Exhibit 4.3


 


ALLIANCE HEALTHCARE SERVICES, INC.


 


as Issuer


 


and


 


THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.


 


as Trustee


 






 


INDENTURE


 


Dated as of December 1, 2009


 






 


8% Senior Notes due 2016


 


8% Series B Senior Notes due 2016


 

















 


ALLIANCE
HEALTHCARE SERVICES, INC.(1)



RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT

OF 1939, AS AMENDED, AND INDENTURE, DATED AS OF DECEMBER 1, 2009


 


CROSS-REFERENCE TABLE


 


	
  TIA

  	
   

  	
  Indenture

  
	
  Section

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  608

  
	
  (a)(2)

  	
   

  	
  608

  
	
  (b)

  	
   

  	
  609

  
	
  311

  	
   

  	
  606

  
	
  312(a)

  	
   

  	
  701

  
	
  (c)

  	
   

  	
  702

  
	
  313(a)

  	
   

  	
  703

  
	
  (c)

  	
   

  	
  703

  
	
  314(a)(4)

  	
   

  	
  1018(a)

  
	
  (c)(1)

  	
   

  	
  102

  
	
  (c)(2)

  	
   

  	
  102

  
	
  (e)

  	
   

  	
  102

  
	
  315(a)

  	
   

  	
  601

  
	
  (b)

  	
   

  	
  602

  
	
  (c)

  	
   

  	
  601(b)

  
	
  (d)

  	
   

  	
  601(c), 603

  
	
  316(a) (last
  sentence)

  	
   

  	
  101

  
	
  (a)(1)(A)

  	
   

  	
  502, 512

  
	
  (a)(1)(B)

  	
   

  	
  513

  
	
  (b)

  	
   

  	
  508

  
	
  (c)

  	
   

  	
  104(d)

  
	
  317(a)(1)

  	
   

  	
  503

  
	
  (a)(2)

  	
   

  	
  504

  
	
  (b)

  	
   

  	
  1003

  
	
  318(a)

  	
   

  	
  115

  



 






(1)           Note:      This
reconciliation and tie shall not, for any purpose, be deemed to be a part of
this Indenture.


 

















 


TABLE OF CONTENTS(2)


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE ONE

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND OTHER
  PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  
	
  Section 101.

  	
  Definitions

  	
  2

  
	
  Section 102.

  	
  Compliance
  Certificates and Opinions

  	
  24

  
	
  Section 103.

  	
  Form of
  Documents Delivered to Trustee

  	
  25

  
	
  Section 104.

  	
  Acts
  of Holders

  	
  25

  
	
  Section 105.

  	
  Notices,
  etc., to Trustee, the Company and Any Guarantor

  	
  26

  
	
  Section 106.

  	
  Notice
  to Holders; Waiver

  	
  27

  
	
  Section 107.

  	
  Effect
  of Headings and Table of Contents

  	
  27

  
	
  Section 108.

  	
  Successors
  and Assigns

  	
  27

  
	
  Section 109.

  	
  Separability
  Clause

  	
  27

  
	
  Section 110.

  	
  Benefits
  of Indenture

  	
  27

  
	
  Section 111.

  	
  Governing
  Law

  	
  27

  
	
  Section 112.

  	
  Legal
  Holidays

  	
  28

  
	
  Section 113.

  	
  No
  Personal Liability of Directors, Officers, Employees, Stockholders or
  Incorporators

  	
  28

  
	
  Section 114.

  	
  Counterparts

  	
  28

  
	
  Section 115.

  	
  Trust
  Indenture Act Controls

  	
  28

  
	
   

  	
   

  
	
  ARTICLE TWO

  	
   

  
	
   

  	
   

  
	
  NOTE FORMS

  	
   

  
	
   

  	
   

  
	
  Section 201.

  	
  Forms
  Generally

  	
  28

  
	
  Section 202.

  	
  Restrictive
  Legends

  	
  29

  
	
  Section 203.

  	
  Form of
  Certification for Transfer or Exchange of Notes

  	
  31

  
	
  Section 204.

  	
  Form of
  Face of Note

  	
  33

  
	
  Section 205.

  	
  Form of
  Reverse of Note

  	
  34

  
	
  Section 206.

  	
  Form of
  Trustee’s Certificate of Authentication

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  	
   

  
	
   

  	
   

  
	
  THE NOTES

  	
   

  
	
   

  	
   

  
	
  Section 301.

  	
  Title
  and Terms

  	
  40

  
	
  Section 302.

  	
  Denominations

  	
  41

  



 






(2)           This table of contents shall not, for
any purpose, be deemed to be a part of this Indenture.


 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 303.

  	
  Execution, Authentication,
  Delivery and Dating

  	
  41

  
	
  Section 304.

  	
  Temporary Notes

  	
  42

  
	
  Section 305.

  	
  Registration; Registration of
  Transfer and Exchange

  	
  43

  
	
  Section 306.

  	
  Book-Entry Provisions for the
  Global Note

  	
  44

  
	
  Section 307.

  	
  Special Transfer Provisions

  	
  45

  
	
  Section 308.

  	
  Form of Certificate to be
  Delivered in Connection with Transfers to Non-QIB Institutional Accredited
  Investors

  	
  50

  
	
  Section 309.

  	
  Form of Certificate to be
  Delivered in Connection with Transfers of an Offshore Global Note

  	
  52

  
	
  Section 310.

  	
  Mutilated, Destroyed, Lost and
  Stolen Notes

  	
  53

  
	
  Section 311.

  	
  Payment of Interest; Interest
  Rights Preserved

  	
  53

  
	
  Section 312.

  	
  Persons Deemed Owners

  	
  55

  
	
  Section 313.

  	
  Cancellation

  	
  55

  
	
  Section 314.

  	
  Computation of Interest

  	
  55

  
	
  Section 315.

  	
  CUSIP Numbers

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  	
   

  
	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section 401.

  	
  Satisfaction
  and Discharge of Indenture

  	
  56

  
	
  Section 402.

  	
  Application
  of Trust Money

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  	
   

  
	
   

  	
   

  
	
  REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 501.

  	
  Events
  of Default

  	
  57

  
	
  Section 502.

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
  59

  
	
  Section 503.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  60

  
	
  Section 504.

  	
  Trustee
  May File Proofs of Claim

  	
  60

  
	
  Section 505.

  	
  Trustee
  May Enforce Claims Without Possession of Notes

  	
  61

  
	
  Section 506.

  	
  Application
  of Money Collected

  	
  61

  
	
  Section 507.

  	
  Limitation on Suits

  	
  62

  
	
  Section 508.

  	
  Unconditional
  Right of Holders to Receive Principal, Premium and Interest

  	
  62

  
	
  Section 509.

  	
  Restoration
  of Rights and Remedies

  	
  62

  
	
  Section 510.

  	
  Rights
  and Remedies Cumulative

  	
  63

  
	
  Section 511.

  	
  Delay
  or Omission Not Waiver

  	
  63

  
	
  Section 512.

  	
  Control
  by Holders

  	
  63

  
	
  Section 513.

  	
  Waiver
  of Past Defaults

  	
  63

  
	
  Section 514.

  	
  Waiver
  of Stay or Extension Laws

  	
  64

  
	
  Section 515.

  	
  Undertaking
  for Costs

  	
  64

  



 


ii

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE SIX

  	
   

  
	
   

  	
   

  
	
  THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 601.

  	
  Certain
  Duties and Responsibilities

  	
  64

  
	
  Section 602.

  	
  Notice
  of Defaults

  	
  65

  
	
  Section 603.

  	
  Certain
  Rights of Trustee

  	
  66

  
	
  Section 604.

  	
  Trustee
  Not Responsible for Recitals or Issuance of Notes

  	
  68

  
	
  Section 605.

  	
  May Hold
  Notes

  	
  68

  
	
  Section 606.

  	
  Money
  Held in Trust

  	
  68

  
	
  Section 607.

  	
  Compensation
  and Reimbursement

  	
  68

  
	
  Section 608.

  	
  Corporate
  Trustee Required; Eligibility

  	
  69

  
	
  Section 609.

  	
  Resignation
  and Removal; Appointment of Successor

  	
  69

  
	
  Section 610.

  	
  Acceptance
  of Appointment by Successor

  	
  71

  
	
  Section 611.

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  71

  
	
  Section 612.

  	
  Trustee’s
  Application for Instructions from the Company

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  	
   

  
	
   

  	
   

  
	
  HOLDERS LISTS AND REPORTS BY
  TRUSTEE AND COMPANY

  	
   

  
	
   

  	
   

  
	
  Section 701.

  	
  Company
  to Furnish Trustee Names and Addresses

  	
  72

  
	
  Section 702.

  	
  Disclosure
  of Names and Addresses of Holders

  	
  72

  
	
  Section 703.

  	
  Reports
  by Trustee

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  	
   

  
	
   

  	
   

  
	
  MERGER, CONSOLIDATION, OR SALE
  OF ALL

  	
   

  
	
  OR SUBSTANTIALLY ALL ASSETS

  	
   

  
	
   

  	
   

  
	
  Section 801.

  	
  Company
  May Consolidate, etc., Only on Certain Terms

  	
  72

  
	
  Section 802.

  	
  Successor
  Substituted

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE

  	
   

  
	
   

  	
   

  
	
  SUPPLEMENTS AND AMENDMENTS TO
  INDENTURE

  	
   

  
	
   

  	
   

  
	
  Section 901.

  	
  Supplemental
  Indentures without Consent of Holders

  	
  74

  
	
  Section 902.

  	
  Supplemental
  Indentures with Consent of Holders

  	
  75

  
	
  Section 903.

  	
  Execution
  of Supplemental Indentures

  	
  76

  
	
  Section 904.

  	
  Effect
  of Supplemental Indentures

  	
  76

  
	
  Section 905.

  	
  Conformity
  with Trust Indenture Act

  	
  76

  
	
  Section 906.

  	
  Reference
  in Notes to Supplemental Indentures

  	
  76

  
	
  Section 907.

  	
  Notice
  of Supplemental Indentures

  	
  76

  



 


iii

















 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  	
   

  
	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 1001.

  	
  Payment
  of Principal, Premium, if any, and Interest

  	
  76

  
	
  Section 1002.

  	
  Maintenance
  of Office or Agency

  	
  77

  
	
  Section 1003.

  	
  Money
  for Note Payments to be Held in Trust

  	
  77

  
	
  Section 1004.

  	
  Corporate
  Existence

  	
  78

  
	
  Section 1005.

  	
  Taxes

  	
  78

  
	
  Section 1006.

  	
  Maintenance
  of Properties

  	
  79

  
	
  Section 1007.

  	
  Insurance

  	
  79

  
	
  Section 1008.

  	
  Compliance
  with Laws

  	
  79

  
	
  Section 1009.

  	
  Limitation
  on Restricted Payments

  	
  79

  
	
  Section 1010.

  	
  Limitation
  on Incurrence of Indebtedness and Issuance of Disqualified Stock

  	
  83

  
	
  Section 1011.

  	
  Liens

  	
  87

  
	
  Section 1012.

  	
  Transactions
  with Affiliates

  	
  87

  
	
  Section 1013.

  	
  Dividend
  and Other Payment Restrictions Affecting Subsidiaries

  	
  88

  
	
  Section 1014.

  	
  Limitation
  on Guarantees of Indebtedness by Restricted Subsidiaries

  	
  90

  
	
  Section 1015.

  	
  [RESERVED]

  	
  91

  
	
  Section 1016.

  	
  Purchase
  of Notes upon a Change of Control

  	
  91

  
	
  Section 1017.

  	
  Asset
  Sales

  	
  92

  
	
  Section 1018.

  	
  Compliance
  Certificate

  	
  95

  
	
  Section 1019.

  	
  Reports

  	
  95

  
	
  Section 1020.

  	
  Further
  Assurances

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  	
   

  
	
   

  	
   

  
	
  REDEMPTION OF NOTES

  	
   

  
	
   

  	
   

  
	
  Section 1101.

  	
  Redemption

  	
  96

  
	
  Section 1102.

  	
  Applicability
  of Article

  	
  96

  
	
  Section 1103.

  	
  Election
  to Redeem; Notice to Trustee

  	
  96

  
	
  Section 1104.

  	
  Selection
  by Trustee of Notes to be Redeemed

  	
  96

  
	
  Section 1105.

  	
  Notice
  of Redemption

  	
  97

  
	
  Section 1106.

  	
  Deposit
  of Redemption Price

  	
  98

  
	
  Section 1107.

  	
  Notes
  Payable on Redemption Date

  	
  98

  
	
  Section 1108.

  	
  Notes
  Redeemed in Part

  	
  98

  



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE

  	
   

  
	
   

  	
   

  
	
  LEGAL DEFEASANCE AND COVENANT
  DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section 1201.

  	
  Company’s Option To Effect
  Legal Defeasance or Covenant Defeasance

  	
  99

  
	
  Section 1202.

  	
  Legal Defeasance and Discharge

  	
  99

  
	
  Section 1203.

  	
  Covenant Defeasance

  	
  99

  
	
  Section 1204.

  	
  Conditions to Legal Defeasance
  or Covenant Defeasance

  	
  100

  
	
  Section 1205.

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

  	
  101

  
	
  Section 1206.

  	
  Reinstatement

  	
  101

  



 


v
















 


INDENTURE, dated as of December 1, 2009,
between Alliance HealthCare Services, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (the “Company”),
having its principal office at 100 Bayview Circle, Suite 400, Newport Beach,
California 92660, and The Bank of New York Mellon Trust Company, N.A., a
national banking association, as trustee (the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company has duly authorized the creation of and
issuance of 8% Senior Notes due 2016 and 8% Series B Senior Notes due
2016, of substantially the tenor and amount hereinafter set forth, and to
provide therefor and to provide for the Additional Notes (as defined herein)
the Company has duly authorized the execution and delivery of this Indenture.


 


Upon issuance of Exchange Notes, if any, or the
effectiveness of the Shelf Registration Statement (as defined herein) with
respect to any Notes (if sooner), this Indenture will be subject to, and shall
be governed by, the provisions of the Trust Indenture Act of 1939, as amended,
that are required or deemed to be part of and to govern indentures qualified
thereunder.


 


All things necessary have been done to make the
Notes, when executed and duly issued by the Company and authenticated and
delivered hereunder by the Trustee or the Authenticating Agent, the valid
obligations of the Company and to make this Indenture a valid agreement of the
Company in accordance with their and its terms.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of (a) $190,000,000
aggregate principal amount of the Company’s 8% Senior Notes due 2016 (the “Original
Notes”) issued on the date hereof, (b) any Additional Notes (as
defined herein) that may be issued after the date hereof that include the Private
Placement Legend (all such securities in clauses (a) and (b) being
referred to collectively as the “Initial Notes”) and (c) if and
when issued as provided in a Registration Rights Agreement or otherwise
registered under the Securities Act and issued without the Private Placement
Legend (including any Additional Notes), the Company’s 8% Series B Senior
Notes due 2016 (the “Exchange Notes” and, together with the Initial
Notes, the “Notes”).  Subject to
the conditions and compliance with the covenants set forth herein, the Company
may issue an unlimited aggregate principal amount of Additional Notes.


 

















 


ARTICLE ONE


 


DEFINITIONS AND OTHER

PROVISIONS OF GENERAL

APPLICATION


 


Section 101.                Definitions.  For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


 


(a)           the terms defined in this Article have the meanings
assigned to them in this Article, and words in the singular include the plural
as well as the singular, and words in the plural include the singular as well
as the plural;


 


(b)           all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein, and the terms “cash transaction” and “self-liquidating
paper,” as used in TIA Section 311, shall have the meanings assigned
to them in the rules of the Commission adopted under the Trust Indenture
Act;


 


(c)           all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;


 


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


 


(e)           the word “or” is not exclusive; and


 


(f)            provisions of this Indenture apply to successive events
and transactions.


 


Certain terms, used principally in Articles Two, Ten
and Twelve, are defined in those Articles.


 


“2012 Notes” means the 71⁄4% Senior
Subordinated Notes due 2012 issued pursuant to the 2004 Notes Indenture and the
2007 Notes Indenture.


 


“2004 Notes Indenture” means the indenture
dated as of December 29, 2004, between the Company and The Bank of New
York Trust Company, N.A., as trustee.


 


“2007 Notes Indenture” means the indenture
dated as of December 4, 2007, between the Company and The Bank of New York
Trust Company, N.A., as trustee.


 


“Accredited Investor” has the meaning set
forth in Section 202.


 


“Acquired Indebtedness” means, with respect
to any specified Person, (i) Indebtedness of any other Person existing at
the time such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person, including, without limitation, Indebtedness
incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Restricted Subsidiary of such specified Person, and (ii) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.


 


2

















 


“Act,” when used with respect to any Holder,
has the meaning set forth in Section 104.


 


“Additional Notes” means 8% Senior Notes due
2016 or 8% Series B Senior Notes issued under the terms of this Indenture
subsequent to the Issue Date.


 


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


 


“Affiliate Transaction” has the meaning set
forth in Section 1012.


 


“Agent” means any Paying Agent,
Authenticating Agent and Note Registrar under this Indenture.


 


“Agent Members” has the meaning set forth in Section 306.


 


“Applicable Premium” means, as determined by
the Company with respect to any Note on any Redemption Date, the greater of (i) 1.0%
of the principal amount of such Note or (ii) the excess of (A) the
present value at such Redemption Date of (1) the redemption price of such
Note at December 1, 2012 (such redemption price being set forth as
described in the Notes) plus (2) all required interest payments due on
such Note through December 1, 2012 (excluding accrued but unpaid interest
and Liquidated Damages, if any), computed using a discount rate equal to the
Treasury Rate on such Redemption Date, plus 50 basis points over (B) the
principal amount of such Note.


 


“Asset Sale” means (i) the sale,
conveyance, transfer or other disposition (whether in a single transaction or a
series of related transactions) of property or assets (including by way of a
sale and leaseback) of the Company or any Restricted Subsidiary outside the
ordinary course of business (each referred to in this definition as a “disposition”),
or (ii) the issuance or sale of Equity Interests of any Restricted
Subsidiary (whether in a single transaction or a series of related
transactions), in each case, other than: (a) a disposition of Cash
Equivalents or Investment Grade Securities or obsolete equipment in the
ordinary course of business; (b) the disposition of all or substantially
all of the assets of the Company in a manner permitted pursuant to the provisions
of Section 801 hereof or any disposition that constitutes a Change of
Control pursuant to this Indenture; (c) any Restricted Payment that is
permitted to be made, and is made, under Section 1009 hereof; (d) any
disposition of assets with an aggregate fair market value of less than $2.0
million; (e) any disposition of property or assets by a Restricted Subsidiary
to the Company or by the Company or a Restricted Subsidiary to a Wholly Owned
Restricted Subsidiary; (f) any exchange of like property pursuant to Section 1031
of the Internal Revenue Code of 1986, as 


 


3

















 


amended, for use in a
Similar Business; (g) any financing transaction with respect to property
built or acquired by the Company or any Restricted Subsidiary after the Issue
Date including, without limitation, sale-leasebacks and asset securitizations; (h) foreclosures
on assets; (i) sales of accounts receivable, or participations therein, in
connection with any Receivables Facility; (j) any sale of Equity Interests
in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (k) any
sale of an imaging or therapeutic system to any original manufacturer of
imaging or therapeutic systems in exchange for a credit from such manufacturer
against the purchase of a replacement or alternate imaging or therapeutic
system; and (l) any sale of an imaging or therapeutic system pursuant to
an arrangement with a client of the Company or one of its Restricted
Subsidiaries; provided that (i) any such
system was purchased by the Company or such Restricted Subsidiary within the 90
days prior to the date of such sale and (ii) the Company or such
Restricted Subsidiary receives net cash proceeds in connection with the sale in
an amount equal to or greater than the amount it paid for such system.


 


“Asset Sale Offer” has the meaning set forth
in Section 1017.


 


“Asset Sale Purchase Date” has the meaning
set forth in Section 1017.


 


“Authenticating Agent” means the Person
appointed, if any, by the Trustee as an authenticating agent pursuant to the
last paragraph of Section 303.


 


“Bankruptcy Law” means Title 11, United
States Bankruptcy Code of 1978, as amended, or any similar United States
federal or state or foreign law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law.


 


“Board of Directors” means, with respect to
any Person, either the board of directors of such Person or any duly authorized
committee thereof.


 


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


 


“Business Day” means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in The City of New York are authorized or obligated by law or executive order
to close.


 


“Capital Stock” means (i) in the case of
a corporation, corporate stock, (ii) in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of
a partnership or limited liability company, partnership or membership interests
(whether general or limited) and (iv) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.


 


“Capitalized Lease Obligation” means, at the
time any determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be required to be
capitalized and reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP.


 


4

















 


“Cash Equivalents” means (i) U.S.
dollars, (ii) securities issued or directly and fully guaranteed or
insured by the U.S. Government or any agency or instrumentality thereof, (iii) certificates
of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities
not exceeding one year and overnight bank deposits, in each case with any commercial
bank having capital and surplus in excess of $250.0 million, (iv) repurchase
obligations for underlying securities of the types described in clauses (ii) and
(iii) entered into with any financial institution meeting the qualifications
specified in clause (iii) above, (v) commercial paper rated “A-1” or
the equivalent thereof by Moody’s or S&P and in each case maturing within
one year after the date of acquisition, (vi) investment funds investing at
least 95% of their assets in securities of the types described in clauses (i)-(v) above,
(vii) readily marketable direct obligations issued by any state of the
United States of America or any political subdivision thereof having one of the
two highest rating categories obtainable from either Moody’s or S&P and (viii) Indebtedness
or preferred stock issued by Persons with a rating of “A” or higher from
S&P or “A2” or higher from Moody’s.


 


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


 


(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole; or


 


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


 


“Change of Control Offer” has the meaning set
forth in Section 1016.


 


“Change of Control Payment” has the meaning
set forth in Section 1016.


 


“Change of Control Payment Date” has the meaning
set forth in Section 1016.


 


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


 


“Commission” means the Securities and
Exchange Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.


 


5

















 


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


 


“Company” means the Person named as the “Company”
in the first paragraph of this Indenture, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Person.


 


“Company Request” or “Company Order”
means a written request or order signed in the name of the Company by its
Chairman, a Vice-Chairman, President or any Vice President.


 


“Consent Solicitation” means the solicitation
of consents from holders of the 2012 Notes to amend the 2012 Notes and the
indentures relating to the 2012 Notes.


 


“Consolidated” means, with respect to any
Person, such Person consolidated with its Restricted Subsidiaries, and excludes
from such consolidation any Unrestricted Subsidiary as if such Unrestricted
Subsidiary were not an Affiliate of such Person.


 


“Consolidated Depreciation and Amortization
Expense” means with respect to any Person for any period, the total amount
of depreciation and amortization expense of such Person and its Restricted
Subsidiaries for such period on a consolidated basis and otherwise determined
in accordance with GAAP.


 


“Consolidated Interest Expense” means, with
respect to any period, the sum, without duplication, of: (i) consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, to the extent such expense was deducted in computing Consolidated Net
Income (including amortization of original issue discount, non-cash interest
payments, the interest component of Capitalized Lease Obligations, and net
payments and receipts (if any) pursuant to Hedging Obligations to the extent
included in Consolidated Interest Expense, excluding amortization of deferred financing
fees) and (ii) consolidated capitalized interest of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued; provided, however, that
Receivables Fees shall be deemed not to constitute Consolidated Interest
Expense.


