minus the effective combined tax rate of the issuer of such Preferred Stock (expressed as a decimal) for such period (as estimated by the chief financial
officer of the Company in good faith); 


        (8)   interest
incurred in connection with Investments in discontinued operations; 


        (9)   interest
accruing on any Indebtedness of any other Person to the extent such Indebtedness is Guaranteed by (or secured by the assets of) the Company or any Restricted
Subsidiary; and 


        (10) the
cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to
any Person (other than the Company) in connection with Indebtedness Incurred by such plan or trust. 




        "Consolidated
Net Income" means, for any period, the net income of the Company and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income: 



        (1)   any
net income of any Person (other than the Company) if such Person is not a Restricted Subsidiary, except that 



        (A)  subject
to the exclusion contained in clause (4) below, the Company's equity in the net income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid to a Restricted Subsidiary, to the limitations contained in clause (3) below); and 



        (B)  the
Company's equity in a net loss of any such Person for such period shall be included in determining such Consolidated Net Income; 




        (2)   any
net income (or loss) of any Person acquired by the Company or a Subsidiary in a pooling of interests transaction (or any transaction accounted for in a manner
similar to a pooling of interests) for any period prior to the date of such acquisition; 


        (3)   any
net income of any Restricted Subsidiary if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the Company, except that 



        (A)  subject
to the exclusion contained in clause (4) below, the Company's equity in the net income of any such Restricted Subsidiary for such period shall be included
in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as
a dividend or other distribution (subject, in the case of a dividend or other distribution paid to another Restricted Subsidiary, to the limitation contained in this clause); and 



        (B)  the
Company's equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining such Consolidated Net Income; 




        (4)   any
gain (or loss) realized upon the sale or other disposition of any assets of the Company, its consolidated Subsidiaries or any other Person (including pursuant to any
sale-and-leaseback arrangement) which is not sold or otherwise disposed of in the ordinary course of business and any gain (or loss) realized upon the sale or other disposition
of any Capital Stock of any Person; 


        (5)   extraordinary
gains or losses; 


        (6)   the
cumulative effect of a change in accounting principles; and 



5





 




        (7)   reorganization
items and the gain from reorganization and adoption of fresh-start accounting relating to the plan of reorganization approved by the U.S. Bankruptcy Court
on April 3, 2003; 




in
each case, for such period. Notwithstanding the foregoing, for the purpose of Section 4.04 only, there shall be excluded from Consolidated Net Income any repurchases, repayments or
redemptions of Investments, proceeds realized on the sale of Investments or return of capital to the Company or a Restricted Subsidiary to the extent such repurchases, repayments, redemptions,
proceeds or returns increase the amount of Restricted Payments permitted under such Section pursuant to Section 4.04(a)(3)(D). 


        "Credit
Agreement" means the Amended and Restated Credit Agreement, dated on or about the Issue Date, by and among, the Company, certain of its Subsidiaries, the lenders referred to
therein, General Electric Capital Corporation, as Agent and Lender, and GECC Capital Market Groups, Inc., as Lead Arranger, together with the related documents thereto (including the term loans
and revolving loans thereunder, any guarantees and security documents), as amended, extended, renewed, restated, supplemented or otherwise modified (in whole or in part, and without limitation as to
amount, terms, conditions, covenants and other provisions) from time to time, and any agreement (and related document) governing Indebtedness incurred to Refinance, in whole or in part, the borrowings
and commitments then outstanding or permitted to be outstanding under such Credit Agreement or a successor Credit Agreement. 


        "Currency
Agreement" means any foreign exchange contract, currency swap agreement or other similar agreement with respect to currency values. 


        "Default"
means any event which is, or after notice or passage of time or both would be, an Event of Default. 


        "Designated
Senior Indebtedness" with respect to a Person, means (1) the Bank Indebtedness and (2) any other Senior Indebtedness of such Person which, at the date of
determination, has an aggregate principal amount outstanding of, or under which, at the date of determination, the holders thereof are committed to lend up to, at least $25 million and is
specifically designated by such Person in the instrument evidencing or governing such Senior Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture. 



        "Disqualified
Stock" means, with respect to any Person, 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) or upon the happening of any event: 



        (1)   matures
or is mandatorily redeemable (other than redeemable only for Capital Stock of such Person which is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise; 


        (2)   is
convertible or exchangeable at the option of the holder for Indebtedness or Disqualified Stock; or 


        (3)   is
mandatorily redeemable or must be purchased upon the occurrence of certain events or otherwise, in whole or in part, 




in
each case on or prior to the 91st day after the Stated Maturity of the Securities; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to purchase or redeem such Capital Stock upon the occurrence of an "asset sale" or
"change of control" occurring prior to the 91st day after the Stated Maturity of the Securities shall not constitute Disqualified Stock if (A) the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable to the holders of such Capital Stock than the terms applicable to the Securities in Sections 4.06 and 4.10 of this Indenture and (B) any
such requirement only becomes operative after compliance with such terms applicable to the Securities, including the purchase of any Securities tendered pursuant thereto. 


        The
amount of any Disqualified Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if
such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of such Disqualified Stock is to be determined pursuant to the Indenture; provided,
however, that if such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of such determination, the redemption, repayment or repurchase
price will be the book value of such Disqualified Stock as reflected in the most recent financial statements of such Person. 


6





 



        "EBITDA"
for any period means the sum of Consolidated Net Income, plus the following to the extent deducted in calculating such Consolidated Net Income: 



        (1)   all
income tax expense of the Company and its consolidated Restricted Subsidiaries; 


        (2)   Consolidated
Interest Expense; 


        (3)   depreciation
and amortization expense of the Company and its consolidated Restricted Subsidiaries (excluding amortization expense attributable to a prepaid operating
activity item that was paid in cash in a prior period); 


        (4)   all
other non-cash charges of the Company and its consolidated Restricted Subsidiaries (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash expenditures in any future period); and 


        (5)   any
non-recurring employee severance expenses and non-recurring cash expenses related to plant reorganizations, in each case to the extent
incurred by the Company in 2003 or 2004, up to a cumulative aggregate amount not to exceed $5 million, 




in
each case for such period. Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and the depreciation and amortization and non-cash charges of, a
Restricted Subsidiary shall be added to Consolidated Net Income to compute EBITDA only to the extent (and in the same proportion, including by reason of minority interests) that the net income or loss
of such Restricted Subsidiary was included in calculating Consolidated Net Income and only if a corresponding amount would be permitted at the date of determination to be dividended to the Company by
such Restricted Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its stockholders. 


        "Equity
Offering" means a sale of Capital Stock of the Company (other than Disqualified Stock) including in connection with the exercise of options or warrants to acquire such Capital
Stock. 


        "Exchange
Act" means the U.S. Securities Exchange Act of 1934, as amended. 


        "Existing
Wholly Owned Subsidiary" means any Restricted Subsidiary of the Company that is a Wholly Owned Subsidiary on the Issue Date. 


        "Foreign
Subsidiary" means any Restricted Subsidiary of the Company that is not organized under the laws of the United States of America or any State thereof or the District of Columbia. 


        "GAAP"
means generally accepted accounting principles in the United States of America as in effect as of the Issue Date, including those set forth in 



        (1)   the
opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants; 


        (2)   statements
and pronouncements of the Financial Accounting Standards Board; 


        (3)   such
other statements by such other entity as approved by a significant segment of the accounting profession; and 


        (4)   the
rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the SEC. 




        "Guarantee"
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any Person and any obligation, direct or indirect,
contingent or otherwise, of such Person 



        (1)   to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such Person (whether arising by virtue of partnership arrangements,
or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or 


        (2)   entered
into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); 



7





 





provided, however, that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning. The term "Guarantor" shall mean any Person Guaranteeing any obligation. 


        "Guaranty
Agreement" means a supplemental indenture, in a form satisfactory to the Trustee, pursuant to which a Subsidiary Guarantor guarantees the Company's obligations with respect to
the Securities on the terms provided for in this Indenture. 


        "Hedging
Obligations" of any Person means the obligations of such Person pursuant to any (1) interest rate swap agreements, interest rate cap agreements and interest rate collar
agreements and other agreements or arrangements designed to protect such Person against fluctuations in interest rates; (2) any foreign exchange contract, currency swap agreement or other
similar agreement or arrangement designed to protect such Person against fluctuations in currency values; and (3) any commodity futures or option contract or other similar commodity hedging
contract designed to protect such person against fluctuations in commodity prices. 


        "Holder"
or "Securityholder" means the Person in whose name a Security is registered on the Registrar's books. 


        "Incur"
means issue, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a
Restricted Subsidiary. The term "Incurrence" when used as a noun shall have a correlative meaning. 


Solely
for purposes of determining compliance with Section 4.03: 



        (1)   amortization
of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security; 


        (2)   the
payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Capital
Stock in the form of additional Capital Stock of the same class and with the same terms; and 


        (3)   the
obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase
such Indebtedness, 




shall
not be deemed to be the Incurrence of Indebtedness. 


        "Indebtedness"
means, with respect to any Person on any date of determination (without duplication): 



        (1)   the
principal in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or liable, including, in each case, any premium on such indebtedness to the extent such premium has become due and payable; 


        (2)   all
Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale/Leaseback Transactions entered into by such Person; 


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


        (4)   all
obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers' acceptance or similar credit transaction (other than obligations
with respect to letters of credit securing obligations (other than obligations described in clauses (1) through (3) above) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day following payment on the letter of credit); 



        (5)   the
amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock of such Person and the amount of the
liquidation preference of any Preferred Stock of any Restricted Subsidiary of such Person, the principal amount of such Stock to be determined in accordance with this Indenture; 



8





 




        (6)   all
obligations of the type referred to in clauses (1) through (5) of other Persons and all dividends of other Persons for the payment of which, in either
case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee; 


        (7)   all
obligations of the type referred to in clauses (1) through (6) of other Persons secured by any Lien on any property or asset of such Person (whether or
not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the value of such property or assets and the amount of the obligation so secured; and 



        (8)   to
the extent not otherwise included in this definition, Hedging Obligations of such Person. 




Notwithstanding
the foregoing, in connection with the purchase by the Company or any Restricted Subsidiary of any business, the term "Indebtedness" shall exclude post-closing payment
adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter
becomes fixed and determined, the amount is paid within 30 days thereafter. 


        The
amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all obligations as described above; provided,
however, that in the case of Indebtedness sold at a discount, the amount of such Indebtedness at any time shall be the accreted value thereof at such time. 


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


        "Independent Qualified Party" means an investment banking firm, accounting firm or appraisal firm of national standing;  provided, however, that such firm is not an
Affiliate of the Company. 


        "Interest
Rate Agreement" means any interest rate swap agreement, interest rate cap agreement or other financial agreement or arrangement with respect to exposure to interest rates. 


        "Investment"
in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts receivable on the
balance sheet of the lender or payroll, travel and similar advances to employees in the ordinary course of business) or other extensions of credit (including by way of Guarantee or similar
arrangement) 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 of Capital Stock, Indebtedness or other similar instruments issued by such Person. If the Company or any Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a
Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Company or any Restricted Subsidiary in such
Person remaining after giving effect thereto will be deemed to be a new Investment at such time. The acquisition by the Company or any Restricted Subsidiary of a Person that holds an Investment in a
third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person at such time. Except as otherwise provided for herein, the amount of an
Investment shall be its fair market value at the time the Investment is made and without giving effect to subsequent changes in value. 


        For
purposes of the definition of "Unrestricted Subsidiary", the definition of "Restricted Payment" and Section 4.04, "Investment" shall include 



        (1)   the
portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of the Company at the time
that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent "Investment" in an Unrestricted Subsidiary equal to an amount (if positive) equal to (A) the Company's "Investment" in
such Subsidiary at the time of such redesignation less (B) the portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation; and 



        (2)   any
property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good
faith by the Board of Directors. 




        "Issue
Date" means February 5, 2004. 


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


9





 



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


        "Moody's"
means Moody's Investors Service, Inc. and any successor to its rating agency business. 


        "Net
Available Cash" from an Asset Disposition means cash payments received therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other non-cash form), in each case
net of 



        (1)   all
legal, accounting and investment banking fees, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a liability under GAAP, as a consequence of such Asset Disposition; 


        (2)   all
payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds
from such Asset Disposition; 


        (3)   all
distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Disposition; 


        (4)   the
deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets
disposed in such Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition; and 



        (5)   any
portion of the purchase price from an Asset Disposition placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities
in respect of such Asset Disposition or otherwise in connection with that Asset Disposition; provided, however, that upon the termination of that
escrow, Net Available Cash will be increased by any portion of funds in the escrow that are released to the Company or any Restricted Subsidiary. 




        "Net
Cash Proceeds", with respect to any issuance or sale of Capital Stock or Indebtedness, means the cash proceeds of such issuance or sale net of attorneys' fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable
as a result thereof. 


        "Obligations"
means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, and other amounts payable
pursuant to the documentation governing such Indebtedness. 


        "Officer"
means the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company. 


        "Officers'
Certificate" means a certificate signed by two Officers. 


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


        "Permitted
Holders" means Angelo, Gordon & Co., L.P. and its Affiliates. 


        "Permitted
Investment" means an Investment by the Company or any Restricted Subsidiary in 



        (1)   the
Company, a Restricted Subsidiary or a Person that will, upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a Related Business; 


        (2)   another
Person if, as a result of such Investment, such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets
to, the Company or a Restricted Subsidiary; provided, however, that such Person's primary business is a Related Business; 



        (3)   cash
and Temporary Cash Investments; 



10





 




        (4)   receivables
owing to the Company or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Company or any such Restricted
Subsidiary deems reasonable under the circumstances; 


        (5)   payroll,
travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business; 


        (6)   loans
or advances to employees made in the ordinary course of business consistent with past practices of the Company or such Restricted Subsidiary; 


        (7)   stock,
obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments; 


        (8)   any
Person to the extent such Investment represents the non-cash portion of the consideration received for (a) an Asset Disposition as permitted
pursuant to Section 4.06 or (b) a disposition of assets not constituting an Asset Disposition. 


        (9)   any
Person where such Investment was acquired by the Company or any of its Restricted Subsidiaries (a) in exchange for any other Investment or accounts receivable
held by the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts
receivable or (b) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured
Investment in default; 


        (10) any
Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility and workers' compensation,
performance and other similar deposits made in the ordinary course of business by the Company or any Restricted Subsidiary; 


        (11) any
Person to the extent such Investments consist of Hedging Obligations otherwise permitted under Section 4.03; 



        (12) any
Person to the extent such Investment exists on the Issue Date, and any extension, modification or renewal of any such Investments existing on the Issue Date, but
only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of
interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investment as in effect on the Issue Date); and 


        (13) Persons
to the extent such Investments, when taken together with all other Investments made pursuant to this clause (13) outstanding on the date such Investment
is made, do not exceed $10 million. 




        "Permitted
Junior Securities" means Capital Stock of the Company or of a Subsidiary Guarantor, as the case may be, or Indebtedness that is subordinated to all Senior Indebtedness of the
Company or a Subsidiary Guarantor, as the case may be, and any Indebtedness issued in exchange for such Senior Indebtedness to substantially the same extent as, or to a greater extent than, the
Securities and the Subsidiary Guarantees are subordinated to Senior Indebtedness under this Indenture. 


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


        "Preferred
Stock", as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. 


        "principal"
of a Security means the principal of the Security plus the premium, if any, payable on the Security which is due or overdue or is to become due at the relevant time. 



        "Quotation
Agent" means the Reference Treasury Dealer selected by the Trustee after consultation with the Company. 


11





 



        "Reference
Treasury Dealer" means Credit Suisse First Boston LLC and its successors and assigns, Lehman Brothers Inc. and its successors and assigns, and one other nationally
recognized investment banking firm selected by the Company that is a primary U.S. Government securities dealer. 



        "Reference
Treasury Dealer Quotations" means with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day immediately preceding such redemption date. 


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



        "Refinancing
Indebtedness" means Indebtedness that Refinances any Indebtedness of the Company or any Restricted Subsidiary existing on the Issue Date or Incurred in compliance with this
Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided, however, that: 



        (1)   such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being Refinanced; 


        (2)   such
Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being Refinanced; 


        (3)   such
Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) that is equal to or less than the
aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding (plus fees and expenses, including any premium and defeasance costs) under the
Indebtedness being Refinanced; and 


        (4)   if
the Indebtedness being Refinanced is subordinated in right of payment to the Securities, such Refinancing Indebtedness is subordinated in right of payment to the
Securities at least to the same extent as the Indebtedness being Refinanced; 




provided further, however, that Refinancing Indebtedness shall not include (A) Indebtedness of a Subsidiary (other than a Subsidiary Guarantor)
that Refinances Indebtedness of the Company or a Subsidiary Guarantor or (B) Indebtedness of the Company or a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary. 


        "Registration
Rights Agreement" means the Registration Rights Agreement dated February 5, 2004, among the Company, the Subsidiary Guarantors and the Initial Purchasers. 



        "Related
Business" means any business in which the Company or any of the Restricted Subsidiaries was engaged on the Issue Date and any business related, ancillary or complementary to
such business. 


        "Representative"
means, with respect to a Person, any trustee, agent or representative (if any) for an issue of Senior Indebtedness of such Person. 


        "Restricted
Payment" with respect to any Person means 



        (1)   the
declaration or payment of any dividends or any other distributions of any sort in respect of its Capital Stock (including any payment in connection with any merger
or consolidation involving such Person) or similar payment to the direct or indirect holders of its Capital Stock (other than (A) dividends or distributions payable solely in its Capital Stock
(other than Disqualified Stock), (B) dividends or distributions payable solely to the Company or a Restricted Subsidiary, and (C) pro rata dividends or other distributions made by a
Subsidiary that is not a Wholly Owned Subsidiary to minority stockholders (or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation)); 


        (2)   the
purchase, redemption or other acquisition or retirement for value of any Capital Stock of the Company held by any Person (other than by a Restricted Subsidiary) or
of any Capital Stock of a Restricted Subsidiary held by any Affiliate of the Company (other than by a Restricted Subsidiary), including in connection with any merger or consolidation and including the
exercise of any option to exchange any Capital Stock (other than into Capital Stock of the Company that is not Disqualified Stock); 



12





 




        (3)   the
purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund
payment of any Subordinated Obligations of the Company or any Subsidiary Guarantor (other than (A) from the Company or a Restricted Subsidiary or (B) the purchase, repurchase,
redemption, defeasance or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due
within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition); or 


        (4)   the
making of any Investment (other than a Permitted Investment) in any Person. 




        "Restricted
Subsidiary" means any Subsidiary of the Company that is not an Unrestricted Subsidiary. 



        "Sale/Leaseback
Transaction" means an arrangement relating to property owned by the Company or a Restricted Subsidiary on the Issue Date or thereafter acquired by the Company or a
Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or a Restricted Subsidiary leases it from such Person. 


        "SEC"
means the U.S. Securities and Exchange Commission. 


        "Secured
Indebtedness" means any Indebtedness of the Company secured by a Lien. 



        "Securities"
means the Securities issued under this Indenture. 


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


        "Senior
Indebtedness" means with respect to any Person,: 



        (1)   Indebtedness
of such Person, whether outstanding on the Issue Date or thereafter Incurred; and 


        (2)   all
other Obligations of such Person (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to such Person
whether or not post-filing interest is allowed in such proceeding) in respect of Indebtedness described in clause (1) above, 




unless,
in the case of clauses (1) and (2), in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such Indebtedness or other
Obligations are subordinate or pari passu in right of payment to the Securities or the Subsidiary Guaranty of such Person, as the case may be;  provided, however, that Senior Indebtedness shall not include: 



        (A)  any
obligation of such Person to the Company or any Subsidiary; 


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


        (C)  any
accounts payable or other liability to trade creditors arising in the ordinary course of business (including guarantees thereof or instruments evidencing such
liabilities); 


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



        (E)  that
portion of any Indebtedness which at the time of Incurrence is Incurred in violation of this Indenture. 