 


“Consolidated Net Income” means, with respect
to any Person for any period, the aggregate of the Net Income, of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis, and
otherwise determined in accordance with GAAP; provided,
however, that (i) any net after-tax
extraordinary or nonrecurring or unusual gains or losses (less all fees and expenses
relating thereto) shall be excluded, (ii) the Net Income for such period
shall not include the cumulative effect of a change in accounting principles
during such period, (iii) any net after-tax income (loss) from
discontinued operations and any net after-tax gains or losses on disposal of
discontinued operations shall be excluded, (iv) any net after-tax gains or
losses (less all fees and expenses relating thereto) attributable to asset
dispositions other than in the ordinary course of business (as determined in
good faith by the Board of Directors of the Company) shall be excluded, (v) the
Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted
Subsidiary, or that is accounted for by the equity method of accounting, shall
be included only to the extent of the amount of dividends or distributions or
other payments paid in cash (or 


 


6

















 


to the extent converted into
cash) to the referent Person or a Restricted Subsidiary thereof in respect of
such period, and (vi) the Net Income for such period of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of its Net
Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly,
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule, or governmental regulation applicable
to that Restricted Subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or in similar distributions has been
legally waived.


 


“Contingent Obligations” means, with respect
to any Person, any obligation of such Person guaranteeing any leases, dividends
or other obligations that do not constitute Indebtedness (“Primary
Obligations”) of any other Person (the “Primary Obligor”) in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation, or (B) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor; or (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation against loss in respect thereof.


 


“Corporate Trust Office” means the principal
corporate trust office of the Trustee, at which at any particular time its
corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at 700 South Flower Street, Suite 500,
Los Angeles, California 90017, Attn: Corporate Trust Administration - Alliance
HealthCare Services, Inc.


 


“Covenant Defeasance” has the meaning set
forth in Section 1203.


 


“Credit Facilities” means, with respect to
the Company, one or more debt facilities (including, without limitation, the
Credit Facility), commercial paper facilities or debt securities issuances with
banks or other institutional lenders or noteholders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables), letters of credit or debt
securities, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.


 


“Credit Facility” means the credit facility
provided to the Company pursuant to the Credit Agreement, dated on or about the
Issue Date by and among the Company, the lenders listed on the signature pages thereof
and Deutsche Bank Trust Company Americas, as administrative agent for the
lenders, including any guarantees, collateral documents, instruments and agreements
executed in connection therewith, and the term Credit Facility shall also
include any amendments, supplements, modifications, extensions, renewals,
restatements or refundings thereof and any credit facilities or debt securities
issuances that replace, refund or refinance any part of the loans, other credit
facilities, commitments or securities thereunder, including any such replacement,
refunding or refinancing facility that increases the amount borrowable
thereunder or alters the maturity thereof.


 


7

















 


“Custodian” means any receiver, trustee,
assignee, liquidator, sequestrator or similar official under any Bankruptcy
Law.


 


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


 


“Defaulted Interest” has the meaning set
forth in Section 311.


 


“Depositary” means The Depository Trust
Company, its nominees and successors.


 


“Designated Noncash Consideration” means the
fair market value of noncash consideration received by the Company or one of
its Restricted Subsidiaries in connection with an Asset Sale that is so
designated as Designated Noncash Consideration pursuant to an Officers’
Certificate, setting forth the basis of such valuation, executed by the
principal executive officer and the principal financial officer of the Company,
less the amount of cash or Cash Equivalents received in connection with a sale
of such Designated Noncash Consideration.


 


“Designated Preferred Stock” means preferred
stock of the Company (other than Disqualified Stock) that is issued for cash
(other than to a Restricted Subsidiary) and is so designated as Designated
Preferred Stock, pursuant to an Officers’ Certificate executed by the principal
executive officer and the principal financial officer of the Company, on the
issuance date thereof, the cash proceeds of which are excluded from the calculation
set forth in subclause (C) of clause (a) of Section 1009.


 


“Disqualified Stock” means, with respect to
any Person, any Capital Stock of such Person which, by its terms (or by the
terms of any security into which it is convertible or for which it is putable
or exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, in each case prior to
the date 91 days after the maturity date of the Notes; provided, however, that if such Capital Stock is issued to any
employee or to any plan for the benefit of employees of the Company or its
Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy applicable statutory or regulatory
obligations or pursuant to any employee benefit plan or award pursuant to any
such employee benefit plan; provided,  further, that any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof (or of any security into
which it is convertible or for which it is exchangeable) have the right to
require the issuer to repurchase such Capital Stock (or such security into
which it is convertible or for which it is exchangeable) upon the occurrence of
any of the events constituting an Asset Sale or a Change of Control shall not
constitute Disqualified Stock if such Capital Stock (and all such securities
into which it is convertible or for which it is exchangeable) provides that the
issuer thereof will not repurchase or redeem any such Capital Stock (or any
such security into which it is convertible or for which it is exchangeable)
pursuant to such provisions prior to compliance by the Company with the provisions
of Sections 1016 and 1017 as the case may be.


 


8

















 


“EBITDA” means, with respect to any Person
for any period, the Consolidated Net Income of such Person for such period plus
to the extent included in the calculation of such Consolidated Net Income (a) provision
for taxes based on income or profits of such Person for such period, plus (b) Consolidated
Interest Expense of such Person for such period and any Receivables Fees paid
by such Person or any of its Restricted Subsidiaries during such period, plus (c) Consolidated
Depreciation and Amortization Expense of such Person for such period, including
amortization of deferred financing fees, plus (d) any expenses or charges
related to any Equity Offering, Permitted Investment or Indebtedness permitted
to be incurred by this Indenture or any costs incurred in the cancellation of
stock options, plus (e) the amount of any restructuring charge, severance
costs or similar charges, plus (f) without duplication, any other non-cash
charges reducing Consolidated Net Income for such period (excluding any such
charge which requires an accrual of a cash reserve for anticipated cash charges
for any future period), plus (g) the amount of any minority interest
expense, plus (h) transactions costs in connection with acquisitions
permitted by this Indenture, less (i) without duplication, non-cash items
increasing Consolidated Net Income (excluding any items which represent the reversal
of any accrual of, or cash reserve for, anticipated cash charges in any prior period).


 


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


 


“Equity Offering” means any public or private
sale of common stock or preferred stock of the Company (excluding Disqualified
Stock), other than (i) public offerings with respect to the Company’s Common
Stock registered on Form S-8 and (ii) any such public or private sale
that constitutes an Excluded Contribution.


 


“Event of Default” has the meaning set forth
in Section 501.


 


“Excess Proceeds” has the meaning set forth
in Section 1017.


 


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


 


“Exchange Notes” has the meaning set forth in
the recitals to this Indenture and refers to any Notes containing terms
substantially identical to the Initial Notes (except that (i) such
Exchange Notes shall not contain terms with respect to transfer restrictions
and shall be registered under the Securities Act, and (ii) (whether or not
pursuant to a Registration Rights Agreement) provisions relating to the payment
of Liquidated Damages thereon shall be eliminated) that are issued and
exchanged for Initial Notes in accordance with the Exchange Offer or otherwise
registered under the Securities Act (whether or not pursuant to a Registration
Rights Agreement), as provided for in this Indenture.


 


“Exchange Offer” means an offer by the
Company to the Holders of Initial Notes to exchange all of such Initial Notes
for Exchange Notes, as provided for in a Registration Rights Agreement.


 


9
















 


“Exchange Offer Registration Statement” means
the “Exchange Offer Registration Statement” as defined in the Initial
Registration Rights Agreement, or any similar term in any other Registration
Rights Agreement.


 


“Excluded Contributions” means the net cash
proceeds received by the Company after the Issue Date from (i) contributions
to its equity capital other than contributions from the issuance of
Disqualified Stock and (ii) the sale (other than to a Subsidiary or to any
Company or Subsidiary management equity plan or stock option plan or any other
management or employee benefit plan or agreement) of Capital Stock (other than
Disqualified Stock) of the Company, in each case designated as Excluded
Contributions pursuant to an Officers’ Certificate executed by the principal
executive officer and the principal financial officer of the Company on the
date such capital contributions are made or the date such Equity Interests are
sold, as the case may be, the cash proceeds of which are excluded from the
calculation set forth in subclause (C) of clause (a) of Section 1009.


 


“Excluded Guarantee” has the meaning set forth in Section 1014.


 


“Existing
Credit Agreement Refinancing” means the refinancing of the existing credit
agreement provided to the Company pursuant to the Credit Agreement, dated as of
November 2, 1999, as amended, by and among the Company, the lenders party
thereto and Deutsche Bank Trust Company Americas, as administrative agent for
the lenders.


 


“Existing Indebtedness” means
Indebtedness of the Company or its Restricted Subsidiaries in existence on the
Issue Date, plus interest accruing thereon, after giving effect to the
Refinancing Transactions and the anticipated uses of the net proceeds therefrom
(including, without limitation, any 2012 Notes that remain outstanding after
the expiration of the Tender Offer).


 


“Fixed Charge Coverage Ratio” means, with
respect to any Person for any period, the ratio of EBITDA of such Person for
such period to the Fixed Charges of such Person for such period.  In the event that the Company or any of its
Restricted Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness
(other than in the case of (i) revolving credit borrowings, in which case
interest expense shall be computed based upon the average daily balance of such
Indebtedness during the applicable period and (ii) capitalized leases
related to imaging or therapeutic systems, in which case imputed interest
expense shall be computed from the date of such capitalized lease) or issues or
redeems preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to the event for
which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated in good
faith by a responsible senior financial or accounting officer of the Company
giving pro forma effect to such incurrence, assumption, guarantee or redemption
of Indebtedness, or such issuance or redemption of preferred stock, plus the
application of any proceeds therefrom, as if the same had occurred at the beginning
of the applicable four-quarter period. 
For purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP) that have been made by the Company or
any of its Restricted Subsidiaries during the four-quarter reference period or
subsequent to such reference period and on or prior to or simultaneously with
the Calculation Date shall be calculated on 


 


10

















 


a pro forma basis assuming
that all such Investments, acquisitions, dispositions, discontinued operations,
mergers and consolidations (and the reduction of any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. 
If since the beginning of such period any Person (that subsequently became
a Restricted Subsidiary or was merged with or into the Company or any
Restricted Subsidiary since the beginning of such period) shall have made any
Investment, acquisition, disposition, discontinued operation, merger or
consolidation that would have required adjustment pursuant to this definition,
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma
effect thereto for such period as if such Investment, acquisition, disposition,
discontinued operation, merger or consolidation had occurred at the beginning
of the applicable four-quarter period. 
For purposes of this definition, whenever pro forma effect is to be
given to a transaction, the pro forma calculations shall be made in good faith
by a responsible senior 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 Calculation Date had been
the applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness). 
Interest on a Capitalized Lease Obligation shall be deemed to accrue at
an interest rate reasonably determined by a responsible financial or accounting
officer of the Company to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP. 
For purposes of making the computation referred to above, interest on
any Indebtedness under a revolving credit facility computed on a pro forma
basis shall be computed based upon the average daily balance of such
Indebtedness during the applicable period. 
Interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to have been based upon
the rate actually chosen, or, if none, then based upon such optional rate
chosen as the Company may designate.


 


“Fixed Charges”
means, with respect to any Person for any period, the sum of (i) Consolidated
Interest Expense of such Person for such period and (ii) all cash dividend
payments (excluding items eliminated in consolidation) on any series of
preferred stock of such Person.


 


“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which
were in effect on the Issue Date.


 


“Global Note” means, individually and
collectively, each Note deposited with or on behalf of and registered in the
name of the Depositary or its nominee that bears the Global Note Legend.


 


“Global Note Legend” has the meaning set
forth in Section 202.


 


“Government Securities” means securities that
are (i) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable


 


11

















 


or redeemable at the option
of the issuer thereof, and shall also include a depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act), as
custodian with respect to any such Government Securities or a specific payment
of principal of or interest on any such Government Securities held by such
custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the Government Securities or the specific payment of principal of or interest
on the Government Securities evidenced by such depositary receipt.


 


“guarantee” means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness or other obligations.


 


“Guarantee” means any guarantee of the
obligations of the Company under this Indenture and the Notes by any Person in
accordance with the provisions of this Indenture.  When used as a verb, “Guarantee” shall
have a corresponding meaning.  No
Guarantees will be issued in connection with the initial offering and sale of
the Notes.


 


“Guarantor” means any Person that incurs a
Guarantee; provided that upon the release and
discharge of such Person from its Guarantee in accordance with this Indenture,
such Person shall cease to be a Guarantor. 
No Guarantees will be issued in connection with the initial offering and
sale of the Notes.


 


“Hedging Obligations” means, with respect to
any Person, the obligations of such Person under (i) currency exchange or
interest rate swap agreements, currency exchange or interest rate cap agreements
and currency exchange or interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange,  interest rates or
commodity prices.


 


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


 


“Indebtedness” means, with respect to any
Person, (a) any indebtedness of such Person, whether or not contingent (i) in
respect of borrowed money, (ii) evidenced by bonds, notes, debentures or
similar instruments or letters of credit or bankers’ acceptances (or, without
double counting, reimbursement agreements in respect thereof), (iii) representing
the balance deferred and unpaid of the purchase price of any property
(including Capitalized Lease Obligations), except any such balance that constitutes
a trade payable or similar obligation to a trade creditor, in each case accrued
in the ordinary course of business or (iv) representing any Hedging
Obligations, if and to the extent of any of the foregoing Indebtedness (other
than letters of credit and Hedging Obligations) that would appear as a
liability upon a balance sheet (excluding the footnotes thereto) of such Person
prepared in accordance with GAAP, (b) to the extent not otherwise
included, any obligation by such Person to be liable for, or to pay, as obligor,
guarantor or otherwise, the Indebtedness of another Person (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business), and (c) to the extent not otherwise included, Indebtedness of
another Person secured by a Lien on any asset owned by such Person (whether or
not such Indebtedness is assumed by such Person); provided, however, that Contingent Obligations incurred in the
ordinary course of business shall be deemed not to constitute Indebtedness and
obligations under or in respect of Receivables Facilities shall not be deemed to
constitute Indebtedness of a Person.


 


12

















 


“Indenture” means this instrument as
originally executed and as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.


 


“Independent Financial Advisor” means an
accounting, appraisal, investment banking firm or consultant to Persons engaged
in Similar Businesses of nationally recognized standing that is, in the judgment
of the Company’s Board of Directors, as evidenced by a Board Resolution,
qualified to perform the task for which it has been engaged; provided that such firm or consultant is not an Affiliate of
the Company.


 


“Initial Notes” has the meaning set forth in
the recitals to this Indenture.


 


“Initial Purchasers” means Deutsche Bank
Securities Inc., Morgan Stanley & Co. Incorporated, Barclays Capital
Inc., SunTrust Robinson Humphrey, Inc. and Mitsubishi UFJ Securities (USA), Inc.,
as initial purchasers of the Original Notes.


 


“Initial Registration Rights Agreement” means
the Registration Rights Agreement, dated as of December 1, 2009, among the
Company and the Initial Purchasers.


 


“Interest Payment Date” means the Stated
Maturity of an installment of interest on the Notes.


 


“Investment Grade Securities” means (i) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than Cash
Equivalents), (ii) debt securities or debt instruments with a rating of “BBB-”
or higher by S&P or “Baa3” or higher by Moody’s or the equivalent of such
rating by such rating organization, or, if no rating of S&P or Moody’s then
exists, the equivalent of such rating by any other nationally recognized securities
rating agency, but excluding any debt securities or instruments constituting
loans or advances among the Company and its Subsidiaries, and (iii) investments
in any fund that invests exclusively in investments of the type described in
clauses (i) and (ii) which fund may also hold immaterial amounts of
cash pending investment and/or distribution.


 


“Investments” means, with respect to any
Person, all investments by such Person in other Persons (including Affiliates)
in the form of loans (including guarantees), advances or capital contributions
(excluding advances to customers, commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes thereto) of the
Company in the same manner as the other investments included in this definition
to the extent such transactions involve the transfer of cash or other property.  For purposes of the definition of “Unrestricted
Subsidiary” and Section 1009 hereof, (i) “Investments” shall include
the portion (proportionate to the Company’s equity interest in 


 


13

















 


such Subsidiary) of the fair
market value of the net assets of a Subsidiary of the Company at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, 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 (x) the Company’s “Investment” in such Subsidiary at
the time of such redesignation less (y) 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 (ii) 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 December 1, 2009, the
closing date for the sale and issuance of the Original Notes under this
Indenture.


 


“Legal Defeasance” has the meaning set forth
in Section 1202.


 


“Lien” means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction); provided that
in no event shall an operating lease be deemed to constitute a Lien.


 


“Liquidated Damages” means all “Liquidated
Damages” (as that term is defined in the Initial Registration Rights Agreement
or any similar term in any other Registration Rights Agreement) then owing
pursuant to a Registration Rights Agreement.


 


“Management Group” means the group consisting
of the Officers of the Company.


 


“Maturity” means, with respect to any Note,
the date on which any principal of such Note becomes due and payable as therein
or herein provided, whether at the Stated Maturity by declaration of acceleration,
call for redemption or purchase or otherwise.


 


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


 


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


 


“Net Proceeds” means the aggregate cash
proceeds received by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any Designated Noncash Consideration received
in any Asset Sale), net of the direct costs relating to such Asset Sale and the
sale or disposition of such Designated Noncash Consideration (including,
without limitation, legal, accounting and investment banking fees, and
brokerage and sales commissions), and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof (after taking into account


 


14

















 


any available tax credits or
deductions and any tax sharing arrangements related thereto), amounts required
to be applied to the repayment of principal, premium (if any) and interest on Indebtedness
required (other than required by clause (i) of paragraph (b) of Section 1017)
to be paid as a result of such transaction and any deduction of appropriate
amounts to be provided by the Company as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed of in such
transaction and retained by the Company after such sale or other disposition
thereof, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.


 


“Note Register” and “Note Registrar”
have the respective meanings specified in Section 305.


 


“Notes” has the meaning set forth in the
recitals to of this Indenture and more particularly means any Notes authenticated
and delivered under this Indenture.


 


“Obligations” means any principal, interest,
penalties, fees, indemnifications, reimbursements (including, without
limitation, reimbursement obligations with respect to letters of credit and
bankers’ acceptances), damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“Offer Period” means the period from the date
of a Change of Control until and including the Change of Control Payment Date.


 


“Offered Price” has the meaning set forth in Section 1017.


 


“Offering Memorandum” means the Offering
Memorandum dated November 19, 2009, relating to the Original Notes.


 


“Officer” means the Chairman of the Board,
the President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer or the Secretary of the Company.


 


“Officers’ Certificate” means a certificate
signed on behalf of the Company by two officers of the Company, one of whom
must be the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company that meets the
requirements set forth in Section 102.


 


“Offshore Global Note” has the meaning set
forth in Section 201.


 


“Opinion of Counsel” means a written opinion
of counsel complying with the requirements of Section 102.  Unless otherwise required by the TIA, such
legal counsel may be an employee of or counsel to the Company who shall be
acceptable to the Trustee.


 


“Original Notes” has the meaning set forth in
the recitals to this Indenture.


 


“Outstanding,” when used with respect to
Notes, means, as of the date of determination, all Notes theretofore authenticated
and delivered under this Indenture, except:


 


15

















 


(i)           Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;


 


(ii)            Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Notes; provided
that, if such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;


 


(iii)            Notes, except to the extent provided in Sections 1202 and
1203, with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Twelve; and


 


(iv)           Notes in exchange for or in lieu of which other Notes
(including pursuant to Section 310) have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which there
shall have been presented to the Trustee proof satisfactory to it that such
Notes are held by a bona fide purchaser in whose hands the Notes are valid
obligations of the Company;


 


provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 316, Notes
owned by the Company or any other obligor upon the Notes or any Affiliate of
the Company or such other obligor shall be disregarded and deemed not to be
Outstanding (provided, that in connection with
any offer by the Company or any obligor to purchase the Notes, Notes tendered
for purchase will be deemed to be Outstanding and held by the tendering Holder
until the date of purchase), except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Notes which a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded.  Notes so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or such other
obligor.


 


“Pari Passu Indebtedness” means (i) with
respect to the Notes, Indebtedness which ranks pari passu
in right of payment to the Notes, and (ii) with respect to any Guarantee,
Indebtedness which ranks pari passu in
right of payment to such Guarantee.


 


“Paying Agent” means any Person (including
the Company acting as Paying Agent) authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.


 


“Permitted Holders” means Oaktree Capital
Management, L.P., MTS Health Investors, LLC and any of their respective
Affiliates and the Management Group.


 


16

















 


“Permitted Investments” means (a) any
Investment in the Company or any Restricted Subsidiary; (b) any Investment
in cash and Cash Equivalents or Investment Grade Securities; (c) any
Investment by the Company or any Restricted Subsidiary of the Company in a Person
that is a Similar Business if as a result of such Investment (i) such
Person becomes a Restricted Subsidiary or (ii) such Person, in one
transaction or a series of related transactions, is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary; (d) any
Investment in securities or other assets not constituting Cash Equivalents and
received in connection with an Asset Sale made pursuant to the provisions of Section 1017
hereof or any other disposition of assets not constituting an Asset Sale; (e) any
Investment existing on the Issue Date; (f) advances to employees not in
excess of $10.0 million outstanding at any one time, in the aggregate; (g) any
Investment acquired by the Company or any of its Restricted Subsidiaries (i) 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, (ii) 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 or (iii) in connection with a transaction or series of
transactions in which the Person that owns the Investment becomes a Restricted
Subsidiary or is merged, consolidated or amalgamated with or into, or transfers
or conveys substantially all of its assets to, or is liquidated into the
Company or a Restricted Subsidiary; provided that
such Investment was not made in contemplation of such transaction or series of
transactions ; (h) Hedging Obligations permitted under clause (x) of
paragraph (b) of Section 1010; (i) loans and advances to
officers, directors and employees for business-related travel expenses, moving
expenses and other similar expenses, in each case incurred in the ordinary
course of business; (j) any Investment in a Similar Business having an
aggregate fair market value, taken together with all other Investments made
pursuant to this clause (j) that are at that time outstanding, not to
exceed the greater of (x) $50.0 million, or (y) 7.5% of Total Assets
at the time of such Investment (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent changes
in value); (k) Investments the payment for which consists of Equity
Interests of the Company (exclusive of Disqualified Stock); provided, however, that
such Equity Interests will not increase the amount available for Restricted Payments
under subclause (C) of clause (a) of Section 1009 hereof; (l) additional
Investments having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (l) that are at that time
outstanding, not to exceed the greater of (x) $30.0 million or (y) 5%
of Total Assets at the time of such Investment (with the fair market value of
each Investment being measured at the time made and without giving effect to
subsequent changes in value); (m) any transaction to the extent it
constitutes an Investment that is permitted by and made in accordance with the
provisions of Section 1012(b) hereof (except transactions described
in clauses (ii) and (v) of such paragraph); (n) Investments
relating to any special purpose Wholly Owned Subsidiary of the Company
organized in connection with a Receivables Facility that, in the good faith
determination of the Board of Directors of the Company, are necessary or
advisable to effect such Receivables Facility; and (o) guarantees
(including Guarantees) permitted under the covenants described in Section 1010
and 1014 hereof.