        "Senior
Subordinated Indebtedness" means, with respect to a Person, the Securities (in the case of the Company), the Subsidiary Guaranty (in the case of a Subsidiary Guarantor) and any
other Indebtedness of such Person that specifically provides that such Indebtedness is to rank pari passu with the Securities or such Subsidiary
Guaranty, as the case may be, in right of payment and is not subordinated by its terms in right of payment to any Indebtedness or other obligation of such Person which is not Senior Indebtedness of
such Person. 


        "Significant
Subsidiary" means any Restricted Subsidiary that would be a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC. 


        "Standard &
Poor's" means Standard & Poor's, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business. 


        "Stated
Maturity" means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred). 


13





 



        "Subordinated
Obligation" means, with respect to a Person, any Indebtedness of such Person (whether outstanding on the Issue Date or thereafter Incurred) which is subordinate or junior
in right of payment to the Securities or a Subsidiary Guaranty of such Person, as the case may be, pursuant to a written agreement to that effect. 



        "Subsidiary"
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Voting
Stock is at the time owned or controlled, directly or indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3) one or more Subsidiaries
of such Person. 


        "Subsidiary
Guarantor" means each Subsidiary of the Company that executes this Indenture as a guarantor on the Issue Date and each other Subsidiary of the Company that thereafter
guarantees the Securities pursuant to the terms of this Indenture. 


        "Subsidiary
Guaranty" means a Guarantee by a Subsidiary Guarantor of the Company's obligations with respect to the Securities. 


        "Temporary
Cash Investments" means any of the following: 



        (1)   any
investment in direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency
thereof; 


        (2)   investments
in demand and time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the United States of America, any State thereof or any foreign country recognized by the United States of America, and which bank
or trust company has capital, surplus and undivided profits aggregating in excess of $50,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is rated "A" (or such
similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any money-market fund sponsored
by a registered broker dealer or mutual fund distributor; 


        (3)   repurchase
obligations with a term of not more than 30 days for underlying securities of the types described in clause (1) above entered into with a bank
meeting the qualifications described in clause (2) above; 


        (4)   investments
in commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein
is made of "P-1" (or higher) according to Moody's or "A-1" (or higher) according to Standard & Poor's; 



        (5)   investments
in securities with maturities of six months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the
United States of America, or by any political subdivision or taxing authority thereof, and rated at least "A" by Standard & Poor's or "A" by Moody's; and 


        (6)   investments
in money market or mutual funds that invest substantially all their assets in securities of the types described in clauses (1) through
(5) above. 




        "TIA"
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of
this Indenture. 


        "Trustee"
means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor. 


        "Trust
Officer" means the Chairman of the Board, the President or any other officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters. 



        "Uniform
Commercial Code" means the New York Uniform Commercial Code as in effect from time to time. 


        "Unrestricted
Subsidiary" means: 



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


        (2)   any
Subsidiary of an Unrestricted Subsidiary. 



14





 





        The
Board of Directors may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or
any of its Subsidiaries owns any Capital Stock or Indebtedness of, 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, however, that either (A) the Subsidiary to be so designated has total assets of $1,000 or less or (B) if
such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.04. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such designation (A) the Company could Incur $1.00 of additional
Indebtedness under Section 4.03(a) and (B) no Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing
provisions. 


        "U.S.
Government Obligations" means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the issuer's option. 


        "Voting
Stock" of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof. 


        "Wholly
Owned Subsidiary" means a Restricted Subsidiary all the Capital Stock of which (other than directors' qualifying shares) is owned by the Company or one or more other Wholly Owned
Subsidiaries. 


        SECTION
1.02    Other Definitions.    



	Term
	 	Defined in Section

	"Affiliate Transaction"	 	  4.07	(a)
	"Bankruptcy Law"	 	  6.01	 
	"Blockage Notice"	 	10.03	; 12.03
	"Change of Control Offer"	 	  4.10	(b)
	"covenant defeasance option"	 	  8.01	(b)
	"Custodian"	 	  6.01	 
	"Event of Default"	 	  6.01	 
	"Guarantee Obligations"	 	11.01	 
	"legal defeasance option"	 	  8.01	(b)
	"Legal Holiday"	 	13.08	 
	"Offer"	 	  4.06	(b)
	"Offer Amount"	 	  4.06	(c)(2)
	"Offer Period"	 	  4.06	(c)(2)
	"Paying Agent"	 	2.03	 
	"Payment Blockage Period"	 	10.03	; 12.03
	"Payment Default"	 	10.03	; 12.03
	"Purchase Date"	 	  4.06	(c)(1)
	"Registrar"	 	  2.03	 
	"Successor Company"	 	  5.01	(a)(1)





        SECTION
1.03    Incorporation by Reference of Trust Indenture Act.    This Indenture is subject to the mandatory
provisions of the TIA which are incorporated by reference in and made a part of this Indenture. The following TIA terms have the following meanings: 


        "Commission"
means the SEC; 


        "indenture
securities" means the Securities and the Subsidiary Guaranties; 


        "indenture
security holder" means a Securityholder; 


        "indenture
to be qualified" means this Indenture; 


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


15





 



        "obligor"
on the indenture securities means the Company, each Subsidiary Guarantor and any other obligor on the indenture securities. 



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


        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)   "including"
means including without limitation; 


        (5)   words
in the singular include the plural and words in the plural include the singular; 


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



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


        (8)   the
principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of
the issuer dated such date prepared in accordance with GAAP; and 


        (9)   the
principal amount of any Preferred Stock shall be (A) the maximum liquidation value of such Preferred Stock or (B) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred Stock, whichever is greater;


        (10) all
references to the date the Securities were originally issued shall refer to the Issue Date; and 


        (11) all
ratios and computations based on GAAP contained in this Indenture shall be computed in conformity with GAAP. 



16










   Article 2

 
  The Securities


        SECTION
2.01    Form and Dating.    Provisions relating to the Initial Securities, the Private Exchange Securities and
the Exchange Securities are set forth in the Rule 144A/Regulation S Appendix attached hereto (the "Appendix") which is hereby incorporated in, and expressly made part of, this Indenture.
The Initial Securities and the Trustee's certificate of authentication shall be substantially in the form of Exhibit 1 to the Appendix which is hereby incorporated in, and expressly made a part
of, this Indenture. The Exchange Securities, the Private Exchange Securities and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in the Appendix and Exhibit A are part of the terms of this Indenture. 


        SECTION
2.02    Execution and Authentication.    Two Officers shall execute the Securities for the Company by manual
or facsimile signature. 


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



        A
Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture. 


        On
the Issue Date, the Trustee shall authenticate and deliver $175.0 million of 91/4% Senior Subordinated Notes Due 2014 and, at any time and from time to time
thereafter, the Trustee shall authenticate and deliver Securities for original issue in an aggregate principal amount specified in such order, in each case upon a written order of the Company signed
by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company. Such order shall specify the amount of the Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated and, in the case of an issuance of Additional Securities pursuant to Section 2.13 after the Issue Date, shall certify that such
issuance is in compliance with Section 4.03. 


        The
Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Securities 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 any Registrar, Paying Agent or agent for service of notices and demands. 



        SECTION
2.03    Registrar and Paying Agent.    The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar") and an office or agency where Securities may be presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. 


        The
Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture, which shall incorporate the terms
of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any Wholly Owned
Subsidiary incorporated or organized within the United States of America may act as Paying Agent, Registrar, co-registrar or transfer agent. 


        The
Company hereby initially appoints the Trustee as initial Registrar and Paying Agent in connection with the Securities and the Trustee hereby accepts such appointments subject to the
terms herein. 


        SECTION
2.04    Paying Agent To Hold Money in Trust.    Prior to each due date of the principal and interest on any
Security, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming due. The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money held 


17





 



by
the Paying Agent for the payment of principal of or interest on the Securities and shall notify the Trustee of any default by the Company in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with this Section 2.04, the Paying Agent shall have no further liability for the money delivered to the
Trustee. 


        SECTION
2.05    Securityholder 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 Securityholders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least five Business
Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders. 


        SECTION
2.06    Transfer and Exchange.    The Securities shall be issued in registered form and shall be transferable
only upon the surrender of a Security for registration of transfer. When a Security is presented to the Registrar or
a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested if the requirements of this Indenture and Section 8-401(1)
of the Uniform Commercial Code are met. When Securities are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Securities of
other denominations, the Registrar shall make the exchange as requested if the same requirements are met. 


        SECTION
2.07    Replacement Securities.    If a mutilated Security is surrendered to the Registrar or if the Holder of
a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall execute and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee. If required by the Trustee or the Company, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar
from any loss which any of them may suffer if a Security is replaced. The Company and the Trustee may charge the Holder for their expenses in replacing a Security. 


        Every
replacement Security is an additional Obligation of the Company. 


        SECTION
2.08    Outstanding Securities.    Securities outstanding at any time are all Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding. A Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Security. 


        If
a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a bona fide purchaser. 


        If
the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a redemption date or maturity date money sufficient to pay all principal and interest payable on
that date with respect to the Securities (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue. 


        SECTION
2.09    Temporary Securities.    Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall execute and the Trustee shall authenticate definitive Securities and deliver them in exchange for temporary Securities. 


        SECTION
2.10    Cancellation.    The Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and destroy
(subject to the record retention requirements of the Exchange Act) all Securities surrendered for registration of transfer, exchange, payment or cancellation and deliver a certificate of such
destruction to the Company unless the Company directs the Trustee to deliver canceled Securities to the Company. The Company may not issue new Securities to replace Securities it has redeemed, paid or
delivered to the Trustee for cancellation. 


        SECTION
2.11    Defaulted Interest.    If the Company defaults in a payment of interest on the Securities, the Company
shall pay defaulted interest (plus interest on such defaulted interest to the extent lawful) in any lawful 


18





 

manner.
The Company may pay the defaulted interest to the persons who are Securityholders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date
and payment date to the reasonable satisfaction of the Trustee and shall promptly mail to each Securityholder a notice that states the special record date, the payment date and the amount of defaulted
interest to be paid. 


        SECTION
2.12    CUSIP Numbers.    The Company in issuing the Securities 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, however, that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. 


        SECTION
2.13    Issuance of Additional Securities.    The Company shall be entitled, subject to its compliance with
Section 4.03, to issue Additional Securities under this Indenture which shall have identical terms as the Initial Securities issued on the Issue Date, other than with respect to the date of
issuance and issue price. The Initial Securities issued on the Issue Date, any Additional Securities and all Exchange Securities or Private Exchange Securities issued in exchange therefor shall be
treated as a single class for all purposes under this Indenture. 


        With
respect to any Additional Securities, the Company shall set forth in a resolution of the Board of Directors and an Officers' Certificate, a copy of each which shall be delivered to
the Trustee, the following information: 



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



        (2)   the
issue price, the issue date and the CUSIP number of such Additional Securities; provided, however, that no Additional
Securities may be issued unless such Additional Securities are fungible with the Initial Securities for U.S. Federal income tax purposes; and 


        (3)   whether
such Additional Securities shall be Transfer Restricted Securities and issued in the form of Initial Securities as set forth in the Appendix to this Indenture or
shall be issued in the form of Exchange Securities as set forth in Exhibit A. 



Article 3


  Redemption


        SECTION
3.01    Notices to Trustee.    If the Company elects to redeem Securities pursuant to paragraph 5 of
the Securities, it shall notify the Trustee in writing of the redemption date, the principal amount of Securities to be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur. 


        The
Company shall give each notice to the Trustee provided for in this Section 3.01 at least 60 days before the redemption date unless the Trustee consents to a shorter
period. Such notice shall be accompanied by an Officers' Certificate and an Opinion of Counsel from the Company to the effect that such redemption shall comply with the conditions herein. 


        SECTION
3.02    Selection of Securities to Be Redeemed.    If fewer than all the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed on a pro rata basis, to the extent practicable, and if not practicable, then by such other method as the Trustee shall deem to be fair and
appropriate. The Trustee shall make the selection from outstanding Securities not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities that
have denominations larger than $1,000. Securities and portions of them the Trustee selects shall be in principal amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities or portions of Securities to be
redeemed. 


        SECTION
3.03    Notice of Redemption.    At least 30 days but not more than 60 days before a date for
redemption of Securities, the Company shall mail a notice of redemption by first-class mail to each Holder of Securities to be redeemed at such Holder's registered address. 


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



        (1)   the
redemption date; 



19





 

        (2)   the
redemption price; 


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


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


        (5)   if
fewer than all the outstanding Securities are to be redeemed, the identification and principal amounts of the particular Securities to be redeemed; 



        (6)   that,
unless the Company defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture,
interest on Securities (or portion thereof) called for redemption ceases to accrue on and after the redemption date; and 


        (7)   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 Securities. 




        At
the Company's request, the Trustee shall give the notice of redemption in the Company's name and at the Company's expense. In such event, the Company shall provide the Trustee with
the information required by this Section 3.03. 


        SECTION
3.04    Effect of Notice of Redemption.    Once notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption price stated in the notice. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date).
Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder. 


        SECTION
3.05    Deposit of Redemption Price.    Prior to the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the redemption price of and accrued interest on all Securities to be
redeemed on that date other than Securities or portions of Securities called for redemption which have been delivered by the Company to the Trustee for cancellation. 


        SECTION
3.06    Securities Redeemed in Part.    Upon surrender of a Security that is redeemed in part, the Company
shall execute and the Trustee shall authenticate for the Holder (at the Company's expense) a new Security equal in principal amount to the unredeemed portion of the Security surrendered. 


Article 4


  Covenants


        SECTION
4.01    Payment of Securities.    The Company shall promptly pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and in this Indenture. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such
money to the Securityholders on that date pursuant to the terms of this Indenture. 



        The
Company shall pay interest on overdue principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the same rate to
the extent lawful. 


        SECTION
4.02    SEC Reports.    Whether or not the Company or the Subsidiary Guarantors are subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company and the Subsidiary Guarantors shall file with the SEC (subject to the next sentence) and provide the Trustee and
Securityholders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so
filed and provided at the times specified for the filings of such reports under such Sections and containing all the information, audit reports and exhibits required for such reports. 


        If
at any time, the Company or the Subsidiary Guarantors are not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall nevertheless
continue filing the reports specified in the preceding sentence with the SEC within the time periods required unless the SEC will not accept 


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such
a filing. The Company shall not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept such filings for any
reason, the Company shall post the reports specified in the preceding sentence on its website within the time periods that would apply if the Company were required to file those reports with the SEC. 


        At
any time that any of the Company's Subsidiaries are Unrestricted Subsidiaries, then the Company shall include in the quarterly and annual financial information required by the
preceding paragraph a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in "Management's Discussion and
Analysis of Financial Condition and Results of Operations", of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from
the financial condition and results of operations of the Unrestricted Subsidiaries of the Company. 


        In
addition, the Company shall furnish to the Holders of the Securities and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act so long as the Securities are not freely transferable under the Securities Act. 


        The
Company also shall comply with the other provisions of TIA § 314(a). 



        SECTION
4.03    Limitation on Indebtedness.    (a) The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Company and the Subsidiary Guarantors shall be entitled to
Incur Indebtedness if, on the date of such Incurrence and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio exceeds 2.25
to 1. 


        (b)   Notwithstanding
the foregoing paragraph (a), the Company and the Restricted Subsidiaries shall be entitled to Incur any or all of the following Indebtedness: 



        (1)   Indebtedness
Incurred by the Company and the Subsidiary Guarantors pursuant to the Credit Agreement; provided, however,
that, immediately after giving effect to any such Incurrence, the aggregate principal amount of
all Indebtedness Incurred under this clause (b)(1) and then outstanding does not exceed the greater of (A) $100 million less the sum of all principal payments with respect to such
Indebtedness pursuant to Section 4.06(a)(3)(A), and (B) the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of
the book value of the accounts receivable of the Company and its Restricted Subsidiaries; 


        (2)   Indebtedness
owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any
subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than
to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the obligor thereon, (B) if the Company is the obligor on such
Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities and (C) if a Subsidiary Guarantor is the obligor
on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such obligor with respect to its Subsidiary Guaranty; 


        (3)   the
Securities (other than any Additional Securities); 


        (4)   Indebtedness
outstanding on the Issue Date (other than Indebtedness described in clause (1), (2), (3) or (13) of this Section 4.03(b)); 



        (5)   Indebtedness
of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness
Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary
became a Subsidiary or was acquired by the Company); provided, however, that on the date of such acquisition and after giving  pro forma effect thereto, the
Company would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a); 



        (6)   Refinancing
Indebtedness in respect of Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause (3), (4) or (5) of this
Section 4.03(b) or this clause (6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances
Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary; 


        (7)   Hedging
Obligations of the Company or any Restricted Subsidiary Incurred (A) for the purpose of fixing or hedging interest rate risk with respect to any floating
rate Indebtedness that is permitted by the 



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terms
of this Indenture to be outstanding or (B) for the purpose of fixing or hedging currency exchange rate risk or commodity price risk Incurred in the ordinary course of business, and in
each case, not for speculative purposes; 


        (8)   Obligations
in respect of performance, bid and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of
business; 


        (9)   Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence; 


        (10) Capital
Lease Obligations, Capital Expenditure Indebtedness or purchase money obligations which, when taken together with all other Capital Lease Obligations, Capital
Expenditure Indebtedness or purchase money obligations Incurred pursuant to this clause (10) outstanding on the date of such Incurrence (including Refinancings thereof that do not result in an
increase in the aggregate principal amount of Indebtedness of such Person as of the date of such proposed Refinancing (plus the amount of any premium required to be paid under the terms of the
instrument governing such Indebtedness and plus the amount of reasonable expenses incurred by the Company in connection with such Refinancing)), do not exceed $10 million; 


        (11) Indebtedness
incurred by any Foreign Subsidiary in an amount that, when added together with the amount of all other Indebtedness Incurred pursuant to this
clause (11) and then outstanding, does not exceed $10 million; 


        (12) Indebtedness
consisting of the Subsidiary Guaranty of a Subsidiary Guarantor and any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred pursuant to
paragraph (a) or pursuant to clause (1), (2), (3) or (4) or pursuant to clause (6) to the extent the Refinancing Indebtedness Incurred thereunder directly or
indirectly Refinances Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (3) or (4); 


        (13) Indebtedness
outstanding on the Issue Date to be repaid in full and discharged with the proceeds of the Securities and other Indebtedness as described in the Offering
Circular; and 


        (14) Indebtedness
of the Company or a Subsidiary Guarantor in an aggregate principal amount which, when taken together with all other Indebtedness of the Company and its
Restricted Subsidiaries outstanding on the date of such Incurrence (other than Indebtedness permitted by clauses (1) through (13) of this Section 4.03(b) or
Section 4.03(a)), does not exceed $15 million. 




        (c)   Notwithstanding
the foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof
are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or any Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Securities or to the
applicable Subsidiary Guaranty of such Subsidiary Guarantor to at least the same extent as such Subordinated Obligations. 