 


“Permitted Liens” means:  (a) Liens in favor of the Company or any
Restricted Subsidiary; (b) Liens on property of a Person existing at the time
such Person is merged with or into or consolidated with the Company or any of
its Restricted Subsidiaries; provided that
such Liens were in existence prior to the contemplation of such merger or consolidation
and do not extend to any assets other than those of the Person merged into or
consolidated with the Company


 


17

















 


or the Restricted
Subsidiary; (c) Liens on property (including Capital Stock) existing at
the time of acquisition of the property by the Company or any of its Restricted
Subsidiaries, provided that such
Liens were in existence prior to the contemplation of such acquisition and do
not extend to any property other than that acquired; (d) Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course of
business; (e) Liens to secure Indebtedness permitted by clause (b)(iv) of
Section 1010 hereof; (f) Liens to secure Indebtedness and related
Obligations (x) permitted by clause (b)(i), (b)(x) and (b)(xiii) of Section 1010
and (y) additional Indebtedness in excess of the maximum amount permitted
pursuant to subclause (x) (to the extent such maximum amount has been
borrowed or commitments are in effect with respect to such maximum amount), so
long as immediately after giving effect to the incurrence of any Indebtedness
pursuant to this subclause (y) (or, in the case of revolving Indebtedness,
the obtaining of a commitment for such Indebtedness), the Senior Secured
Leverage Ratio would be less than or equal to 3.0 to 1.0; (g) Liens
existing on the Issue Date (other than Liens described in clause (f) above);
(h) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any reserve or other
appropriate provision as is required in conformity with GAAP has been made
therefor; (i) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person’s obligations in respect of bankers’
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods; (j) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business for amounts which are not overdue
for a period of more than 30 days or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP; (k) any pledges or deposits in the ordinary course
of business in connection with workers’ compensation, employment and
unemployment insurance and other social security legislation, other than any
Lien imposed by Section 401(a)(29) or Section 412(n) of ERISA; (l) deposits
to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, or arising as a result of process
payments under government contracts to the extent required or imposed by applicable
laws, all to the extent incurred in the ordinary course of business; (m) easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the real property subject
thereto or materially interfere with the ordinary conduct of the business of
the applicable Person conducted and proposed to be conducted at such real
property; (n) financing statements with respect to a lessor’s rights in
and to personal property leased to such Person in the ordinary course of such
Person’s business; (o) Liens securing the Notes and any Guarantees; (p) Liens
securing other Indebtedness in an amount not to exceed $25 million at any time
outstanding; (q) Liens securing Refinancing Indebtedness in respect of
Indebtedness secured by Liens permitted by clauses (b), (c), (f)(y), (g) and
(q) of this definition; provided that such Liens do not extend to any
property other than the property which secured the Indebtedness so refinanced;
and (r) Liens on accounts receivable and related assets in connection with
a Receivables Facility.


 


18

















 


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


 


“Physical Notes” means Notes issued in
definitive, certificated form.


 


“Predecessor Note” of any particular Note
means every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition,
any Note authenticated and delivered under Section 310 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.


 


“Preferred Stock” means any Equity Interest
with preferential right of payment of dividends or upon liquidation,
dissolution, or winding up.  Any such
designation by the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a certified copy of a resolution adopted by
a majority of the Board of Directors of the Company giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with foregoing conditions.


 


“Private Placement Legend” has the meaning
set forth in Section 202.


 


“Purchase Agreement” means (a) the
Purchase Agreement dated November 19, 2009, among the Company and the
Initial Purchasers relating to the Original Notes and (b) any other
similar Purchase Agreement relating to Additional Notes.


 


“QIB” means a “qualified institutional buyer”
(as defined in Rule 144A under the Securities Act).


 


“Receivables Facility” means one or more
receivables financing facilities, as amended from time to time, pursuant to
which the Company and/or any of its Restricted Subsidiaries sells its accounts
receivable to a Person that is not a Restricted Subsidiary.


 


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


 


“Redemption Date,” when used with respect to
any Note to be redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.


 


“Redemption Price,” when used with respect to
any Note to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.


 


“Registration Rights Agreement” means (a) with
respect to the Notes issued on the Issue Date, the Initial Registration Rights
Agreement and (b) with respect to each issuance of Additional Notes issued
in a transaction exempt from the registration requirements of the Securities
Act, the registration rights agreement, if any, among the Company, the
Guarantors, if any, and the Persons purchasing such Additional Notes under the
related purchase agreement.


 


19
















 


“Regular Record Date” for the interest
payable on any Interest Payment Date means the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.


 


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


 


“Refinancing Transactions” means the Tender
Offer and Consent Solicitation and the Existing Credit Agreement Refinancing.


 


“Related Parties” means any Person controlled
by a Permitted Holder, including any partnership of which a Permitted Holder or
its Affiliates is the general partner.


 


“Resale Restriction
Termination Date” has the meaning set forth in Section 307.


 


“Responsible Officer,” when used with respect
to the Trustee, means any vice president or assistant vice president, any
assistant treasurer, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.


 


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


 


“Restricted Period,” with respect to any
Original Notes, means the period of 40 consecutive days beginning on and
including the later of (a) the day on which such Notes are first offered
to persons other than distributors (as defined in Regulation S) in reliance on
Regulation S, notice of which day shall be promptly given by the Company to the
Trustee, and (b) the Issue Date, and with respect to any Additional Notes
that are Transfer Restricted Securities, it means the comparable period of 40
consecutive days.


 


“Restricted Subsidiary” means, at any time,
any direct or indirect Subsidiary of the Company that is not then an
Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted
Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be
included in the definition of “Restricted Subsidiary.”


 


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


 


“Rule 501” means Rule 501 under the
Securities Act.


 


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


 


“Secured
Debt” means, for any Person, the consolidated amount of Indebtedness
of such Person and its Restricted Subsidiaries that is secured by a Lien on any
assets of such Person or its Restricted Subsidiaries and treating any
commitment to provide any revolving Indebtedness as though such commitment was
fully drawn; provided that Indebtedness
incurred pursuant to a Receivables Facility shall be excluded from any calculation
of Secured Debt.


 


20

















 


“Senior
Secured Leverage Ratio” means, with respect to any Person for any period,
the ratio of Secured Debt of such Person as of the last day of the most recent
fiscal quarter ending prior to the date of the transaction giving rise to the
need to calculate the Senior Secured Leverage Ratio for which internal
financial statements are available (the “Transaction Date”) to (y) 
EBITDA of such Person for the most recently ended period of four fiscal
quarters ending prior to the Transaction Date for which internal financial
statements are available determined on a pro forma basis (including a pro forma
application of the net proceeds of any such Secured Debt).  In the event the Company or any of its
Restricted Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness
or issues or redeems Preferred Stock subsequent to the commencement of the
period for which the Senior Secured Leverage Ratio is being calculated but
prior to the event for which the calculation of the Senior Secured Leverage
Ratio is made (the “Calculation
Date”), then the Senior Secured Leverage Ratio shall be calculated
in good faith by a responsible senior financial or accounting officer of the
Company giving pro forma effect to such incurrence, assumption, guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
plus the application of any proceeds therefrom as if the same had occurred at
the beginning of the applicable four-quarter period.  For purposes of making the computation
referred to above, Investments, acquisitions, dispositions, mergers, consolidations
and discontinued operations (as determined in accordance with GAAP) that have
been made by the Company or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such reference period and on or
prior to or simultaneously with the Calculation Date shall be calculated on a
pro forma basis assuming that all such Investments, acquisitions, dispositions,
discontinued operations, mergers and consolidations (and the change in EBITDA
resulting therefrom) had occurred on the first day of the four-quarter
reference period.  If since the beginning
of such period any Person (that subsequently became a Restricted Subsidiary or
was merged with or into the Company or any Restricted Subsidiary since the
beginning of such period) shall have made any Investment, acquisition,
disposition, discontinued operation, merger or consolidation that would have
required adjustment pursuant to this definition, then the Senior Secured
Leverage Ratio shall be calculated giving pro forma effect thereto for such
period as if such Investment, acquisition, disposition, discontinued operation,
merger or consolidation had occurred at the beginning of the applicable
four-quarter period.  For purposes of
this definition, whenever pro forma effect is to be given to a transaction, the
pro forma calculations shall be made in good faith by a responsible senior
financial or accounting officer of the Company.


 


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


 


“Shelf Registration Statement” means the “Shelf
Registration Statement” as defined in the Initial Registration Rights
Agreement, or any similar term in any other Registration Rights Agreement.


 


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


 


“Similar Business” means a business the
majority of whose revenues are derived from the provision of diagnostic,
therapeutic or other healthcare-related services or any business or activity
that is reasonably similar thereto or a reasonable extension, development or expansion
thereof or ancillary thereto as determined in good faith by the Board of
Directors of the Company.


 


21

















 


“Special Interest Payment Date” has the
meaning specified in Section 311.


 


“Special Record Date” has the meaning
specified in Section 311.


 


“Stated Maturity” when used with respect to
any Note or any installment of interest thereon, means the date specified in
such Note as the fixed date on which the principal of such Note or such
installment of interest is due and payable, and, when used with respect to any
other Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.


 


“Subordinated Indebtedness” means (a) with
respect to the Notes, any Indebtedness of the Company which is by its terms
subordinated in right of payment to the Notes and (b) with respect to any
Guarantee, any Indebtedness of the applicable Guarantor which is by its terms
subordinated in right of payment to such Guarantee.


 


“Subsidiary” means, with respect to any
Person, (i) any corporation, association, or other business entity (other
than a partnership) of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time of determination owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination
thereof and (ii) any partnership, joint venture, limited liability company
or similar entity of which (x) more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof whether in the form of membership, general,
special or limited partnership or otherwise and (y) such Person or any
Wholly Owned Restricted Subsidiary of such Person is a controlling general
partner or otherwise controls such entity.


 


“Successor Company” has the meaning set forth
in Section 801.


 


“Successor Guarantor” has the meaning set
forth in Section 801.


 


“Tender Offer” means the cash tender offer
for any and all outstanding 2012 Notes commenced by the Company on November 12,
2009.


 


“Total Assets” means the total consolidated
assets of the Company and its Restricted Subsidiaries, as shown on the most
recent balance sheet (excluding the footnotes thereto) of the Company.


 


“Transfer Restricted Securities” has the
meaning given to such term in the Registration Rights Agreement.


 


22

















 


“Treasury Rate” means, as of any Redemption
Date, the yield to maturity as of such Redemption Date of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15(519) that has become
publicly available at least two Business Days prior to the Redemption Date (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the period from the
Redemption Date to December 1, 2012; provided, however, that if the period from the Redemption Date to December 1,
2012 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be
used.


 


“Trust Indenture Act” or “TIA” means
the Trust Indenture Act of 1939, as amended and as in force on the date as of
which this Indenture was executed, except as provided in Section 905.


 


“Trustee” means the Person named as the “Trustee”
in the first paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean such successor Trustee.


 


“Unrestricted Subsidiary” means (i) any
Subsidiary of the Company which at the time of determination is an Unrestricted
Subsidiary (as designated by the Board of Directors of the Company, as provided
below); (ii) any Subsidiary of an Unrestricted Subsidiary; and (iii) each
of (A) Alliance Diagnostic Venture, LLC; (B) Rhode Island PET Services, LLC; (C) Advanced
Imaging of Lafayette, LLC; (D) Los Alamitos Imaging Center, LLC; (E) Western
Massachusetts Imaging Center, LLC; (F) Tri-City PET/CT, LLC; (G) Alliance-HNV
PET/CT Services, LLC; and (H) Alliance-HNV PET/CT Leasing Company, LLC.  The Board of Directors of the Company may
designate any Subsidiary of the Company (including any existing Subsidiary and
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any Equity Interests of,
or owns, or holds any Lien on, any property of, the Company or any Subsidiary
of the Company (other than any Subsidiary of the Subsidiary to be so
designated); provided that (a) any
Unrestricted Subsidiary must be an entity of which shares of the capital stock
or other equity interests (including partnership interests) entitled to cast at
least a majority of the votes that may be cast by all shares or equity
interests having ordinary voting power for the election of directors or other
governing body are owned, directly or indirectly, by the Company, (b) the
Company certifies that such designation complies with Section 1009 hereof
and (c) each of (I) the Subsidiary to be so designated and (II) its
Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender
has recourse to any of the assets of the Company or any of its Restricted Subsidiaries,
other than guarantees of Indebtedness otherwise permitted by the terms of this
Indenture in an aggregate principal amount not to exceed $30 million at any
time outstanding.  The Board of Directors
may designate any Unrestricted Subsidiary (including any Unrestricted Subsidiary
set forth in clause (iii) of this definition) to be a Restricted
Subsidiary; provided that, immediately after giving
effect to such designation, (x) the Company could incur at least $1.00 of
additional Indebtedness under paragraph (a) of Section 1010 or (y) the
Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries
would be greater than such ratio for the Company and its Restricted
Subsidiaries immediately prior to such designation, in each case on a pro forma
basis taking into account such designation. 
Any such designation by the Board of Directors shall be notified by the
Company to the Trustee by promptly filing with the Trustee a copy of the board
resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.


 


23

















 


“U.S. Global Note” has the meaning set forth
in Section 201.


 


“Vice President,” when used with respect to
the Company or the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title “Vice President.”


 


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


 


“Weighted Average Life to Maturity” means,
when applied to any Indebtedness or Disqualified Stock, as the case may be, at
any date, the quotient obtained by dividing (i) the sum of the products of
the number of years from the date of determination to the date of each
successive scheduled principal payment of such Indebtedness or redemption or
similar payment with respect to such Disqualified Stock multiplied by the
amount of such payment, by (ii) the sum of all such payments.


 


“Wholly Owned Restricted Subsidiary” is any
Wholly Owned Subsidiary that is a Restricted Subsidiary.


 


“Wholly Owned Subsidiary” of any Person means
a Subsidiary of such Person 100% of the outstanding Capital Stock or other
ownership interests of which (other than directors’ qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person and one or more Wholly Owned Subsidiaries of such Person.


 


Section 102.                Compliance Certificates and
Opinions.  Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company and any Guarantor (if applicable)
and any other obligor on the Notes (if applicable) shall furnish to the Trustee
an Officers’ Certificate in form and substance reasonably acceptable to the
Trustee stating that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of an Officers’ Certificate
and an Opinion of Counsel is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished. 
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (including without limitation
certificates provided pursuant to Section 1018(a)) shall include:


 


(1)           a
statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;


 


(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;


 


24

















 


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


 


(4)           a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.


 


Section 103.                Form of Documents Delivered
to Trustee.  In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


Any certificate or opinion of an officer of the
Company, any Guarantor or other obligor on the Notes may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous.  Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company, any Guarantor or other obligor on the Notes stating that the
information with respect to such factual matters is in the possession of the
Company, any Guarantor or other obligor on the Notes unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.   Where any Person is required to make, give
or execute two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.


 


Section 104.                Acts of Holders.


 


(a)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are received by a Responsible
Officer of the Trustee and, where it is hereby expressly required, to the
Company.  Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or
instruments.  Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 104.


 


(b)           The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner that the Trustee
deems sufficient.


 


25





















 


(c)           The principal amount of Notes held by any Person, and the
date of holding the same, shall be proved by the Note Register.


 


(d)           If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so.  Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection therewith and not
later than the date such solicitation is completed.  If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
six months after the record date.


 


(e)           Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
(including in accordance with Section 310) in respect of anything done,
omitted or suffered to be done by the Trustee, any Paying Agent or the Company
or any Guarantor in reliance thereon, whether or not notation of such action is
made upon such Note.


 


Section 105.                Notices,
etc., to Trustee, the Company and Any Guarantor.  Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided
or permitted by this Indenture to be made upon, given or furnished to, or filed
with, (1) the Trustee by any Holder or by the Company or any Guarantor or
any other obligor on the Notes shall be sufficient for every purpose hereunder
if made, given, furnished or delivered in writing and mailed, first-class
postage prepaid, or delivered by recognized overnight courier, to or with the
Trustee and received at its Corporate Trust Office, Attention: Corporate Trust
Administration - Alliance HealthCare Services, Inc., or (2) the
Company or any Guarantor by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or delivered, in writing, or mailed, first-class postage
prepaid, or delivered by recognized overnight courier, to the Company or such
Guarantor addressed to it at the address of its principal office specified in
the first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company or such Guarantor. Notwithstanding
the foregoing, the Trustee agrees to accept and act upon facsimile transmission
of written instructions pursuant to this Indenture given by the Company, provided,
however that the Company, subsequent to such facsimile transmission of written
instructions, shall provide the originally executed instructions to the Trustee
in a timely manner, and such originally executed instructions shall be signed
by an authorized signatory.


 


26

















 


Section 106.                Notice to Holders; Waiver.  Where this Indenture provides for notice of
any event to Holders by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice.  In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. 
Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice. 
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice.  Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.  In case by reason of the
suspension of or irregularities in regular mail service or by reason of any
other cause, it shall be impracticable to mail notice of any event to Holders
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice for every
purpose hereunder.


 


Section 107.                Effect of Headings and Table of
Contents.  The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.


 


Section 108.                Successors and Assigns.  All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so expressed
or not.


 


Section 109.                Separability Clause.  In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


Section 110.                Benefits of Indenture.  Nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, (other than the parties hereto,
any Agent and their successors hereunder and each of the Holders any benefit or
any legal or equitable right, remedy or claim under this Indenture.


 


Section 111.                Governing Law.  THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT
PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.  UPON THE ISSUANCE OF EXCHANGE NOTES, IF ANY,
OR THE EFFECTIVENESS OF A SHELF REGISTRATION STATEMENT WITH RESPECT TO ANY
NOTES (IF SOONER), THIS INDENTURE SHALL BE SUBJECT TO THE PROVISIONS OF THE
TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND
SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.


 


27

















 


Section 112.                Legal Holidays.  In any case where any Interest Payment Date,
any date established for payment of Defaulted Interest pursuant to Section 311
or Redemption Date or Stated Maturity or Maturity of any Note shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment of principal (or premium, if any) or interest need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date or date established
for payment of Defaulted Interest pursuant to Section 311, Redemption
Date, or at the Stated Maturity or Maturity; provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or date established for payment of Defaulted Interest
pursuant to Section 311, Stated Maturity or Maturity, as the case may be,
to the next succeeding Business Day.


 


Section 113.                No Personal Liability of
Directors, Officers, Employees, Stockholders or Incorporators.  No director, officer, employee, incorporator
or stockholder of the Company or any Guarantor shall have any liability for any
obligations of the Company or such Guarantor under the Notes, this Indenture or
any Guarantee or for any claim based on, in respect of, or by reason of such
obligations or their creation.  Each
Holder by accepting a Note waives and releases all such liability.  Such waiver and release are part of the
consideration for the issuance of the Notes.


 


Section 114.                Counterparts.  This Indenture may be executed in any number
of counterparts, each of which shall be original; but such counterparts shall
together constitute but one and the same instrument.


 


Section 115.                Trust Indenture Act Controls.  If any provision of this Indenture limits,
qualifies or conflicts with another provision that is required or deemed to be
included in this Indenture by the TIA, such required or deemed provision shall
control.


 


ARTICLE TWO


 


NOTE FORMS


 


Section 201.                Forms Generally.  The Initial Notes shall be
known as the “8% Senior Notes due 2016” and the Exchange Notes shall be known
as the “8% Series B Senior  Notes
due 2016,” in each case, of the Company. 
The Notes and the Trustee’s certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with applicable laws, the rules of any securities
exchange or as may, consistently herewith or with any other agreement or
arrangement entered into in connection with such Notes, be determined by the
officers executing such Notes, as evidenced by their execution of the
Notes.  Any portion of the text of any
Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.  Each
Note shall be dated the date of its authentication.


 


28










 


 












 


The definitive Notes shall be printed, lithographed
or engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Notes, as
evidenced by their execution of such Notes.


 


The Original Notes issued on the date hereof will be
(i) offered and sold by the Company pursuant to the Purchase Agreement and
(ii) resold initially only to (1) QIBs in reliance on Rule 144A
and (2) Persons other than U.S. Persons (as defined in Regulation S) in
reliance on Regulation S.  Such Original
Notes may thereafter be transferred to, among others, QIBs, purchasers in
reliance on Regulation S and, except as set forth below, institutional Accredited
Investors in accordance with Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933.  Additional
Notes offered after the date hereof may be offered and sold by the Company from
time to time pursuant to one or more Purchase Agreements in accordance with
applicable law.


 


The Original Notes shall be issued initially in the
form of two or more permanent Global Notes. 
Notes offered and sold (i) in reliance on Rule 144A shall be
issued initially in the form of one or more permanent Global Notes in
registered form, substantially in the form set forth in Article Two hereof
(the “U.S. Global Note”) and (ii) in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent Global Notes in registered form, substantially in the form set forth
in Article Two hereof (the “Offshore Global Note”), and in each
case shall be deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided.  The aggregate principal amount
of any Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary, as hereinafter provided.  The
Global Notes shall bear the Global Note Legend. 
The Global Notes initially shall (i) be registered in the name of
the Depositary or the nominee of such Depositary, in each case for credit to an
account of an Agent Member, (ii) be delivered to the Trustee as custodian
for such Depositary and (iii) bear the Private Placement Legend.


 


Section 202.         Restrictive Legends.  Unless and until (i) an Initial Note is
sold under an effective Registration Statement or (ii) an Initial Note is
exchanged for an Exchange Note in connection with an effective Registration
Statement, whether or not pursuant to a Registration Rights Agreement, each
such Global Note and Physical Note representing an Initial Note shall bear the
following legend (the “Private Placement Legend”) on the face thereof
unless otherwise agreed by the Company and the Holder thereof:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER
THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”), 


 


29

















 


(2) AGREES THAT IT WILL
NOT WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING THE REPRESENTATIONS AND AGREEMENTS RELATING
TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER
(CONTAINED IN SECTION 308 OF THE INDENTURE) CAN BE OBTAINED FROM THE TRUSTEE
FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), OR (G) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF
THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED
STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.


 


Each Global Note, whether or not an Initial Note,
shall also bear the following legend on the face thereof (the “Global Note
Legend”):


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER REPRESENTATIVE OF DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT HEREON 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 SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.


 


30

















 


TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE &
CO. 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 SECTIONS 306 AND 307 OF THE
INDENTURE.


 


If
required by the Code or applicable U.S. Treasury regulations (as determined by
the Officers executing such Notes), each Note shall bear the following legend
on the face thereof:


 


FOR PURPOSES OF SECTIONS
1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS NOTE
WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT.” 
THE COMPANY WILL, BEGINNING NO LATER THAN 10 DAYS AFTER THE ISSUE DATE,
PROMPTLY MAKE AVAILABLE TO THE HOLDER HEREOF INFORMATION REGARDING THE ISSUE
PRICE, ISSUE DATE, YIELD TO MATURITY, AMOUNT OF ORIGINAL ISSUE DISCOUNT (AND
ANY OTHER INFORMATION REQUIRED TO BE MADE AVAILABLE TO THE HOLDER PURSUANT TO
U.S. TREASURY REGULATIONS), UPON THE WRITTEN REQUEST OF SUCH HOLDER DIRECTED TO
ALLIANCE HEALTHCARE SERVICES, INC., 100 BAYVIEW CIRCLE, SUITE
400, NEWPORT BEACH, CA 92660, ATTENTION: 
GENERAL COUNSEL.


 


Section 203.         Form of Certification for Transfer
or Exchange of Notes.


 


CERTIFICATE TO BE DELIVERED UPON EXCHANGE

OR REGISTRATION OF TRANSFER OF NOTES


 


Re:                               Alliance HealthCare Services, Inc.
(the “Company”) 

8% Senior Notes due 2016 (the “Notes”)


 


This Certificate relates to
$              
principal amount of Notes held in the form of*
       a beneficial interest in a Global Note or*
              
Physical Notes by
             (the “Transferor”).


 


The
Transferor:


 


o            has requested by written order that
the Note Registrar deliver in exchange for its beneficial interest in the
Global Note held by the Depositary a Physical Note or Physical Notes in definitive,
registered form of authorized denominations and an aggregate number equal to
its beneficial interest in such Global Note (or the portion thereof indicated
above); or


 


o            has requested by written order that
the Note Registrar exchange or register the transfer of a Physical Note or
Physical Notes.


 


31

















 


In connection with such request and in respect of
each such Note, the Transferor does hereby certify that the Transferor is familiar
with the Indenture relating to the above captioned Notes and the restrictions
on transfers thereof as provided in Section 307 of such Indenture, and
that the transfer of the Notes does not require registration under the Securities
Act of 1933, as amended (the “Securities Act”), because*:


 


o            Such Note is being acquired for the
Transferor’s own account, without transfer (in satisfaction of Section 307
of the Indenture).


 


o            Such Note is being transferred to a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act),
in reliance on Rule 144A.


 


o            Such Note is being transferred to an
institutional “accredited investor” (within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act) which
delivers a certificate to the Trustee in the form provided in Section 308
of the Indenture.


 


o            Such Note is being transferred in
reliance on Regulation S under the Securities Act and a transfer certificate
for Regulation S transfers in the form provided in Section 309 to the
Indenture accompanies this certification. 
[An Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this certification.]


 


o            Such Note is being transferred in
reliance on Rule 144 under the Securities Act.  [An Opinion of Counsel to the effect that
such transfer does not require registration under the Securities Act
accompanies this certification.]


 


o            Such Note is being transferred in
reliance on and in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 144A or Rule 144
under the Securities Act to a person other than an institutional “accredited
investor.”  [An Opinion of Counsel to the
effect that such transfer does not require registration under the Securities
Act accompanies this certification.]


 


You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. 
Capitalized terms used in this certificate and not otherwise defined
herein have the meanings assigned thereto in the Indenture.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [INSERT
  NAME OF TRANSFEROR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  [Authorized
  Signatory]

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
					



 






*Check applicable box.


 


32

















 


Section 204.         Form of Face of Note.


 


ALLIANCE HEALTHCARE SERVICES, INC.


8% Senior Note due 2016


	
   

  	
  CUSIP No.  [           ]

  	
   

  
	
   

  	
  ISIN No.  [           ]

  	
  NO.

  
	
   

  	
  $

  	
   

  



 


ALLIANCE HEALTHCARE SERVICES, INC., a Delaware corporation (herein
called the “Company,” which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to Cede & Co. or registered assigns, the principal sum of
$                    
U.S. dollars on December 1, 2016, at the office or agency of the Company
referred to below, and to pay interest thereon semi-annually on June 1 and
December 1 in each year, at the rate of 8% per annum, until the principal
hereof is paid or duly provided for, and (to the extent lawful) to pay on demand
interest on any overdue interest at the rate borne by the Notes from the date
on which such overdue interest becomes payable to the date payment of such
interest has been made or duly provided for. 
Interest shall accrue from the most recent date to which interest has
been paid or duly provided for, or, if no interest has been duly paid, from the
date of issuance; provided that the first Interest Payment Date shall be June 1,
2010(3). The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 15
or November 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. 
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and
such defaulted interest, and (to the extent lawful) interest on such defaulted
interest at the rate borne by the Notes, may be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.


 


[THE HOLDER OF THIS NOTE IS ENTITLED TO THE BENEFITS
OF THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 1, 2009 (THE “REGISTRATION
RIGHTS AGREEMENT”), BETWEEN THE COMPANY AND THE INITIAL PURCHASERS NAMED
THEREIN.](4)


 






(3)                                  In the case of
Original Notes.


 


(4)                                  Include only
for Original Notes.  Include similar
language with respect to all Additional Notes subject to a Registration Rights
Agreement.


 


33

















 


Principal of, premium, if any, interest and
Liquidated Damages, if any, on the Notes will be payable at the office or
agency of the Company maintained for such purpose, or at the option of the
Company, payment of interest may be made by check mailed to the Holders of the
Notes at their respective addresses set forth in the register of Holders of
Notes or by wire transfer to an account maintained by the payee located in the
United States; provided that all payments of
principal, premium, interest and Liquidated Damages, if any, with respect to
Notes represented by one or more permanent Global Notes registered in the name
of or held by The Depository Trust Company or its nominee will be made by wire
transfer of immediately available funds to the accounts specified by the
Holders thereof.  Until otherwise
designated by the Company, the Company’s office or agency will be the office of
the Trustee, c/o The Bank of New York Mellon Trust Company, N.A., 700 South
Flower Street, Suite 500, Los Angeles, California 90017.


 


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


 


Unless the certificate of authentication hereon has
been duly executed by the Trustee or the Authenticating Agent referred to on
the reverse hereof by manual signature, this Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.


 


IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.


 


 


	
   

  	
  ALLIANCE HEALTHCARE
  SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Section 205.         Form of Reverse of Note.  This Note is one of a duly authorized issue
of securities of the Company designated as its 8% [Series B(5)] Senior Notes due 2016 (the
“Notes”), unlimited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount, of which $190,000,000(6) are initially issued, under
an indenture (the “Indenture”) dated as of December 1, 2009 between
the Company and The Bank of New York Mellon Trust Company, N.A., as trustee
(the “Trustee,” which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Notes, and of the terms upon which the Notes
are, and are to be, authenticated and delivered.


 






(5)           In the case of Exchange Notes


 


(6)           In the case of the Original Notes.


 


34

















 


On or before each payment date, the Company shall
deliver or cause to be delivered to the Trustee or the Paying Agent an amount
in dollars sufficient to pay the amount due on such payment date.


 


Except as described below, the Notes will not be
redeemable at the Company’s option prior to December 1, 2012.  From and after December 1, 2012, the
Notes will be subject to redemption at any time at the option of the Company,
in whole or in part, upon not less than 30 nor more than 60 days’ notice, at
the Redemption Prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the applicable redemption date, if redeemed during the twelve-month period
beginning on December 1 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2012

  	
   

  	
  104.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2013

  	
   

  	
  102.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2014 and thereafter

  	
   

  	
  100.00

  	
  %

  



 


In addition, at any time or from time to time, on or
prior to December 1, 2012, the Company may, at its option, redeem up to
35% of the aggregate principal amount of Notes issued under the Indenture at a
Redemption Price equal to 108.00% of the aggregate principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date, with the net proceeds of one or more Equity Offerings; provided that at least 65% of the aggregate principal amount
of Notes issued under the Indenture remains outstanding immediately after the
occurrence of each such redemption; provided  further that such redemption shall occur within 60 days of
the date of the closing of any such Equity Offering.


 


If less than all the Notes are to be redeemed
pursuant to the preceding two paragraphs, the Trustee shall select the Notes or
portions thereof to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes being redeemed
are listed, or if the Notes are not so listed, on a pro rata
basis, by lot or by such other method the Trustee shall deem fair and
appropriate (and in such manner as complies with applicable legal
requirements); provided that no such Notes of
less than $2,000 shall be redeemed in part.


 


In addition, at any time on or prior to December 1,
2012, the Company may redeem all or any part of the Notes, upon not less than
30 nor more than 60 days’ prior notice mailed by first-class mail to the
registered address of each Holder or otherwise delivered in accordance with the
procedures of DTC, at a redemption price equal to 100% of the principal amount
of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date, subject to the
rights of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date.


 


35

















 


In the event of redemption or repurchase of this
Note in part only, a new Note or Notes for the unredeemed portion hereof shall
be issued in the name of the Holder hereof upon the cancellation hereof.


 


Upon the occurrence of a Change of Control, unless
the Company has elected to redeem the Notes in connection with such Change of
Control, the Company will be required to make an offer to purchase all or any
part (equal to $2,000 in principal amount or an integral multiple of $1,000 in
excess thereof) of the Notes at a price in cash equal to 101% of the aggregate
principal amount of the Notes thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase, in accordance with
the Indenture.  Holders of Notes that are
subject to an offer to purchase will receive a notice of the Change of Control
Offer from the Company prior to any related Change of Control Payment Date.


 


Under certain circumstances, in the event the Net
Proceeds received by the Company from an Asset Sale, which proceeds are not
used (i) to permanently reduce Obligations under the Credit Facility (or
other Indebtedness of the Company secured by a Lien permitted by clause (f) of
the definition of Permitted Liens) (and to correspondingly reduce commitments
with respect thereto) or other Pari Passu Indebtedness (provided that if the
Company shall so reduce Obligations under Pari Passu Indebtedness, it will
equally and ratably reduce Obligations under the Notes if the Notes are then
prepayable without premium or, if the Notes may not be then prepaid without
premium, the Company shall make an offer (in accordance with the procedures set
forth in the Indenture for an Asset Sale Offer) to all Holders to purchase at
100% of the principal amount thereof the amount of Notes that would otherwise
be prepaid), (ii) to make an investment in any one or more businesses,
capital expenditures or acquisitions of other assets in each case, used or
useful in a Similar Business and/or (iii) to make an investment in
properties or assets that replace the properties and assets that are the
subject of such Asset Sale, equal or exceed a specified amount, the Company
will be required to make an offer to all Holders and all holders of Pari Passu
Indebtedness containing provisions similar to those set forth in the Indenture
with respect to Asset Sale Offers to purchase the maximum principal amount of
Notes, in an integral multiple of $1,000; provided that
no notes of $2,000 or less shall be redeemed in part, such Pari Passu Indebtedness
that may be purchased out of such amount at a purchase price in cash equal to
100% of the principal amount thereof, plus accrued and unpaid interest and liquidated
damages, if any, to the date of purchase, in accordance with the
Indenture.  Holders of Notes that are
subject to any offer to purchase will receive an Asset Sale Offer from the
Company prior to any related Asset Sale Purchase Date.


 


In the case of any redemption or repurchase of
Notes, interest installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Notes, or one or more
Predecessor Notes, of record at the close of business on the relevant Regular
Record Date or Special Record Date, as the case may be, referred to on the face
hereof.  Notes (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date.


 


If an Event of Default shall occur and be continuing,
the principal of all the Notes may be declared due and payable in the manner
and with the effect provided in the Indenture.


 


36

















 


The Indenture contains provisions for defeasance at
any time of (a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Note.


 


The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the Indenture
and the Notes and the Guarantees, if any, at any time by the Company and the
Trustee with the consent of the Holders of a specified percentage in aggregate
principal amount of the Notes at the time Outstanding.  Additionally, the Indenture permits that,
without notice to or consent of any Holder, the Company, any Guarantor and the
Trustee together may amend or supplement the Indenture, any Guarantee or this
Note (i) to cure any ambiguity, defect or inconsistency, (ii) to provide
for uncertificated Notes in addition to or in place of Physical Notes, (iii) to
comply with Article Eight of the Indenture to provide for the assumption
of the Company’s or any Guarantor’s obligations to Holders of such Notes, (iv) to
otherwise provide for the assumption of the Company’s or any Guarantor’s
obligations to Holders of such Notes, (v) to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, (vi) to add covenants for the benefit of the Holders or to
surrender any right or power conferred upon the Company, (vii) to comply
with requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act, (viii) to evidence
and provide for the acceptance of appointment under this Indenture by a
successor Trustee pursuant to the requirements of Section 610 of the
Indenture, (ix) to add a Guarantor under the Indenture or release a
Guarantor from its Guarantee pursuant to the terms of the Indenture, or (x) to
conform the text of the Indenture, the Guarantees or the Notes to any provision
of the “Description of the Notes” section of the Offering Memorandum, to the
extent that such provision in that “Description of the Notes” section was
intended to be a verbatim recitation of a provision of the Indenture, the
Guarantees or the Notes.  The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Notes at the time Outstanding, on behalf of
the Holders of all the Notes, to waive compliance by the Company with certain
provisions of the Indenture, the Notes and the Guarantees, if any, and certain
past Defaults under the Indenture and the Notes and the Guarantees, if any, and
their consequences.  Any such consent or
waiver by or on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.


 


No reference herein to the Indenture and no
provision of this Note or of the Indenture shall alter or impair the obligation
of the Company, any Guarantor or any other obligor on the Notes (in the event
such Guarantor or other obligor is obligated to make payments in respect of the
Notes), which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Note at the times, place, and rate, and
in the coin or currency, herein prescribed, subject to the subordination provisions
of the Indenture.


 


As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registerable on the
Note Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.


 


37

















 


The Notes are issuable only in registered form
without coupons in denominations of $2,000 and integral multiples of $1,000 in
excess thereof.  As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.


 


No service charge shall be made for any registration
of transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charges payable in connection therewith.


 


Prior to the time of due presentment of this Note
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee nor any agent shall be affected
by notice to the contrary.


 


THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY
LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.


 


Interest on this Note shall be computed on the basis
of a 360-day year of twelve 30-day months.


 


All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.


 


FORM OF TRANSFER NOTICE


 


FOR VALUE RECEIVED the undersigned registered holder
hereby sells, assigns and transfers unto


 


[INSERT TAXPAYER IDENTIFICATION NO.] 

(please print or typewrite name and address including zip code of assignee)


 


the within Note and all rights thereunder,
hereby irrevocably constituting and appointing attorney to transfer said Note
on the books of the Company with full power of substitution in the premises.


 


[THE FOLLOWING PROVISION TO BE INCLUDED ON
ALL INITIAL NOTES EXCEPT OFFSHORE GLOBAL NOTES]


 


38

















 


In connection with any transfer of this Note
occurring prior to the date that is the earlier of the date of an effective
Registration Statement, as defined in the Registration Rights Agreement, or December 1,
2010, the undersigned confirms that without utilizing any general solicitation
or general advertising that:


 


[CHECK
ONE]


 


o (a)                                                 this Note is
being transferred in compliance with the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A thereunder.


 


OR


 


o (b)                                                this Note is
being transferred other than in accordance with (a) above and documents
are being furnished that comply with the conditions of transfer set forth in
this Note and the Indenture.


 


If neither of the foregoing boxes is checked,
the Trustee or other Registrar shall not be obligated to register this Note in
the name of any Person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section 307
of the Indenture shall have been satisfied.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTICE:

  	
  The
  signature must correspond with the name as written upon the face of the
  within- mentioned instrument in every particular, without alteration or any
  change whatsoever.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  	
   

  
						



 


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


 


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


 


	
  Dated:

  	
   

  	
   

  	
  NOTICE:

  	
  To
  be executed by an executive officer.

  



 


39
















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you wish to have this Note purchased by the
Company pursuant to Section 1016 or 1017 of the Indenture, check the
applicable Box below:


 


	
  o
  Section 1016

  	
   

  	
  o
  Section 1017

  



 


If you wish to have a portion of this Note purchased
by the Company pursuant to Section 1016 or 1017 of the Indenture, state the
amount (in original principal amount) below: 


 


$                       


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Your Signature:

  	
   

  	
   

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

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
					



 


Section 206.                            Form of
Trustee’s Certificate of Authentication.  The Trustee’s certificate of authentication
shall be in substantially the following form:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION.


 


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


 


The
Bank of New York Mellon Trust Company, N.A.,

as Trustee


 


	
  By:

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  
				



 


 


ARTICLE THREE


 


THE NOTES


 


Section 301.                            Title
and Terms.  The
aggregate principal amount of Notes which may be authenticated and delivered
under this Indenture is unlimited.  The
aggregate principal amount of Original Notes issued hereunder shall be
$190,000,000.  Additional Notes may be
issued from time to time, subject to the limitations set forth in Section 1010
hereof.


 


The Initial Notes shall be known and designated as
the “8% Senior Notes due 2016” and the Exchange Notes shall be known and
designated as the “8% Series B Senior Notes due 2016,” in each case, of
the Company.  The Stated Maturity of the
Notes shall be December 1, 2016 and they shall bear interest as set forth
in Section 204 hereof and in the Notes.


 


Principal of, premium, if any, interest and
Liquidated Damages, if any, on the Notes will be payable at the office or
agency of the Company maintained for such purpose, or at the option of the
Company, payment of Liquidated Damages, if any, or interest may be made by
check mailed to the Holders of the Notes at their respective addresses set
forth in the register of Holders of Notes or by wire transfer to an account maintained
by the payee located in the United States; provided that
all payments of principal, premium, if any, interest and Liquidated Damages, if
any, with respect to Notes represented by one or more permanent Global Notes
registered in the name of or held by the Depositary or its nominee will be made
by wire transfer of immediately available funds to the accounts specified by
the Holders thereof.  Until otherwise
designated by the Company, the Company’s office or agency will be the office of
the Trustee at 700 South Flower Street, Suite 500, Los Angeles, California
90017.


 


40

















 


Holders shall have the right to require the Company
to purchase their Notes, in whole or in part, in the event of a Change of
Control pursuant to Section 1016.


 


The Notes shall be subject to repurchase by the
Company pursuant to an Asset Sale Offer as provided in Section 1017.


 


The Notes shall be redeemable as provided in Article Eleven
and in the Notes.


 


Section 302.                            Denominations.  The Notes shall be issuable only in
registered form without coupons and only in denominations of $2,000 and
integral multiples of $1,000 in excess thereof.


 


Section 303.                            Execution,
Authentication, Delivery and Dating.  The Notes shall be executed on behalf of the
Company by its Chief Executive Officer or any Vice President.  The signature of any of these officers on the
Notes may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the Notes.


 


Notes bearing the manual or facsimile signature of
an individual who was at any time the proper officer of the Company shall bind
the Company, notwithstanding that such individual has ceased to hold such
office prior to the authentication and delivery of such Notes or did not hold
such office at the date of such Notes.


 


On the Issue Date, the Company shall deliver the
Original Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Notes, directing the Trustee to authenticate the Original Notes, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Original Notes.  On Company Order,
the Trustee shall authenticate Additional Notes for original issue following
the date of this Indenture (so long as permitted by the terms of this
Indenture, including, without limitation, Section 1010 hereof) in
aggregate principal amount as specified in such Company Order.  On Company Order, the Trustee shall
authenticate for original issue Exchange Notes; provided
that such Exchange Notes shall be issuable only (a) upon the valid
surrender for cancellation of Initial Notes of a like aggregate principal
amount in accordance with an Exchange Offer pursuant to a Registration Rights
Agreement or (b) otherwise registered under the Securities Act.  In each case, other than with respect to the
issuance of the Original Notes, the Trustee shall be entitled to receive an
Officers’ Certificate and an Opinion of Counsel of the Company in connection
with such authentication of Notes.  Such
Company Order shall specify the amount of Notes to be authenticated and the
date on which the original issue of Initial Notes or Exchange Notes, as the
case may be, is to be authenticated.


 


41

















 


Each Note shall be dated the
date of its authentication.


 


No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Note a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.


 


In case the Company or any Guarantor, pursuant to Article Eight,
shall be consolidated or merged with or into any other Person or shall convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company or such
Guarantor shall have been merged, or the Person which shall have received a
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article Eight,
any of the Notes authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to
time, at the request of the successor Person, be exchanged for other Notes
executed in the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like tenor as the
Notes surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Request of the successor Person, shall authenticate and
deliver Notes as specified in such request for the purpose of such exchange.  If Notes shall at any time be authenticated
and delivered in any new name of a successor Person pursuant to this Section 303
in exchange or substitution for or upon registration of transfer of any Notes,
such successor Person, at the option of the Holders but without expense to
them, shall provide for the exchange of all Notes at the time Outstanding for
Notes authenticated and delivered in such new name.


 


The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes on behalf of the Trustee.  Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent has the
same rights as any Note Registrar or Paying Agent to deal with the Company and
its Affiliates.


 


Section 304.                            Temporary
Notes.  Pending the preparation of
definitive Notes, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as conclusively evidenced by their execution of such Notes.


 


If temporary Notes are issued, the Company will
cause definitive Notes to be prepared without unreasonable delay.  After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes upon surrender
of the temporary Notes at the office or agency of the Company designated for
such purpose pursuant to Section 1002, without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Notes, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations.  Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.


 


42

















 


Section 305.                            Registration;
Registration of Transfer and Exchange.  The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section 1002
being herein sometimes referred to as the “Note Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes.  The Note Register shall be in written form or
any other form capable of being converted into written form within a reasonable
time.  At all reasonable times, the Note
Register shall be open to inspection by the Trustee.  The Trustee is hereby initially appointed as
security registrar (the Trustee in such capacity, together with any successor
of the Trustee in such capacity, the “Note Registrar”) for the purpose
of registering Notes and transfers of Notes as herein provided.


 


Upon surrender for registration of transfer of any
Note at the office or agency of the Company designated pursuant to Section 1002,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of
any authorized denomination or denominations of a like aggregate principal
amount.


 


Furthermore, any Holder of a beneficial interest in
a Global Note shall, by acceptance of such beneficial interest in a Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book-entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry.


 


At the option of the Holder, Notes may be exchanged
for other Notes of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency.  Whenever any Notes are so
surrendered for exchange (including an exchange of Initial Notes for Exchange
Notes), the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive;
provided that no exchange of Initial
Notes for Exchange Notes shall occur until an Exchange Offer Registration
Statement shall have been declared effective by the Commission, the Trustee
shall have received an Officers’ Certificate confirming that the Exchange Offer
Registration Statement has been declared effective by the Commission, together
with an Opinion of Counsel, and the Initial Notes to be exchanged for the
Exchange Notes shall be cancelled by the Trustee.


 


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


 


43

















 


Every Note presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Note Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.


 


No service charge shall be made for any registration
of transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 304, 906, 1016, 1017 or
1108, not involving any transfer.


 


Section 306.                            Book-Entry
Provisions for the Global Note.


 


(a)                                  The Global
Notes initially shall (i) be registered in the name of the Depositary or
the nominee of such Depositary, (ii) be delivered to the Trustee as
custodian for such Depositary and (iii) bear legends as set forth in Section 202
hereof.


 


Members of, or participants in, the Depositary (“Agent
Members”) shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary or under the Global Note,
and the Depositary shall be treated by the Company, the Trustee and any agent
of the Company or the Trustee as the absolute owner of the Global Note for all
purposes whatsoever.  Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder.


 


(b)                                 Interests of
beneficial owners in the Global Notes may be transferred or exchanged for
Physical Notes in accordance with the rules and procedures of the
Depositary and the provisions of Section 307 hereof.  In addition, Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial interests
in Global Notes if (i) the Depositary (x) notifies the Company that
it is unwilling or unable to continue as Depositary for any Global Note or (y) has
ceased to be a clearing company registered under the Exchange Act and, in each
case, a successor depositary is not appointed by the Company within
90 days of such notice or (ii) a Default or an Event of Default has
occurred and is continuing and the Registrar has received a written request
from the Depositary to issue Physical Notes.


 


(c)                                  In connection
with the transfer of Global Notes as an entirety to beneficial owners pursuant
to paragraph (b), the Global Notes shall be deemed to be surrendered to
the Trustee for cancellation, and the Company shall execute, and the Trustee
shall, upon receipt of an authentication order from the Company in the form of
an Officers’ Certificate, authenticate and deliver, to each beneficial owner
identified by the Depositary in writing in exchange for its beneficial interest
in the Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.


 


44





















 


(d)                                 Any Physical
Note constituting an Initial Note delivered in exchange for an interest in a
Global Note pursuant to paragraph (b) or (c) shall, except as
otherwise provided by Section 307 hereof, bear the Private Placement Legend.


 


(e)                                  The Holder of
any Global Note may 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
Notes.


 


Section 307.                            Special
Transfer Provisions.