        (d)   For
purposes of determining compliance with this Section 4.03, (1) the outstanding principal amount of any particular Indebtedness shall be counted only
once and any obligation arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded, (2) any Indebtedness remaining outstanding
under the Credit Agreement after the application of the net proceeds from the sale of the Securities shall be treated as Incurred on the Issue Date under Section 4.03(b)(1), (3) in the
event that an item of Indebtedness or any portion thereof meets the criteria of more than one of the types of Indebtedness described above or is entitled to be Incurred pursuant to
Section 4.03(a), the Company, in its sole discretion, shall classify such item of Indebtedness or any portion thereof at the time of Incurrence and such item of Indebtedness (or portion
thereof) shall be treated as having been Incurred pursuant to only one of the clauses of Section 4.03(b) or pursuant to Section 4.03(a) (provided,
however, that any Indebtedness originally classified as Incurred pursuant to Section 4.03(b)(10) or Section 4.03(b)(14) may later be reclassified as having been
Incurred pursuant to Section 4.03(a) to the extent that such reclassified Indebtedness could be Incurred pursuant to Section 4.03(a) at the time of such reclassification), and
(4) the Company shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described herein. 


        (e)   Notwithstanding
Sections 4.03(a) and 4.03(b), neither the Company nor any Subsidiary Guarantor shall Incur (1) any Indebtedness if such Indebtedness is
subordinate or junior in ranking in any respect to any Senior Indebtedness of the Company or of such Subsidiary Guarantor, as applicable, unless such Indebtedness is Senior Subordinated Indebtedness
or is expressly subordinated in right of payment to Senior Subordinated Indebtedness of the Company or of such Subsidiary Guarantor, as applicable, or (2) any Secured Indebtedness that is not 


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Senior
Indebtedness of such Person unless contemporaneously therewith such Person makes effective provision to secure the Securities or the relevant Subsidiary Guaranty, as applicable, equally and
ratably with such Secured Indebtedness for so long as such Secured Indebtedness is secured by a Lien. 



        SECTION
4.04    Limitation on Restricted Payments.    (a) The Company shall not, and shall not permit any
Restricted Subsidiary, directly or indirectly, to make a Restricted Payment if at the time the Company or such Restricted Subsidiary makes such Restricted Payment: 



        (1)   a
Default shall have occurred and be continuing (or would result therefrom); 


        (2)   the
Company is not entitled to Incur an additional $1.00 of Indebtedness under Section 4.03(a); or 



        (3)   the
aggregate amount of such Restricted Payment and all other Restricted Payments since the Issue Date would exceed the sum of (without duplication): 



        (A)  50%
of the Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the fiscal quarter immediately following the fiscal
quarter during which the Issue Date occurs to the end of the most recent fiscal quarter ending at least 45 days prior to the date of such Restricted Payment (or, in case such Consolidated Net
Income shall be a deficit, minus 100% of such deficit); plus



        (B)  100%
of the aggregate Net Cash Proceeds received by the Company from the issuance or sale of, or 100% of any cash capital contributions received by the Company with
respect to, Capital Stock of the Company (other than Disqualified Stock) after the Issue Date (other than an issuance or sale to a Subsidiary of the Company and other than an issuance or sale to an
employee stock ownership plan or to a trust established by the Company or any of its Subsidiaries for the benefit of their employees); plus


        (C)  the
amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange subsequent to the Issue Date of any
Indebtedness of the Company convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or the fair value of any other property,
distributed by the Company upon such conversion or exchange) provided, however, that the foregoing amount shall not exceed the Net Cash Proceeds
received by the Company or any Restricted Subsidiary from the sale of such Indebtedness (excluding Net Cash Proceeds from sales to a Subsidiary of the Company or to an employee stock ownership plan or
to a trust established by the Company or any of its Subsidiaries for the benefit of their employees); plus


        (D)  an
amount equal to the sum of (i) the net reduction in the Investments (other than Permitted Investments) made by the Company or any Restricted Subsidiary in any
Person resulting from repurchases, repayments or redemptions of such Investments by such Person, proceeds realized on the sale of such Investment and proceeds representing the return of capital
(excluding dividends and distributions, to the extent included in Consolidated Net Income), in each case received by the Company or any Restricted Subsidiary and (ii) to the extent such Person
is an Unrestricted Subsidiary, the portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of such Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted Subsidiary; provided, however, that the foregoing sum shall not exceed, in the case of any such
Person or Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made (and treated as a Restricted Payment) by the Company or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary. 





        (b)   The
provisions of Section 4.04(a) shall not prohibit: 



        (1)   any
Restricted Payment made out of the Net Cash Proceeds of the substantially concurrent sale of, or made by exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the Company or an employee stock ownership plan or to a trust established by the Company or any of its Subsidiaries
for the benefit of their employees) or a substantially concurrent cash capital contribution received by the Company from its shareholders; provided,
however, that (A) such Restricted Payment shall be excluded in the calculation of the amount of Restricted Payments and (B) the Net Cash Proceeds from such sale
or such cash capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of amounts under Section 4.04(a)(3)(B); 



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        (2)   any
purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations of the Company or a Subsidiary Guarantor made
by exchange for, or out of the proceeds of the substantially concurrent sale of, Indebtedness of such Person which is permitted to be Incurred pursuant to Section 4.03;  provided, however, that such
purchase, repurchase, redemption, defeasance or other acquisition or retirement for value shall be excluded in the
calculation of the amount of Restricted Payments; 


        (3)   dividends
paid within 60 days after the date of declaration thereof if at such date of declaration such dividend would have complied with this
Section 4.04; provided, however, that such dividend (except to the extent made in reliance on clauses (1), (2), (4), (5), (6), (7), (9) or
(10) of this Section 4.04(b)) shall be included in the calculation of the amount of Restricted Payments; 


        (4)   so
long as no Default has occurred and is continuing, the repurchase or other acquisition of shares of Capital Stock of the Company or any of its Subsidiaries from
employees, former employees, directors or former directors of the Company or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors),
pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such Capital Stock; provided, however, that the aggregate amount of such repurchases and other
acquisitions (excluding amounts representing cancellation of Indebtedness) shall not exceed $1 million in any calendar year; provided further,
however, that such repurchases and other acquisitions shall be excluded in the calculation of the amount of Restricted Payments; 


        (5)   payments
of dividends on Disqualified Stock issued by the Company or Preferred Stock issued by any Restricted Subsidiary of the Company, in each case in accordance with
Section 4.03; provided, however, that at the time of payment of such dividend, no Default under this Indenture (in the case of Disqualified Stock
of the Company or any Preferred Stock of a Subsidiary Guarantor) and no payment Default under this Indenture (in the case of Preferred Stock of non-Subsidiary Guarantors) shall have
occurred and be continuing (or result therefrom); provided further, however, that such dividends shall be excluded in the calculation of the amount of
Restricted Payments; 


        (6)   repurchases
of Capital Stock deemed to occur upon exercise of stock options if such Capital Stock represents a portion of the exercise price of such options;  provided, however, that such Restricted Payments shall
be excluded in the calculation of the amount of Restricted Payments; 



        (7)   cash
payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for
Capital Stock of the Company; provided, however, that any such cash payment shall not be for the purpose of evading the limitation of this
Section 4.04 (as determined in good faith by the Board of Directors); provided further, however, that such payments shall be excluded in the
calculation of the amount of Restricted Payments; 


        (8)   in
the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or
retirement of Subordinated Obligations of the Company or of any Subsidiary Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations,
plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or
retirement, the Company (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer with respect to the Securities as a result of such Change of Control and has
purchased all Securities validly tendered and not withdrawn in connection with such Change of Control Offer; provided further, however, that such
purchase and other acquisitions shall be included in the calculation of the amount of Restricted Payments; 



        (9)   payments
of intercompany subordinated Indebtedness, the Incurrence of which was permitted under Section 4.03(b)(2); provided,
however, that no Default has occurred and is continuing or would otherwise result therefrom; provided further, however, that
such payments shall be excluded in the calculation of the amount of Restricted Payments; or 


        (10) Restricted
Payments in an aggregate amount which, when taken together with all Restricted Payments made pursuant to this Section 4.04(b)(10) that have not been
repaid, do not exceed $5 million; provided, however, that (A) at the time of such Restricted Payments, no Default shall have occurred and
be 



24





 




continuing
(or result therefrom) and (B) such Restricted Payments shall be excluded in the calculation of Restricted Payments. 




        SECTION
4.05    Limitation on Restrictions on Distributions from Restricted Subsidiaries.    The Company shall not,
and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to the Company, (b) make any
loans or advances to the Company or (c) transfer any of its property or assets to the Company, except: 



        (1)   with
respect to clauses (a), (b) and (c), 



        (A)  any
encumbrance or restriction pursuant to an agreement, obligation or instrument in effect at or entered into on the Issue Date; 



        (B)  any
encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or
prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company) and outstanding on
such date; 


        (C)  any
encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in
Section 4.05(1)(A), Section 4.05(1)(B) or this Section 4.05(1)(C) or contained in any amendment to an agreement referred to in Section 4.05(1)(A), Section 4.05(1)(B)
or this Section 4.05(1)(C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any
such refinancing agreement or amendment are no less favorable to the Securityholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor
agreements; 


        (D)  any
encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially
all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; 


        (E)  with
respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness, or any agreement pursuant to which such Indebtedness
was Incurred, if: (1) the encumbrance or
restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (2) the encumbrance or restriction is
not materially more disadvantageous to the Holders of the Securities than is customary in comparable financings, as determined in good faith by the Board of Directors, and (3) such encumbrance
or restriction will not materially affect the Company's ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors; 


        (F)  any
encumbrance or restriction with respect to any agreement, obligation or instrument of a Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent created in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the Person, so acquired; and 


        (G)  any
encumbrance or restriction with respect to any amendments, modifications, restatements or supplements of the agreements, obligations, or instruments referred to in
clause (F) above, provided that such amendments, modifications, restatements or supplements, are, in the good faith judgment of the Board of Directors, not materially more restrictive with
respect to such encumbrances or restrictions than those contained in the agreements, instruments or obligations prior to such amendment, modification, restatement or supplement; and 




        (2)   with
respect to clause (c) only, 



        (A)  any
encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the
transfer of the lease or the property leased thereunder; 




25





 


        (B)  any
encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or
restriction restricts the transfer of the property subject to such security agreements or mortgages; 



        (C)  any
encumbrance or restriction with respect to restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the ordinary course
of business; and 


        (D)  any
encumbrance or restriction with respect to customary provisions in joint venture agreements entered into the ordinary course of business to the extent such
encumbrance or restriction is applicable only to the property subject to such joint venture. 





        SECTION
4.06    Limitation on Sales of Assets and Subsidiary Stock.    (a) The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless 



        (1)   the
Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value
of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; 



        (2)   at
least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; and 


        (3)   an
amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) 



        (A)  to
the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or of a
Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or a
Restricted Subsidiary of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; 


        (B)  to
the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available
Cash; or 


        (C)  to
the extent of the balance of such Net Available Cash after application in accordance with (or upon election not to utilize) Section 4.06(a)(3)(A) and
4.06(a)(3)(B), to make an Offer to the Holders of the Securities (and to holders of other Senior Subordinated Indebtedness of the Company or of a Subsidiary Guarantor designated by the Company) to
purchase Securities (and such other Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions of this Section 4.06; 





provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to Section 4.06(a)(3)(A) or
Section 4.06(a)(3)(C), the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid or purchased. 


        Notwithstanding
the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with
this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds
$10 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily
reduce revolving credit indebtedness. 


        For
the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (i) the assumption of Indebtedness of the Company (other than Obligations
in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than Obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of
the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (ii) securities received by the Company or any Restricted
Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent of cash received in that conversion. 


26





 



        (b)   In
the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company or of a Subsidiary Guarantor)
pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the
"Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company or of a Subsidiary Guarantor was issued with significant
original issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness of the Company or of a
Subsidiary Guarantor, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture. If the aggregate purchase price of the securities and other Indebtedness tendered exceeds the Net Available Cash allotted to their purchase, the Company
shall select the securities and other Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount
or multiples thereof. The Company shall not be required to make such an offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company or of a Subsidiary Guarantor) pursuant
to this Section 4.06(b) if the Net Available Cash available therefor is less than $10 million (which lesser amount shall be carried forward for purposes of determining whether such an
offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an offer to purchase, Net Available Cash shall be deemed to be reduced by the
aggregate amount of such offer. 


        (c)   (1)
Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by
first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in
Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not
less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in
good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K(including
audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of
the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports),
(B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro
forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in
clause (3). 



        (2)   Not
later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers'
Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of
the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On
such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of
business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section 4.06. If the Offer includes other Senior Subordinated Indebtedness, the
deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains
open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The
Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase
price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the
expiration of the Offer Period for application in accordance with this Section 4.06. 


        (3)   Holders
electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address
specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee 



27





 




or
the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security
which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall
be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered. 



        (4)   At
the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that
such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.06. A Security shall be deemed to have been accepted for purchase at the time
the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder. 




        (d)   The
Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this Section 4.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this
Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue of
its compliance with such securities laws or regulations. 


        SECTION
4.07    Limitation on Affiliate Transactions.    (a) The Company shall not, and shall not permit any
Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any
service) with, or for the benefit of, any Affiliate of the Company (an "Affiliate Transaction") unless: 



        (1)   the
terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of the Affiliate
Transaction in arm's-length dealings with a Person who is not such an Affiliate; 


        (2)   if
such Affiliate Transaction involves an amount in excess of $5 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the
non-employee directors of the Company disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in Section 4.07(a)(1) are
satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors; and 


        (3)   if
such Affiliate Transaction involves an amount in excess of $10 million, the Board of Directors shall also have received a written opinion from an Independent
Qualified Party to the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted Subsidiaries or is not less favorable to the Company and its
Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm's-length transaction with a Person who was not an Affiliate. 




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



        (1)   any
Investment (other than a Permitted Investment) or other Restricted Payment, in each case permitted to be made pursuant to Section 4.04; 


        (2)   any
issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options
and stock ownership plans approved by the Board of Directors; 



        (3)   loans
or advances to employees in the ordinary course of business in accordance with the past practices of the Company or its Restricted Subsidiaries, but in any event
not to exceed $1 million in the aggregate outstanding at any one time; 


        (4)   with
respect to the requirements of Section 4.07(a)(3) only, the issuance of Indebtedness to two or more lenders or purchasers, including an Affiliate of the
Company; provided, however, (x) the terms of such Indebtedness are negotiated primarily by a lender or purchaser other than an Affiliate and
(y) the terms of such Indebtedness applicable to the lender or purchaser that is an Affiliate are substantially identical to those applicable to the other lenders or purchasers; 


        (5)   the
payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries; 



28





 




        (6)   any
transaction with a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a
Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; 


        (7)   the
issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company; 


        (8)   the
performance of any agreement, obligation, or instrument in effect at or entered into on the Issue Date (and which is described in the Offering Circular) and any
amendments, modifications, restatements, increases, supplements or refinancings thereto, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refunding, replacements or refinancings, are, in the good faith judgment of the Board of Directors, not disadvantageous to the Holders of the Securities in any
material respect; and 


        (9)   any
transaction in arm's length dealings with a non-Affiliate that becomes an Affiliate as a result of such transaction. 




        SECTION
4.08    Limitation on Line of Business.    The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than a Related Business except to such extent as is not material to the Company and its Restricted Subsidiaries taken as a whole. 



        SECTION
4.09    Limitation on the Sale or Issuance of Common Stock of Certain Wholly Owned Subsidiaries.    The
Company: 



        (1)   shall
not, and shall not permit any Existing Wholly Owned Subsidiary to, sell, transfer or otherwise dispose of any Common Stock of any Existing Wholly Owned Subsidiary
to any Person (other than to the Company or a Wholly Owned Subsidiary); and 


        (2)   shall
not permit any Existing Wholly Owned Subsidiary to issue any of its Common Stock (other than, if necessary, shares of its Common Stock constituting directors' or
other legally required qualifying shares) to any Person (other than to the Company or a Wholly Owned Subsidiary) unless 



        (A)  immediately
after giving effect to such issuance, sale or other disposition, neither the Company nor any of its Subsidiaries own any Common Stock of such Existing Wholly
Owned Subsidiary; or 


        (B)  immediately
after giving effect to such issuance, sale or other disposition, such Existing Wholly Owned Subsidiary would no longer constitute a Restricted Subsidiary and
any Investment in such Person remaining after giving effect thereto is treated as a new Investment by the Company and such Investment would be permitted to be made under Section 4.04 if made on
the date of such issuance, sale or other disposition. 





        For
purposes of this Section 4.09, the creation of a Lien on any Common Stock of an Existing Wholly Owned Subsidiary to secure Indebtedness of the Company or any of its Restricted
Subsidiaries will not be deemed to be a violation of this Section 4.09; provided, however, that any sale or other disposition by the secured
party of such Common Stock following foreclosure of its Lien will be subject to this Section 4.09. 



        SECTION
4.10    Change of Control.    (a) Upon the occurrence of a Change of Control, each Holder shall have
the right to require that the Company purchase such Holder's Securities at a purchase price in cash equal to 101% of the principal amount thereof on the date of purchase plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the
terms contemplated in Section 4.10(b). In the event that at the time of such Change of Control the terms of any Senior Indebtedness of the Company restrict or prohibit the purchase of
Securities pursuant to this Section 4.10, then prior to the mailing of the notice to Holders provided for in Section 4.10(b) below but in any event within 30 days following any
Change of Control, the Company shall (1) repay in full all such Senior Indebtedness or (ii) obtain the requisite consents under the agreements governing such Senior Indebtedness to
permit the purchase of the Securities as provided for in Section 4.10(b). 


        (b)   Within
30 days following any Change of Control, the Company shall mail a notice to each Holder with a copy to the Trustee (the "Change of Control Offer") stating: 



        (1)   that
a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder's Securities at a purchase price in cash equal to
101% of the principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, to the date of purchase (subject to 



29





 

the
right of Holders of record on the relevant record date to receive interest on the relevant interest payment date); 



        (2)   the
circumstances and relevant facts regarding such Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization, in each case after giving effect to such Change of Control); 


        (3)   the
purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); and 


        (4)   the
instructions, as determined by the Company, consistent with this Section 4.10, that a Holder must follow in order to have its Securities purchased. 




        (c)   Holders
electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address
specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business
Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the
Holder and a statement that such Holder is withdrawing his election to have such Security purchased. 



        (d)   On
the purchase date, all Securities purchased by the Company under this Section 4.10 shall be delivered by the Company to the Trustee for cancellation, and the
Company shall pay the purchase price plus accrued and unpaid interest, if any, to the Holders entitled thereto. 


        (e)   Notwithstanding
the foregoing provisions of this Section 4.10, the Company shall not be required to make a Change of Control Offer following a Change of Control
if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. 



        (f)    The
Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in
connection with the purchase of Securities pursuant to this Section 4.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of this
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 4.10 by virtue of
its compliance with such securities laws or regulations. 


        SECTION
4.11    Future Guarantors.    The Company shall cause each domestic Restricted Subsidiary that Incurs any
Indebtedness to, and each Foreign Subsidiary that enters into a Guarantee of any Senior Indebtedness (other than a Foreign Subsidiary that Guarantees Senior Indebtedness Incurred by another Foreign
Subsidiary) to, in each case, at the same time, execute and deliver to the Trustee a Guaranty Agreement pursuant to which such Restricted Subsidiary will Guarantee payment of the Securities on the
same terms and conditions as those set forth in this Indenture. 


        SECTION
4.12    Compliance Certificate.    The Company and the Subsidiary Guarantors shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company an Officers' Certificate (at least one of the signers of which is the principal executive officer, principal financial officer
or principal accounting officer of the Company) stating that in the course of the performance by the signers of their duties as Officers of the Company or the Subsidiary Guarantors they would normally
have knowledge of any Default and whether or not the signers know of any Default that occurred during such period. If they do, the certificate shall describe the Default, its status and what action
the Company or the Subsidiary Guarantor is taking or proposes to take with respect thereto. The Company and the Subsidiary Guarantors also shall comply with TIA § 314(a)(4). 


        SECTION
4.13    Further Instruments and Acts.    Upon request of the Trustee, the Company shall execute and deliver
such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture. 


30








   Article 5

 
  Successor Company


        SECTION
5.01.    When Company May Merge or Transfer Assets.    (a) The Company shall not consolidate with or
merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless: 



        (1)   the
resulting, surviving or transferee Person (the "Successor Company") shall be a Person organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture; 



        (2)   immediately
after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation
of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing; 


        (3)   immediately
after giving pro forma effect to such transaction, the Successor Company would be able to Incur an additional
$1.00 of Indebtedness pursuant to Section 4.03(a); and 


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




provided, however, that clause (3) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring
all or part of its properties and assets to the Company or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the
Company in another jurisdiction. 


        For
purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on
a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. 


        The
Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and
the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. 


        (b)   The
Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or series of
transactions, all or substantially all of its assets to any Person unless: 



        (1)   except
in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the
Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a
Subsidiary, in both cases, if in connection therewith the Company provides an Officers' Certificate to the Trustee to the effect that the Company shall comply with its obligations under
Section 4.06 in respect of such disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction
under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guaranty
Agreement, in a form acceptable to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty; 


        (2)   immediately
after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall
have occurred and be continuing; and 



31





 




        (3)   the
Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guaranty
Agreement, if any, complies with this Indenture. 



Article 6


  Defaults and Remedies


        SECTION
6.01.    Events of Default.    An "Event of Default" occurs if: 



        (1)   the
Company defaults in any payment of interest on any Security when the same becomes due and payable, whether or not such payment shall be prohibited by
Article 10, and such default continues for a period of 30 days; 



        (2)   the
Company (A) defaults in the payment of the principal of any Security when the same becomes due and payable at its Stated Maturity, upon optional redemption,
upon declaration of acceleration or otherwise, whether or not such payment shall be prohibited by Article 10 or (B) fails to redeem or purchase Securities when required pursuant to this
Indenture or the Securities, whether or not such redemption or purchase shall be prohibited by Article 10; 


        (3)   the
Company fails to comply with Section 5.01; 


        (4)   the
Company fails to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 or 4.11 (other than a failure to purchase Securities when required
under Section 4.06 or 4.10) and such failure continues for 30 days after the notice specified below; 


        (5)   the
Company or any Subsidiary Guarantor fails to comply with any of its agreements in the Securities or this Indenture (other than those referred to above in
clause (1), (2), (3) or (4) of this Section 6.01) and such failure continues for 60 days after the notice specified below; 


        (6)   Indebtedness
of the Company, any Subsidiary Guarantor or any Significant Subsidiary is not paid within any applicable
grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds $10 million, or its
foreign currency equivalent at the time; 


        (7)   the
Company, a Subsidiary Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: 



        (A)  commences
a voluntary case; 


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


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


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




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


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



        (A)  is
for relief against the Company, a Subsidiary Guarantor or any Significant Subsidiary in an involuntary case; 


        (B)  appoints
a Custodian of a the Company, a Subsidiary Guarantor or any Significant Subsidiary or for any substantial part of its property; or 


        (C)  orders
the winding up or liquidation of the Company, a Subsidiary Guarantor or any Significant Subsidiary; 




or
any similar relief is granted under any foreign laws and the order or decree remains unstayed and in effect for 60 days; 



        (9)   any
judgment or decree (to the extent not covered by insurance or indemnification claims) for the payment of money in excess of $10 million is entered against a
Subsidiary Guarantor, the Company or any Significant Subsidiary, and remains outstanding for a period of 60 consecutive days after such judgment or decree becomes final and non-appealable;
or 



32





 





        (10) any
Subsidiary Guaranty ceases to be in full force and effect (other than in accordance with the terms of such Subsidiary Guaranty and this Indenture) or any Subsidiary
Guarantor denies or disaffirms its obligations under its Subsidiary Guaranty. 




        The
foregoing shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body. 



        The
term "Bankruptcy Law" means Title 11, United States Code, or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law. 


        A
Default under Section 6.01(4) or 6.01(5) is not an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the outstanding Securities notify the
Company of the Default and the Company does
not cure such Default within the time specified after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a "Notice of Default". 



        The
Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers' Certificate of any Event of Default under
clause (6) or (10) and any event which with the giving of notice or the lapse of time would become an Event of Default under clause (4), (5) or (9), its status and what
action the Company is taking or proposes to take with respect thereto. 


        SECTION
6.02.    Acceleration.    If an Event of Default (other than an Event of Default specified in
Section 6.01(7) or (8) with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the outstanding
Securities by notice to the Company and the Trustee, may declare the principal of and accrued but unpaid interest on all the Securities to be due and payable. Upon such a declaration, such principal
and interest shall be due and payable immediately. If an Event of Default specified in Section 6.01(7) or (8) with respect to the Company occurs, the principal of and interest on all the
Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in principal amount of the outstanding Securities by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any right consequent thereto. 


        SECTION
6.03.    Other Remedies.    If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture. 


        The
Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative. 


        SECTION
6.04.    Waiver of Past Defaults.    The Holders of a majority in principal amount of the outstanding
Securities by notice to the Trustee may waive an existing Default and its consequences except (a) a Default in the payment of the principal of or interest on a Security (b) a Default
arising from the failure to redeem or purchase any Security when required pursuant to this Indenture or (c) a Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Securityholder affected. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right. 


        SECTION
6.05.    Control by Majority.    The Holders of a majority in principal amount of the outstanding Securities
may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action. 


33





 



        SECTION
6.06.    Limitation on Suits.    Except to enforce the right to receive payment of principal, premium (if any)
or interest when due, no Securityholder may pursue any remedy with respect to this Indenture or the Securities unless: 



        (1)   the
Holder gives to the Trustee written notice stating that an Event of Default is continuing; 


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



        (3)   such
Holder or Holders offer to the Trustee reasonable security or indemnity against any loss, liability or expense; 


        (4)   the
Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and 


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




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


        SECTION
6.07.    Rights of Holders to Receive Payment.    Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on the Securities held by such Holder, on or after the respective due dates expressed in the Securities, 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(1) or
(2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the
Company and the Subsidiary Guarantors (subject to Article 11 hereof) for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.07. 


        SECTION
6.09.    Trustee May File Proofs of Claim.    The Trustee may 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 and the Securityholders allowed in any judicial proceedings relative to the Company or the Subsidiary Guarantors,
their creditors or their property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing
similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make 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 it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and
any other amounts due the Trustee under Section 7.07. 


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



        FIRST:
to the Trustee for amounts due under Section 7.07; 


        SECOND:
to holders of Senior Indebtedness of the Company and, if such money or property has been collected from a Subsidiary Guarantor, to holders of Senior Indebtedness of such
Subsidiary Guarantor, in each case to the extent required by Articles 10 and 12; 



        THIRD:
to Securityholders for amounts due and unpaid on the Securities for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and 


        FOURTH:
to the Company. 




        The
Trustee may fix a record date and payment date for any payment to Securityholders pursuant to this Section 6.10. At least 15 days before such record date, the Company
shall mail to each Securityholder and the Trustee a notice that states the record date, the payment date and amount to be paid. 



        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 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 


34





 



litigant
in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in principal amount of the Securities. 


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


Article 7

 
  Trustee


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


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



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


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




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



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


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


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




        (d)   Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01. 


        (e)   The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. 


        (f)    Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law. 



        (g)   No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur 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 to believe that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. 


        (h)   Every
provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this
Section 7.01 and to the provisions of the TIA. 


        SECTION
7.02    Rights of Trustee.    (a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. 


35





 



        (b)   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 the Officers' Certificate or Opinion of Counsel. 


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


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



        (e)   The
Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel. 


        (f)    Except
with respect to Section 4.01 hereof, the Trustee shall have no duty to inquire as to the performance of the Company's covenants in Article 4 hereof.
In addition, the Trustee shall not be deemed to have knowledge of any Default or Event of Default except (i) any Event of Default occurring pursuant to Sections 6.01(1), 6.01(2) and 4.01 hereof
or (ii) any Default or Event of Default of which the Trustee shall have received written notification in the manner set forth in this Indenture or an officer in the corporate trust
administration of the Trustee shall have obtained actual knowledge. Delivery of reports, information and documents to the Trustee under Section 4.02 hereof is for informational purposes only
and the Trustee's receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's or
any Guarantor's as applicable, compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officer's Certificate). 



        SECTION
7.03    Individual Rights of Trustee.    The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest, it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as Trustee (if this Indenture has been qualified under the TIA) or resign. Any
Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. The Trustee must also comply with Sections 7.10 and 7.11. 



        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 Securities, it shall not be accountable for the Company's use of the proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee's certificate of authentication. 


        SECTION
7.05    Notice of Defaults.    If a Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder notice of the Default within 90 days after it occurs. Except in the case of a Default in payment of principal of or interest on any Security (including
payments pursuant to the mandatory redemption provisions of such Security, if any), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of Securityholders. 


        SECTION
7.06    Reports by Trustee to Holders.    As promptly as practicable after each May 15 beginning with
the May 15 following the date of this Indenture, and in any event prior to July 15 in each year, the Trustee shall mail to each Securityholder a brief report dated as of May 15
that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all reports required by TIA § 313(c). 


        A
copy of each report at the time of its mailing to Securityholders shall be filed with the SEC and each stock exchange (if any) on which the Securities are listed. The Company agrees to
notify promptly the Trustee whenever the Securities become listed on any stock exchange and of any delisting thereof. 


        SECTION
7.07    Compensation and Indemnity.    The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the Trustee's agents, counsel, accountants and experts. The Company shall 


36





 



indemnify
the Trustee against any and all loss, liability or expense (including attorneys' fees) incurred by it in connection with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company 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 may have separate counsel and the Company shall pay the fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through the Trustee's own wilful misconduct, negligence or bad faith. 


        To
secure the Company's payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee
other than money or property held in trust to pay principal of and interest on particular Securities. 



        The
Company's payment obligations pursuant to this Section 7.07 shall survive the discharge of this Indenture. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(7) or (8) with respect to the Company, the expenses are intended to constitute expenses of administration under the Bankruptcy Law. 


        SECTION
7.08    Replacement of Trustee.    The Trustee may resign at any time by so notifying the Company. The Holders
of a majority in principal amount of the Securities may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove the Trustee if: 



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


        (2)   the
Trustee is adjudged bankrupt or insolvent; 


        (3)   a
receiver or other public officer takes charge of the Trustee or its property; or 


        (4)   the
Trustee otherwise becomes incapable of acting. 




        If
the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Securities and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. 


        A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07. 



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


        If
the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. 


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


        SECTION
7.09    Successor Trustee by Merger.    If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act
shall be the successor Trustee. 


        In
case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Securities 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 Securities so authenticated; and
in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities 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 full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the
Trustee shall have. 


37





 



        SECTION
7.10    Eligibility; Disqualification.    The Trustee shall at all times satisfy the requirements of TIA
§ 310(a). The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b); provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA §
310(b)(1) are met. 


        SECTION
7.11    Preferential Collection of Claims Against Company.    The Trustee shall comply with 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. 


Article 8

 
  Discharge of Indenture; Defeasance


        SECTION
8.01    Discharge of Liability on Securities; Defeasance.    (a) When (1) all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) have been delivered to the Trustee for cancellation or (2) all outstanding Securities have become due and payable,
whether at maturity or on a redemption date as a result of the mailing of a notice of redemption pursuant to Article 3 hereof and, in the case of clause (2) the Company irrevocably
deposits with the Trustee funds in trust sufficient to pay at maturity or upon redemption all outstanding Securities, including interest thereon to maturity or such redemption date (other than
Securities replaced pursuant to Section 2.07), and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to
Section 8.01(c), cease to be of further effect. The Trustee shall acknowledge satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company. 


        (b)   Subject
to Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all its obligations under the Securities and this Indenture ("legal defeasance
option") or (2) its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 and the operation of Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) and
6.01(10) (but, in the case of Sections 6.01(7) and (8), with respect only to Significant Subsidiaries and Subsidiary Guarantors) and the limitations contained in Sections 5.01(a)(3) ("covenant
defeasance option"). The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. 



        If
the Company exercises its legal defeasance option, payment of the Securities may not be accelerated because of an Event of Default with respect thereto. If the Company exercises its
covenant defeasance option, payment of the Securities may not be accelerated because of an Event of Default specified in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (but, in the
case of Sections 6.01(7) and (8), with respect only to Significant Subsidiaries and Subsidiary Guarantors) or because of the failure of the Company to comply with Section 5.01(a)(3). If the
Company exercises its legal defeasance option or its covenant defeasance option, each Subsidiary Guarantor, if any, shall be released from all its obligations with respect to its Subsidiary Guaranty. 



        Upon
satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates. 


        (c)   Notwithstanding
Sections 8.01(a) and 8.01(b) above, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in this Article 8
shall survive until the Securities have been paid in full. Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive such satisfaction and discharge. 



        SECTION
8.02    Conditions to Defeasance.    The Company may exercise its legal defeasance option or its covenant
defeasance option only if: 



        (1)   the
Company irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of principal of and interest on the Securities to
maturity or redemption, as the case may be; 


        (2)   the
Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal
and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all the Securities to maturity or redemption, as the case may be; 



38





 




        (3)   123 days
pass after the deposit is made and during the 123-day period no Default specified in Sections 6.01(7) or (8) with respect to the
Company occurs which is continuing at the end of the period; 


        (4)   the
deposit does not constitute a default under any other agreement binding on the Company and is not prohibited by Article 10 or 12; 


        (5)   the
Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940; 


        (6)   in
the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling, or (B) since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Securityholders will not recognize income, gain or loss for Federal income tax purposes as a result of such
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 defeasance had not occurred; 


        (7)   in
the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Securityholders 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; and 


        (8)   the
Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article 8 have been complied with. 




        Before
or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article 3. 



        SECTION
8.03    Application of Trust Money.    The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and securities so held in trust are not subject to Article 10. 


        SECTION
8.04    Repayment to Company.    The Trustee and the Paying Agent shall promptly turn over to the Company upon
request any excess money or securities held by them at any time. 


        Subject
to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal or interest
that remains unclaimed for two years, and, thereafter, Securityholders entitled to the money must look to the Company for payment as general creditors. 


        SECTION
8.05    Indemnity for Government Obligations.    The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations. 



        SECTION
8.06    Reinstatement.    If the Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's and each Subsidiary Guarantor's obligations under this Indenture, each Subsidiary Guaranty and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this
Article 8; provided, however, that, if the Company has made any payment of interest on or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent. 


39





 


Article 9

 
  Amendments



        SECTION
9.01    Without Consent of Holders.    The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities without notice to or consent of any Securityholder: 



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


        (2)   to
comply with Article 5; 


        (3)   to
provide for uncertificated Securities in addition to or in place of certificated Securities; provided, however, that
the uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code or in a manner such that the uncertificated Securities are described in
Section 163(f)(2)(B) of the Code; 


        (4)   to
make any change in Article 10 or 12 that would limit or terminate the benefits available to any holder of Senior Indebtedness of the Company or of a Subsidiary
Guarantor (or Representatives therefor) under Article 10 or 12; 


        (5)   to
add Guarantees with respect to the Securities, including any Subsidiary Guaranties, or to secure the Securities; 



        (6)   to
add to the covenants of the Company or any Subsidiary Guarantor for the benefit of the Holders or to surrender any right or power herein conferred upon the Company or
any Subsidiary Guarantor;


        (7)   to
comply with any requirements of the SEC in connection with qualifying, or maintaining the qualification of, this Indenture under the TIA; 


        (8)   to
make any change that does not adversely affect the rights of any Securityholder; or 


        (9)   to
make any amendment to the provisions of this Indenture relating to the form, authentication, transfer and legending of the Securities;  provided however, that (a) compliance with the Indenture as so
amended would not result in the Securities being transferred in violation of the
Securities Act or any other applicable securities law and (b) such amendment does not materially affect the rights of Holders to transfer Securities. 




        An
amendment under this Section 9.01 may not make any change that adversely affects the rights under Article 10 or 12 of any holder of Senior Indebtedness of the Company or
of a Subsidiary Guarantor then outstanding unless the holders of such Senior Indebtedness (or their Representative) consent to such change. 


        After
an amendment under this Section 9.01 becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The failure to give such notice
to all Securityholders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 9.01. 


        SECTION
9.02    With Consent of Holders.    The Company, the Subsidiary Guarantors and the Trustee may amend this
Indenture or the Securities without notice to any Securityholder but with the written consent of the Holders of at least a majority in principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange for the Securities). However, without the consent of each Securityholder affected thereby, an amendment or waiver may not: 



        (1)   reduce
the amount of Securities whose Holders must consent to an amendment; 


        (2)   reduce
the rate of or extend the time for payment of interest on any Security; 


        (3)   reduce
the principal amount of or change the Stated Maturity of any Security; 


        (4)   reduce
the amount payable upon the redemption of any Security or change the time at which any Security may be redeemable as described in Article 3 hereto or
paragraphs 5 or 6 of the Securities; 


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



        (6)   impair
the right of any Holder of Securities to receive payment of principal of and interest on such Securities on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Securities; 



40





 




        (7)   make
any changes in the ranking or priority of any Security that would adversely affect the Securityholders; 


        (8)   make
any change in Section 6.04 or 6.07 or the second sentence of this Section 9.02; or 


        (9)   make
any change in, or release other than in accordance with this Indenture, any Subsidiary Guaranty that would adversely affect the Securityholders. 




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


        An
amendment under this Section 9.02 may not make any change that adversely affects the rights under Article 10 or 12 of any holder of Senior Indebtedness of the Company or
of a Subsidiary Guarantor then outstanding unless the holders of such Senior Indebtedness (or Representative therefor) consent to such change. 


        After
an amendment under this Section 9.02 becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The failure to give such notice
to all Securityholders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 9.02. 



        SECTION
9.03    Compliance with Trust Indenture Act.    Every amendment to this Indenture or the Securities shall
comply with the TIA as then in effect. 


        SECTION
9.04    Revocation and Effect of Consents and Waivers.    A consent to an amendment or a waiver by a Holder of
a Security shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder's Security, even if notation of the
consent or waiver is not made on the Security. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment or waiver becomes effective. After an amendment or waiver becomes effective, it shall bind every Securityholder. An amendment or waiver
becomes effective upon the execution of such amendment or waiver by the Trustee. 


        The
Company shall be entitled to, but shall not be obligated to, fix a record date for the purpose of determining the Securityholders entitled to give their consent or take any other
action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date. 


        SECTION
9.05    Notation on or Exchange of Securities.    If an amendment changes the terms of a Security, the Trustee
shall be entitled to require the Holder of the Security to deliver it to the Trustee. The Trustee shall be entitled to place an appropriate notation on the Security regarding the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall execute and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment. 


        SECTION
9.06    Trustee To Sign Amendments.    The Trustee shall sign any amendment authorized pursuant to this
Article 9 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee shall be entitled to, but need not, sign it. In
signing such amendment the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and shall be provided with, and (subject to Section 7.01) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture. 



        SECTION
9.07    Payment for Consent.    Neither the Company nor any Affiliate of the Company shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is offered to be paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement. 


41








   Article 10

 
  Subordination


        SECTION
10.01.    Agreement To Subordinate.    The Company agrees, and each Securityholder by accepting a Security
agrees, that the Indebtedness evidenced by the Securities is subordinated in right of payment, to the extent and in the manner provided in this Article 10, to the prior payment in full of all
Senior Indebtedness of the Company and that the subordination is for the benefit of and enforceable by the holders of such Senior Indebtedness. The Securities shall in all respects rank  pari passu with
all other Senior Subordinated Indebtedness of the Company and only Indebtedness of the Company which is Senior Indebtedness of the
Company shall rank senior to the Securities in accordance with the provisions set forth herein. All provisions of this Article 10 shall be subject to Section 10.12. 