 


(a)                                  Transfer and
Exchange of Physical Notes.  When Physical Notes are presented to the Note
Registrar with a request:


 


(i)                                to register the
transfer of the Physical Notes; or


 


(ii)                                 to exchange
such Physical Notes for an equal principal amount of Physical Notes of other
authorized denominations,


 


the Note Registrar shall register the
transfer or make the exchange as requested if the requirements under this
Indenture as set forth in this Section 307 for such transactions are met; provided, however, that
the Physical Notes presented or surrendered for registration of transfer or exchange:


 


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


 


(II)                             in the case of
Physical Notes the offer and sale of which have not been registered under the
Securities Act and are presented for transfer or exchange prior to (x) the
date which is one year 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 Note, or any predecessor thereto and (y) such earlier or later date,
if any, as may be required by any subsequent change in applicable law (the “Resale
Restriction Termination Date”), such Physical Notes shall be accompanied,
in the sole discretion of the Company, by the following additional information
and documents, as applicable:


 


(A)                              if such
Physical Note is being delivered to the Note Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification to
that effect (substantially in the form provided in Section 203); or


 


(B)                                if such
Physical Note is being transferred to a Qualified Institutional Buyer in
accordance with Rule 144A, a certification to that effect (substantially
in the form provided in Section 203); or


 


(C)                                if such
Physical Note is being transferred in reliance on Regulation S, delivery of a
certification to that effect (substantially in the form provided in Section 203)
and a transferor certificate for Regulation S transfers substantially in the
form provided in Section 309; or


 


45





















 


(D)                               if such
Physical Note is being transferred to an institutional Accredited Investor, delivery
of a certification to that effect (substantially in the form provided in Section 203),
certificates of the transferee in substantially the form provided in Section 308
and, at the option of the Company and the Trustee, an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that such
transfer is in compliance with the Securities Act; or


 


(E)                                 if such
Physical Note is being transferred in reliance on Rule 144 under the
Securities Act, delivery of a certification to that effect substantially in the
form provided in Section 203 hereto) and, at the option of the Company and
the Trustee, an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that such transfer is in compliance with the
Securities Act; or


 


(F)                                 if such
Physical Note is being transferred in reliance on another exemption from the
registration requirements of the Securities Act, a certification to that effect
(substantially in the form provided in Section 203) and, at the option of
the Company and the Trustee, an Opinion of Counsel reasonably satisfactory to
the Company and the Trustee to the effect that such transfer is in compliance
with the Securities Act.


 


(b)                                 Restrictions on
Transfer of a Physical Note for a Beneficial Interest in a Global Note.  A Physical Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below.  Upon receipt
by the Note Registrar of a Physical Note, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Note Registrar,
together with:


 


(A)                              in the case of
Physical Notes, the offer and sale of which have not been registered under the
Securities Act and which are presented for transfer prior to the Resale Restriction
Termination Date, certification, substantially in the form provided in Section 203,
that such Physical Note is being transferred (I) to a Qualified
Institutional Buyer or (II) in an offshore transaction in reliance on
Regulation S (and, in the case of this clause II, the Company shall have
received a transferor certificate for Regulation S transfers substantially in
the form provided in Section 309 and, at the option of the Company and the
Trustee, an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that such transaction is in compliance with the
Securities Act); and


 


(B)                                written
instructions from the Holder thereof, on which the recipient thereof shall be
entitled to rely, directing the Registrar or co-Registrar to make, or to direct
the Depositary to make, an endorsement on the applicable Global Note to reflect
an increase in the aggregate amount of the Notes represented by the Global
Note, then the Note Registrar shall cancel such Physical Note and cause, or
direct the Depositary to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Note Registrar, the
principal amount of Notes represented by the applicable Global Note to be
increased accordingly.  If no Global Note
representing Notes held by Qualified Institutional Buyers or Persons acquiring
Notes in offshore transactions in reliance on Regulation S, as the case
may be, is then outstanding, the Company shall issue and the Trustee shall,
upon receipt of an authentication order in the form of an Officers’ Certificate
in accordance with Section 102, authenticate such a Global Note in the appropriate
principal amount.


 


46





















 


(c)                                  Transfer and
Exchange of Global Notes.  The
transfer and exchange of Global Notes or beneficial interests therein shall be
effected through the Depositary in accordance with this Indenture (including
the restrictions on transfer set forth herein) and the procedures of the
Depositary therefor.  Upon receipt by the
Note Registrar of written instructions, or such other instruction as is
customary for the Depositary, from the Depositary or its nominee, requesting
the registration of transfer of an interest in a U.S. Global Note or Offshore
Global Note, as the case may be, to another type of Global Note, together with
the applicable Global Notes (or, if the applicable type of Global Note required
to represent the interest as requested to be transferred is not then
outstanding, only the Global Note representing the interest being transferred),
the Note Registrar shall cancel such Global Notes (or Global Note) and the
Company shall issue and the Trustee shall, upon receipt of an authentication
order in the form of an Officers’ Certificate in accordance with Section 102,
authenticate new Global Notes of the types so cancelled (or the type so
cancelled and applicable type required to represent the interest as requested
to be transferred) reflecting the applicable increase and decrease of the
principal amount of Notes represented by such types of Global Notes, giving
effect to such transfer.  If the applicable
type of Global Note required to represent the interest as requested to be
transferred is not outstanding at the time of such request, the Company shall
issue and the Trustee shall, upon written instructions from the Company in
accordance with Section 102, authenticate a new Global Note of such type
in principal amount equal to the principal amount of the interest requested to
be transferred.


 


(d)                                 Transfer of a
Beneficial Interest in a Global Note for a Physical Note.  (i)  Any Person having a beneficial
interest in a Global Note may upon request exchange such beneficial interest
for a Physical Note.  Upon receipt by the
Note Registrar of written instructions, or such other form of instructions as
is customary for the Depositary, from the Depositary or its nominee on behalf
of any Person having a beneficial interest in a Global Note and upon receipt by
the Trustee of a written order or such other form of instructions as is
customary for the Depositary or the Person designated by the Depositary as
having such a beneficial interest containing registration instructions and, in
the case of any such transfer or exchange of a beneficial interest in Notes the
offer and sale of which have not been registered under the Securities Act and
which Notes are presented for transfer or exchange prior to the Resale
Restriction Termination Date, the following additional information and documents:


 


(A)                              if such
beneficial interest is being transferred to the Person designated by the
Depositary as being the beneficial owner, a certification from such Person to
that effect (substantially in the form provided in Section 203); or


 


47





















 


(B)                                if such
beneficial interest is being transferred to a Qualified Institutional Buyer in
accordance with Rule l44A, a certification to that effect (substantially
in the form provided in Section 203); or


 


(C)                                if such
beneficial interest is being transferred in reliance on Regulation S, delivery
of a certification to that effect (substantially in the form provided in Section 203)
and a transferor certificate for Regulation S transfers substantially in the
form provided in Section 309; or


 


(D)                               if such beneficial
interest is being transferred to an institutional Accredited Investor, delivery
of certification (substantially in the form provided in Section 203), a
certificate of the transferee in substantially the form provided in Section 308
and, at the option of the Company and the Trustee, an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that such transfer is
in compliance with the Securities Act; or


 


(E)                                 if such
beneficial interest is being transferred in reliance on Rule 144 under the
Securities Act, delivery of a certification to that effect (substantially in
the form provided in Section 203) and, at the option of the Company and
the Trustee, an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that such transfer is in compliance with the Securities
Act; or


 


(F)                                 if such
beneficial interest is being transferred in reliance on another exemption from
the registration requirements of the Securities Act, a certification to that effect
(substantially in the form provided in Section 203) and, at the option of
the Company and the Trustee, an Opinion of Counsel reasonably satisfactory to
the Company and the Trustee to the effect that such transfer is in compliance
with the Securities Act,


 


then the Note Registrar will cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Note Registrar, the aggregate principal amount of the applicable
Global Note to be reduced and, following such reduction, the Company will
execute and, upon receipt of an authentication order in the form of an Officers’
Certificate in accordance with Section 102 hereof, the Trustee will
authenticate and deliver to the transferee a Physical Note in the appropriate
principal amount.


 


(ii)                                  Physical Notes issued in
exchange for a beneficial interest in a Global Note pursuant to this Section 307(d) hereof
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Note Registrar in writing.  The Note Registrar shall deliver such
Physical Notes to the Persons in whose names such Physical Notes are so registered.


 


(e)                                  Restrictions on
Transfer and Exchange of Global Notes.  Notwithstanding any other provisions of this
Indenture, a Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.


 


48





















 


(f)                                    Private
Placement Legend.  Upon the
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Note Registrar shall deliver Notes that do not bear the Private
Placement Legend.  Upon the transfer, exchange
or replacement of Notes bearing the Private Placement Legend, the Note
Registrar shall deliver only Notes that bear the Private Placement Legend
unless, and the Trustee is hereby authorized to deliver Notes without the
Private Placement Legend if, (i) the Resale Restriction Termination Date
shall have occurred and the Trustee shall have been provided with written
notice of this fact, (ii) there is delivered to the Trustee an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act or (iii) such
Note has been sold pursuant to an effective registration statement under the
Securities Act and the Trustee shall have been provided with written notice of
this fact.


 


(g)                                 General.  By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.


 


None of the Company, the Trustee, any agent
of the Company or the Trustee (including any Paying Agent or Note Registrar)
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
global security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.


 


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
any transfer of any interest in any Note (including any transfers between or
among  Agent Members or beneficial owners
of interest in any Global Note) 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.


 


The Note Registrar shall retain copies of all
letters, notices and other written communications received pursuant to Section 306
or this Section 307.  The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Note Registrar.


 


49
















 


Section 308.                                               Form of
Certificate to be Delivered in Connection with Transfers to Non-QIB
Institutional Accredited Investors.


 


[date]


 


Alliance HealthCare Services, Inc.

c/o The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500 

Los Angeles, CA 90017

Attention:  Corporate Trust
Administration - Alliance HealthCare Services, Inc.


 


Dear Sirs:


 


In connection with our proposed purchase of $          
principal amount of the 8% Senior Notes due 2016 (the “Notes”) of
Alliance HealthCare Services, Inc., a Delaware corporation (the “Company”),
we confirm 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 Notes for our own account or for the account of such an
institutional “accredited investor” and we are acquiring the Notes 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 risk of our investment in the Notes and we invest in or purchase
securities similar to the Notes 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 acknowledge
that we have had access to such financial and other information, and have been
afforded the opportunity to ask such questions of representatives of the
Company and receive answers thereto, as we deem necessary.


 


3.                                       We understand
that the Notes 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 Notes that we will not prior
to the date (the “Resale Restriction Termination Date”) that is one year
after the later of the original issuance of the Notes and the last date on
which the Company or any affiliate of the Company was the owner of such Notes
(or any predecessor thereto) offer, sell or otherwise transfer such Notes
except (a) to the Company or any subsidiary of the Company, (b) inside
the United States to a “qualified institutional buyer” in compliance with Rule 144A
under the Securities Act (c) inside the United States to an “institutional
accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act that, prior to such transfer, furnishes (or has furnished on
its behalf by a U.S. broker-dealer) to the Trustee a signed letter substantially
in the form of this letter (d) outside the United States in an offshore
transaction in compliance with Rule 904 under the Securities Act (e) pursuant
to any other available exemption from the registration requirements of the
Securities Act or (f) pursuant to an effective registration statement
under the Securities Act.  We acknowledge
that the Company and the Trustee reserve the right prior to any offer, sale or
other transfer prior to the Resale Restriction Termination Date of the
applicable Notes pursuant to clause (c) or (e) above to require the
delivery of an opinion of counsel, certification and/or other information satisfactory
to the Company and the Trustee.


 


50

















 


We understand that the Trustee will not be required
to accept for registration of transfer any Notes acquired by us, except upon
presentation of evidence satisfactory to the Company and the Trustee that the
foregoing restrictions on transfer have been complied with.  We further understand that any Notes
purchased by us will be in the form of definitive physical certificates and
that such certificates will bear a legend reflecting the substance of paragraph 3
of this letter.  We further agree to
provide to any person acquiring any of the Notes from us a notice advising such
person that transfers of such Notes are restricted as stated herein and that
certificates representing such Notes will bear a legend to that effect.


 


We represent that the Company and the Trustee and
others are entitled to rely upon the truth and accuracy of our acknowledgments,
representations and agreements set forth herein, and we agree to notify you
promptly in writing if any of our acknowledgments, representations or
agreements herein cease to be accurate and complete.  You are also irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.


 


We represent to you that we have full power to make
the foregoing acknowledgments, representations and agreements on our own behalf
and on behalf of any investor account for which we are acting as fiduciary agent.


 


As used herein, the terms “offshore transaction,” “United
States” and “U.S. person” have the respective meanings given to them in
Regulation S under the Securities Act.


 


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


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  (Name of Purchaser)

  
	
   

  	
  Date:

  	
   

  



 


Upon transfer the Notes
would be registered in the name of the new beneficial owner as follows:


 


	
  NAME

  	
   

  	
  ADDRESS

  	
   

  	
  TAXPAYER ID

  NUMBER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


51

















 


Section 309.                                               Form of
Certificate to be Delivered in Connection with Transfers of an Offshore Global
Note.


 


[date]


 


The Bank of New York Mellon
Trust Company, N.A.

Attention:  Corporate Trust Department –
Alliance HealthCare Services, Inc.


 


Re:               Alliance HealthCare Services, Inc.
(the “Company”) 8%

Senior Notes due 2016 (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our proposed sale of
$                      
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the United
States Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, we represent that:


 


(1)                                  the offer of the Notes was
not made to a person in the United States;


 


(2)                                  either (a) at the time
the buy order was originated, the transferee was outside the United States or
we and any person acting on our behalf reasonably believed that the transferee
was outside the United States or (b) the transaction was executed in, on
or through the facilities of a designated offshore securities market and
neither we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;


 


(3)                                  no directed selling efforts
have been made in the United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and


 


(4)                                  the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act.


 


In addition, if the sale is made during a Restricted
Period and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of
Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1),
as the case may be.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.  Terms used in this certificate have the
meanings set forth in Regulation S.


 


52

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


Section 310.                                               Mutilated,
Destroyed, Lost and Stolen Notes.  If (i) any mutilated Note is surrendered
to the Trustee, or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company, any Guarantor and the Trustee such security or indemnity,
in each case, as may be required by them to save each of them harmless, then,
in the absence of notice to the Company any Guarantor or the Trustee that such
Note has been acquired by a bona fide or otherwise protected purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Note or in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount,
bearing a number not contemporaneously outstanding.


 


In case any such mutilated, destroyed, lost or
stolen Note has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Note, pay such Note.


 


Upon the issuance of any new Note under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.


 


Every new Note issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Company, any Guarantor and
any other obligor upon the Notes, whether or not the mutilated, destroyed, lost
or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.


 


The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.


 


Section 311.                                               Payment
of Interest; Interest Rights Preserved.  Interest and Liquidated Damages, if any, on
any Note which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest and Liquidated Damages, if any, at the
office or agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however,
that each installment of interest and Liquidated Damages, if any, may at the
Company’s option be paid by mailing a check for such interest and Liquidated
Damages, if any, payable to or upon the written order of the Person entitled
thereto pursuant to Section 312, to the address of such Person as it
appears in the Note Register; provided that
all payments of principal, premium, if any, interest and Liquidated Damages, if
any, with respect to Notes represented by one or more permanent Global Notes
registered in the name of or held by the Depositary or its nominee will be made
by wire transfer of immediately available funds to the accounts specified by
the Holders thereof.  Until otherwise
designated by the Company, the Company’s office or agency will be the office of
the Trustee at 700 South Flower Street, Suite 500, Los Angeles, California
90017.


 


53

















 


Any interest and Liquidated Damages, if any, on any
Note which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date shall forthwith cease to be payable to the Holder on the
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and Liquidated Damages, if any, and (to the extent lawful) interest on
such defaulted interest and Liquidate Damages, if any, at the rate borne by the
Notes (such defaulted interest and Liquidated Damages, if any, and interest
thereon herein collectively called “Defaulted Interest”) shall be paid
by the Company, at its election in each case, as provided in clause (1) or
(2) below:


 


(1)                                  the Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. 
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date (not less than
30 days after such notice) of the proposed payment (the “Special Interest
Payment Date”), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a special
Record Date (the “Special Record Date”) for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the Special Interest Payment Date and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
of such Special Record Date, and in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given in the manner provided for in Section 106,
not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so given,
such Defaulted Interest shall be paid to the Persons in whose names the Notes
(or their respective Predecessor Notes) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the following
clause (2).


 


54

















 


(2)                                  the Company may
make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by
the Trustee.


 


Subject to the foregoing provisions of this Section,
each Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.


 


Section 312.                                               Persons
Deemed Owners.  Prior to
the due presentment of a Note for registration of transfer, the Company, the
Trustee and any agent of the Company, any Guarantor or the Trustee may treat
the Person in whose name such Note is registered as the owner of such Note for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 311) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, any Guarantor, the Trustee nor any agent of the Company, any Guarantor
or the Trustee shall be affected by notice to the contrary.


 


Section 313.                                               Cancellation.  All Notes surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it.  If the Company
shall acquire any of the Notes other than as set forth in the preceding
sentence, the acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 313.  No Notes shall be authenticated in lieu of or
in exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. 
All cancelled Notes held by the Trustee shall be returned to the
Company.


 


Section 314.                                               Computation
of Interest.  Interest on
the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.


 


Section 315.                                               CUSIP
Numbers.  The Company in issuing Notes
may use “CUSIP” numbers (if then generally in use) in addition to serial
numbers; if so, the Trustee shall use such CUSIP numbers in addition to serial
numbers in notices of redemption and repurchase as a convenience to Holders; provided that any such notice may state that no representation
is made as to the correctness of such CUSIP numbers either as printed on the
Notes or as contained in any notice of a redemption or repurchase and that
reliance may be placed only on the serial or other identification numbers
printed on the Notes, and any such redemption or repurchase shall not be
affected by any defect in or omission of such CUSIP numbers.  The Company shall promptly notify the Trustee
of any change of the CUSIP numbers.


 


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ARTICLE FOUR



SATISFACTION AND DISCHARGE


 


Section 401.                                               Satisfaction
and Discharge of Indenture.  This Indenture shall upon Company Request
cease to be of further effect (except as to surviving rights of the Trustee
under Article Six and as to surviving rights of registration of transfer
or exchange of Notes expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:


 


(1)                                  either


 


(a)                                  all such Notes
theretofore authenticated and delivered (except (i) lost, stolen or
destroyed Notes which have been replaced or paid as provided in Section 310
and (ii) Notes for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Company) have been delivered to the Trustee
for cancellation; or


 


(b)                                 all such Notes
not theretofore delivered to such Trustee for cancellation have become due and
payable by reason of the making of a notice of redemption or otherwise or will
become due and payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as will be sufficient without consideration of any reinvestment of interest, to
pay and discharge the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for principal, premium, if any, and
accrued interest and Liquidated Damages, if any, to the date of the Stated Maturity
or Redemption Date;


 


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


 


(3)                                  the Company or
any Guarantor has paid or caused to be paid all sums payable hereunder by the
Company or any Guarantor;


 


(4)                                  the Company has
delivered irrevocable instructions to the Trustee to apply the deposited money
toward the payment of such Notes at maturity or the Redemption Date, as the
case may be; and


 


(5)                                  the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been satisfied.


 


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Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the Trustee under Section 607
and, if money shall have been deposited with the Trustee pursuant to subclause (b) of
clause (1) of this Section, the provisions of Section 402 and the
last paragraph of Section 1003 shall survive such satisfaction and
discharge.


 


Section 402.                                               Application
of Trust Money.  Subject to
the provisions of the last paragraph of Section 1003, all money deposited
with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the extent
required by law.


 


If the Trustee or Paying Agent is unable to apply
any money or Government Securities in accordance with Section 401 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 any Guarantor’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 401; provided that
if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the Trustee
or Paying Agent.


 


ARTICLE FIVE


 


REMEDIES


 


Section 501.                                               Events
of Default.


 


“Event of Default,” wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):


 


(i)                  default in
payment when due and payable, upon redemption, acceleration or otherwise, of
principal of, or premium on, if any, the Notes;


 


(ii)               default for 30
days or more in the payment when due of interest on or Liquidated Damages, if
any, with respect to the Notes;


 


(iii)            failure by the
Company or any Guarantor for 30 days after receipt of written notice given by
the Trustee or the holders of at least 30% in principal amount of the Notes
then Outstanding to comply with any of its other agreements in this Indenture
or the Notes;


 


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(iv)           default under any mortgage,
indenture or instrument under which there is issued or by which there is
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries (other than Indebtedness owed to the
Company or a Restricted Subsidiary), whether such Indebtedness or guarantee now
exists or is created after the Issue Date, if both (A) such default
either: (1) results from the failure to pay any such Indebtedness at its
stated final maturity (after giving effect to any applicable grace periods); or
(2) relates to an obligation other than the obligation to pay principal of
any such Indebtedness at its stated final maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due prior to
its stated maturity; and (B) the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in default
for failure to pay principal at stated final maturity (after giving effect to
any applicable grace periods), or the maturity of which has been so
accelerated, aggregate $20.0 million or more at any one time outstanding;


 


(v)              failure by the
Company or any of its Significant Subsidiaries to pay final judgments
aggregating in excess of $20.0 million, which final judgments remain unpaid,
undischarged and unstayed for a period of more than 60 days after such judgment
becomes final, and in the event such judgment is covered by insurance, an
enforcement proceeding has been commenced by any creditor upon such judgment or
decree which is not promptly stayed;


 


(vi)           the Company or
any of its Significant Subsidiaries (or group of Restricted Subsidiaries that
together would constitute a Significant Subsidiary) pursuant to or within the
meaning of the Federal Bankruptcy Code:  (A) commences
a voluntary case; (B) consents to the entry of an order for relief against
it in an involuntary case; (C) consents to the appointment of a Custodian
of it or for all or substantially all of its property; (D) makes a general
assignment for the benefit of its creditors, or (E) admits in writing that
it is generally not paying its debts (other than debts which are the subject of
a bona fide dispute) as they become due;


 


(vii)        a court of
competent jurisdiction enters an order or decree under the Federal Bankruptcy
Code that remains unstayed and in effect for 60 days and: (A) is for relief
against the Company or any of its Significant Subsidiaries (or group of
Restricted Subsidiaries that together would constitute a Significant
Subsidiary) in an involuntary case; (B) appoints a Custodian of the
Company or any of its Significant Subsidiaries (or group of Restricted
Subsidiaries that together would constitute a Significant Subsidiary) or for
all or substantially all of the property of the Company or any of its
Significant Subsidiaries (or group of Restricted Subsidiaries that together
would constitute a Significant Subsidiary); or (C) orders the liquidation
of the Company or any of its Significant Subsidiaries (or group of Restricted
Subsidiaries that together would constitute a Significant Subsidiary); provided that clauses (A), (B) and (C) shall not
apply to an Unrestricted Subsidiary, unless such action or proceeding has a
material adverse effect on the interests of the Company or any Restricted Subsidiary;
or


 


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(viii)     any Guarantee
by a Significant Subsidiary shall for any reason cease to be in full force and
effect or is declared null and void or any Officer of the Company or any
Guarantor which is a Significant Subsidiary denies that it has any further liability
under any Guarantee or gives notice to such effect (other than by reason of the
termination of this Indenture or the release of any such Guarantee in accordance
with this Indenture).


 


The Trustee shall not be charged with knowledge of
any Event of Default unless written notice thereof shall have been received by
a Responsible Officer of the Trustee at the Corporate Trust Office.


 


Section 502.                                               Acceleration
of Maturity; Rescission and Annulment.  If any Event of Default (other than of a type
specified in Section 501(vi) or 501(vii)) with respect to the Company
and not solely with respect to one or more Significant Subsidiaries) occurs and
is continuing, the Trustee or the Holders of at least 30% in principal amount
of the Outstanding Notes may declare the principal, premium, if any, interest
and any other monetary obligations on all the then Outstanding Notes to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders) and such principal and interest shall be due and
payable immediately.  Notwithstanding the
foregoing, in the case of an Event of Default specified in Section 501(vi) or
501(vii) occurs and is continuing, with respect to the Company and not
solely with respect to one or more Significant Subsidiaries, then the principal
amount of all the Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.