        SECTION
10.02.    Liquidation, Dissolution, Bankruptcy.    Upon any payment or distribution of the assets of the
Company to creditors upon a total or partial liquidation or a total or partial dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to
the Company or its property: 



        (1)   holders
of Senior Indebtedness of the Company shall be entitled to receive payment in full of such Senior Indebtedness before Securityholders shall be entitled to
receive any payment of principal of or interest on the Securities (except that Securityholders may receive and retain Permitted Junior Securities of the Company and other payments made from the trusts
described in Article 8); 


        (2)   until
such Senior Indebtedness is paid in full, any payment or distribution to which Securityholders would be entitled but for this Article 10 shall be made to
holders of such Senior Indebtedness as their interests may appear (except that Securityholders may receive and retain Permitted Junior Securities of the Company and other payments made from the trusts
described in Article 8); and 


        (3)   if
a distribution is made to holders of the Securities that, due to the subordination provisions, should not have been made to them, such holders of the Securities are
required to hold in trust for the holders of the Senior Indebtedness of the Company and pay it over to them as their interests may appear. 




        SECTION
10.03.    Default on Senior Indebtedness of the Company.    The Company shall not pay the principal of or
interest on the Securities (except in Permitted Junior Securities of the Company and from the trusts described under Article 8) or make any deposit pursuant to Section 8.01 and may not
purchase, redeem or otherwise retire any Securities (collectively, "pay the Securities") if either of the following (a "Payment Default") occurs (a) any Designated Senior Indebtedness of the
Company is not paid in full when due; or (b) any other default on Designated Senior Indebtedness of the Company occurs and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, the Payment Default has been cured or waived and any such acceleration has been rescinded or such Designated Senior Indebtedness has been paid in
full; provided, however, that the Company shall be entitled to pay the Securities without regard to the foregoing if the Company and the Trustee receive
written notice approving such payment from the Representative of any Designated Senior Indebtedness with respect to which the Payment Default has occurred and is continuing. 



        During
the continuance of any default (other than a Payment Default) with respect to any Designated Senior Indebtedness of the Company pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods, the Company shall not pay the
Securities (except in Permitted Junior Securities of the Company and from the trusts described under Article 8) for a period (a "Payment Blockage Period") commencing upon the receipt by the
Trustee of (with a copy to the Company) written notice (a "Blockage Notice") of such default from the Representative of such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter. The Payment Blockage Period shall end earlier if such Payment Blockage Period is terminated (1) by written notice to the Trustee and the
Company from the Person or Persons who gave such Blockage Notice, (2) because the default giving rise to such Blockage Notice is cured, waived or otherwise no longer continuing, or
(3) because such Designated Senior Indebtedness has been discharged or repaid in full. Notwithstanding the provisions described in the immediately preceding two sentences (but subject to the
provisions contained in the first sentence of this Section 10.03), unless the holders of such Designated Senior Indebtedness or the Representative of such Designated Senior Indebtedness shall
have accelerated the maturity of such Designated Senior Indebtedness, the Company shall be entitled to resume payments on the Securities after termination of such Payment Blockage Period. The
Securities shall not be subject to more than one Payment 


42





 



Blockage
Period in any consecutive 360-day period, irrespective of the number of defaults with respect to Designated Senior Indebtedness of the Company during such
period.


        For
purposes of this Section 10.03, no default or event of default which existed or was continuing on the date of the commencement of any Payment Blockage Period with respect to
the Designated Senior Indebtedness of the Company initiating such Payment Blockage Period shall be, or be made, the basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, unless such default or event of default shall have been cured or waived for a period of not less
than 90 consecutive days. 


        SECTION
10.04.    Acceleration of Payment of Securities.    If payment of the Securities is accelerated because of an
Event of Default, the Company or the Trustee shall promptly notify the holders of the Designated Senior Indebtedness of the Company (or their Representatives) of the acceleration. 



        SECTION
10.05.    When Distribution Must Be Paid Over.    If a distribution is made to Securityholders that because of
this Article 10 should not have been made to them, the Securityholders who receive the distribution shall hold it in trust for holders of Senior Indebtedness of the Company and pay it over to
them as their interests may appear. 


        SECTION
10.06.    Subrogation.    After all Senior Indebtedness of the Company is paid in full and until the
Securities are paid in full, Securityholders shall be subrogated to the rights of holders of such Senior Indebtedness to receive distributions applicable to such Senior Indebtedness. A distribution
made under this Article 10 to holders of such Senior Indebtedness which otherwise would have been made to Securityholders is not, as between the Company and Securityholders, a payment by the
Company on such Senior Indebtedness. 


        SECTION
10.07.    Relative Rights.    This Article 10 defines the relative rights of Securityholders and
holders of Senior Indebtedness of the Company. Nothing in this Indenture shall: 



        (1)   impair,
as between the Company and Securityholders, the obligation of the Company, which is absolute and unconditional, to pay principal of and interest on the
Securities in accordance with their terms; or 


        (2)   prevent
the Trustee or any Securityholder from exercising its available remedies upon a Default, subject to the rights of holders of Senior Indebtedness of the Company
to receive distributions otherwise payable to Securityholders. 




        SECTION
10.08.    Subordination May Not Be Impaired by Company.    No right of any holder of Senior Indebtedness of
the Company to enforce the subordination of the Indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the Company or by its failure to comply with this Indenture. 



        SECTION
10.09.    Rights of Trustee and Paying Agent.    Notwithstanding Section 10.03, the Trustee or Paying
Agent shall continue to make payments on the Securities and shall not be charged with knowledge of the existence of facts that under this Article 10 would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such payment, a Trust Officer of the Trustee receives notice satisfactory to it that such payments are prohibited by this
Article 10. The Company, the Registrar or co-registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness of the Company shall be entitled to give the notice;  provided, however,
that, if an issue of Senior Indebtedness of the Company has a Representative, only the Representative shall be entitled to give the
notice. 


        The
Trustee in its individual or any other capacity shall be entitled to hold Senior Indebtedness of the Company with the same rights it would have if it were not Trustee. The Registrar
and co-registrar and the Paying Agent shall be entitled to do the same with like rights. The Trustee shall be entitled to all the rights set forth in this Article 10 with respect to
any Senior Indebtedness of the Company which may at any time be held by it, to the same extent as any other holder of such Senior Indebtedness; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 10 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07. 



        SECTION
10.10.    Distribution or Notice to Representative.    Whenever any Person is to make a distribution or give a
notice to holders of Senior Indebtedness of the Company, such Person shall be entitled to make such distribution or give such notice to their Representative (if any). 


        SECTION
10.11.    Article 10 Not To Prevent Events of Default or Limit Right To Accelerate.    The failure to
make a payment pursuant to the Securities by reason of any provision in this Article 10 shall not be construed as 


43





 



preventing
the occurrence of a Default. Nothing in this Article 10 shall have any effect on the right of the Securityholders or the Trustee to accelerate the maturity of the Securities. 


        SECTION
10.12.    Trust Moneys Not Subordinated.    Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government Obligations held in trust under Article 8 by the Trustee for the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness of the Company or subject to the restrictions set forth in this Article 10, and none of the Securityholders shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness of the Company or any other creditor of the Company. 


        SECTION
10.13.    Trustee Entitled To Rely.    Upon any payment or distribution pursuant to this Article 10,
the Trustee and the Securityholders shall be entitled to rely (a) upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in
Section 10.02 are pending, (b) upon a certificate of the liquidating trustee or agent or other Person making such payment or distribution to the Trustee or to the Securityholders or
(c) upon the Representatives for the holders of Senior Indebtedness of the Company for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the
holders of such Senior Indebtedness and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10. In the event that the Trustee determines, in good faith, that evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of
the Company to participate in any payment or distribution pursuant to this Article 10, the Trustee shall be entitled to request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and other facts pertinent to
the rights of such Person under this Article 10, and, if such evidence is not furnished, the Trustee shall be entitled to defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all actions or omissions of actions by the Trustee pursuant to this Article 10. 


        SECTION
10.14.    Trustee To Effectuate Subordination.    Each Securityholder by accepting a Security authorizes and
directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination between the Securityholders and the holders of Senior
Indebtedness of the Company as provided in this Article 10 and appoints the Trustee as attorney-in-fact for any and all such purposes. 


        SECTION
10.15.    Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company.    The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Company and shall not be liable to any such holders if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other Person, money or assets to which any holders of Senior Indebtedness of the Company shall be entitled by virtue of this Article 10 or otherwise. 


        SECTION
10.16.    Reliance by Holders of Senior Indebtedness of the Company on Subordination Provisions.    Each
Securityholder by accepting a Security acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the
Company, whether such Senior Indebtedness was created or acquired before or after the issuance of the Securities, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness and
such holder of such Senior Indebtedness shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness. 


Article 11

 
  Subsidiary Guaranties


        SECTION
11.01.    Subsidiary Guaranties.    Each Subsidiary Guarantor hereby unconditionally and irrevocably
guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities when due,
whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual
performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the "Guarantee
Obligations"). Each Subsidiary Guarantor further agrees that the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor
and 


44





 

that
such Subsidiary Guarantor will remain bound under this Article 11 notwithstanding any extension or renewal of any Guarantee Obligation. 


        Each
Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guarantee Obligations and also waives notice of protest for nonpayment.
Each Subsidiary Guarantor waives notice of any default under the Securities or the Guarantee Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) the
failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person (including any Subsidiary Guarantor) under this Indenture,
the Securities or any other agreement or otherwise; (2) any extension or renewal of any such claim, demand, right or remedy; (3) any rescission, waiver, amendment or modification of any
of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guarantee Obligations or any of
them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guarantee Obligations; or (6) except as set forth in
Section 11.06, any change in the ownership of such Subsidiary Guarantor. 


        Each
Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection)
and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantee Obligations. 


        Each
Subsidiary Guaranty is, to the extent and in the manner set forth in Article 12, subordinated and subject in right of payment to the prior payment in full of the principal of
and premium, if any, and interest on all Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary Guaranty and each Subsidiary Guaranty is made subject to such provisions of this
Indenture. 


        Except
as expressly set forth in Sections 8.01(b), 11.02 and 11.06, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment
or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantee Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each
Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any
other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Subsidiary Guarantor or would otherwise operate as a
discharge of such Subsidiary Guarantor as a matter of law or equity. 


        Each
Subsidiary Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
principal of or interest on any Guarantee Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. 



        In
furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon
the failure of the Company to pay the principal of or interest on any Guarantee Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or
to perform or comply with any other Guarantee Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in
cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guarantee Obligations, (B) accrued and unpaid interest on such Guarantee Obligations (but
only to the extent not prohibited by law) and (C) all other monetary Guarantee Obligations of the Company to the Holders and the Trustee. 


        Each
Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guarantee Obligations Guaranteed hereby until payment in full of all
Guarantee Obligations and all obligations to which the Guarantee Obligations are subordinated as provided in Article 12. Each Subsidiary Guarantor further agrees that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guarantee Obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of
such Subsidiary Guarantor's Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations Guaranteed
hereby, and (ii) in the event of 


45





 



any
declaration of acceleration of such Obligations as provided in Article 6, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section 11.01. 


        Each
Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights under
this Section 11.01. 


        SECTION
11.02.    Limitation on Liability.    Any term or provision of this Indenture to the contrary notwithstanding,
the maximum aggregate amount of the Guarantee Obligations Guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby Guaranteed without rendering this
Indenture, as it
relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. 


        SECTION
11.03.    Successors and Assigns.    This Article 11 shall be binding upon each Subsidiary Guarantor
and its successors and assigns and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or
the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Securities shall automatically extend to and be vested in such transferee or assignee, all subject to the
terms and conditions of this Indenture. 


        SECTION
11.04.    No Waiver.    Neither a failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article 11 shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which
either may have under this Article 11 at law, in equity, by statute or otherwise. 



        SECTION
11.05.    Modification.    No modification, amendment or waiver of any provision of this Article 11,
nor the consent to any departure by any Subsidiary Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to any
other or further notice or demand in the same, similar or other circumstances. 



        SECTION
11.06.    Release of Subsidiary Guarantor.    The Subsidiary Guaranty of a Subsidiary Guarantor will be
released under this Article 11: 



        (1)   upon
the sale or other disposition (including by way of consolidation or merger) of such Subsidiary Guarantor other than to the Company or a Restricted Subsidiary as
permitted by this Indenture; 


        (2)   upon
the sale or other disposition (including by way of consolidation or merger) of all or substantially all of the assets of such Subsidiary Guarantor other than to the
Company or a Restricted Subsidiary; 


        (3)   upon
the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Indenture; 


        (4)   at
such time as such Subsidiary Guarantor does not have any Indebtedness outstanding that would have required such Subsidiary Guarantor to enter into a Guaranty
Agreement pursuant to clause (ii) of Section 4.11, and the Company provides an Officer's Certificate to the Trustee certifying that no such Indebtedness is outstanding and that the
Company elects to have such Subsidiary Guarantor released; or 


        (5)   upon
defeasance of the Securities or discharge of this Indenture pursuant to Article 8; 




        SECTION
11.07.    Contribution.    Each Subsidiary Guarantor that makes a payment under its Subsidiary Guaranty shall
be entitled upon payment in full of all guarantied obligations under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor's  pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in
accordance with GAAP. 


46





 
Article 12

 
  Subordination of Subsidiary Guaranties


        SECTION
12.01.    Agreement To Subordinate.    Each Subsidiary Guarantor agrees, and each Securityholder by accepting
a Security agrees, that the Indebtedness evidenced by such Subsidiary Guarantor's Subsidiary Guaranty is subordinated in right of payment, to the extent and in the manner provided in this
Article 12, to the prior payment in full of all Senior Indebtedness of such Subsidiary Guarantor and that the subordination is for the benefit of and enforceable by the holders of such Senior
Indebtedness. The Obligations of a Subsidiary Guarantor shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of such
Subsidiary Guarantor and only Senior Indebtedness of such Subsidiary Guarantor (including such Subsidiary Guarantor's Guarantee of Senior Indebtedness of the Company) shall rank senior to the
Obligations of such Subsidiary Guarantor in accordance with the provisions set forth herein. 



        SECTION
12.02.    Liquidation, Dissolution, Bankruptcy.    Upon any payment or distribution of the assets of any
Subsidiary Guarantor to creditors upon a total or partial liquidation or a total or partial dissolution of such Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to such Subsidiary Guarantor or its property: 



        (1)   holders
of Senior Indebtedness of such Subsidiary Guarantor shall be entitled to receive payment in full of such Senior Indebtedness before Securityholders shall be
entitled to receive any payment pursuant to the Subsidiary Guaranty of such Subsidiary Guarantor (except that Securityholders may receive and retain Permitted Junior Securities of such Subsidiary
Guarantor and other payments made from the trusts described in Article 8); 


        (2)   until
the Senior Indebtedness of any Subsidiary Guarantor is paid in full, any payment or distribution to which Securityholders would be entitled but for this
Article 12 shall be made to holders of such Senior Indebtedness as their interests may appear (except that Securityholders may receive and retain Permitted Junior Securities of such Subsidiary
Guarantor and other payments made from the trusts described in Article 8); and 



        (3)   if
a distribution is made to Holders of the Securities that, due to the subordination provisions, should not have been made to them, such Holders of the Securities are
required to hold in trust for the holders of the Senior Indebtedness of the Company and pay it over to them as their interests may appear. 




        SECTION
12.03.    Default on Senior Indebtedness of Subsidiary Guarantor.    No Subsidiary Guarantor shall make any
payment on its Subsidiary Guaranty (except that Securityholders may receive and retain Permitted Junior Securities of such Subsidiary Guarantor and other payments made from the trusts described in
Article 8) or purchase, redeem or otherwise retire or defease any Securities or other Obligations (collectively, "pay its Subsidiary Guaranty") if either of the following (a "Payment Default")
occurs (a) any Designated Senior Indebtedness of such Subsidiary Guarantor is not paid in full when due; or (b) any other default on Designated Senior Indebtedness of such Subsidiary
Guarantor occurs and the maturity of such Designated Senior Indebtedness is accelerated in accordance with its terms; unless, in either case, the Payment Default has been cured or waived and any such
acceleration has been rescinded or such Designated Senior Indebtedness has been paid in full; provided, however, that any Subsidiary Guarantor shall be
entitled to pay its Subsidiary Guaranty without regard to the foregoing if such Subsidiary Guarantor and the Trustee receive written notice approving such payment from the Representative of any
Designated Senior Indebtedness with respect to which the Payment Default has occurred and is continuing. During the continuance of any default (other than a Payment Default) with respect to any
Designated Senior Indebtedness of such Subsidiary Guarantor pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods, such Subsidiary Guarantor shall not pay its Subsidiary Guaranty (except that Securityholders may receive and retain
Permitted Junior Securities of such Subsidiary Guarantor and other payments made from the trusts described in Article 8) for a period (a "Payment Blockage Period") commencing upon the receipt
by the Trustee of (with a copy to such Subsidiary Guarantor) written notice (a "Blockage Notice") of such default from the Representative of such Designated Senior Indebtedness specifying an election
to effect a Payment Blockage Period and ending 179 days thereafter. The Payment Blockage Period shall end earlier if such Payment Blockage Period is terminated (1) by written notice to
the Trustee and such Subsidiary Guarantor from the Person or Persons who gave such Blockage Notice, (2) because the default giving rise to such Blockage Notice is cured, waived or otherwise no
longer continuing, or (3) because such Designated Senior Indebtedness has been discharged or repaid in full. Notwithstanding the 


47





 

provisions
described in the immediately preceding two sentences (but subject to the provisions contained in the first sentence of this Section 12.03), unless the holders of such Designated
Senior Indebtedness giving such Payment Notice or the Representative of such Designated Senior Indebtedness shall have accelerated the maturity of such Designated Senior Indebtedness, any Subsidiary
Guarantor shall be entitled to resume payments pursuant to its Subsidiary Guaranty after termination of such Payment Blockage Period. No Subsidiary Guarantor shall be subject to more than one Blockage
Period in any consecutive 360-day period, irrespective of the number of defaults with respect to Designated Senior Indebtedness of such Subsidiary Guarantor during such period. For
purposes of this Section 12.03, no default or event of default which existed or was continuing on the date of the commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness of such Subsidiary Guarantor initiating such Payment Blockage Period shall be, or be made, the basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, unless such default or event of default shall have been cured or waived for a period of not less
than 90 consecutive days. 


        SECTION
12.04.    Demand for Payment.    If a demand for payment is made on a Subsidiary Guarantor pursuant to
Article 11, the Company or the Trustee shall promptly notify the holders of the Designated Senior Indebtedness of such Subsidiary Guarantor (or their Representatives) of such demand. 


        SECTION
12.05.    When Distribution Must Be Paid Over.    If a distribution is made to Securityholders that because of
this Article 12 should not have been made to them, the Securityholders who receive the distribution shall hold it in trust for holders of Senior Indebtedness of the applicable Subsidiary
Guarantor and pay it over to them or their Representatives as their interests may appear. 


        SECTION
12.06.    Subrogation.    After all Senior Indebtedness of a Subsidiary Guarantor is paid in full and until
the Securities are paid in full, Securityholders shall be subrogated to the rights of holders of such Senior Indebtedness to receive distributions applicable to Senior Indebtedness of such Subsidiary
Guarantor. A distribution made under this Article 12 to holders of such Senior Indebtedness which otherwise would have been made to Securityholders is not, as between the relevant Subsidiary
Guarantor and Securityholders, a payment by such Subsidiary Guarantor on such Senior Indebtedness. 


        SECTION
12.07.    Relative Rights.    This Article 12 defines the relative rights of Securityholders and
holders of Senior Indebtedness of a Subsidiary Guarantor. Nothing in this Indenture shall: 



        (1)   impair,
as between a Subsidiary Guarantor and Securityholders, the obligation of such Subsidiary Guarantor, which is absolute and unconditional, to pay its Subsidiary
Guaranty to the extent set forth in Article 11; or 


        (2)   prevent
the Trustee or any Securityholder from exercising its available remedies upon a default by such Subsidiary Guarantor under its Subsidiary Guaranty, subject to
the rights of holders of Senior Indebtedness of such Subsidiary Guarantor to receive distributions otherwise payable to Securityholders. 




        SECTION
12.08.    Subordination May Not Be Impaired by Company.    No right of any holder of Senior Indebtedness of
any Subsidiary Guarantor to enforce the subordination of the Subsidiary Guaranty of such Subsidiary Guarantor shall be impaired by any act or failure to act by such Subsidiary Guarantor or by its
failure to comply with this Indenture. 


        SECTION
12.09.    Rights of Trustee and Paying Agent.    Notwithstanding Section 12.03, the Trustee or Paying
Agent shall continue to make payments on any Subsidiary Guaranty and shall not be charged with knowledge of the existence of facts that would prohibit the making of any such payments unless, not less
than two Business Days prior to the date of such payment, a Trust Officer of the Trustee receives written notice satisfactory to it that such payments are prohibited by this Article 12. The
Company, the relevant Subsidiary Guarantor, the Registrar or co-registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness of such Subsidiary Guarantor shall be
entitled to give the notice; provided, however, that, if an issue of Senior Indebtedness of any Subsidiary Guarantor has a Representative, only the
Representative shall be entitled to give the notice. 


        The
Trustee in its individual or any other capacity shall be entitled to hold Senior Indebtedness of any Subsidiary Guarantor with the same rights it would have if it were not the
Trustee. The Registrar and co-registrar and the Paying Agent may do the same with like rights. The Trustee shall be entitled to all the rights set forth in this Article 12 with
respect to any Senior Indebtedness of any Subsidiary Guarantor which may at any time be held by it, to the same extent as any other holder of such Senior Indebtedness; and nothing in Article 7
shall 


48





 



deprive
the Trustee of any of its rights as such holder. Nothing in this Article 12 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07. 



        SECTION
12.10.    Distribution or Notice to Representative.    Whenever any Person is to make a distribution or give a
notice to holders of Senior Indebtedness of any Subsidiary Guarantor, such Person shall be entitled to make such distribution or give such notice to their Representative (if any). 


        SECTION
12.11.    Article 12 Not To Prevent Events of Default or Limit Right To Demand Payment.    The failure
to make a payment pursuant to a Subsidiary Guaranty by reason of any provision in this Article 12 shall not be construed as preventing the occurrence of a Default. Nothing in this
Article 12 shall have any effect on the right of the Securityholders or the Trustee to make a demand for payment on any Subsidiary Guarantor pursuant to its Subsidiary Guaranty. 


        SECTION
12.12.    Trustee Entitled To Rely.    Upon any payment or distribution pursuant to this Article 12,
the Trustee and the Securityholders shall be entitled to rely (a) upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in
Section 12.02 are pending, (b) upon a certificate of the liquidating trustee or agent or other Person making such payment or distribution to the Trustee or to the Securityholders or
(c) upon the Representatives for the holders of Senior Indebtedness of any Subsidiary Guarantor for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such Senior Indebtedness and other indebtedness of such Subsidiary Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article 12. In the event that the Trustee determines, in good faith, that evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness of any Subsidiary Guarantor to participate in any payment or distribution pursuant to this Article 12, the Trustee shall be entitled to request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness of such Subsidiary Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the rights of such Person under this Article 12, and, if such evidence is not furnished, the Trustee shall be entitled
to defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all actions
or omissions of actions by the Trustee pursuant to this Article 12. 


        SECTION
12.13.    Trustee To Effectuate Subordination.    Each Securityholder by accepting a Security authorizes and
directs the Trustee on its behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination between the Securityholders and the holders of Senior
Indebtedness of any Subsidiary Guarantor as provided in this Article 12 and appoints the Trustee as attorney-in-fact for any and all such purposes. 


        SECTION
12.14.    Trustee Not Fiduciary for Holders of Senior Indebtedness of Subsidiary Guarantor.    The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of any Subsidiary Guarantor and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Securityholders or the Company or any other Person, money or assets to which any holders of such Senior Indebtedness shall be entitled by virtue of this Article 12 or otherwise. 



        SECTION
12.15    Reliance by Holders of Senior Indebtedness of Subsidiary Guarantors on Subordination Provisions.
    Each Securityholder by accepting a Security acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each
holder of any Senior Indebtedness of any Subsidiary Guarantor, whether such Senior Indebtedness was created or acquired before or after the issuance of the Securities, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness. 


Article 13


  Miscellaneous


        SECTION
13.01.    Trust Indenture Act Controls.    If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. 


49





 

        SECTION
13.02.    Notices.    Any notice or communication shall be in writing and delivered in person or mailed by
first-class mail addressed as follows: 



        if
to the Company or any Subsidiary Guarantor: 



Thermadyne
Holdings Corporation

16052 Swingley Ridge Road, Suite 300

Chesterfield, Missouri 63017

Attention: General Counsel 


with
a copy to: 


Armstrong
Teasdale LLP

One Metropolitan Square

Suite 2600

St. Louis, MO 63102

Attention: Kathleen M. Schoene, Esq. 


if
to the Trustee: 


U.S.
Bank National Association

60 Livingston Avenue

St. Paul, MN 55107-2292

Attention: Frank Leslie 





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


        Any
notice or communication mailed to a Securityholder shall be mailed to the Securityholder at the Securityholder's address as it appears on the registration books of the Registrar and
shall be sufficiently given if so mailed within the time prescribed. 


        Failure
to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the addressee receives it. 


        SECTION
13.03.    Communication by Holders with Other Holders.    Securityholders may communicate pursuant to TIA
§ 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, each Subsidiary Guarantor, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c). 


        SECTION
13.04.    Certificate and Opinion as to Conditions Precedent.    Upon any request or application by the
Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee: 



        (1)   an
Officers' Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and 



        (2)   an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been
complied with. 




        SECTION
13.05.    Statements Required in Certificate or Opinion.    Each certificate or opinion with respect to
compliance with a covenant or condition provided for in this Indenture shall include: 



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



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


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



50





 




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




        SECTION
13.06.    When Securities Disregarded.    In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities owned by the Company, any Subsidiary Guarantor or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Also, subject to the foregoing, only Securities outstanding at the time
shall be considered in any such determination. 


        SECTION
13.07.    Rules by Trustee, Paying Agent and Registrar.    The Trustee may make reasonable rules for action by
or a meeting of Securityholders. The Registrar and the Paying Agent may make reasonable rules for their functions. 


        SECTION
13.08.    Legal Holidays.    A "Legal Holiday" is a Saturday, a Sunday or a day which banking institutions are
not required to be open in the State of New York. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected. 


        SECTION
13.09.    Governing Law.    This Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York. 


        SECTION
13.10.    No Recourse Against Others.    No past, present or future director, officer, employee, incorporator,
stockholder or Affiliate, as such, of the Company or any Subsidiary Guarantor shall have any liability for any obligations of the Company under the Securities or this Indenture or of such Subsidiary
Guarantor under its Subsidiary Guaranty or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities. 


        SECTION
13.11.    Successors.    All agreements of the Company or any Subsidiary Guarantor in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. 



        SECTION
13.12.    Multiple 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. One signed copy is enough to prove this Indenture. 


        SECTION
13.13.    Table of Contents; Headings.    The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or
provisions hereof. 


51





 

        IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above. 



	

 	
 	
THERMADYNE HOLDINGS CORPORATION
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
C&G SYSTEMS, INC.
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
C&G SYSTEMS HOLDING, INC.
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
MECO HOLDING COMPANY
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
PROTIP CORPORATION
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
STOODY COMPANY
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	 	 	 	 



52





 

	

 	
 	
THERMADYNE INDUSTRIES, INC.
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
THERMADYNE INTERNATIONAL CORP.
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
THERMADYNE RECEIVABLES INC.
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
THERMAL ARC, INC.
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
THERMAL DYNAMICS CORPORATION
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
TWECO PRODUCTS, INC.
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	

 	
 	
VICTOR EQUIPMENT COMPANY
	

 	
 	

By	

/s/  JAMES H. TATE      
 James H. Tate

Senior Vice President and Chief Financial Officer
	 	 	 	 





53





 

	

 	
 	
U.S. BANK NATIONAL ASSOCIATION
	

 	
 	

By	

/s/  FRANK LESLIE      
 Frank Leslie

Vice President




54






Rule 144A/REGULATION S/IAI APPENDIX  


PROVISIONS RELATING TO INITIAL SECURITIES,

PRIVATE EXCHANGE SECURITIES AND EXCHANGE SECURITIES  


1.    Definitions    


        1.1    Definitions    


        Capitalized
terms used but not otherwise defined in this Appendix shall have the meanings assigned in the Indenture. For the purposes of this Appendix the following terms shall have the
meanings indicated below: 


        "Applicable
Procedures" means, with respect to any transfer or transaction involving a Temporary Regulation S Global Security or beneficial interest therein, the rules and
procedures of the Depository for such a Temporary Regulation S Global Security, to the extent applicable to such transaction and as in effect from time to time. 


        "Definitive
Security" means a certificated Initial Security or Exchange Security or Private Exchange Security bearing, if required, the appropriate restricted securities legend set forth
in Section 2.3(e). 


        "Depository"
means The Depository Trust Company, its nominees and their respective successors. 



        "Distribution
Compliance Period", with respect to any Securities, means the period of 40 consecutive days beginning on and including the later of (i) the day on which such
Securities are first offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S and (ii) the issue date with
respect to such Securities. 


        "Exchange
Securities" means (1) the 91/4% Senior Subordinated Notes Due 2014 issued pursuant to the Indenture in connection with a Registered Exchange Offer
pursuant to a Registration Rights Agreement and (2) Additional Securities, if any, offered and sold by the Company pursuant to a registration statement filed with the SEC under the Securities
Act. 


        "IAI"
means an institutional "accredited investor," as defined in Rule 501(a) (1), (2), (3) or (7) of Regulation D under the Securities Act. 


        "Initial
Purchasers" means (1) with respect to the Initial Securities issued on the Issue Date, Credit Suisse First Boston LLC and Lehman Brothers Inc. and (2) with
respect to each issuance of Additional Securities, the Persons purchasing or underwriting such Additional Securities under the related Purchase Agreement. 


        "Initial
Securities" means (1) $175,000,000 aggregate principal amount of 91/4% Senior Subordinated Notes Due 2014 issued on the Issue Date and
(2) Additional Securities, if any, offered and sold by the Company in a transaction exempt from the registration requirements of the Securities Act. 


        "Private
Exchange" means the offer by the Company, pursuant to a Registration Rights Agreement, to the Initial Purchasers to issue and deliver to each such Initial Purchaser, in exchange
for the Initial Securities held by such Initial Purchaser as part of the initial distribution of such Initial Securities, a like aggregate principal amount of Private Exchange Securities. 



        "Private
Exchange Securities" means any 91/4% Senior Subordinated Notes Due 2014 issued in connection with a Private Exchange. 


        "Purchase
Agreement" means (1) with respect to the Initial Securities issued on the Issue Date, the Purchase Agreement dated January 29, 2004, among the Company, the
Subsidiary Guarantors and the Initial Purchasers and (2) with respect to each issuance of Additional Securities, the purchase agreement or underwriting agreement among the Company, the
Subsidiary Guarantors and the Persons purchasing or underwriting such Additional Securities. 


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



        "Registered
Exchange Offer" means the offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Securities, to issue and deliver to such Holders,
in exchange for the Initial Securities, a like aggregate principal amount of Exchange Securities registered under the Securities Act. 


        "Registration
Rights Agreement" means (1) with respect to the Initial Securities issued on the Issue Date, the Registration Rights Agreement dated February 5, 2004 among
the Company, the Subsidiary Guarantors and the Initial Purchasers and (2) with respect to each issuance of Additional Securities issued in a transaction exempt from the registration
requirements of the Securities Act, the registration rights agreement, if any, among the 





 



Company,
the Subsidiary Guarantors and the Persons purchasing such Additional Securities under the related Purchase Agreement. 


        "Rule 144A
Securities" means all Securities offered and sold to QIBs in reliance on Rule 144A. 


        "Securities"
means the Initial Securities, the Exchange Securities and the Private Exchange Securities, treated as a single class under the Indenture. 


        "Securities
Act" means the Securities Act of 1933. 


        "Securities
Custodian" means the custodian with respect to a Global Security (as appointed by the Depository), or any successor Person thereto, and shall initially be the Trustee. 


        "Shelf
Registration Statement" means the registration statement issued by the Company in connection with the offer and sale of Initial Securities or Private Exchange Securities pursuant
to a Registration Rights Agreement. 


        "Transfer
Restricted Securities" means Securities that bear or are required to bear a legend relating to restrictions on transfer relating to the Securities Act set forth in
Section 2.3(e). 


        1.2    Other Definitions    



	Term
 
	 	Defined in

Section:
	 
	Agent Members	 	2.1(b	)
	Global Securities	 	2.1(a	)
	IAI Global Security	 	2.1(a	)
	Permanent Regulation S Global Security	 	2.1(a	)
	Regulation S	 	2.1(a	)
	Regulation S Global Security	 	2.1(a	)
	Rule 144A	 	2.1(a	)
	Rule 144A Global Security	 	2.1(a	)
	Temporary Regulation S Global Security	 	2.1(a	)






2.    The Securities    


        2.1    (a)    Form and Dating.    The Initial Securities will be offered and sold by the Company pursuant to
a Purchase Agreement. The Initial Securities will be resold initially only to (i) QIBs in reliance on Rule 144A under the Securities Act ("Rule 144A") and (ii) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the Securities Act ("Regulation S"). Initial Securities may thereafter be transferred to,
among others, QIBs, IAIs and purchasers in reliance on Regulation S, subject to the restrictions on transfer set forth herein. Initial Securities initially resold pursuant to Rule 144A
shall be issued initially in the form of one or more permanent global Securities in definitive, fully registered form (collectively, the "Rule 144A Global Security"); Initial Securities
initially resold to IAIs shall be issued initially in the form of one or more permanent global Securities in definitive, fully registered form (collectively, the "IAI Global Security"); and Initial
Securities initially resold pursuant to Regulation S shall be issued initially in the form of one or more temporary global securities in fully registered form (collectively, the "Temporary
Regulation S Global Security"), in each case without interest coupons and with the global securities legend and the applicable restricted securities legend set forth in Exhibit 1 hereto,
which shall be deposited on behalf of the purchasers of the Initial Securities represented thereby with the Securities Custodian and registered in the name of the Depository or a nominee of the
Depository, duly executed by the Company and authenticated by the Trustee as provided in this Indenture. Except as set forth in this Section 2.1(a), beneficial ownership interests in the
Temporary Regulation S Global Security will not be exchangeable for interests in the Rule 144A Global Security, the IAI Global Security, a permanent global security (the "Permanent
Regulation S Global Security", and together with the Temporary Regulation S Global Security, the "Regulation S Global Security") or any other Security prior to the expiration of
the Distribution Compliance Period and then, after the expiration of the Distribution Compliance Period, may be exchanged for interests in a Rule 144A Global Security, an IAI Global Security or
the Permanent Regulation S Global Security only upon certification in form reasonably satisfactory to the Trustee that (i) beneficial ownership interests in such Temporary
Regulation S Global Security are owned either by non-U.S. persons or U.S. persons who purchased such interests in a transaction that did not require registration under the
Securities Act and (ii) in the case of an exchange for an IAI Global Security, certification that the interest in the Temporary Regulation S Global Security is being transferred to an
institutional "accredited investor" under the Securities Act that is an 


2





 



institutional
accredited investor acquiring the securities for its own account or for the account of an institutional accredited investor. 


        Beneficial
interests in Temporary Regulation S Global Securities or IAI Global Securities may be exchanged for interests in Rule 144A Global Securities if (1) such
exchange occurs in connection with a transfer of Securities in compliance with Rule 144A and (2) the transferor of the beneficial interest in the Temporary Regulation S Global
Security or the IAI Global Security, as applicable, first delivers to the Trustee a written certificate (in a form satisfactory to the Trustee) to the effect that the beneficial interest in the
Temporary Regulation S Global Security or the IAI Global Security, as applicable, is being transferred to a Person (a) who the transferor reasonably believes to be a QIB,
(b) purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and (c) in accordance with all applicable securities laws of the
States of the United States and other jurisdictions. 


        Beneficial
interests in Temporary Regulation S Global Securities and Rule 144A Global Securities may be exchanged for an interest in IAI Global Securities if
(1) such exchange occurs in connection with a transfer of the securities in compliance with an exemption under the Securities Act and (2) the transferor of the Regulation S Global
Security or Rule 144A Global Security, as applicable, first delivers to the trustee a written certificate (substantially in the form of Exhibit 2) to the effect that (A) the
Regulation S Global Security or Rule 144A Global Security, as applicable, is being transferred (a) to an "accredited investor" within the meaning of 501(a) (1), (2), (3) or
(7) under the Securities Act that is an institutional investor acquiring the securities for its own account or for the account of such an institutional accredited investor, in each case in a
minimum principal amount of Securities of $250,000, for investment purposes and not with a view to or for offer or sale in connection with any distribution in violation of the Securities Act and
(B) in accordance with all applicable securities laws of the States of the United States and other jurisdictions. 



        Beneficial
interests in a Rule 144A Global Security or an IAI Global Security may be transferred to a Person who takes delivery in the form of an interest in a Regulation S
Global Security, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate (in the form provided in the
Indenture) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if applicable). 


        The
Rule 144A Global Security, the IAI Global Security, the Temporary Regulation S Global Security and the Permanent Regulation S Global Security are collectively
referred to herein as "Global Securities". The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and
the Depository or its nominee as hereinafter provided. 



        (b)    Book-Entry Provisions.    This Section 2.1(b) shall apply only to a Global Security
deposited with or on behalf of the Depository. 




        The
Company shall execute and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Securities that (a) shall be
registered in the name of the Depository for such Global Security or Global Securities or the nominee of such Depository and (b) shall be delivered by the Trustee to such Depository or pursuant
to such Depository's instructions or held by the Trustee as custodian for the Depository. 


        Members
of, or participants in, the Depository ("Agent Members") shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depository or
by the Trustee as the custodian of the Depository or under such Global Security, and the Company, the Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary Guarantors or the
Trustee shall be entitled to treat the Depository as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Subsidiary Guarantors, the Trustee or any agent of the Company, the Subsidiary Guarantors or the Trustee from giving effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices of such Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Security. 



        (c)    Definitive Securities.    Except as provided in this Section 2.1 or Section 2.3 or 2.4, owners of
beneficial interests in Global Securities shall not be entitled to receive physical delivery of Definitive Securities. 



3





 

        2.2    Authentication    


        The
Trustee shall authenticate and deliver: (1) on the Issue Date, an aggregate principal amount of $175,000,000 91/4% Senior Subordinated Notes Due 2014,
(2) any Additional Securities for an original issue in an aggregate principal amount specified in the written order of the Company pursuant to Section 2.02 of the Indenture and
(3) Exchange Securities or Private Exchange Securities for issue only in a Registered Exchange Offer or a Private Exchange, respectively, pursuant to a Registration Rights Agreement, for a like
principal amount of Initial Securities, in each case upon a written order of the Company signed by two Officers or by an Officer and either
an Assistant Treasurer or an Assistant Secretary of the Company. Such order shall specify the amount of the Securities to be authenticated and the date on which the original issue of Securities is to
be authenticated and, in the case of any issuance of Additional Securities pursuant to Section 2.13 of the Indenture, shall certify that such issuance is in compliance with Section 4.03
of the Indenture. 