 


At any time after a declaration of acceleration has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders of
a majority in aggregate principal amount of the Notes Outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:


 


(1)                                  the Company has
paid or deposited with the Trustee a sum sufficient to pay,


 


(A)                              all overdue
interest and Liquidated Damages, if any, on all Outstanding Notes;


 


(B)                                all unpaid
principal of (and premium, if any, on) any Outstanding Notes which has become
due otherwise than by such declaration of acceleration, and interest on such
unpaid principal and premium at the rate borne by the Notes (for purposes of
this clause (B) without duplication to amounts to be paid or deposited
under clause (A) above);


 


(C)                                to the extent
that payment of such interest is lawful, interest on overdue interest at the
rate borne by the Notes; and


 


(D)                               all sums paid
or advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel;


 


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(2)                                  all Events of
Default, other than the non-payment of amounts of principal of (or premium, if
any, on) or interest on Notes which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513;


 


(3)                                  if the
rescission would not conflict with any judgment or decree; and


 


(4)                                  in the event of
the cure or waiver of an Event of Default specified in clause (iv) of Section 501,
the Trustee shall have received an Officers’ Certificate and if appropriate, an
Opinion of Counsel pursuant to Section 102 that such Event of Default has
been cured or waived.


 


No such rescission shall affect any
subsequent default or impair any right consequent thereon.


 


Section 503.                                               Collection
of Indebtedness and Suits for Enforcement by Trustee.  If an Event of Default specified in Section 501(i) or
501(ii) occurs and is continuing, the Trustee, in its own name as trustee
of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any Guarantor (in
accordance with the applicable Guarantee) or any other obligor upon the Notes
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company, any Guarantor or any other obligor
upon the Notes, wherever situated.


 


If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders under this Indenture or any Guarantee by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, including, seeking recourse against any Guarantor
pursuant to the terms of any Guarantee, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy including, without
limitation, seeking recourse against any Guarantor pursuant to the terms of a
Guarantee, or to enforce any other proper remedy, subject however to Section 513.  No recovery of any such judgment upon any
property of the Company or any Guarantor shall affect or impair any rights,
powers or remedies of the Trustee or the Holders.


 


Section 504.                                               Trustee
May File Proofs of Claim.  In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other
obligor, including any Guarantor, upon the Notes or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,


 


(i)                  to file and
prove a claim for the whole amount of principal (and premium, if any) and
interest owing and unpaid in respect of the Notes, to take such other actions
(including participating as a member, voting or otherwise, of any official
committee of creditors appointed in such matter) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and


 


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(ii)               to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same;


 


and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 607.


 


Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that
the Trustee may, on behalf of such Holders, vote for the election of a trustee
in bankruptcy or other similar official.


 


Section 505.                                               Trustee
May Enforce Claims Without Possession of Notes.  All rights of action and claims under this
Indenture, the Notes or the Guarantees may be prosecuted and enforced by the
Trustee without the possession of any of the Notes or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Notes
in respect of which such judgment has been recovered.


 


Section 506.                                               Application
of Money Collected.  Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:


 


FIRST:  To the payment of all
amounts due the Trustee under Section 607;


 


SECOND:  To the payment of the
amounts then due and unpaid for principal of (and premium, if any) and interest
on the Notes in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Notes for principal (and premium, if
any) and interest, respectively; and


 


THIRD:  The balance, if any, to
the Company, provided that all sums due and owing
to the Holders and the Trustee have been paid in full as required by this Indenture.


 


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Section 507.                                               Limitation
on Suits.  No Holder
of any Notes shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless


 


(1)                                  such Holder has
previously given written notice to the Trustee of a continuing Event of
Default;


 


(2)                                  the Holders of
not less than 30% in principal amount of the Outstanding Notes shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;


 


(3)                                  such Holder or
Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;


 


(4)                                  the Trustee for
30 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and


 


(5)                                  no direction
inconsistent with such written request has been given to the Trustee during
such 30-day period by the Holders of a majority or more in principal amount of
the Outstanding Notes;


 


it being understood and intended that no one
or more Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture, any Note or any Guarantee to
affect, disturb or prejudice the rights of any other Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, any Note or any Guarantee, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.


 


Section 508.                                               Unconditional
Right of Holders to Receive Principal, Premium and Interest.  Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment, as provided herein (including, if applicable, Article Eleven)
and in such Note of the principal of (and premium, if any) and (subject to Section 311)
interest and Liquidated Damages, if any, on such Note on the respective Stated
Maturities expressed in such Note (or, in the case of redemption or repurchase,
on the Redemption Date or repurchase) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.


 


Section 509.                                               Restoration
of Rights and Remedies.  If
the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture or any Guarantee and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, any Guarantor, any other obligor
on the Notes, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.


 


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Section 510.                                               Rights
and Remedies Cumulative. 
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 310,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 511.                                               Delay
or Omission Not Waiver.  No delay
or omission of the Trustee or of any Holder of any Note to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein.  Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.


 


Section 512.                                               Control
by Holders.  The Holders
of not less than a majority in principal amount of the Outstanding Notes shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided that


 


(1)                                  such direction
shall not be in conflict with any rule of law or with this Indenture or
any Guarantee;


 


(2)                                  the Trustee
need not take any action which might involve it in personal liability or be
unjustly prejudicial to the Holders not consenting, and shall have the right it
is entitled to under Section 603(a)(5); and


 


(3)                                  subject to the
provisions of Section 315 of the Trust Indenture Act, the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.


 


Section 513.                                               Waiver
of Past Defaults.  Subject to
Sections 508 and 902, the Holders of a majority in aggregate principal amount
of the Outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes) may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its consequences
under this Indenture or any Guarantee except a continuing Default or Event of
Default in the payment of interest on, premium, if any, or the principal of,
any such Note held by a non-consenting Holder, or in respect of a covenant or a
provision which cannot be amended or modified without the consent of each
Holder affected thereby in accordance with Section 902 hereof.


 


In the event that any Event of Default specified in Section 501(iv) shall
have occurred and be continuing, such Event of Default and all consequences
thereof (including, without limitation, any acceleration or resulting payment
default) shall be annulled, waived and rescinded, automatically and without any
action by the Trustee or the Holders of the Notes, if within 20 days after such
Event of Default arose (x) the Indebtedness or guarantee that is the basis
for such Event of Default has been discharged, or (y) the holders thereof
have rescinded or waived the acceleration, notice or action (as the case may
be) giving rise to such Event of Default, or (z) if the default that is
the basis for such Event of Default has been cured.


 


63

















 


Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.


 


Section 514.                                               Waiver
of Stay or Extension Laws.  The
Company, the Guarantors and any other obligors upon the Notes, covenants (to
the extent that it may lawfully do so) that it will 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 would prohibit or forgive the Company, any Guarantor
or any such obligor from paying all or any portion of the principal of,
premium, if any, or interest on the Notes contemplated herein or in the Notes
or which may affect the covenants or the performance of this Indenture; and
each of the Company, any Guarantor and any such obligor (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


Section 515.                                               Undertaking
for Costs.  All parties
to this Indenture agree, and each Holder of any Note by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
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, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Notes, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Note on or after the respective Stated
Maturities expressed in such Note (or, in the case of redemption, on or after
the Redemption Date).


 


ARTICLE SIX



THE TRUSTEE


 


Section 601.                                               Certain
Duties and Responsibilities.


 


(a)                                  Except during
the continuance of a Default or 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


 


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(2)                                  in the absence
of bad faith or willful misconduct on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions required to be delivered hereunder, the Trustee shall
be under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).


 


(b)                                 In case a
Default or an Event of Default has occurred and is continuing of which a
Responsible Officer of the Trustee has actual knowledge or of which written notice
of such Default or Event of Default shall have been given to the Trustee by the
Company, any other obligor of the Notes or by any Holder, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.


 


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


 


(1)                                  this paragraph (c) shall
not be construed to limit the effect of paragraph (a) of this Section;


 


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


 


(3)                                  the Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders of the Outstanding
Notes received by the Trustee pursuant to Sections 502, 512 and 513 hereof or
in exercising any trust or power conferred upon the Trustee, under this
Indenture; and


 


(4)                                  no provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers.


 


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


 


Section 602.                                               Notice
of Defaults.  Within 90
days after the occurrence of any Default hereunder, the Trustee shall transmit
in the manner and to the extent provided in TIA Section 313(c), notice of
such Default hereunder actually known to a Responsible Officer of the Trustee,
unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest on any Note, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders; and provided  further that in
the case of any Default of the character specified in clause (iii) of Section 501
no such notice to Holders shall be given until at least 30 days after the occurrence
thereof.


 


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Section 603.                               Certain
Rights of Trustee.


 


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


 


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


 


(2)                                  any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;


 


(3)                                  whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee may, in the absence of bad faith on its part,
request and rely upon an Officers’ Certificate or an Opinion of Counsel or
both;


 


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


 


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


 


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


 


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


 


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


 


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


 


(10)                            the Trustee may
request that the Company deliver an Officers’ Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any such person authorized to sign an Officer’s Certificate,
including any person specified as so authorized in any such certificate
previously delivered and not superseded;


 


(11)                            in no event
shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God; it being
understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances;


 


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


 


(13)                            the Trustee
agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods, provided, however,
that, the Trustee shall have received an incumbency certificate listing persons
designated to give such instructions or directions and containing specimen
signatures of such designated persons, which such incumbency certificate shall
be amended and replaced whenever a person is to be added or deleted from the
listing.  If the Issuer elects to give
the Trustee e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions,
the Trustee’s understanding of such instructions shall be deemed
controlling.  The Trustee shall not be
liable for any losses, costs or expenses arising directly or indirectly from
the Trustee’s reliance upon and compliance with such instructions
notwithstanding such instructions conflict or are inconsistent with a
subsequent written instruction.  The
Issuer agrees to assume all risks arising out of the use of such electronic
methods to submit instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized instructions, and the
risk of interception and misuse by third parties.


 


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Section 604.                                               Trustee
Not Responsible for Recitals or Issuance of Notes.  The recitals contained herein and in the
Notes, except for the Trustee’s certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
their correctness.  The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes and shall not be responsible for any statement of any Person in this
Indenture, the Notes or any statement made in connection with the sale of the
Notes, provided that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Notes and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein.  The Trustee shall not be accountable for the
use or application by the Company of Notes or the proceeds thereof.


 


Section 605.                                               May Hold
Notes.  The Trustee, any Paying Agent,
any Note Registrar, any Authenticating Agent or any other agent of the Company
or of the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Note Registrar, Authenticating Agent or such other
agent.


 


Section 606.                                               Money
Held in Trust.  All moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust hereunder for the purposes for which they were received, but need
not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed in writing
with the Company.


 


Section 607.                                               Compensation
and Reimbursement.  The Company
agrees:


 


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


 


(2)                                  except as otherwise
expressly provided herein, to reimburse the Trustee upon its request for all
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel and
costs and expenses of collection), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and


 


(3)                                  to indemnify each of the
Trustee or any predecessor Trustee (and their respective directors, officers,
employees and agents) for, and to hold it harmless against, any and all loss,
damage, claim, liability or expense, including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of its
powers or duties hereunder.


 


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The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture.  As
security for the performance of such obligations of the Company, the Trustee
shall have a lien prior to the Holders of the Notes upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of (and premium, if any) or interest on particular Notes.


 


When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 501(vi) or
(vii), the expenses (including the reasonable charges and expenses of its
counsel) of and the compensation for such services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.


 


To the extent the Notes are Guaranteed, then the
Company’s obligation to indemnify the Trustee shall be joint and several with
any such Guarantor or Guarantors.


 


The provisions of this Section shall also apply
to the Trustee in its capacity as Note Registrar and for so long as the Trustee
shall remain Note Registrar.


 


The provisions of this Section shall survive
the termination of this Indenture.


 


Section 608.                               Corporate
Trustee Required; Eligibility.  There shall be at all times a Trustee
hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1),
and which shall have a combined capital and surplus of at least
$50,000,000.  If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 608, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 608, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.


 


Section 609.                               Resignation
and Removal; Appointment of Successor.


 


(a)                                  No resignation
or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of this
Section.


 


(b)                                 The Trustee may
resign at any time by giving written notice thereof to the Company.  Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee by written instrument
executed by authority of the Board of Directors, a copy of which shall be
delivered to the resigning Trustee and a copy to the successor trustee.  If an instrument of acceptance required by
this Section shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition at the expense of the Company any court of competent jurisdiction for
the appointment of a successor Trustee.


 


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


 


(d)           If at any time:


 


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


 


(2)           the
Trustee shall cease to be eligible under Section 608 and shall fail to resign
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or


 


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


 


then, in any such case, (i) the Company,
by a Board Resolution, may remove the Trustee, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Note for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.


 


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


 


(f)            The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner provided for in Section 106.  Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


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Section 610.          Acceptance of Appointment by Successor.  Every successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.  Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.


 


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


 


Section 611.          Merger, Conversion, Consolidation or
Succession to Business.  Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.  In case any Notes shall have
been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.  In case at that time any of the Notes shall
not have been authenticated, any successor Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor
Trustee.  In all such cases such
certificates shall have the full force and effect which this Indenture provides
for the certificate of authentication of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Notes in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.


 


Section 612.          Trustee’s Application for Instructions
from the Company.  Any
application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective.  The Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal
included in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such application,
unless any such officer shall have consented in writing to any earlier date)
unless prior to taking any such action (or the effective date in the case of an
omission), the Trustee shall have received written instructions in response to
such application specifying the action to be taken or omitted.


 


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ARTICLE SEVEN



HOLDERS LISTS AND REPORTS BY

TRUSTEE AND COMPANY


 


Section 701.          Company to Furnish Trustee Names and
Addresses.  The Company
will furnish or cause to be furnished to the Trustee


 


(a)           semi-annually, not more than 10 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and


 


(b)           at such other times as the Trustee may reasonably request
in writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content to that in Subsection (a) hereof as of a
date not more than 15 days prior to the time such list is furnished; provided, however, that
if and so long as the Trustee shall be the Note Registrar, no such list need be
furnished.


 


Section 702.                Disclosure of Names and
Addresses of Holders.  Every
Holder of Notes, by receiving and holding the same, agrees with the Company and
the Trustee that none of the Company or the Trustee or any agent of either of
them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312(b).


 


Section 703.                Reports by Trustee.  Within 60 days after May 15 of each year
commencing with May 15, 2010, the Trustee shall transmit to the Holders,
as their names and addresses appear on the Note Register, a brief report dated
as of such May 15, in accordance with, and to the extent required under, Section 313
of the TIA.


 


ARTICLE EIGHT



MERGER, CONSOLIDATION, OR SALE

OF ALL OR SUBSTANTIALLY ALL ASSETS


 


Section 801.          Company May Consolidate, etc.,
Only on Certain Terms.


 


(1)           the
Company shall not consolidate or merge with or into or wind up into (whether or
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or assets
in one or more related transactions, to any Person unless (i) the Company
is the surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition will have been
made is a corporation organized or existing under the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof
(the Company or such Person, as the case may be, being herein called the “Successor
Company”); (ii) the Successor Company (if other than the Company)
expressly assumes all the obligations of the Company under this Indenture and
the 


 


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Notes pursuant to a
supplemental indenture or other documents or instruments in form reasonably
satisfactory to the Trustee; (iii) immediately after such transaction no
Default or Event of Default shall have occurred and be continuing; (iv) immediately
after giving pro forma effect to such transaction, as if such transaction had
occurred at the beginning of the applicable four-quarter period, (A) the
Successor Company would be permitted to incur at least $1.00 of additional
Indebtedness under the provisions of paragraph (a) of Section 1010 or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its
Restricted Subsidiaries would be greater than such Ratio for the Company and
its Restricted Subsidiaries immediately prior to such transaction; (v) each
Guarantor, if any, unless it is the other party to the transactions described
above, shall have by supplemental indenture confirmed that its Guarantee shall
apply to such Person’s obligations under this Indenture and the Notes; and (vi) 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.  The Successor Company shall succeed to, and
be substituted for, the Company under this Indenture and the Notes.  Notwithstanding the foregoing, (a) any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to the Company and (b) the Company may merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another State of the United States so long as the amount of Indebtedness
of the Company and its Restricted Subsidiaries is not increased thereby.


 


(2)           Subject
to the provisions set forth in clause (b) of Section 1014, each
Guarantor, if any, shall not, and the Company shall not permit a Guarantor to,
consolidate or merge with or into or wind up into (whether or not such
Guarantor is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or assets
in one or more related transactions to, any Person unless: (i) such
Guarantor is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation organized or existing under the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof
(such Guarantor or such Person, as the case may be, being herein called the “Successor
Guarantor”); (ii) the Successor Guarantor (if other than such
Guarantor) expressly assumes all the obligations of such Guarantor under this
Indenture and such Guarantor’s Guarantee pursuant to a supplemental indenture
or other documents or instruments in form reasonably satisfactory to the
Trustee; (iii) immediately after such transaction no Default or Event of
Default shall have occurred and be continuing; and (iv) the Guarantor
shall have delivered or caused to be 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.  The Successor Guarantor shall
succeed to, and be substituted for, such Guarantor under this Indenture and
such Guarantor’s Guarantee.


 


Section 802.                Successor Substituted.  Upon any consolidation of the Company with or
merger of the Company with or into or wind up into any other corporation or any
sale, assignment, conveyance, transfer, lease or other disposition of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or wound up or to which such
sale, assignment, conveyance, transfer, lease or other disposition is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company therein, and thereafter (except in the case
of a sale, assignment, transfer, lease, conveyance or other disposition) the
predecessor corporation will be relieved of all further obligations and
covenants under this Indenture and the Notes; provided
that, solely with respect to calculating amounts described in clauses (A), (B) and
(C) of paragraph (a) of Section 1009, any such surviving entity
to the Company shall only be deemed to have succeeded to and be substituted for
the Company with respect to periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets.


 


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ARTICLE NINE



SUPPLEMENTS AND AMENDMENTS TO INDENTURE


 


Section 901.                Supplemental Indentures without
Consent of Holders.  Without the
consent of any Holders of Notes, the Company, any Guarantor (with respect to a
Guarantee to which it is a party), when authorized by a Board Resolution, and
the Trustee may amend or supplement this Indenture, any Guarantee or the Notes:


 


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


 


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


 


(3)           to
comply with Article Eight hereof to provide for the assumption of the
Company’s or any Guarantor’s obligations to Holders of such Notes;


 


(4)           to
otherwise provide for the assumption of the Company’s or any Guarantor’s
obligations to Holders of such Notes;


 


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


 


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


 


(7)           to
comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;


 


(8)           to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee pursuant to the requirements of Section 610;


 


(9)           to
add a Guarantor hereunder or to release a Guarantor from its Guarantee as
permitted under the terms of this Indenture; or


 


(10)         to
conform the text of the Indenture, the Guarantees or the Notes to any provision
of the “Description of the Notes” section of the Offering Memorandum, to the
extent that such provision in that “Description of the Notes” section was
intended to be a verbatim recitation of a provision of the Indenture, the
Guarantees or the Notes.


 


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Section 902.                Supplemental Indentures with
Consent of Holders.  With the
consent of the Holders of at least a majority in principal amount of the
Outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes), by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of each Holder
affected thereby (with respect to any Notes held by a nonconsenting Holder of
the Notes):


 


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


 


(2)           reduce the principal of or change or
have the effect of changing the Stated Maturity of any such Note or alter or
waive the provisions with respect to the redemption of the Notes (other than
Sections 1016 and 1017 and the defined terms used therein);


 


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


 


(4)           waive a Default or Event of Default
in the payment of principal of, or premium, if any, or interest on the Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of such Notes Outstanding and a waiver
of the payment default that resulted from such acceleration), or in respect of
a covenant or provision contained in this Indenture or any Guarantee which
cannot be amended or modified without the consent of all Holders;


 


(5)           make any Note payable in currency
other than that stated in such Notes;


 


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


 


(7)           make any change in the foregoing amendment
and waiver provisions;


 


(8)           impair the right of any Holder of the
Notes to receive payment of principal of, or interest or Liquidated Damages on,
such Holder’s Notes on or after the due dates relating thereto or to institute
suit for the enforcement of any payment on or with respect to such Holder’s
Notes; or


 


(9)           modify or change any provision of
this Indenture or the related definitions affecting the ranking of the notes in
a manner that would adversely affect the Holders of the Notes.


 


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It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.


 


Section 903.                Execution of Supplemental
Indentures.  In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel and an Officers’
Certificate stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. 
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustees own rights, duties or
immunities under this Indenture or otherwise.


 


Section 904.                Effect of Supplemental Indentures.  Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby (except as
provided in Section 902).


 


Section 905.                Conformity with Trust Indenture
Act.  Every supplemental indenture
executed pursuant to the Article shall conform to the requirements of the
Trust Indenture Act as then in effect.


 


Section 906.                Reference in Notes to
Supplemental Indentures. 
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture.  If the Company shall so determine, new Notes
so modified as to conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.


 


Section 907.                Notice of Supplemental
Indentures.  Promptly
after the execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of Section 902, the Company shall
give notice thereof to the Holders of each Outstanding Note affected, in the
manner provided for in Section 106, setting forth in general terms the substance
of such supplemental indenture.


 


ARTICLE TEN


 


COVENANTS


 


Section 1001.             Payment of Principal, Premium, if
any, and Interest.  The Company
shall pay or cause to be paid the principal of, premium, if any, interest, and
Liquidated Damages, if any, on the Notes on the dates and in the manner
provided in the Notes.  Principal,
premium, if any, interest, and Liquidated Damages, if any, shall be considered
paid on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, interest and Liquidated
Damages, if any, then due.


 


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Section 1002.             Maintenance of Office or Agency.  The Company shall maintain an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of transfer
or for exchange and where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. 
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.


 


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


 


The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company in accordance
with Section 305.


 


Section 1003.             Money for Note Payments to be Held
in Trust.  If the Company
shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of (or premium, if any) or interest on any of the Notes,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal of (or premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure to so act.


 


Whenever the Company shall have one or more Paying
Agents for the Notes, it will, on or before each due date of the principal of
(or premium, if any) or interest on any Notes, deposit with a Paying Agent a
sum in same day funds (or New York Clearing House funds if such deposit is made
prior to the date on which such deposit is required to be made) sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure to so act.  The Company will cause each Paying Agent
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:


 


(1)           hold all sums held by it for the
payment of the principal of (and premium, if any) or interest on Notes in trust
for the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;


 


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(2)           give the Trustee notice of any
default by the Company (or any other obligor upon the Notes) in the making of
any payment of principal (and premium, if any) or interest; and


 


(3)           at any time during the continuance of
any such default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.


 


The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal
of (or premium, if any) or interest on any Note and remaining unclaimed for two
years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment to the Company, may at the expense of the
Company cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.


 


Section 1004.             Corporate Existence.  Subject to Article Eight hereof, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Restricted Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Restricted Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the
Company and its Restricted Subsidiaries; provided, however, that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other
existence of any of its Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to
the Holders of the Notes.


 


Section 1005.             Taxes.  The Company shall pay, and shall cause each
of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments,
and governmental charges except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not adverse
in any material respect to the Holders of the Notes.


 


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Section 1006.             Maintenance of Properties.  The Company will cause all material
properties owned by the Company or any Restricted Subsidiary or used or held
for use in the conduct of its business or the business of any Restricted
Subsidiary to be maintained and kept in normal condition, repair and working
order and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be properly
conducted at all times; provided, however, that nothing in this Section shall prevent
the Company or any of its Restricted Subsidiaries from discontinuing the
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not adverse in any material respect
to the Holders.


 


Section 1007.             Insurance.  To the extent available at commercially reasonable
rates, the Company will maintain, and will cause its Subsidiaries to maintain,
insurance with responsible carriers against such risks and in such amounts, and
with such deductibles, retentions, self-insured amounts and co-insurance
provisions, as are customarily carried by similar businesses, of similar size,
including professional and general liability, property and casualty loss,
workers’ compensation and interruption of business insurance.


 


Section 1008.             Compliance with Laws.  The Company shall comply, and shall cause
each of its Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of America, all
states and municipalities thereof, and of any governmental regulatory
authority, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliances as
would not in the aggregate have a material adverse effect on the financial condition
or results of operations of the Company and its Subsidiaries, taken as a whole.


 


Section 1009.             Limitation on Restricted Payments.