        2.3    Transfer and Exchange    



        (a)    Transfer and Exchange of Definitive Securities.    When Definitive Securities are presented to the Registrar
with a request: 



	(x)
	to
register the transfer of such Definitive Securities; or



	(y)
	to
exchange such Definitive Securities for an equal principal amount of Definitive Securities of other authorized denominations, 




the
Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Securities surrendered for transfer or exchange: 



        (i)    shall
be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or its attorney duly authorized in writing; and 


        (ii)   if
such Definitive Securities are required to bear a restricted securities legend, they are being transferred or exchanged pursuant to an effective registration
statement under the Securities Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and
documents, as applicable: 



        (1)   if
such Definitive Securities are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such
Holder to that effect; or 


        (2)   if
such Definitive Securities are being transferred to the Company, a certification to that effect; or 


        (3)   if
such Definitive Securities are being transferred (x) pursuant to an exemption from registration in accordance with Rule 144A, Regulation S or
Rule 144 under the Securities Act; or (y) in reliance upon another exemption from the requirements of the Securities Act: (i) a certification to that effect (in the form set forth
on the reverse of the Security) and (ii) if the Company so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth
in the legend set forth in Section 2.3(e)(i). 





        (b)    Restrictions on Transfer of a Definitive Security for a Beneficial Interest in a Global Security.    A
Definitive Security may not be exchanged for a beneficial interest in a Rule 144A Global Security, an IAI Global Security or a Permanent Regulation S Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee, together with: 



        (i)    certification,
in the form set forth on the reverse of the Security, that such Definitive Security is either (A) being transferred to a QIB in accordance with
Rule 144A, (B) being transferred to an IAI or (C) being transferred after expiration of the Distribution Compliance Period by a Person who initially purchased such Security in
reliance on Regulation S to a buyer who elects to hold its interest in such Security in the form of a beneficial interest in the Permanent Regulation S Global Security; and 



        (ii)   written
instructions directing the Trustee to make, or to direct the Securities Custodian to make, an adjustment on its books and records with respect to such
Rule 144A Global Security (in the case of a 




4





 





transfer
pursuant to clause (b)(i)(A)), IAI Global Security (in the case of a transfer pursuant to clause (b)(1)(B)) or Permanent Regulation S Global Security (in the case of a
transfer pursuant to clause (b)(i)(C)) to reflect an increase in the aggregate principal amount of the Securities represented by the Rule 144A Global Security, IAI Global Security or
Permanent Regulation S Global Security, as applicable, such instructions to contain information regarding the Depository account to be credited with such increase, 




then
the Trustee shall cancel such Definitive Security and cause, or direct the Securities Custodian to cause, in accordance with the standing instructions and procedures existing between the
Depository and the Securities Custodian, the aggregate principal amount of Securities represented by the Rule 144A Global Security, IAI Global Security or Permanent Regulation S Global
Security, as applicable, to be increased by the aggregate principal amount of the Definitive Security to be exchanged and shall credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Rule 144A Global Security, IAI Global Security or Permanent Regulation S Global Security, as applicable, equal to the principal amount of
the Definitive Security so canceled. If no Rule 144A Global Securities, IAI Global Securities or Permanent Regulation S Global Securities, as applicable, are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers' Certificate of the Company, a new Rule 144A Global Security, IAI Global
Security or Permanent Regulation S Global Security, as applicable, in the appropriate principal amount. 


        (c)    Transfer and Exchange of Global Securities.    



        (i)    The
transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor of a beneficial interest in a Global Security shall deliver to the Registrar a
written order given in accordance with the Depository's procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the Global
Security. The Registrar shall, in accordance with such instructions, instruct the Depository to credit to the account of the Person specified in such instructions a beneficial interest in the Global
Security and to debit the account of the Person making the transfer the beneficial interest in the Global Security being transferred. 


        (ii)   If
the proposed transfer is a transfer of a beneficial interest in one Global Security to a beneficial interest in another Global Security, the Registrar shall reflect
on its books and records the date and an increase in the principal amount of the Global Security to which such interest is being transferred in an amount equal to the principal amount of the interest
to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Security from which such interest is being
transferred. 


        (iii)  Notwithstanding
any other provisions of this Appendix (other than the provisions set forth in Section 2.4), a Global Security may not be transferred as a whole
except by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository. 


        (iv)  In
the event that a Global Security is exchanged for Definitive Securities pursuant to Section 2.4 of this Appendix, prior to the consummation of a Registered
Exchange Offer or the effectiveness of a Shelf Registration Statement with respect to such Securities, such Securities may be exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Securities intended to ensure that such transfers comply with
Rule 144A, Regulation S or another applicable exemption under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company. 




        (d)    Restrictions on Transfer of Temporary Regulation S Global Securities.    During the Distribution
Compliance Period, beneficial ownership interests in Temporary Regulation S Global Securities may only be sold, pledged or transferred in accordance with the Applicable Procedures and only
(i) to the Company, (ii) in an offshore transaction in accordance with Regulation S (other than a transaction resulting in an exchange for an interest in a Permanent
Regulation S Global Security) or (iii) pursuant to an effective 



5





 

registration
statement under the Securities Act, in each case in accordance with any applicable securities laws of any State of the United States. 


        (e)    Legend.    



        (i)    Except
as permitted by the following paragraphs (ii), (iii) and (iv), each Security certificate evidencing the Global Securities (and all Securities issued in
exchange therefor or in substitution thereof), in the case of Securities offered otherwise than in reliance on Regulation S, shall bear a legend in substantially the following form: 



THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS
SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. 


THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY, (II) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE
SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (IV) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (V) PURSUANT TO EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (VI) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (VI), IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. 




        Each
certificate evidencing a Security offered in reliance on Regulation S shall, in addition to the foregoing, bear a legend in substantially the following form: 



THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL
APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT. 




        Each
Definitive Security shall also bear the following additional legend: 



IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS. 





6





 


        (ii)   Upon
any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Global Security) pursuant to Rule 144
under the Securities Act, the Registrar shall permit the transferee thereof to exchange such Transfer Restricted Security for a certificated Security that does not bear the legend set forth above and
rescind any restriction on the transfer of such Transfer Restricted Security, if the
transferor thereof certifies in writing to the Registrar that such sale or transfer was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the
Security). 


        (iii)  After
a transfer of any Initial Securities or Private Exchange Securities pursuant to and during the period of the effectiveness of a Shelf Registration Statement with
respect to such Initial Securities or Private Exchange Securities, as the case may be, all requirements pertaining to legends on such Initial Security or such Private Exchange Security will cease to
apply, the requirements requiring any such Initial Security or such Private Exchange Security issued to certain Holders be issued in global form will cease to apply, and a certificated Initial
Security or Private Exchange Security or an Initial Security or Private Exchange Security in global form, in each case without restrictive transfer legends, will be available to the transferee of the
Holder of such Initial Securities or Private Exchange Securities upon exchange of such transferring Holder's certificated Initial Security or Private Exchange Security or directions to transfer such
Holder's interest in the Global Security, as applicable. 


        (iv)  Upon
the consummation of a Registered Exchange Offer with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial
Securities issued to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Exchange Securities
in certificated or global form, in each case without the restricted securities legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such
Registered Exchange Offer. 


        (v)   Upon
the consummation of a Private Exchange with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial Securities issued
to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Private Exchange Securities in global
form with the global securities legend and the applicable restricted securities legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such
Private Exchange. 




        (f)    Cancellation or Adjustment of Global Security.    At such time as all beneficial interests in a Global Security
have either been exchanged for Definitive Securities, redeemed, purchased or canceled, such Global Security shall be returned to the Depository for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for Definitive Securities, redeemed, purchased or canceled, the principal amount of
Securities represented by such Global Security shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such Global
Security) with respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction. 


        (g)    No Obligation of the Trustee.    



        (i)    The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depository or other Person with
respect to the accuracy of the records of the Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption) or the payment of any amount, under or with respect
to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the
Depository subject to the applicable rules and procedures
of the Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its members, participants and any beneficial owners. 


        (ii)   The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to 




7





 





any
transfer of any interest in any Security (including any transfers between or among Depository participants, members or beneficial owners in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof. 





        2.4    Certificated Securities    



        (a)   A
Global Security deposited with the Depository or with the Trustee as Securities Custodian for the Depository pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of Definitive Securities in an aggregate principal amount equal to the principal amount of such Global Security, in exchange for such Global Security, only if
such transfer complies with Section 2.3 hereof and (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security and the
Depository fails to appoint a successor depositary or if at any time such Depository ceases to be a "clearing agency" registered under the Exchange Act and, in either case, a successor Depository is
not appointed by the Company within 90 days of such notice, or (ii) an Event of Default has occurred and is continuing or (iii) the Company, in its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of Definitive Securities under this Indenture. 


        (b)   Any
Global Security that is transferable to the beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by the Depository to the Trustee
located at its principal corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations. Any portion of a Global
Security transferred pursuant to this Section 2.4 shall be executed, authenticated and delivered only in denominations of $1,000 principal amount and any integral multiple thereof and
registered in such names as the Depository shall direct. Any Definitive Security delivered in exchange for an interest in the Transfer Restricted Security shall, except as otherwise provided by
Section 2.3(e) hereof, bear the applicable restricted securities legend and definitive note legend set forth in Exhibit 1 hereto. 


        (c)   Subject
to the provisions of Section 2.4(b) hereof, the registered Holder of a Global Security shall be entitled to grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities. 


        (d)   In
the event of the occurrence of one of the events specified in Section 2.4(a) hereof, the Company shall promptly make available to the Trustee a reasonable
supply of Definitive Securities in definitive, fully registered form without interest coupons. In the event that the Definitive Securities are not issued to each such beneficial owner promptly after
the Registrar has received a request from the Holder of a Global Security to issue such
Certificated Security, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Article 6 of the Indenture, the right of any beneficial holder
of Securities to pursue such remedy with respect to the portion of the Global Security that represents such beneficial holder's Securities as if such Certificated Securities had been issued. 



8







 
 

EXHIBIT 1 to RULE 144A/REGULATION S APPENDIX    
    
    [FORM OF FACE OF INITIAL SECURITY]    
    
    [Global Securities Legend]    
    



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



        TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. 


        [[FOR
REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES
WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH
RULE 144A THEREUNDER.] 


        [Restricted
Securities Legend for Securities Offered Otherwise than in Reliance on Regulation S] 


        THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. 



        THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY,
(II) WITHIN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE
SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (IV) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT, (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (VI) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (VI) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. 


        [Restricted
Securities Legend for Securities Offered in Reliance on Regulation S.] 



        THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT 





 



AND
ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT. 


        [Temporary
Regulation S Global Security Legend] 


        EXCEPT
AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL
SECURITY OR ANY OTHER SECURITY REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE
"40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO
THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED
(I) TO THE COMPANY, (II) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. HOLDERS OF
INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE. 


        AFTER
THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL
SECURITY ONLY IF (1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE WITH RULE 144A AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY FIRST
DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. 



        AFTER
THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE EXCHANGED FOR INTERESTS IN AN IAI GLOBAL SECURITY
ONLY IF (1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE WITH AN EXEMPTION UNDER THE SECURITIES ACT AND (2) THE TRANSFEROR OF THE REGULATION S
GLOBAL SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. 


        BENEFICIAL
INTERESTS IN A RULE 144A GLOBAL SECURITY OR AN IAI GLOBAL SECURITY MAY BE TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S GLOBAL
SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF 


2





 



THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT SUCH
TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S OR RULE 144 (IF AVAILABLE). 


        [Definitive
Securities Legend] 


        IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS. 


3










	No.
                                    	 	$                        





        91/4%
Senior Subordinated Note Due 2014 


        Thermadyne
Holdings Corporation, a Delaware corporation, promises to pay to                         , or registered assigns, the
principal sum of
                         Dollars on February 1, 2014. 



        Interest
Payment Dates: February 1 and August 1. 


        Record
Dates: January 15 and July 15. 


        Additional
provisions of this Security are set forth on the other side of this Security. 


Dated:




	
THERMADYNE HOLDINGS CORPORATION
	

 	
 	
By:	
 	


	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 
	

 	
 	

By:	
 	


	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 
	
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
	

U.S. BANK NATIONAL ASSOCIATION
	

 	
 	

 	
 	
as Trustee, certifies that this is one of

the Securities referred to in the Indenture.	

 
	

 	
 	

By:	
 	

 Authorized Signatory









        [FORM OF REVERSE SIDE OF INITIAL SECURITY] 


        91/4%
Senior Subordinated Note Due 2014 


        1.    Interest    



        Thermadyne
Holdings Corporation, a Delaware corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the "Company"),
promises to pay interest on the principal amount of this Security at the rate per annum shown above; provided, however, that if a Registration Default
(as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security at a rate of 0.25% per annum (increasing by an additional 0.25% per annum after each
consecutive 90-day period that occurs after the date on which such Registration Default occurs up to a maximum additional interest rate of 1.50%) from and including the date on which any
such Registration Default shall occur to but excluding the date on which all Registration Defaults have been cured. The Company will pay interest semiannually on February 1 and August 1
of each year, commencing August 1, 2004. Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from
February 5, 2004. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Company will pay interest on overdue principal at the rate borne
by this Security plus 1.0% per annum, and it will pay interest on overdue installments of interest at the same rate to the extent lawful. 


        2.    Method of Payment    



        The
Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered holders of Securities at the close of business on January 15 or
July 15 next preceding the interest payment date even if Securities are canceled after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts.
Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts
specified by the Depository. The Company will make all payments in respect of a certificated Security (including principal, premium and interest) by mailing a check to the registered address of each
Holder thereof; provided, however, that payments on a certificated Security will be made by wire transfer to a U.S. dollar account maintained by the
payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than
30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). 


        3.    Paying Agent and Registrar    



        Initially,
U.S. Bank National Association, a national banking association (the "Trustee"), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar. 


        4.    Indenture    


        The
Company issued the Securities under an Indenture dated as of February 5, 2004 (the "Indenture"), among the Company, the Subsidiary Guarantors and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in
the Indenture. The Securities are subject to all such terms, and Securityholders are referred to the Indenture and the Act for a statement of those terms. 


        The
Securities are general unsecured obligations of the Company. The Company shall be entitled, subject to its compliance with Section 4.03 of the Indenture, to issue Additional
Securities pursuant to Section 2.13 of the Indenture. The Initial Securities issued on the Issue Date, any Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor will be treated as a single class for all purposes under the Indenture. The Indenture contains covenants that limit the ability of the Company and its subsidiaries to incur
additional indebtedness; pay dividends or distributions on, or redeem or repurchase, capital stock; make investments; issue or sell common stock of subsidiaries; engage in transactions with
affiliates; transfer or sell assets; guarantee indebtedness; restrict dividends or other payments of subsidiaries; and consolidate, merge or transfer all or substantially all of its assets and the
assets of its subsidiaries. These covenants are subject to important exceptions and qualifications. 


        5.    Optional Redemption    


        Except
as set forth below, the Company shall not be entitled to redeem the Securities. 





 



        On
and after February 1, 2009, the Company shall be entitled at its option on one or more occasions to redeem all or a portion of the Securities (which includes Additional
Securities, if any) upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed in percentages of principal amount on the redemption date), plus accrued interest to
the redemption date (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date), if redeemed during the 12-month period commencing on February 1 of the years set forth below:  



	Period
 
	 	Redemption Price
	 
	2009	 	104.625	%
	2010	 	103.083	 
	2011	 	101.542	 
	2012 and thereafter	 	100.000	 






        In
addition, prior to February 1, 2007, the Company shall be entitled at its option on one or more occasions to redeem Securities (which includes Additional Securities, if any) in
an aggregate principal amount not to exceed 35% of the aggregate principal amount of the Securities (which includes Additional Securities, if any) originally issued under the Indenture at a redemption
price (expressed as a percentage of principal amount) of 109.25%, plus accrued and unpaid interest to the redemption date, with the net cash proceeds from one or more Equity Offerings;  provided,
however, that (1) at least 65% of such aggregate principal amount of Securities (which
includes Additional Securities, if any) remains outstanding immediately after the occurrence of each such redemption (other than Securities held, directly or indirectly, by the Company or its
Affiliates); and (2) each such redemption occurs within 90 days after the date of the related Equity Offering. 


        Prior
to February 1, 2009, the Company shall be entitled at its option to redeem all or a portion of the Securities at a redemption price equal to 100% of the principal amount of
the Securities redeemed at the redemption date plus the Applicable Premium as of the redemption date. Notice of such redemption must be mailed by first-class to each Holder of Securities to be
redeemed at its registered address, not less than 30 nor more than 60 days prior to the redemption date. 



        Notwithstanding
the foregoing, the Company and its Affiliates may at any time and from time to time purchase Securities in the open market or otherwise. 


        6.    Notice of Redemption    


        Notice
of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder of Securities to be redeemed at his registered
address. Securities in denominations larger than $1,000 principal amount may be redeemed in part but only in whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued
interest on all Securities (or portions thereof) to be redeemed on the redemption
date is deposited with the Paying Agent on or before the redemption date and certain other conditions are satisfied, on and after such date interest ceases to accrue on such Securities (or such
portions thereof) called for redemption. 


        7.    Put Provisions    


        Upon
a Change of Control, any Holder of Securities will have the right to cause the Company to repurchase all or any part of the Securities of such Holder at a repurchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued interest to the date of repurchase (subject to the right of holders of record on the relevant record date to receive
interest due on the related interest payment date) as provided in, and subject to the terms of, the Indenture. 


        8.    Subordination    


        The
Securities are subordinated to Senior Indebtedness of the Company, as defined in the Indenture. To the extent provided in the Indenture, Senior Indebtedness of the Company must be
paid before the Securities may be paid. The Company agrees, and each Securityholder by accepting a Security agrees, to the subordination provisions contained in the Indenture and authorizes the
Trustee to give it effect and appoints the Trustee as attorney-in-fact for such purpose. 


2





 



        9.    Guaranty    



        The
payment by the Company of the principal of, and premium and interest on, the Securities is fully and unconditionally guaranteed on a joint and several senior subordinated basis by
each of the Subsidiary Guarantors to the extent set forth in the Indenture. 


        10.    Denominations; Transfer; Exchange    


        The
Securities are in registered form without coupons in denominations of $1,000 principal amount and whole multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer of or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of
the Security not to be redeemed) or any Securities for a period of 15 days before a selection of Securities to be redeemed or 15 days before an interest payment date. 


        11.    Persons Deemed Owners    


        The
registered Holder of this Security may be treated as the owner of it for all purposes. 


        12.    Unclaimed Money    



        If
money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned
property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment. 


        13.    Discharge and Defeasance    


        Subject
to certain conditions, the Company at any time shall be entitled to terminate some or all of its and the Subsidiary Guarantors' obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be. 


        14.    Amendment, Waiver    


        Subject
to certain exceptions set forth in the Indenture, (a) the Indenture and the Securities may be amended with the written consent of the Holders of at least a majority in
principal amount outstanding of the Securities and (b) any default or noncompliance with any provision may be waived with the written consent of the Holders of a majority in principal amount
outstanding of the Securities. Subject to certain exceptions set forth in the Indenture, without the consent of any Securityholder, the Company, the Subsidiary Guarantors and the Trustee shall be
entitled to amend the Indenture or the Securities to cure any ambiguity, omission, defect or inconsistency, or to comply with Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to add guarantees with respect to the Securities, including Subsidiary Guarantees, or to add additional covenants or surrender
rights and powers conferred on the Company or the Subsidiary Guarantors, or to comply with any requirement of the SEC in connection with qualifying the Indenture under the Act, or to make certain
changes in the subordination provisions, or to make any change that does not adversely affect the rights of any Securityholder, or to make amendments to provisions of the Indenture relating to the
form, authentication, transfer and legending of the Securities. 


        15.    Defaults and Remedies    


        Under
the Indenture, Events of Default include (a) default for 30 days in payment of interest on the Securities; (b) default in payment of principal on the
Securities at maturity, upon redemption pursuant to paragraph 5 of the Securities, upon acceleration or otherwise, or failure by the Company to redeem or purchase Securities when required;
(c) failure by the Company or any Subsidiary Guarantor to comply with other agreements in the Indenture or the Securities, in certain cases subject to notice and lapse of time;
(d) certain accelerations (including failure to pay within any grace period after final maturity) of other Indebtedness of the Company if the amount accelerated (or so unpaid) exceeds
$10.0 million; (e) certain events of bankruptcy or insolvency with respect to the Company, the Subsidiary Guarantors and the Significant Subsidiaries; (f) certain judgments or
decrees for the payment of money in excess of $10.0 million; and (g) certain defaults with respect to Subsidiary Guaranties. If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare all the Securities to be due and payable immediately. Certain 


3





 



events
of bankruptcy or insolvency are Events of Default which will result in the Securities being due and payable immediately upon the occurrence of such Events of Default. 


        Securityholders
may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it receives
indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default (except a Default in payment of principal or interest) if it determines that withholding notice is in the interest of the
Holders. 


        16.    Trustee Dealings with the Company    


        Subject
to certain limitations imposed by the Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not
Trustee. 


        17.    No Recourse Against Others    


        No
past, present or future director, officer, employee, incorporator, stockholder or Affiliate, as such, of the Company, the Subsidiary Guarantors or the Trustee shall not have any
liability for any obligations of the Company or the Subsidiary Guarantors under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 


        18.    Authentication    


        This
Security shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this
Security. 


        19.    Abbreviations    



        Customary
abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants
with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). 


        20.    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 Securities and has
directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Securityholders. No representation is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. 


        21.    Holders' Compliance with Registration Rights Agreement    


        Each
Holder of a Security, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including the obligations of the Holders with respect to
a registration and the indemnification of the Company and the Subsidiary Guarantors to the extent provided therein. 


        22.    Governing Law    


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


        The Company will furnish to any Securityholder upon written request and without charge to the Security holder a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to: 






Thermadyne
Holdings Corporation

16052 Swingley Ridge Road, Suite 300

Chesterfield, Missouri 63017

Attention: General Counsel 






4














ASSIGNMENT FORM  


To
assign this Security, fill in the form below: 


I
or we assign and transfer this Security to 


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


        (Insert
assignee's soc. sec. or tax I.D. No.) 


and
irrevocably
appoint                                        
        agent to transfer this Security 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 other side of this Security. 


In
connection with any transfer of any of the Securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144(k) under the Securities Act after
the later of the date of original issuance of such Securities and the last date, if any, on which such Securities were owned by the Company or any Affiliate of the Company, the undersigned confirms
that such Securities are being transferred in accordance with its terms: 


CHECK
ONE BOX BELOW 



	o	1.	 	to the Company; or
	

o	

2.	
 	

pursuant to an effective registration statement under the Securities Act of 1933; or
	

o	

3.	
 	

inside the United States to a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
	

o	

4.	
 	

outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
	

o	

5.	
 	

pursuant to the exemption from registration provided by Rule 144 under the Securities Act of 1933; or
	

o	

6.	
 	

to an institutional "accredited investor" (as defined in Rule 501(a)(1),(2),(3) or (7) under the Securities Act of 1933) that has furnished to the Trustee a signed letter containing certain representations and agreements.






Unless
one of the boxes is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered holder thereof;  provided,
however, that if box (4), (5) or (6) is checked, the Trustee shall be entitled
to require, prior to registering any such transfer of the Securities, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933. 




	

 Signature	
 	

 
	

Signature Guarantee:	
 	

 
	

 	
 	

 
	

 Signature must be guaranteed	
 	

 Signature





        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. 





 
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.  



        The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information regarding the Company and the Subsidiary Guarantors as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration
provided by Rule 144A. 



	

Dated:	

  
	
 	

  
 Notice: To be executed by an

executive officer




2







[TO BE ATTACHED TO GLOBAL SECURITIES] 


SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY 


The
following increases or decreases in this Global Security have been made: 



	Date of Exchange	 	Amount of decrease in Principal amount of this Global Security	 	Amount of increase in Principal amount of this Global Security	 	Principal amount of this Global Security following such decrease or increase	 	Signature of authorized officer of Trustee or Securities Custodian







OPTION
OF HOLDER TO ELECT PURCHASE 


If
you want to elect to have this Security purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture, check the box: 


o



        If you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture, state the amount in
principal amount: $                   



	Dated:	 	    
	 	Your Signature:	 	    
 (Sign exactly as your name appears on the other side of this Security.)
	

Signature Guarantee:	
 	

    
 (Signature must be guaranteed)





        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. 







 
 

EXHIBIT A    
    


FORM OF FACE OF EXCHANGE SECURITY

OR PRIVATE EXCHANGE SECURITY*/**/  






	*/	 	If the Security is to be issued in global form add the Global Securities Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL SECURITIES]
—SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
	

**/	
 	

If the Security is a Private Exchange Security issued in a Private Exchange to an Initial Purchaser holding an unsold portion of its initial allotment, add the Restricted Securities Legend from Exhibit 1 to Appendix A and replace the
Assignment Form included in this Exhibit A with the Assignment Form included in such Exhibit 1.










	No.                         	 	$                  




        91/4%
Senior Subordinated Note Due 2014 


        Thermadyne
Holdings Corporation, a Delaware corporation, promises to pay to                        , or registered assigns, the principal sum
of            Dollars on February 1,
2014. 


        Interest
Payment Dates: February 1 and August 1. 


        Record
Dates: January 15 and July 15. 


        Additional
provisions of this Security are set forth on the other side of this Security. 


Dated:



THERMADYNE
HOLDINGS CORPORATION 



	 	By	
 Name:

Title:	 
	 	
 By	

 Name:

Title:	

 
	

TRUSTEE'S CERTIFICATE OF

AUTHENTICATION	

 
	

U.S. BANK NATIONAL ASSOCIATION	

 
	

as Trustee, certifies that this is one of the Securities referred to in the Indenture.	

 
	 	
 By	

 Authorized Signatory	

 








   
FORM OF REVERSE SIDE OF EXCHANGE SECURITY

OR PRIVATE EXCHANGE SECURITY 


91/4%
Senior Subordinated Note Due 2014 


1.    Interest  


        Thermadyne Holdings Corporation, a Delaware corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount of this Security at the rate per annum shown above; provided, however,
that if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security at a rate of 0.25% per annum (increasing by an additional
0.25% per annum after each consecutive 90-day period that occurs after the date on which such Registration Default occurs up to a maximum additional interest rate of 1.50%) from and
including the date on which any such Registration Default shall occur to but excluding the date on which all Registration Defaults have been cured. The Company will pay interest semiannually on
February 1 and August 1 of each year, commencing August 1, 2004. Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from February 5, 2004. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Company will pay interest on overdue
principal at the rate borne by this Security plus 1.0% per annum, and it will pay interest on overdue installments of interest at the same rate to the extent lawful. 


2.    Method of Payment


        The
Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered holders of Securities at the close of business on the January 15 or
July 15 next preceding the interest payment date even if Securities are canceled after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts.
Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. The Company will make all payments in respect of a certificated Security (including principal, premium and interest) by mailing a check to the registered
address of each Holder thereof; provided, however, that payments on a certificated Security will be made by wire transfer to a U.S. dollar account
maintained by the payee
with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than
30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). 


3.    Paying Agent and Registrar


        Initially,
U.S. Bank National Association, a national banking association (the "Trustee"), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar. 


4.    Indenture


        The
Company issued the Securities under an Indenture dated as of February 5, 2004 ("Indenture"), among the Company, the Subsidiary Guarantors and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.  §§ 77aaa-77bbbb) as in effect on the date of
the Indenture (the "Act"). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all such terms, and Securityholders are referred to the Indenture and the Act for a statement of those terms. 


        The
Securities are general unsecured obligations of the Company. The Company shall be entitled, subject to its compliance with Section 4.03 of the Indenture, to issue Additional
Securities pursuant to Section 2.13 of the Indenture. The Initial Securities issued on the Issue Date, any Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor will be treated as a single class for all purposes under the Indenture. The Indenture contains covenants that limit the ability of the Company and its subsidiaries to incur
additional indebtedness; pay dividends or distributions on, or redeem or repurchase, capital stock; make investments; issue or sell common stock of subsidiaries; engage in transactions with
affiliates; transfer or sell assets; guarantee indebtedness; restrict dividends or other payments of subsidiaries; and consolidate, merge or 


1





 



transfer
all or substantially all of its assets and the assets of its subsidiaries. These covenants are subject to important exceptions and qualifications. 



5.    Optional Redemption


        Except
as set forth below, the Company shall not be entitled to redeem the Securities. 


        On
and after February 1, 2009, the Company shall be entitled at its option on one or more occasions to redeem all or a portion of the Securities (which includes Additional
Securities, if any) upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed in percentages of principal amount, on the redemption date)
plus accrued and unpaid interest to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing on February 1 of the years set forth below: 



	Period
	 	Redemption

Price
	 
	2009	 	104.625	%
	2010	 	103.083	 
	2011	 	101.542	 
	2012 and thereafter	 	100.000	 






        In
addition, prior to February 1, 2007, the Company shall be entitled at its option on one or more occasions to redeem Securities (which includes Additional Securities, if any) in
an aggregate principal amount not to exceed 35% of the aggregate principal amount of the Securities (which includes Additional Securities, if any) originally issued at a redemption price (expressed as
a percentage of principal amount) of 109.25%, plus accrued and unpaid interest to the redemption date, with the net cash proceeds from one or more Equity Offerings;  provided, however, that (1) at least 65% of such aggregate principal amount of Securities (which
includes Additional Securities, if any) remains outstanding immediately after the occurrence of each such redemption (other than Securities held, directly or indirectly, by the Company or its
Affiliates); and (2) each such redemption occurs within 90 days after the date of the related Equity Offering. 


        Prior
to February 1, 2009, the Company shall be entitled at its option to redeem all or a portion of the Securities at a redemption price equal to 100% of the principal amount of
the Securities redeemed at the redemption date plus the Applicable Premium as of the redemption date. Notice of such redemption must be mailed by first-class to each Holder of Securities to be
redeemed at it registered address, not less than 30 nor more than 60 days prior to the redemption date. 



        Notwithstanding
the foregoing, the Company and its Affiliates may at any time and from time to time purchase Securities in the open market or otherwise. 


6.    Notice of Redemption


        Notice
of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder of Securities to be redeemed at his registered
address. Securities in denominations larger than $1,000
principal amount may be redeemed in part but only in whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before the redemption date and certain other conditions are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption. 


7.    Put Provisions


        Upon
a Change of Control, any Holder of Securities will have the right to cause the Company to repurchase all or any part of the Securities of such Holder at a repurchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued interest to the date of repurchase (subject to the right of holders of record on the relevant record date to receive
interest due on the related interest payment date) as provided in, and subject to the terms of, the Indenture. 


8.    Subordination


        The
Securities are subordinated to Senior Indebtedness of the Company, as defined in the Indenture. To the extent provided in the Indenture, Senior Indebtedness of the Company must be
paid before the Securities may be paid. The Company agrees, and each Securityholder by accepting a Security agrees, to the subordination 


2





 



provisions
contained in the Indenture and authorizes the Trustee to give it effect and appoints the Trustee as attorney-in-fact for such purpose. 


9.    Guaranty


        The
payment by the Company of the principal of, and premium and interest on, the Securities is fully and unconditionally guaranteed on a joint and several senior subordinated basis by
each of the Subsidiary Guarantors to the extent set forth in the Indenture. 


10.    Denominations; Transfer; Exchange


        The
Securities are in registered form without coupons in denominations of $1,000 principal amount and whole multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer of or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of
the Security not to be redeemed) or any Securities for a period of 15 days before a selection of Securities to be redeemed or 15 days before an interest payment date. 


11.    Persons Deemed Owners


        The
registered Holder of this Security may be treated as the owner of it for all purposes. 


12.    Unclaimed Money


        If
money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned
property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment. 


13.    Discharge and Defeasance


        Subject
to certain conditions, the Company at any time shall be entitled to terminate some or all of its and the Subsidiary Guarantors' obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be. 


14.    Amendment; Waiver


        Subject
to certain exceptions set forth in the Indenture, (1) the Indenture and the Securities may be amended with the written consent of the Holders of at least a majority in
principal amount outstanding of the Securities and (2) any default or noncompliance with any provision may be waived with the written consent of the Holders of a majority in principal amount
outstanding of the Securities. Subject to certain exceptions set forth in the Indenture, without the consent of any Securityholder, the Company, the Subsidiary Guarantors and the Trustee shall be
entitled to amend the Indenture or the Securities to cure any ambiguity, omission, defect or inconsistency, or to comply with Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to add guarantees with respect to the Securities, including Subsidiary Guarantees,
or to add additional covenants or surrender rights and powers conferred on the Company or the Subsidiary Guarantors, or to comply with any requirement of the SEC in connection with qualifying the
Indenture under the Act, or to make certain changes in the subordination provisions, or to make any change that does not adversely affect the rights of any Securityholder, or to make amendments to
provisions of the Indenture relating to the form, authentication, transfer and legending of the Securities. 


15.    Defaults and Remedies


        Under
the Indenture, Events of Default include (a) default for 30 days in payment of interest on the Securities; (b) default in payment of principal on the
Securities at maturity, upon redemption pursuant to paragraph 5 of the Securities, upon acceleration or otherwise, or failure by the Company to redeem or purchase Securities when required;
(c) failure by the Company or any Subsidiary Guarantor to comply with other agreements in the Indenture or the Securities, in certain cases subject to notice and lapse of time;
(d) certain accelerations (including failure to pay within any grace period after final maturity) of other Indebtedness of the Company if the amount accelerated (or so unpaid) exceeds
$10.0 million; (e) certain events of bankruptcy or insolvency with respect to the Company, the Subsidiary Guarantors and the Significant Subsidiaries; (f) certain judgments or
decrees for the payment of money in excess of $10.0 million; and (g) certain defaults with respect to 


3





 



Subsidiary
Guaranties. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of Default which will result in the Securities being due and payable immediately upon the occurrence of such Events of
Default. 


        Securityholders
may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it receives
indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default (except a Default in payment of principal or interest) if it determines that withholding notice is in the interest of the
Holders. 


16.    Trustee Dealings with the Company


        Subject
to certain limitations imposed by the Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not
Trustee. 


17.    No Recourse Against Others


        No
past, present or future director, officer, employee, stockholder or Affiliate, as such, of the Company, the Subsidiary Guarantors or the Trustee shall not have any liability for any
obligations of the Company or the Subsidiary Guarantors under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting
a Security, each Securityholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 


18.    Authentication


        This
Security shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this
Security. 


19.    Abbreviations


        Customary
abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants
with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). 


20.    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 Securities and has
directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Securityholders. No representation is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. 


[21.    Holders' Compliance with Registration Rights Agreement


        Each
Holder of a Security, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including the obligations of the Holders with respect to
a registration and the indemnification of the Company and the Subsidiary Guarantors to the extent provided therein.]1 




	1
	Delete
if this Security is not being issued in exchange for an Initial Security. 



22.    Governing Law


4





 



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



        The
Company will furnish to any Securityholder upon written request and without charge to the Security holder a copy of the Indenture which has in it the text of this Security in larger
type. Requests may be made to: 






Thermadyne
Holdings Corporation

16052 Swingley Ridge Road, Suite 300

Chesterfield, Missouri 63017

Attention: General Counsel 






5















 
 

ASSIGNMENT FORM    
    


To
assign this Security, fill in the form below: 


I
or we assign and transfer this Security to 



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


(Insert
assignee's soc. sec. or tax I.D. No.) 




and
irrevocably appoint                        agent to transfer this Security 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 other side of this Security. 





 
 

OPTION OF HOLDER TO ELECT PURCHASE    
    


        If you want to elect to have this Security purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture, check the
box:    o 


        If you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture, state the amount in
principal amount: $                   



	Dated:	 	  
	 	Your Signature:	 	  
 (Sign exactly as your name appears on the other side of this Security.)





	

Signature Guarantee:	
 	

  
 (Signature must be guaranteed)







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. 









 
 

EXHIBIT 2 TO RULE 144A/REGULATION S/IAI APPENDIX
  
  Form of Transferee Letter of Representation    
    


Thermadyne
Holdings Corporation

16052 Swingley Ridge Road, Suite 300

Chesterfield, Missouri 63017

Attention: General Counsel 


In
care of 



[                                        ]




Ladies and Gentlemen: 


        This
certificate is delivered to request a transfer of $[            ] principal amount of the [    ]% Senior Subordinated
Notes Due 2014 (the "Securities") of Thermadyne Holdings Corporation (the "Company"). 


        Upon
transfer, the Securities would be registered in the name of the new beneficial owner as follows: 



	 	 	Name:	 	  






	 	 	Address:	 	  






	 	 	Taxpayer ID Numbers:	 	  






        The undersigned represents and warrants to you that: 


        1.     We
are an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an institutional "accredited investor" at least $250,000 principal amount of the Securities, and we are acquiring the
Securities not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We 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 Securities, and we invest in or purchase securities similar to the Securities in the normal course of our business. We, and
any accounts for which we are acting, are each able to bear the economic risk of our or its investment. 


        2.     We
understand that the Securities have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Securities to offer, sell or otherwise transfer such Securities prior to the date that is two
years after the later of the date of original issue and the last date on which the Company or any affiliate of the Company was the owner of such Securities (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (i) to the Company, (ii) in the United States to a person whom the seller reasonably believes is a qualified institutional buyer in a transaction
meeting the requirements of Rule 144A, (iii) to an institutional "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
that is an institutional accredited investor purchasing for its own account or for the account of an institutional accredited investor, in each case in a minimum principal amount of the Securities of
$250,000, (iv) outside the United States in a transaction complying with the provisions of Rule 904 under the Securities Act, (v) pursuant to an exemption from registration under
the Securities Act provided by Rule 144 (if available) or (vi) pursuant to an effective registration statement under the Securities Act, in each of cases (i) through
(vi) subject to any requirement of law that the disposition of our property or the property of such investor account or accounts be at all times within our or their control and in compliance
with any applicable state securities laws. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (iii) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of
this letter to the Company and the Trustee, which shall provide, among other things, that the transferee is an institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act 








and
that it is acquiring such Securities for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the Trustee reserve the
right prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the Securities pursuant to clause (iii), (iv) or (v) above to require the
delivery of an opinion of counsel, certifications or other information satisfactory to the Company and the Trustee. 


TRANSFEREE:




	 	by	 	  
 Name:

Title:	 	 











QuickLinks



Exhibit 4.10



TABLE OF CONTENTS


EXHIBIT 1 to RULE 144A/REGULATION S APPENDIX [FORM OF FACE OF INITIAL SECURITY] [Global Securities Legend]



EXHIBIT A



ASSIGNMENT FORM

OPTION OF HOLDER TO ELECT PURCHASE


EXHIBIT 2 TO RULE 144A/REGULATION S/IAI APPENDIX Form of Transferee Letter of Representation