 


(a)           The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:  (i) declare
or pay any dividend or make any distribution on account of the Company’s or any
of its Restricted Subsidiaries’ Equity Interests, including any dividend or
distribution payable in connection with any merger or consolidation (other than
(A) dividends or distributions by the Company payable in Equity Interests
(other than Disqualified Stock) of the Company or (B) dividends or
distributions by a Restricted Subsidiary so long as, in the case of any
dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly Owned
Restricted Subsidiary, the Company or a Restricted Subsidiary receives at least
its pro rata share of such dividend or distribution
in accordance with its Equity Interests in such class or series of securities);
(ii) purchase, redeem, defease or otherwise acquire or retire for value
any Equity Interests of the Company or any direct or indirect parent of the
Company; (iii) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value in each case, prior to any
scheduled repayment, or maturity, any Subordinated Indebtedness (other than
Indebtedness permitted under clauses (vii) and (ix) of Section 1010(b) hereof);
or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being
collectively referred to as “Restricted Payments”), unless, at the time
of such Restricted Payment:


 


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


 


(B)           immediately
before and immediately after giving effect to such transaction on a pro forma
basis, the Company could incur $1.00 of additional Indebtedness under the provisions
of paragraph (a) of Section 1010; and


 


(C)           such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the Issue
Date (including Restricted Payments permitted by clauses (v) (only to the
extent that amounts paid pursuant to such clause are greater than amounts that
would have been paid pursuant to such clause if $5.0 million and $10.0 million
were substituted in such clause for $10.0 million and $20.0 million,
respectively), (vi) (only to the extent of one-half of such amounts), (ix) and
(x) of paragraph (b) of this Section 1009, but excluding all
other Restricted Payments permitted by paragraph (b) of this Section 1009),
is less than the sum of (i) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period) from January 1,
2010 to the end of the Company’s most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted
Payment (or, in the case such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit), plus (ii) 100% of the
aggregate net cash proceeds and the fair market value, as determined in good
faith by the Board of Directors, of marketable securities received by the
Company since immediately after the Issue Date from the issue or sale of Equity
Interests of the Company (excluding Excluded Contributions) or debt securities
of the Company issued or sold after the Issue Date that have been converted
into such Equity Interests (including Retired Capital Stock) of the Company
(other than Refunding Capital Stock (as defined below), or Equity Interests or
convertible debt securities of the Company sold to a Restricted Subsidiary of
the Company and other than Disqualified Stock or debt securities that have been
converted into Disqualified Stock), plus (iii) the aggregate amount
by which Indebtedness (other than Subordinated Indebtedness) of the Company or
any Restricted Subsidiary is reduced on the Company’s consolidated balance
sheet on or after the Issue Date upon the conversion or exchange of any debt
securities issued or sold on or prior to the Issue Date that are convertible
into Equity Interests of the Company (other than Refunding Capital Stock (as
defined below) or Equity Interests or convertible debt securities of the
Company sold to a Restricted Subsidiary of the Company and other than
Disqualified Stock or debt securities that have been converted into Disqualified
Stock), plus (iv) 100% of the aggregate amount of cash and
marketable securities contributed to the capital of the Company following the
Issue Date (excluding Excluded Contributions), plus (v) 100% of the
aggregate amount received in cash and the fair market value of marketable
securities (other than Restricted Investments) received after the Issue Date
from (A) the sale or other disposition (other than to the Company or a
Restricted Subsidiary) of Restricted Investments made by the Company and its Restricted
Subsidiaries after the Issue Date; or (B) a dividend from, or the sale
(other than to the Company or a Restricted Subsidiary) of the stock of, an Unrestricted
Subsidiary after the Issue Date (other than an Unrestricted Subsidiary the
Investment in which was made by the Company or a Restricted Subsidiary after
the Issue Date pursuant to clauses (vii) or (xi) of paragraph (b) of
this Section 1009).


 


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(b)           The foregoing provisions will not
prohibit:


 


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


 


(ii)           (A) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
(the “Retired Capital Stock”) or Subordinated Indebtedness of the
Company in exchange for, or out of the proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary) of, Equity Interests of the
Company (other than any Disqualified Stock) (the “Refunding Capital Stock”),
and (B) if immediately prior to the retirement of Retired Capital Stock,
the declaration and payment of dividends thereon was permitted under clause (vi) of
this paragraph (b), the declaration and payment of dividends on the Refunding
Capital Stock in an aggregate amount per year no greater than the aggregate
amount of dividends per annum that was declarable and payable on such Retired
Capital Stock immediately prior to such retirement; provided, however, that at the time of the declaration of any such
dividends, no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof;


 


(iii)          distributions or
payments of Receivables Fees;


 


(iv)          the redemption,
repurchase or other acquisition or retirement of Subordinated Indebtedness of
the Company made by exchange for, or out of the proceeds of the substantially
concurrent sale of, new Indebtedness of the Company so long as (A) the
principal amount of such new Indebtedness does not exceed the principal amount
of the Subordinated Indebtedness being so redeemed, repurchased, acquired or
retired for value (plus the amount of any premium required to be paid under the
terms of the instrument governing the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired, and fees and expenses payable in
connection with such redemption, repurchase, acquisition or retirement), (B) such
Indebtedness is subordinated to the senior indebtedness and the Notes at least
to the same extent as such Subordinated Indebtedness so purchased, exchanged,
redeemed, repurchased, acquired or retired for value, (C) such Indebtedness
has a final scheduled maturity date equal to or later than the final scheduled
maturity date of the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired and (D) such Indebtedness has a Weighted Average Life
to Maturity equal to or greater than the remaining Weighted Average Life to
Maturity of the Subordinated Indebtedness being so redeemed, repurchased, acquired
or retired;


 


(v)           a Restricted Payment
to pay for the repurchase, retirement or other acquisition or retirement for
value of common Equity Interests of the Company held by any future, present or
former employee, director or consultant of the Company or any Subsidiary
pursuant to any management equity plan, stockholder agreement, or stock option
plan or any other management or employee benefit plan or agreement; provided, however, that
the aggregate Restricted Payments made under this clause (v) does not
exceed in any calendar year $10.0 million (with unused amounts in any calendar
year being carried over to succeeding calendar years subject to a maximum
(without giving effect to the following proviso) of $20.0 million in any
calendar year); provided  further that
such amount in 


 


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any
calendar year may be increased by an amount not to exceed: (i) the cash
proceeds from the sale of Equity Interests of the Company to members of
management, directors or consultants of the Company and its Subsidiaries that
occurs after the Issue Date (to the extent the cash proceeds from the sale of
such Equity Interest have not otherwise been applied to the payment of
Restricted Payments by virtue of clause (C) of paragraph (a) of this Section 1009);
plus (ii) the cash proceeds of key man life insurance policies received by
the Company and its Restricted Subsidiaries after the Issue Date, less (iii) the
amount of any Restricted Payments made after the Issue Date pursuant to clauses
(i) and (ii) of this subparagraph (v); and provided
further that cancellation of
Indebtedness owing to the Company from members of management of the Company or
any of its Restricted Subsidiaries in connection with a repurchase of Equity
Interests of the Company will not be deemed to constitute a Restricted Payment
for purposes of this Section 1009 or any other provision of this Indenture;


 


(vi)          the declaration and
payment of dividends to holders of any class or series of Designated Preferred
Stock (other than Disqualified Stock) issued after the Issue Date (including,
without limitation, the declaration and payment of dividends on Refunding
Capital Stock in excess of the dividends declarable and payable thereon pursuant
to clause (ii)); provided, however,
that for the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date of issuance
of such Designated Preferred Stock, after giving effect to such issuance on a
pro forma basis, the Company and its Restricted Subsidiaries would have had a
Fixed Charge Coverage Ratio of at least 2.00 to 1.00;


 


(vii)         Investments in
Unrestricted Subsidiaries having an aggregate fair market value, taken together
with all other Investments made since the Issue Date pursuant to this clause (vii) that
are at that time outstanding, not to exceed $50.0 million at the time of such
Investment (with the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in value);


 


(viii)        repurchases of
Equity Interests deemed to occur upon exercise of stock options if such Equity
Interests represent a portion of the exercise price of such options;


 


(ix)           the payment of
dividends on the Company’s Common Stock, following the first public offering of
the Company’s Common Stock after the Issue Date, of up to 6% per annum of the
net proceeds received by the Company in such public offering, other than public
offerings with respect to the Company’s Common Stock registered on Form S-8;


 


(x)            a Restricted
Payment to pay for the repurchase, retirement or other acquisition or
retirement for value of Equity Interests of the Company which are not held by
Oaktree Capital Management or any of its Affiliates (including any Equity
Interests issued in respect of such Equity Interests as a result of a stock
split, recapitalization, merger, combination, consolidation or otherwise, but
excluding any management equity plan or stock option plan or similar
agreement), provided that the aggregate Restricted
Payments made since the Issue Date under this clause (x) shall not exceed
$50 million, provided  further
that notwithstanding the foregoing proviso, the Company shall be permitted to
make Restricted Payments under this clause (x) only if after giving effect
thereto, the Company would be permitted to incur at least $1.00 of additional
Indebtedness under the provisions of Section 1010(a) hereof;


 


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(xi)          Investments in
Unrestricted Subsidiaries that are made with Excluded Contributions;


 


(xii)         the payment of
dividends on Disqualified Stock which is issued in accordance with Section 1010
hereof;


 


(xiii)        other Restricted
Payments since the Issue Date in an aggregate amount not to exceed $50 million;
and


 


(xiv)        the redemption,
repurchase or other acquisition or retirement of the 2012 Notes pursuant to the
Tender Offer or otherwise;


 


provided, however, that at the time of, and after giving effect to,
any Restricted Payment permitted under clauses (v), (vi), (vii), (ix), (x),
(xi), (xii) and (xiii), no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof.


 


(c)           In the future, the Company will not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the second to
last sentence of the definition of “Unrestricted Subsidiary.”  For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid) in the
Subsidiary so designated will be deemed to be Restricted Payments in an amount
determined as set forth in the last sentence of the definition of “Investments.”  Such designation will only be permitted if an
Investment in such amount would be permitted at such time and if such
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.  Unrestricted Subsidiaries will not be subject
to any of the restrictive covenants set forth in this Indenture.


 


Section 1010.             Limitation on Incurrence of
Indebtedness and Issuance of Disqualified Stock.


 


(a)           The Company shall not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, “Incur” and
collectively, an “Incurrence”) any Indebtedness (including Acquired
Indebtedness) and the Company will not issue any shares of Disqualified Stock
and will not permit any of its Restricted Subsidiaries to issue any shares of
preferred stock; provided, however,
that the Company may incur Indebtedness (including Acquired Indebtedness) or
issue shares of Disqualified Stock if the Fixed Charge Coverage Ratio for the
Company’s and the Restricted Subsidiaries’ most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2.00 to 1.00, determined
on a pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the Disqualified
Stock had been issued, as the case may be, and the application of proceeds
therefrom had occurred at the beginning of such four-quarter period.


 


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(b)           Section 1010(a) shall not
apply to:


 


(i)            the incurrence by
the Company or its Restricted Subsidiaries of Indebtedness under Credit Facilities
and the issuance and creation of letters of credit and bankers’ acceptances
thereunder (with letters of credit and bankers’ acceptances being deemed to
have a principal amount equal to the face amount thereof) up to an aggregate
principal amount of $580.0 million outstanding at any one time;


 


(ii)           the incurrence by
the Company of Indebtedness represented by the Notes;


 


(iii)          the Existing
Indebtedness (other than Indebtedness described in clauses (i) and (ii));


 


(iv)          Indebtedness
(including Capitalized Lease Obligations) incurred by the Company or any of its
Restricted Subsidiaries, to finance the purchase, lease or improvement of
property (real or personal) or equipment (whether through the direct purchase
of assets or the Capital Stock of any Person owning such assets) in an
aggregate principal amount which, when aggregated with the principal amount of
all other Indebtedness then outstanding and incurred pursuant to this clause (iv) and
including all Refinancing Indebtedness incurred to refund, refinance or replace
any other Indebtedness incurred pursuant to this clause (iv), does not exceed
the greater of (x) $50.0 million or (y) 7.5% of Total Assets;


 


(v)           Indebtedness
incurred by the Company or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including without limitation letters of credit in
respect of workers’ compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations regarding workers’
compensation claims; provided, however, that upon the drawing of such letters of credit or
the incurrence of such Indebtedness, such obligations are reimbursed within 30
days following such drawing or incurrence;


 


(vi)          Indebtedness arising
from agreements of the Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the acquisition or disposition of
any business, assets or a Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
a Subsidiary for the purpose of financing such acquisition; provided, however, that (A) such
Indebtedness is not reflected on the balance sheet of the Company or any
Restricted Subsidiary (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause
(A)) and (B) the maximum assumable liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds including noncash
proceeds (the fair market value of such noncash proceeds being measured at the
time received and without giving effect to any subsequent changes in value)
actually received by the Company and its Restricted Subsidiaries in connection
with such disposition;


 


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(vii)         Indebtedness of the
Company to a Restricted Subsidiary; provided that
any such Indebtedness is made pursuant to an intercompany note and is subordinated
in right of payment to the Notes; provided  further that any subsequent issuance or transfer of any
Capital Stock or any other event which will result in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such Indebtedness (except to the Company or another Restricted
Subsidiary) shall be deemed, in each case to be an incurrence of such
Indebtedness;


 


(viii)        shares of preferred
stock of a Restricted Subsidiary issued to the Company or another Restricted
Subsidiary; provided that any subsequent issuance or
transfer of any Capital Stock or any other event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such shares of preferred stock (except to the
Company or another Restricted Subsidiary) shall be deemed, in each case to be
an issuance of shares of preferred stock;


 


(ix)          Indebtedness of a
Restricted Subsidiary to the Company or another Restricted Subsidiary; provided that (A) any such Indebtedness is made
pursuant to an intercompany note and (B) if a Guarantor incurs such
Indebtedness from a Restricted Subsidiary that is not a Guarantor such
Indebtedness is subordinated in right of payment to the Guarantee of such
Guarantor; provided  further
that any subsequent transfer of any such Indebtedness (except to the Company or
another Restricted Subsidiary) or any other event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary shall be deemed, in
each case to be an incurrence of such Indebtedness;


 


(x)           Indebtedness of the
Company or any Restricted Subsidiary in respect of Hedging Obligations that are
incurred in the ordinary course of business: (A) for the purpose of fixing
or hedging interest rate risk with respect to any Indebtedness that is permitted
by the terms of this Indenture to be outstanding, (B) for the purpose of
fixing or hedging currency exchange rate risk with respect to any currency
exchanges or (C) for the purpose of fixing or hedging commodity price
risk;


 


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


 


(xii)         Indebtedness of any
Guarantor in respect of such Guarantor’s Guarantee;


 


(xiii)        Indebtedness of the
Company and any of its Restricted Subsidiaries not otherwise permitted
hereunder in an aggregate principal amount, which when aggregated with the
principal amount of all other Indebtedness then outstanding and incurred
pursuant to this clause (xiii), does not exceed $150.0 million at any one time
outstanding;


 


(xiv)        (A) any
guarantee by the Company of Indebtedness or other obligations of any of its
Restricted Subsidiaries so long as the incurrence of such Indebtedness incurred
by such Restricted Subsidiary is permitted under the terms of this Indenture, (B) any
Excluded Guarantee (as defined in Section 1014 hereof) of a Restricted
Subsidiary and (C) any Guarantee by a Restricted Subsidiary so long as the
Indebtedness being guaranteed was permitted to be incurred under this Section 1010
and such Restricted Subsidiary complies with Section 1014 hereof;


 


85

















 


(xv)         the incurrence by the
Company or any of its Restricted Subsidiaries of Indebtedness which serves to
refund, refinance or restructure any Indebtedness incurred as permitted under
paragraph (a) of this Section 1010 and clauses (ii), (iii), (iv) and
(xii) or clause (xvi) of this paragraph (b), or any Indebtedness issued to so
refund, refinance or restructure such Indebtedness including additional
Indebtedness incurred to pay premiums, expenses and fees in connection
therewith (the “Refinancing Indebtedness”) prior to its respective
maturity; provided, however,
that such Refinancing Indebtedness (A) has a Weighted Average Life to
Maturity at the time such Refinancing Indebtedness is incurred which is not
less than the remaining Weighted Average Life to Maturity of Indebtedness being
refunded or refinanced, (B) to the extent such Refinancing Indebtedness refinances
Indebtedness subordinated or pari passu to
the Notes, such Refinancing Indebtedness is subordinated or pari passu to the Notes at least to the same extent as the
Indebtedness being refinanced or refunded and (C) shall not include (x) Indebtedness
of a Subsidiary that refinances Indebtedness of the Company or Indebtedness of
a non-Guarantor that refinances Indebtedness of a Guarantor or (y) Indebtedness
of the Company or a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary;


 


(xvi)        Indebtedness or
Disqualified Stock of Persons that are acquired by the Company or any of its
Restricted Subsidiaries or merged into a Restricted Subsidiary in accordance
with the terms of this Indenture; provided that
such Indebtedness or Disqualified Stock is not incurred in contemplation of
such acquisition or merger; and provided  further that after giving effect to such acquisition, either
(A) the Company would be permitted to incur at least $1.00 of additional
Indebtedness under the provisions of Section 1010(a) or (B) the
Fixed Charge Coverage Ratio is greater than immediately prior to such
acquisition or merger; and


 


(xvii)       guarantees by the
Company or its Restricted Subsidiaries of the obligations of joint ventures of
the Company or its Restricted Subsidiaries; provided that
the maximum aggregate amount of all such guaranteed obligations shall at no
time exceed $25 million.


 


The Company will not, and will not permit any
Guarantor to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) that is contractually subordinated in right of payment
to any other Indebtedness of the Company or any Indebtedness of any Guarantor,
as the case may be, unless such Indebtedness is also contractually subordinated
in right of payment to the Notes, or such Guarantor’s Guarantee, as the case
may be.


 


For purposes of determining compliance with this
covenant, in the event that an item of Indebtedness meets the criteria of more
than one of the categories of permitted Indebtedness described in clauses (i) through
(xvii) above or is entitled to be incurred pursuant to paragraph (a) of
this Section 1010, the Company shall, in its sole discretion, classify and
may later reclassify such item of Indebtedness in any manner that complies with
this covenant.  Accrual of interest, the
accretion of accreted value and the payment of interest in the form of
additional Indebtedness will not be deemed to be an incurrence of Indebtedness
for purposes of this Section 1010. Indebtedness under the Credit Facility
outstanding on the Issue Date will be deemed to have been incurred on such date
in reliance on the exception provided by clause (b)(i) above.


 


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Section 1011.             Liens.


 


(a)  The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly create,
incur, assume or suffer to exist any Lien that secures obligations under any
Indebtedness (other than Permitted Liens) on any asset or property of the
Company or such Restricted Subsidiary, or any income or profits therefrom, or
assign or convey any right to receive income therefrom, unless (i) the
Notes are equally and ratably secured with the obligations so secured or (ii) if
such Lien secures Subordinated Indebtedness, the Notes are secured by a Lien on
the same property, assets, income or profits which is senior to such Lien to
the same extent as the Notes are senior to such Subordinated Indebtedness, in
each case until such time as such obligations are no longer secured by a Lien.


 


(b)           No Guarantor shall directly or indirectly create, incur,
assume or suffer to exist any Lien that secures obligations under any
Indebtedness (other than Permitted Liens) of such Guarantor on any asset or
property of such Guarantor or any income or profits therefrom, or assign or
convey any right to receive income therefrom, unless (i) the Guarantee of
such Guarantor is equally and ratably secured with the obligations so secured
or (ii) if such Lien secures Subordinated Indebtedness, the Guarantee of
such Guarantor is secured by a Lien on the same property, assets, income or
profits which is senior to such Lien to the same extent as the Guarantee of
such Guarantor is senior to such Subordinated Indebtedness, in each case until
such time as such obligations are no longer secured by a Lien.


 


(c)           Any Lien created, incurred or existing in respect of
unfunded pension obligations or any similar obligations of the Company or any
of its Restricted Subsidiaries or any Guarantor shall not be deemed to give
rise to any obligations under this Section 1011.


 


Section 1012.             Transactions with Affiliates.


 


(a)  The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an “Affiliate Transaction”)
involving aggregate consideration in excess of $5.0 million, unless (i) such
Affiliate Transaction is on terms that are not materially less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the
Trustee with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $10.0
million, a resolution adopted by the majority of the Board of Directors of the
Company approving such Affiliate Transaction and set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with clause (i) above.


 


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(b)           Notwithstanding Section 1012(a), this Section 1012
shall not apply to the following:  (i) transactions
between or among the Company and/or any of its Restricted Subsidiaries; (ii) Restricted
Payments permitted by Section 1009 hereof or Permitted Investments; (iii) the
payment of reasonable and customary fees paid to, and indemnity provided on
behalf of, officers, directors, employees or consultants of the Company or any
Restricted Subsidiary; (iv) payments by the Company or any of its
Restricted Subsidiaries to Oaktree Capital Management, MTS Health Investors and
their respective Affiliates made for any financial advisory, financing,
underwriting or placement services or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or
divestitures which payments are approved by a majority of the Board of
Directors of the Company in good faith; (v) transactions in which the Company
or any of its Restricted Subsidiaries, as the case may be, delivers to the
Trustee a letter from an Independent Financial Advisor stating that such transaction
is fair to the Company or such Restricted Subsidiary from a financial point of
view; provided that such transaction also
meets the requirements of clause (i) of paragraph (a) of this Section 1012;
(vi) payments or loans to employees or consultants which are approved by a
majority of the Board of Directors of the Company in good faith; (vii) any
agreement as in effect as of the Issue Date or any amendment thereto (so long
as any such amendment is not disadvantageous to the Holders of the Notes in any
material respect) or any transaction contemplated thereby; (viii) the
existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date and any similar agreements
which it may enter into thereafter; provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of obligations under any future
amendment to any such existing agreement or under any similar agreement entered
into after the Issue Date shall only be permitted by this clause (viii) to
the extent that the terms of any such amendment or new agreement are not
otherwise disadvantageous to the Holders of the Notes in any material respect; (ix) transactions
with customers, clients, suppliers, or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture which are fair to the Company or
its Restricted Subsidiaries, in the reasonable determination of the Board of
Directors of the Company or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party; and (x) sales of accounts receivable, or
participations therein, in connection with any Receivables Facility.


 


Section 1013.             Dividend and Other Payment
Restrictions Affecting Subsidiaries.  The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted
Subsidiary to:


 


(a)           (i) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries (1) on its Capital Stock
or (2) with respect to any other interest or participation in, or measured
by, its profits, or


 


(ii)           pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries;


 


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


 


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


 


except (in each case) for
such encumbrances or restrictions existing under or by reason of:


 


(1)           contractual
encumbrances or restrictions in effect on the Issue Date, including pursuant to
the Credit Facility and its related documentation;


 


(2)           this
Indenture and the Notes;


 


(3)           purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature discussed in clause (c) above on the
property so acquired;


 


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


 


(5)           any
agreement or other instrument of a Person acquired by the Company or any Restricted
Subsidiary in existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired;


 


(6)           contracts
for the sale of assets, including, without limitation, customary restrictions
with respect to a Subsidiary pursuant to an agreement that has been entered
into for the sale or disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary;


 


(7)           secured
Indebtedness otherwise permitted to be incurred pursuant to Sections 1010 and
1011 hereof that limit the right of the debtor to dispose of the assets
securing such Indebtedness;


 


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


 


(9)           other
Indebtedness of Restricted Subsidiaries permitted to be incurred subsequent to
the Issue Date pursuant to the provisions of Section 1010 hereof;


 


(10)         provisions
in joint venture agreements and other similar agreements entered into in the
ordinary course of business;


 


(11)         customary
provisions contained in leases and other agreements entered into in the ordinary
course of business;


 


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(12)                          restrictions
created in connection with any Receivables Facility that, in the good faith
determination of the Board of Directors of the Company, are necessary or
advisable to effect such Receivables Facility; or


 


(13)                          any
encumbrances or restrictions of the type referred to in paragraphs (a), (b) and
(c) above imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (1) through
(12) above, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are not materially more restrictive, taken as a
whole with respect to such dividend and other payment restrictions than those
contained in the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.


 


Section 1014.                                        Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries.


 


(a)  The Company shall not permit any
Restricted Subsidiary to guarantee the payment of any Indebtedness of the
Company or any Indebtedness of any other Restricted Subsidiary unless (i) such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a Guarantee of payment of the Notes
by such Restricted Subsidiary except that) if such Indebtedness is by its
express terms subordinated in right of payment to the Notes, any such guarantee
of such Restricted Subsidiary with respect to such Indebtedness shall be
subordinated in right of payment to such Restricted Subsidiary’s Guarantee with
respect to the Notes substantially to the same extent as such Indebtedness is
subordinated to the Notes; (ii) such Restricted Subsidiary waives and will
not in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against
the Company or any other Restricted Subsidiary as a result of any payment by
such Restricted Subsidiary under its Guarantee; and (iii) such Restricted
Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect
that (A) such Guarantee of the Notes has been duly executed and authorized
and (B) such Guarantee of the Notes constitutes a valid, binding and
enforceable obligation of such Restricted Subsidiary, except insofar as
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
(including, without limitation, all laws relating to fraudulent transfers) and
except insofar as enforcement thereof is subject to general principles of
equity; provided that this paragraph (a) shall
not be applicable to any guarantee of any Restricted Subsidiary (x) that (A) existed
at the time such Person became a Restricted Subsidiary of the Company and (B) was
not incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary of the Company or (y) that guarantees the payment of
Obligations of the Company or any Restricted Subsidiary under the Credit Facilities
or any Hedging Obligations and any refunding, refinancing or replacement
thereof, in whole or in part; provided that
such Credit Facilities and any such refunding, refinancing or replacement
thereof is not incurred pursuant to a registered offering of securities under
the Securities Act or a private placement of securities (including under Rule 144A)
pursuant to an exemption from the registration requirements of the Securities
Act (any guarantee excluded by operations of this clause (y) being an “Excluded
Guarantee”).


 


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(b)                                 Notwithstanding
the foregoing and the other provisions of this Indenture, any Guarantee by a
Restricted Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any Person not an Affiliate of the Company, of
shares of  Capital Stock representing a majority
of the voting power outstanding of, or all or substantially all the assets of,
such Restricted Subsidiary or any merger or consolidation of such Restricted
Subsidiary in which such Restricted Subsidiary is not the surviving entity
(which sale, exchange, transfer, merger or consolidation is not prohibited by
this Indenture), (ii) the release or discharge of the guarantee which
resulted in the creation of such Guarantee, except a discharge or release by or
as a result of payment under such guarantee, (iii) such Restricted
Subsidiary is designated an Unrestricted Subsidiary as provided in the
definition of “Unrestricted Subsidiary” or (iv) the obligations of the
Company and the Guarantors have been terminated or discharged, as the case may
be, pursuant to, and in compliance with, the provisions of Article Four or
Article Twelve hereof.


 


Section 1015.                                        [RESERVED]


 


Section 1016.                                        Purchase
of Notes upon a Change of Control.


 


(a)                                 Upon the
occurrence of a Change of Control, unless the Company has elected to redeem the
Notes in connection with such Change of Control, the Company will make an offer
to purchase all or any part (equal to $2,000 or an integral multiple of $1,000
in excess thereof) of the Notes pursuant to the offer described below (the “Change
of Control Offer”) at a price in cash (the “Change of Control Payment”)
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of purchase.  Within 30 days following any Change of Control,
the Company will mail a notice to each Holder of Notes issued hereunder in the
manner set forth in Section 106, with a copy to the Trustee, with the
following information:  (1) a Change
of Control Offer is being made pursuant to this Section 1016, and that all
Notes properly tendered pursuant to such Change of Control Offer will be accepted
for payment; (2) the purchase price and the purchase date, which will be
no earlier than 30 days nor later than 60 days from the date such notice is
mailed, except as may be otherwise required by applicable law (the “Change
of Control Payment Date”); (3)  any Note not properly tendered will
remain outstanding and continue to accrue interest; (4) unless the Company
defaults in the payment of the Change of Control Payment, all Notes accepted
for payment pursuant to the Change of Control Offer will cease to accrue
interest on the Change of Control Payment Date; (5) Holders electing to
have any Notes purchased pursuant to a Change of Control Offer will be required
to surrender the Notes, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Notes completed, to the Paying Agent specified
in the notice at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment
Date; (6) Holders will be entitled to withdraw their tendered Notes and
their election to require the Company to purchase such Notes; provided that the paying agent receives, not later than the
close of business on the last day of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount such Holder’s tendered Notes, and a statement that such Holder
is withdrawing his tendered Notes and his election to have such Notes
purchased; and (7) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal to
$2,000 in principal amount or an integral multiple of $1,000 in excess thereof.


 


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(b)                                 On the Change
of Control Payment Date, the Company shall, to the extent permitted by law, (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (2) deposit with the Paying Agent an amount equal
to the aggregate Change of Control Payment in respect of all Notes or portions
thereof so tendered and (3) deliver, or cause to be delivered, to the
Trustee for cancellation the Notes so accepted together with an Officers’
Certificate stating that such Notes or portions thereof have been tendered to
and purchased by the Company.  The Paying
Agent shall promptly mail to each Holder of Notes the Change of Control Payment
for such Notes, and the Trustee will promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess thereof.  The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date with prompt written notice of any such announcement
to be given to the Trustee.


 


(c)                                  The Company
shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent that
such laws or regulations are applicable in connection with the repurchase of
Notes pursuant to a Change of Control Offer. 
To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations described herein by virtue thereof.


 


(d)                                 The Company
will not be required to make a Change of Control Offer upon a Change of Control
if a third party makes the Change of Control Offer in the manner, at the times
and otherwise in compliance with the requirements of this Section 1016 and
purchases all Notes validly tendered and not withdrawn under such Change of Control
Offer.


 


(e)                                  A Change of
Control Offer may be made in advance of a Change of Control, and conditioned
upon such Change of Control, if a definitive agreement is in place for the
Change of Control at the time of the making of the Change of Control Offer.


 


(f)                                   The Notes repurchased
by the Company pursuant to a Change of Control Offer will have the status of
Notes issued but not outstanding or will be retired and canceled at the option
of the Company.  Notes purchased by a
third party pursuant to Section 1016(d) hereof will have the status
of Notes issued and outstanding.


 


Section 1017.                                        Asset
Sales.


 


(a)  The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, cause, make or suffer to exist an
Asset Sale, unless (x) the Company, or its Restricted Subsidiaries, as the
case may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value (as determined in good faith by the Company) of
the assets sold or otherwise disposed of and (y) at least 75% of the
consideration therefor received by the Company, or such Restricted Subsidiary,
as the case may be, is in the form of Cash Equivalents; provided
that the amount of (A) any liabilities (as shown on the Company’s or such
Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of
the Company or any Restricted Subsidiary


 


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(other than liabilities that
are by their terms subordinated to the Notes), that are assumed by the
transferee of any such assets, (B) any notes or other obligations received
by the Company or such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash (to the extent
of the cash received) within 180 days following the closing of such Asset Sale,
(C) any Designated Noncash Consideration received by the Company or any of
its Restricted Subsidiaries in such Asset Sale having an aggregate fair market
value, taken together with all other Designated Noncash Consideration received
pursuant to this clause (C) that is at that time outstanding, not to
exceed the greater of: (x) $50.0 million or (y) 7.5% of Total Assets
at the time of the receipt of such Designated Noncash Consideration (with the
fair market value of each item of Designated Noncash Consideration being
measured at the time received and without giving effect to subsequent changes
in value); and (D) any stock or assets of the kind referred to in clauses (ii) or
(iii) of the following paragraph of this covenant shall be deemed to be
Cash Equivalents for purposes of this provision and for no other purpose.


 


(b)                                 Within 365 days
after the Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds
of any Asset Sale, the Company or such Restricted Subsidiary may apply the Net
Proceeds from such Asset Sale, at its option, (i)  to permanently reduce
Obligations under the Credit Facility (or other Indebtedness of the Company
secured by a Lien permitted by clause (f) of the definition of Permitted
Liens) (and to correspondingly reduce commitments with respect thereto) or
other Pari Passu Indebtedness (provided that
if the Company shall so reduce Obligations under Pari Passu Indebtedness, it
will equally and ratably reduce Obligations under the Notes if the Notes are
then prepayable without premium or, if the Notes may not be then prepaid
without premium, the Company shall make an offer (in accordance with the procedures
set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of
the principal amount thereof the amount of Notes that would otherwise be
prepaid), (ii) to an investment in any one or more businesses, capital
expenditures or acquisitions of other assets in each case, used or useful in a
Similar Business and/or (iii) to make an investment in properties or assets
that replace the properties and assets that are the subject of such Asset
Sale.  Pending the final application of
any such Net Proceeds, the Company or such Restricted Subsidiary may
temporarily reduce Indebtedness under a revolving credit facility, if any, or
otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade
Securities.  Any Net Proceeds from the
Asset Sale that are not invested as provided and within the time period set
forth in the first sentence of this paragraph will be deemed to constitute “Excess
Proceeds.”  When the aggregate amount
of Excess Proceeds exceeds $25.0 million, the Company shall make an offer to
all Holders of Notes and all holders of Pari Passu Indebtedness containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets (an “Asset Sale
Offer”) to purchase the maximum principal amount of Notes, that is an
integral multiple of $1,000, provided that no notes of $2,000 or less shall be
redeemed in part, and such Pari Passu Indebtedness that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the date fixed for the closing of such offer (the “Offered
Price”).  The Company shall commence
an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days
after the date on which the aggregate amount of Excess Proceeds exceeds $25.0
million by giving to each Holder of the Notes, with a copy to the Trustee, in
the manner provided in Section 106 a notice stating:


 


93





















 


(i)                  that the Holder has the
right to require the Company to repurchase such Holder’s Notes at the Offered
Price, subject to proration in the event the Excess Proceeds are less than the
aggregate Offered Price of all Notes tendered;


 


(ii)               the date of purchase of
Notes pursuant to the Asset Sale Offer (the “Asset Sale Purchase Date”),
which shall be no earlier than 30 days nor later than 60 days from the date
such notice is mailed;


 


(iii)            that the Offered Price will
be paid to Holders electing to have Notes purchased on the Asset Sale Purchase
Date; provided that a Holder must surrender
its Note to the Paying Agent at the address specified in the notice prior to
the close of business at least five Business Days prior to the Asset Sale
Purchase Date;


 


(iv)           any Note not tendered will
continue to accrue interest pursuant to its terms;


 


(v)              that unless the Company
defaults in the payment of the Offered Price, any Note accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest on and after
the Asset Sale Purchase Date;


 


(vi)           that Holders will be
entitled to withdraw their tendered Notes and their election to require the
Company to purchase such Notes; provided that
the Company receives, not later than the close of business on the third
Business Day preceding the Asset Sale Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Notes tendered for purchase, and a statement that such Holder is
withdrawing its election to have such Notes purchased;


 


(vii)        that the Holders whose Notes
are being purchased only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered, which unpurchased
portion must be equal to $2,000 in principal amount or an integral multiple of
$1,000 in excess thereof; and


 


(viii)     the instructions a Holder
must follow in order to have his Notes purchased in accordance with this Section 1017.


 


To the extent that the aggregate amount of Notes and
other Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes.  If the
aggregate principal amount of Notes and other Pari Passu Indebtedness tendered
into such Asset Sale offer surrendered by Holders thereof exceeds the amount of
Excess Proceeds, such Excess Proceeds shall be allocated pro rata
(based on the aggregate principal amount tendered) among the Notes and such
Pari Passu Indebtedness, and the Trustee shall select the Notes to be purchased
on a pro rata basis in the manner described
in Section 1104.  Upon completion of
any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at
zero.


 


The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer.  To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section 1017,
the Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Indenture
by virtue thereof.


 


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Section 1018.                                        Compliance
Certificate.


 


(a)                                 The Company
shall deliver to the Trustee, within 120 days after the end of each fiscal year
(which as of the date hereof ends on December 31), an Officers’
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and there is no Default or Event of Default which has occurred and is
continuing in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company is taking
or proposes to take with respect thereto.


 


(b)                                 The Company
shall, so long as any of the Notes are outstanding, deliver to the Trustee,
within 5 Business Days of any Officer becoming aware of any Default or Event of
Default, an Officers’ Certificate specifying such Default or Event of Default.


 


Section 1019.                                        Reports.  Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Commission and deliver to the
Trustee and to each Holder and to prospective purchasers of Notes, annual and
quarterly reports and such information, documents and other reports as are
specified in Section 13 or 15(d) of the Exchange Act and applicable
to a U.S. corporation subject to such sections, such information, documents and
reports to be so filed and delivered at the times specified for the filing of
such information, documents and reports under such sections; provided, however, that
the Company shall not be so obligated to file such information, documents and
reports with the Commission if the Commission does not permit such filings.


 


FOR SO LONG AS ANY NOTES REMAIN OUTSTANDING, IF AT
ANY TIME THE COMPANY IS NOT REQUIRED TO FILE WITH THE COMMISSION THE REPORTS
AND OTHER INFORMATION REQUIRED BY THE PRECEDING PARAGRAPH, THE COMPANY SHALL
FURNISH TO THE HOLDERS AND PROSPECTIVE INVESTORS, UPON THEIR REQUEST, THE
INFORMATION REQUIRED TO BE DELIVERED PURSUANT TO RULE 144A(d)(4) UNDER THE
SECURITIES ACT.


 


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Delivery of reports, information and documents required by this Section 1019
to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates.


 


Section 1020.                                        Further
Assurances.  The Company
shall, upon the request of the Trustee or the Holders of the Notes, execute and
deliver such further instruments and perform such further acts as may
reasonably be necessary or proper to carry out more effectively the provisions
of this Indenture.


 


ARTICLE ELEVEN



REDEMPTION OF NOTES


 


Section 1101.                                        Redemption.  The Notes may or shall, as the case may be,
be redeemed, as a whole or from time to time in part, subject to the conditions
and at the Redemption Prices specified in the form of Note, together with
accrued interest and Liquidated Damages, if any, to the Redemption Date
specified in the form of the Note.


 


Section 1102.                                        Applicability
of Article.  Redemption
of Notes at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such provision
and this Article.


 


Section 1103.                                        Election
to Redeem; Notice to Trustee.  The election of the Company to redeem any
Notes pursuant to Section 1101 shall be evidenced by a Board Resolution.  In case of any redemption at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Notes to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Notes to be redeemed
pursuant to Section 1104.


 


Section 1104.                                        Selection
by Trustee of Notes to be Redeemed.  If less than all the Notes are to be
redeemed, selection of such Notes for redemption shall be made by the Trustee not
more than 60 days prior to the Redemption Date, from the Outstanding Notes not
previously called for redemption, in compliance with the requirements of the
principal national securities exchange, if any, on which such Notes are listed,
or, if such Notes are not so listed, on a pro rata basis,
by lot or by such other method as the Trustee shall deem fair and appropriate
(and in such manner as complies with applicable legal requirements) and which
may provide for the selection for redemption of portions of the principal of
Notes; provided, however,
that no Notes of less than $2,000 shall be redeemed in part.


 


The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.


 


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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.


 


Section 1105.                                        Notice
of Redemption.  Notice of
redemption shall be given in the manner provided for in Section 106, at
least 30 but not more than 60 days prior to the Redemption Date, to each Holder
of Notes to be redeemed at such Holder’s registered address.  The Trustee shall give notice of redemption
in the Company’s name and at the Company’s expense; provided, however, that the Company shall deliver to the Trustee, at
least 45 days prior to the Redemption Date (or such shorter period acceptable
to the Trustee), an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in the following items.


 


All notices of redemption
shall identify the securities to be redeemed and shall state:


 


(1)                                 the Redemption
Date,


 


(2)                                 the Redemption
Price and the amount of accrued interest and Liquidated Damages, if any, to the
Redemption Date payable as provided in Section 1107, if any,


 


(3)                                 if less than
all Outstanding Notes are to be redeemed, the identification of the particular
Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount
of Notes to be redeemed and the aggregate principal amount of Notes to be
outstanding after such partial redemption,


 


(4)                                 in case any
Note is to be redeemed in part only, the notice which relates to such Note
shall state that on and after the Redemption Date, upon surrender of such Note,
the holder will receive, without charge, a new Note or Notes of authorized
denominations for the principal amount thereof remaining unredeemed,


 


(5)                                 that on the
Redemption Date the Redemption Price (and accrued interest, if any, and
Liquidated Damages, if any, to the Redemption Date payable as provided in Section 1107)
will become due and payable upon each such Note, or the portion thereof, to be
redeemed, and, unless the Company defaults in making the redemption payment,
that interest on Notes called for redemption (or the portion thereof) will
cease to accrue on and after said date,


 


(6)                                 the place or
places where such Notes are to be surrendered for payment of the Redemption
Price and accrued interest, if any, and Liquidated Damages, if any,


 


(7)                                 the name and
address of the Paying Agent,


 


(8)                                 that Notes
called for redemption must be surrendered to the Paying Agent to collect the
Redemption Price,


 


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


 


(10)                          the paragraph
of the Notes pursuant to which the Notes are to be redeemed.


 


Section 1106.                                        Deposit
of Redemption Price.  Prior to
any Redemption Date, the Company shall 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 as provided in Section 1003) an amount of money sufficient
to pay the Redemption Price of, and accrued interest and Liquidated Damages, if
any, on, all the Notes which are to be redeemed on that date.


 


Section 1107.                                        Notes
Payable on Redemption Date.  Notice of redemption having been given as
aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified (together with
accrued interest, if any, and Liquidated Damages, if any, to the Redemption
Date), and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest and Liquidated Damages, if
any,) such Notes shall cease to bear interest. 
Upon surrender of any such Note for redemption in accordance with said
notice, such Note shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, and Liquidated Damages, if any, to the
Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Notes, or one or more
Predecessor Notes, registered as such at the close of business on the relevant
Regular Record Date or Special Record Date, as the case may be, according to
their terms and the provisions of Section 311.


 


If any Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Notes.


 


Section 1108.                                        Notes
Redeemed in Part.  Any Note
which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at the office or agency of the Company maintained
for such purpose pursuant to Section 1002 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in an aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Note so surrendered; provided that
each such new Note will be in a principal amount of $2,000 or integral multiple
of $1,000 in excess thereof.


 


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ARTICLE TWELVE


 


LEGAL DEFEASANCE AND

COVENANT DEFEASANCE


 


Section 1201.                                        Company’s
Option To Effect Legal Defeasance or Covenant Defeasance.  The Company and the Guarantors may, at their
option by Board Resolution, at any time, with respect to the Notes, elect to
have either Section 1202 or Section 1203 be applied to all
Outstanding Notes upon compliance with the conditions set forth below in this Article Twelve.


 


Section 1202.                                        Legal
Defeasance and Discharge.  Upon
the Company’s exercise under Section 1201 of the option applicable to this
Section 1202, the Company shall be deemed to have been discharged from its
obligations with respect to all Outstanding Notes and each Guarantor shall be
deemed to have been discharged from its obligations with respect to its
Guarantee on the date the conditions set forth in Section 1204 are
satisfied (hereinafter, “Legal Defeasance”).  For this purpose, such Legal Defeasance means
that the Company and any such Guarantor shall be deemed to have paid and
discharged the entire Indebtedness represented by the Outstanding Notes, which
shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1205
and the other Sections of this Indenture referred to in (A) and (B) below,
and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
and upon the written request of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder:  (A) the
rights of Holders of Outstanding Notes to receive payments in respect of the
principal of, premium, if any, interest and Liquidated Damages, if any, on such
Notes when such payments are due, solely from the trust fund described in Section 1204
and as more fully set forth in such Section, (B) the Company’s obligations
with respect to such Notes under Sections 304, 305, 310, 1002 and 1003, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and the
Company’s obligations in connection therewith, including without limitation
under Article Six hereof, and (D) this Article Twelve.


 


Subject to compliance with this Article Twelve,
the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203 with
respect to the Notes.


 


Section 1203.                                        Covenant
Defeasance.  Upon the
Company’s exercise under Section 1201 of the option applicable to this Section 1203,
the Company and each Guarantor shall be released from its obligations under any
covenant contained in Section 801 and in Sections 1006 through 1019 with
respect to the Outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes
shall thereafter be deemed not to be “Outstanding” for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “Outstanding” for all other purposes hereunder (it being
understood that such Notes will not be outstanding for accounting
purposes).  For this purpose, such
Covenant Defeasance means that, with respect to the Outstanding Notes, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 501(iii), but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.


 


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Section 1204.                                        Conditions
to Legal Defeasance or Covenant Defeasance.  The following shall be the conditions to
application of either Section 1202 or Section 1203 to the Outstanding
Notes:


 


(i)                  The Company must irrevocably
deposit with the Trustee (or another trustee satisfying the requirements of
this Indenture who shall agree to comply with the provisions of this Article Twelve
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to pay the principal
of, premium, if any, interest and Liquidated Damages, if any, due on the
Outstanding Notes on the Stated Maturity or on the applicable Redemption Date
as the case may be, of such principal, premium, if any, or interest on the Outstanding
Notes;


 


(ii)               in the case of Legal
Defeasance, the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States confirming that, subject to customary assumptions
and exclusions, (A) the Company has received from, or there has been published
by, the United States Internal Revenue Service a ruling or (B) since the
Issue Date, there has been a change in the applicable U.S. federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel in the United States shall confirm that, subject to customary
assumptions and exclusions, the Holders of the Outstanding Notes will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such Legal Defeasance and will be subject to U.S. federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;


 


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


 


(iv)           no Default or Event of
Default shall have occurred and be continuing on the date of such deposit or
insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date of
deposit;


 


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


 


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


 


(vii)        the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in
the United States (which Opinion of Counsel may be subject to customary
assumptions and exclusions) each stating that all conditions precedent provided
for or relating to the Legal Defeasance or the Covenant Defeasance, as the case
may be, have been complied with.


 


Section 1205.                                        Deposited
Money and U.S. Government Securities to be Held in Trust; Other Miscellaneous
Provisions.  Subject to
the provisions of the last paragraph of Section 1003, all money and
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section 1205,
the “Trustee”) pursuant to Section 1204 in respect of the
Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law.


 


The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
Government Securities deposited pursuant to Section 1204 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding Notes.


 


Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Securities held by it as
provided in Section 1204 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent legal defeasance
or covenant defeasance, as applicable, in accordance with this Article.


 


Section 1206.                                        Reinstatement.  If the Trustee or any Paying Agent is unable
to apply any money or Government Securities in accordance with Section 1205
by reason of any legal proceeding or by any reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 1202 or 1203, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money
in accordance with Section 1205; provided, however, that if the Company makes any payment of principal
of (or premium, if any) or interest on any Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money and Government Securities
held by the Trustee or Paying Agent.


 


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


 


	
   

  	
   

  	
  ALLIANCE HEALTHCARE
  SERVICES, INC.,

  
	
   

  	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Eli H. Glovinsky

  
	
   

  	
   

  	
  Name:

  	
  Eli
  H. Glovinsky

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President, General

  Counsel and Secretary

  



 


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  THE BANK OF NEW YORK
  MELLON TRUST COMPANY, N.A.,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alex Briffett

  
	
   

  	
  Name:

  	
  Alex
  Briffett

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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